The Colorado Supreme Court is hearing a custody dispute over which spouse of a divorcing couple may gain custody of their frozen embryos. One parent is claiming the embryos so he can destroy them, the other, so she can bring one or more of them to birth. Unusually, they are both using arguments grounded in the US Constitution so the case may yet go to the US Supreme Court, creating a precedent that involves both the personhood of embryos and a test of Roe v Wade.
Harvard law professor Glenn 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 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 have the right not to be forced to be a genetic parent?
Absolutely says the husband, Drake Rooks, whereas his wife, Mandy Rooks, 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.”
According to attorney Katayoun Donnelly, Drake Rooks “is saying he has a constitutional right not to be a parent, but he forgets it is past the point of conception”. A woman who wanted a man to donate his sperm would have no legal right to force that, she noted. By contrast, “he has already agreed to use his sperm with the eggs. So we are in this unknown territory.”
The husband’s attorney, James Giese, argues that the current case rests on a person’s constitutional right to privacy and to not have the state unduly influence whether someone should have children.
The Thomas More Society, writing in support of Mandy, has asserted the “personhood” of the embryos and their rights, saying that what is actually at stake is the termination of a human life or the continuation of that life.