Frozen embryos

Frozen embryos

The Colorado Supreme Court, in a state where a Democrat wrote the first state law liberalizing abortion six years before Roe v. Wade, has sided with life in a case concerning embryos.

The embryos were created in a lab through in-vitro fertilization but never implanted.

They hold the potential to be a unique human being but often are considered as no more than property. In this case, they were “marital property” that complicated a divorce case.

According to the Thomas More Society, which filed a friend-of-the-court brief in the case, the ruling from the state’s high court “sends the case back to the lower court with the orders about what factors they can and not consider about what happens to these cryopreserved offspring of a newly divorced couple.”

Earlier, a judge ruled against preserving the embryos, as the wife requested, and for their destruction, as the husband wanted. An appeals court affirmed the decision, but the state Supreme Court reversed the ruling and returned the case to the judge.

“The Thomas More Society filed the brief on behalf of the American Association of Pro-Life Obstetricians and Gynecologists with the Colorado Supreme Court in support of Petitioner Mandy Rooks, the mother of six cryopreserved babies. The embryos are those remaining in cryogenic storage after in-vitro fertilization procedures. Those procedures allowed Ms. Rooks to deliver a son, and later twins, while married to Drake Rooks, the children’s father. Despite the couple’s divorce, Ms. Rooks wants to keep the babies for future implantation. Her now ex-husband has asked to the court to deliver the six embryos to him for destruction,” the legal team explained.

The state Supreme Court said that some of factors considered by the lower courts could not be used to determine who is awarded the embryos, which they class as “marital property of a special character.”

The court addressed three aspects that may not be considered in weighing the parties’ interests, each of which had been improperly addressed by the trial and appellate courts. They are the economic capacity to afford a child, prior or currently existing children and the ability to adopt a child.

“The Colorado Supreme Court concluded that because the lower courts considered these inappropriate factors in attempting to balance the divorced couples’ interests, the judgment of the court of appeals must be reversed and the case remanded to the trial court with instructions to balance the parties’ interests appropriately,” the society said.

Special Counsel Rita Gitchell explained: “These cryogenically preserved children are already developing human beings, even before implantation. Courts are relying on case law extracted from old, out-of-date science, that had not yet understood that the embryo is already fully formed and alive even before it is implanted in the womb.

“While it is a simple fact that those who provide an egg and a sperm which unite to become an embryo become genetic parents once they unite, it is not a fact that while the embryos are developing, the parents are ‘becoming genetic parents,’ which would be comparable to suggesting that a woman who is seven months pregnant is ‘becoming pregnant.’ Until the courts or legislatures grasp the facts of created life, neither the constitutional rights of parents to protect their created offspring will not be protected, nor are the human rights of the embryo will not be protected. As a result, human embryos are being treated like chattel or property, just like slaves in the pre-abolition era.”

Gitchell said the Rooks “are forever genetic parents of these created embryos. A court can terminate his or her legal parenthood, but can never terminate the genetic fact that these tiny embryos are their biological children.”

The Colorado Supreme Court considered “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.”

The ruling said the lower court could not consider “whether the party seeking to become a genetic parent using the pre-embryos can afford a child. Nor shall the sheer number of a party’s existing children, standing alone, be a reason to preclude preservation nor use of the pre-embryos. Finally, courts should not consider whether the party seeking to become a genetic parent using the pre-embryos could instead adopt a child or otherwise parent non-biological children.”

Significantly, justices Hood, Coats and Samour said they would have affirmed the lower ruling against the woman, saying the courts never should be involved “in such deeply personal disputes.”

“I believe a court should never infringe on a person’s constitutional right to avoid procreation,” Hood wrote.

Hood wrote that Ms. Rooks cannot use the embryos because Mr. Rooks vetoed her plan.

“Where the decision is ultimately a private one between two people, the court need not get involved.”

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