Hot Sheet

A Colorado ex-couple’s custody battle — over property, or life?

Author: Dan Njegomir - August 29, 2017 - Updated: September 11, 2017

Is it property, or is it life? (iStock image / MidoSemsem)

One of the more compelling beginning-of-life test cases that you’ve probably never heard of — one that arguably lends new meaning to “pro-life” and “pro-choice” — is playing out in Colorado’s courts. It combines latter-day cryogenic technology with an old-fashioned, bitter divorce, and it centers on a rather unusual custody battle.

And even though the matter is all about defining life before birth, it has nothing to do with the perennial political fight over Roe v. Wade or abortion rights. Of course, the stakeholders in that fight are nonetheless likely to watch the case closely.

As intriguing as all that sounds, though, it turns out the case has received scant media attention.

Here are the particulars: Onetime Coloradans Drake and Mandy Rooks were experiencing fertility issues, so they had nine eggs removed from her body and fertilized in vitro. Three of the eggs were then implanted in her, and she gave birth to three children. The six remaining fertilized eggs were frozen for future use.

Eventually, they divorced. She got custody of the three kids and the right to move them out of state. She also sought to take possession of the frozen embryos so she could have more children. Her ex fought her in court because he wanted the embryos destroyed.

He won at trial, and she appealed. Absent a Colorado precedent, the Colorado Court of Appeals looked to other states for guidance and, in a ruling last October, ended up affirming the “balancing of interests” standard that had been employed by the trial court. As Colorado Springs attorney and Gazette legal columnist Jim Flynn characterized it at the time, “Drake Rooks’ interest in not having another child from these embryos” was deemed to have “outweighed Mandy Rooks’ interest in having another child from the embryos.”

Now, the mother is appealing the ruling before the Colorado Supreme Court, and this week, the pro-life Thomas More Society announced it has filed an amicus brief in support of her legal action on behalf of its own client, the American Association of Pro-Life Obstetricians and Gynecologists. Thomas More, a nonprofit, public-interest law firm, is known for its legal advocacy on beginning-of-life issues, among other conservative causes. Yet, this case isn’t your usual pro-life/pro-choice standoff. As Thomas More attorney Rita Gitchell contends in a press release Monday:

“Neither the appellate or lower district court cited any law that permits the court to terminate the life of a human being without a compelling reason. For those who argue that Roe v. Wade permits termination of an unborn child during pregnancy, … that does not apply when a mother desires to give birth to her child. Because Mandy Rooks wants to bring her embryonic children to birth, Roe is inapplicable to this case. Roe does not grant a father the right to terminate his genetic embryonic child to avoid procreation, which has already occurred.”

And here’s Gitchell on the upshot of her group’s legal action:

“The appellate court erred in adopting a ‘balance of interest’ approach and treating the preserved human embryos as marital property in the divorce. Current science has established that these embryonic children are the result of procreation and are not property.”

Perhaps it’ll merit more media coverage this time around as the state’s highest court ponders the issue. After all, here’s a mom who is fighting a court battle for the right to choose life for her frozen embryos. Which just might make her pro-life and pro-choice at the same time. You don’t see that every day.

Dan Njegomir

Dan Njegomir

Dan Njegomir is the opinion editor for Colorado Politics. A longtime journalist and more-than-25-year veteran of the Colorado political scene, Njegomir has been an award-winning newspaper reporter, an editorial page editor, a senior legislative staffer at the State Capitol and a political consultant.