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Colorado Supreme Court Considers Embryo Fate After Divorce

With the advances in science and medicine and the evolving definition of family, courts are being asked to consider what happens with biological material such as embryos when the parties cannot agree following a divorce. This is a hotly debated issue in the media as well as within domestic relations law that raises various constitutional and ethical issues.

In Colorado, the Supreme Court will be considering the fate of embryos of a divorced couple who, during their marriage, agreed to create embryos through the in-vitro fertilization process. The Court will have to decide whether to order the embryos destroyed as the father wants or for them to be preserved as requested by the mother. The decision will have an important impact on cases going forward. 

The couple, Mandy and Drake Rooks, went through IVF treatments during their marriage. They successfully conceived three children, and six embryos remained in cryo-storage at the time of their divorce.

After the couple divorced, the mother wished to preserve the embryos in case she decided to conceive more children in the future. The father did not wish to have the embryos preserved, and so far the lower courts have agreed with him. 

When the parties agreed to create the embryos, their agreement if they were to get divorced was simply that the courts would decide the issue in the event of a disagreement. This question has never been determined by a court of law in Colorado, nor do Colorado Statutes address the issue. The Colorado General Assembly, however, has decided that embryos are not people and thus they should be addressed as property in a divorce rather than as children.

This case presents a good example of the importance of drafting thorough agreements for assisted reproduction as well as addressing these critical questions when you are divorcing. By addressing this potential challenge earlier, the couple may have avoided lengthy and costly litigation, including appeals to the Colorado Court of Appeals and the Colorado Supreme Court.

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