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Cryo-embryos: Marital property or the result of procreation?

Before their divorce in 2014, Mandy and Drake Brooks conceived three children through in-vitro fertilization. During the IVF process, the couple produced six additional embryos that are currently in cryo-storage.

Those embryos are a major point of contention in the Rooks’ marital dissolution. Mandy wants to preserve the embryos for possible use in the future. Her husband wants them destroyed. Their agreement with the fertility clinic explicitly states that the courts would make the decision if the spouses could not find agreement as part of their divorce.

A district court decided in favor of the husband. Drake Brooks’ desire not to have offspring outweighs Mandy Brooks’ wish to have more children. The ruling explicitly states that embryos are not considered children.

Mandy appealed the decision, citing her inability to have children without the embryos. The Colorado Court of Appeals affirmed the ruling in favor of her husband.

Entering the fray are attorneys for the Thomas More Society, a pro-life, conservative law office. They filed an amicus “friend of the court” brief supporting Mandy Brooks. Special counsel Rita Gitchell argues that the “embryonic children” are the result of procreation and anything but marital property.

In addition to the court rulings supporting Drake Brooks, the Uniform Parentage Act states that an ex-spouse is not the parent of a child produced through embryo implantation after divorce unless consent is given.

Colorado state law does not address the issue at all.

Currently, the fate of the Brooks’ embryos is in the hands of the Colorado Supreme Court.

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DeShon Laraye Pullen PLC and founding attorney DeShon Laraye Pullen received many prestigious honors, including: Small Firm of the Year, Family Law Litigator of the Year, selection to Arizona Super Lawyers and a Superb, 10.0 Avvo rating.

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