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Who Keeps The Embryos? Colorado Divorcing Couple Spar Over IVF

The question of child custody is a fairly routine one in divorce cases, but definitely not like this.

A case currently pending before the Colorado Court of Appeals pits two parties against one another in a divorce case. The issue? Who gets control of the cryopreserved embryos the couple has left over from in-vitro fertilization?

Mandy and Drake Rooks divorced in 2014. They already had three children, all conceived through in-vitro fertilization. As is usually the case, the couple had a few leftover embryos, which were kept frozen. After the divorce, though, Mandy wanted to use the embryos to have a fourth child, something that she said Drake agreed to during the marriage. Drake, on the other hand, said no. Mandy could not have a fourth child biologically through any other means, because she had no more viable eggs.

This is not the first time such a custody battle has happened. A Michigan couple once underwent a legal battle over five frozen embryos in very similar circumstances. The father did not want more children, while the mother did. The judge ended up ruling in favor of the father, citing that he had a choice of whether or not he wanted more children.

In the Colorado case, the court ruled against Mandy on the basis of consent. Because Drake was unwilling to allow his genetic material to be used for Mandy to have another child, she could not force him. Additionally, the Rooks’ child support agreement stipulated that any child under Mandy’s care would lead to an increase in Drake’s payments, which would be unfair to him if Mandy were to have a child with his genetic material against his consent.

Our Denver divorce lawyers are well-equipped to handle all matters of child custody.