As the battle over abortion intensifies following Virginia Gov. Ralph Northam's assent to infanticide and New York's passage of an abortion-until-birth law, the U.S. Supreme Court is being asked to review a Colorado case involving frozen embryos.
At issue are embryos created by Mandy Rooks and her ex-husband, Drake, during their marriage.
Now that they have divorced, Drake Rooks wants the embryos destroyed, while Mandy wants them preserved.
Lowe- court decisions in Colorado awarded custody of the embryos to Drake Rooks for destruction. Then the state Supreme Court sent the case back to the lower courts to decide what factors can and cannot be considered in the case.
According to the Thomas More Society, which filed a friend-of-the-court brief in the case, the "embryos are those remaining in cryogenic storage after in-vitro fertilization procedures."
"Those procedures allowed Ms. Rooks to deliver a son, and later twins, while married to Drake Rooks, the children's father. Despite the couple's divorce, Ms. Rooks wants to keep the babies for future implantation. Her now ex-husband has asked to the court to deliver the six embryos to him for destruction."
The state court ruling meant the embryos are "marital property of a special character," and judges should not consider the economic capacity to afford a child, prior or currently existing children and the ability to adopt a child.
The questions presented to the high court in the petition for review aren't the type that state law codes address:
- "Whether extracorporeal embryos created during marriage are persons or a property?"
- "Whether classifying extracorporeal embryos as property and permitting one spouse to discard or donate them to a third party violates the religious rights of the other spouse who believes the embryos are ensouled."
The Thomas More Society said its special counsel, Rebecca Messall, is handling the case.
She's "requesting that the United States Supreme Court … affirm the fact that embryos are human persons, as 'recognized in law hundreds of years ago.'"
Cryopreserved embryos allowed Mandy Rooks to deliver a son, and later twins, during her marriage. She now wants to keep the babies for future implantation, the society said.
Both a district court and the Colorado Court of Appeals awarded custody to Mr. Rooks, but the Colorado Supreme Court ordered a stay of execution for the embryos because the lower courts considered what it labeled 'inappropriate factors' in attempting to balance the divorced couple's interests."
The problem is far bigger than what one trial court should address, however, the petition contends.
It asks if classifying human life as property conflicts with state and federal law, how the Constitution's preamble applies to "property" and whether embryos are entitled to substantive due process.
"Science is firm on when a person comes into being," the brief states.
"Granting human embryos the status of persons cannot be left up to fifty states, any more than the Kansas-Nebraska Act could leave the status of slaves to each state. The test of who is a 'person' must be decided for the entire nation in order to uphold the principles of 'Equal Justice Under Law,'" the petition states.
"She holds that the arguments for the personhood of Dred Scott and his family, which the courts got wrong, denying the enslaved citizens their personhood, remain as true today as they were in the infamous 1857 trial."
The petition also points out that science confirms the terms "reproduction" and "procreation" refer to a new human person, not property, and not to an in-between classification.
Society attorney Rita Gitchell said: "These cryogenically preserved children are already developing human beings, before implantation. Colorado courts are relying on their state law, which does not protect unborn children from third party liability for harm done to the unborn, and case law extracted from old, out-of-date science that had not yet understood that embryo body cells, along with the placental and other cells, are present before implantation of the embryo in the womb."
She continued: "While it is a simple fact that those who provide an egg and a sperm which unite to become an embryo become genetic parents, it is not fact that while the embryos are developing, that the parents are 'becoming genetic parents.' That is comparable to suggesting that a woman who is seven months pregnant is 'becoming pregnant.' Until the courts or legislatures grasp the facts of created life, the constitutional rights of parents to protect their created offspring are not being considered, nor are the human rights of the embryo considered. This results in human embryos being treated like chattel or property, not unlike the treatment of African slaves in the pre-abolition era."
She explained a court can terminate legal parental rights, "but can never terminate the genetic fact that these tiny embryos are their biological children."
The trial court in the case observed at one point the embryos are "biologically and scientifically 'life.'" Mandy Rooks argued then that the embryos should be treated by the courts under the "best interests" standard used for her three children.
She argued the father had already exercised his "right to procreate" and that, as the natural mother, she has a right to choose to give birth to some or all of the embryos as a fundamental liberty interest.
The case is a "first impression," meaning the first time the issue has been considered in the state.
There's no request for a ruling on its view of personhood, the filing explains.
"The six embryos are already in esse, that is, 'in being,' and therefore, petitioner and the father have already exercised their rights to procreate when they formed these six embryos. The court is not asked to decide the exact second that life begins. Rather, the record is undisputed that these are human embryos whose lives have already begun."
The Constitution's role?
"The Constitution's drafters stated that its purpose was to secure the blessings of liberty for themselves and for their posterity: 'We, the people of the United States, in order to … secure the blessings of liberty for ourselves and for our posterity, do ordain and establish this Constitution for the United States of America.'"
"'Posterity,' in the preamble, does not mean 'property,'" the brief states.