Colorado Supreme Court Hears Important Case Re Constitutional Issues on Dispute About Frozen Preembyros – My Take on Oral Argument

By I. Glenn Cohen

On Tuesday, January 9th, the Colorado Supreme Court heard oral argument in In Re Marriage of Rooks. (Kudos to them for live streaming and archiving!)

This is the latest of a series of cases involving disputes between ex husbands and ex wives (or in some cases unmarried former partners) regarding the disposition of cryopreserved pre-embryos. These cases, that have been percolating in a large number of states for what has now been 25 years (!) and have come out in a myriad of ways on a myriad of theories as Eli Adashi and I recently detailed in the Hastings Center Report.

One thing many of these cases have in common, though, is that the Courts have avoided reaching the fundamental federal Constitutional question I wrote about now 10 years ago in the Stanford Law Review: Does the party opposing the implantation of embryos upon dissolution of the marriage have a right not to procreate recognized by the federal Constitution? I have argued that we need to realize we are talking about possible rights (plural) not to procreate and in particular separate out:

This case demonstrates well why such a distinction is important.

Because of the operation of a version of the Uniform Parentage Act Colorado has enacted, the parties argue that even if the wife can implant the preembryo over the husband’s objection he will not be held to be a legal parent (e.g., birth certificate, child support obligation) of the children. So the husband is asserting a “naked” right not to be a genetic parent, since he will not be forced to be a legal parent or a genetic parent against his will. I have written separately in the Southern California Law Review on whether such a right is a good one to endorse from a more philosophical perspective, but my main claim is that you cannot find that right in the federal Constitution – in particular it does not follow from the abortion and contraception cases.

As an academic it is always thrilling to see your work make its way into briefing, and (at the risk of being self congratulatory) petitioner (the wife’s) brief relies heavily on my argument from the 2008 piece and it was nice to see the Colorado Supreme Court engage with it.

Some general impressions of the oral argument (having been an appellate lawyer and argued a number of cases, I will emphasize the usual cautions about not reading too much into the argument).

1. No clear result/prediction. I think the Court was very engaged and appropriately struggling with what are very difficult issues. One got the impression that the more they delved into the case the more complicated they found it (which it is!) Indeed, one got the impression they may have got more than they bargained for with the constitutional issue. At one point one of the Justices mentions that regarding the questions on which they granted cert, he didn’t realize it would encompass these issues. There is some chance they may try to dismiss the case as improvidently granted.
2. Relatedly, early on the during the Petitioner’s (the wife’s) counsel’s time the Court was looking hard to try to resolve the case on non-constitutional grounds. In particular they tried to make use of language in the Colorado Statutes (copied from the UPA)

(7)(a) If a marriage is dissolved before placement of eggs, sperm, or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were to occur after a dissolution of marriage, the former spouse would be a parent of the child.

(b) The consent of a former spouse to assisted reproduction may be withdrawn by that individual in a record at any time before placement of eggs, sperm, or embryos.

Colo. Rev. Stat. Ann. § 19-4-106 (West)

One Justice  asked at oral argument whether it was possible read the language as forbidding implantation without consent of the father. Unfortunately for the court, the language cannot be read that way for several reasons (1) The UPA from which it is adopted makes clear that this is about LEGAL parentage not whether implantation occurs; (2) To read it as forbidding implantation would make the language superfluous since we would never get to the question of who is the legal parent if implantation depends on consent; (3) I would have to do a deep dive to be 100% sure, but I am pretty confident this same language has been in place in many of the other states that have faced these cases and none of them has treated it as determinative. Finally, and most importantly, even if you did read the language to bar implantation without mutual consent that does not let you avoid the constitutional question, it just tees up the question of whether the statute violates the federal constitution if read this way. Indeed, if you believe in the constitutional avoidance canon that may be a very good reason not to read it this way. Interestingly I think Respondent’s counsel conceded that he agreed with Petitioner on the reading of the statute that it did not control this case.

3. This case has the additional wrinkle I have not seen in prior ones: the wife now lives in North Carolina. This raises he question of whether that’s relevant to the operation of this statute eliminating legal parentage for objecting genetic father. The Justices showed some concern on this issue at oral argument, but I read the petitioner’s brief to claim that the Full Faith and Credit provision of the UPA (transposed into Colorado law) means North Carolina would have to recognize the declaration of non-parentage. One might worry about a contrary to public policy exception, but Petitioner claims that the same language is present in North Carolina’s law so there is no conflict of laws here. This suggests to me that the issue goes away. The issue is important because at a constitutional level it may matter if the man is only claiming a right not to be a genetic parent or whether he might be unwillingly made a legal parent as well.
4. Most of the constitutional questions at argument focused on the existence or non-existence of husband’s right not to be a genetic parent. But one might wonder whether there is a bona fide constitutional right on the part of the wife to use the embryos to be a genetic parent. It is fascinating that the U.S. Supreme Court has never returned to its case law on contraception and abortion (supporting the woman’s rights to procreate) in the question of reproductive technology. There have been a spattering of lower courts that have found that the rights to procreate apply when reproductive technology is involved – JR v. Utah, 261 F. Supp. 2d 1268 (D. Utah 2002) comes to mind – but the U.S. Supreme Court has not squarely addressed it. Still, I would be shocked if the Colorado Supreme Court becomes the first court to say that while women have rights to procreate involving coital sex, they lack them as to reproductive technologies.
5. Towards the end of Respondent’s argument, the court struggled with what it would do if it does not adopt Petitioner’s constitutional argument (and at the risk of being too emphatic the court really cannot side step the issue since her argument is that any course of action that does not give her the pre-embryos for implantation violates her constitutional rights, that is something the court has to decide one way or the other). Both it and Respondent’s counsel went back and forth between the so called “mutual consent rule” (no use of the pre-embryos for implantation absent mutual consent) or a “balancing test” that might be sensitive to things like whether the woman can reproduce again without the embryos. On this last point it is worth noting some unclarity on what the facts are since the wife apparently got pregnant during the pendency of the case without access to the pre-embryos. There were a few possibilities discussed at argument about what might go into the “balancing test” I want to highlight as I think wrong turns: (a) Best Interests Analysis: Treat this like a custody determination. As I argued in 2008 I don’t think you can really think of pre-embryos as having best interests the way they do with children. But, assuming dubitante you thought they did have interests, it seems likely that what is in their interests is to be brought into existence to a loving single mother. But I think this is just the wrong approach altogether. (b) Consider how many children mother may have had already. On the normative side one might think this could maybe be part of a rule (see my argument here, raising but not resolving) but at a constitutional level I think it is wrong-headed: we would never treat the state’s ability to curtail your ability to engage in coital reproduction as dependent on the number of children you have, so why here?
6. Some dogs that didn’t bark at the oral argument: (a) the question of waiver of the husband’s right through coitus (I discussed similar issues here). (b) The Thomas More Society’s amicus brief on the personhood of pre-embryos, which continues a litigating pattern they have attempted to get this issue to recognized in the courts (I discuss here).

So bottom line, remains very uncertain what the Colorado Supreme Court will do but I thought the court asked a lot of good questions and am excited that we might finally resolve these lingering constitutional questions and tee it up for an ultimate potential U.S. Supreme Court Review.