The fate of remaining frozen embryos from IVF for post-divorce couples remains uncertain after a Colorado Supreme Court ruling this week. I first learned of the ruling via Ellen Trachman, who wrote this interesting summary at AboveTheLaw.com. One note is that the court’s ruling identifies these babies as pre-embryos, aka embryos in need of a womb to develop to maturity. As I will continue to emphasize on this blog, a baby is a baby no matter its size.
Although I hope you are never in this situation, the case of Mandy and Drake Rooks is instructive in my view for several reasons:
The case clearly demonstrates our collective discomfort about the fate of frozen embryos, and the complexities of making such a decision in the absence of written guidance from the once-married parents. That this is a hugely personal and moral issue is clear in the language of the dissent, in particular, where Justices Hood wrote: “Because I believe a court should never infringe on a person’s constitutional right to avoid procreation through IVF, I disagree with the majority’s decision to entangle our courts in such deeply personal disputes by employing a multi-factor balancing test.” Justice Hood believes it is a violation of the constitutional rights of the genetic father in this case—who does not want to cede the embryos to the genetic mother—to allow the mother to keep and transfer the embryos. Essentially, one is infringing upon the right of the other to procreate (or not). The majority, however, ruled that judges in the lower courts must examine multiple criteria. Quoting from the ruling, the justices wrote judges should evaluate:
“the intended use of the party seeking to preserve the pre-embryos;
a party’s demonstrated ability, or inability, to become a genetic parent through means other than use of the disputed pre-embryos;
the parties’ reasons for undertaking in vitro fertilization in the first place;
the emotional, financial, or logistical hardship for the person seeking to avoid becoming a genetic parent;
any demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in the divorce process;
and other considerations relevant to the parties’ specific situation.”
We have successfully disassociated ourselves from the human nature of embryos—but only just. I get that this is a legal document, and that judges must be dispassionate. Thus, they chose to use the term “pre-embryo” in this case to refer to babies that are formed via IVF before transfer and implantation. But as a 2016 report in the Croatian Medical Journal (yes, there is such a thing) noted, deeply held views about bioethics and life itself play a powerful role in crafting the definitions we use to describe pre-born life in our societies. We shouldn’t let legal jargon distance us from the serious issues this case surfaces.
Adoption plays a role in this case, albeit in an somewhat unusual way. The Colorado Supreme Court notes in its ruling that the issue here is whether a parent has a right to “genetic parenthood.” An ex-husband or ex-wife might have the ability to adopt a child, the court noted, but that doesn’t solve the issue in question. Evidently past courts have used the “Can they adopt instead?” line as a deciding factor, and the Colorado court said that’s unacceptable.
Pay attention to what the lower courts decide in this case in the weeks ahead based on the six-point criteria outlined above. Nowhere does the ruling offer either parent the option of placing those frozen embryos for adoption with an outside couple.
The unspoken tragedy here is that the court seems to propose an all or nothing outcome: Either one parent has the opportunity to attempt to bring frozen embryos to term. Or, presumably, the embryos will remain frozen forever or be discarded.
The only ones without a voice are these lives that plead for justice.