During three emotional days of divorce talks, Drake and Mandy Rooks managed to agree on how to divide up almost every aspect of their old lives down to the last piece of furniture. Only one thing remained: the frozen embryos.
There were six of them, created from his sperm and her eggs, and they had been left over from when the couple had gone through in vitro fertilization some years earlier.
The couple had had three children using the technology, and Drake was done. He didn’t want any more children in general, and certainly not with Mandy. She felt differently. She had always imagined a large family and, given her trouble getting pregnant, she thought the embryos were her only hope for having more babies. She wanted them preserved.
The dispute is one of a number of embryo-custody battles that have landed in the courts over the past quarter-century, resolved by different judges in different states with no consistent pattern. Rulings sometimes have awarded the frozen contents to the parent who wanted to use them, while other times determining that they could be discarded.
On Tuesday, the Colorado Supreme Court will hear oral arguments in the Rookses’ case. Although several other cases have made their way to states’ high courts, legal experts say the issues here are different.
“Constitution questions are front and center in a way that they have not been in the other cases,” said Harvard law professor Glenn Cohen. And if the judges decide the Rookses’ dispute on such grounds, that would allow it to be appealed to the U.S. Supreme Court – where a ruling would apply nationwide.
Cohen said the central issue focuses on how to balance one person’s constitutional right to procreate with another’s countervailing constitutional right to not procreate. The question parallels similar arguments used in other reproductive health cases, namely the Supreme Court’s landmark 1973 abortion decision in Roe v. Wade. If women have the right to not be forced to be a gestational parent, do men – or women – have the right not to be forced to be a genetic parent?
Absolutely, says Drake Rooks, 50. “It just seems like a guy should be able to decide whether he wants more children or not and with whom,” he said in an interview last week.
Mandy Rooks, who is 10 years his junior, flips the argument and comes to the opposite conclusion. “No one,” she said in an emailed statement, “has the right to tell me that I have to kill my offspring.”
By ARIANA EUNJUNG CHA | The Washington Post – January 8, 2018
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