A custody dispute over human embryos is headed to the Colorado Supreme Court.
DENVER -- A divorced couple's fight over frozen embryos has ended up at the Colorado Supreme Court.
Justices are trying to determine who gets custody.
Drake Rooks wants the embryos destroyed. His attorney told Denver7 that Rooks does not want to father any more children.
Mandy Rooks wants to use the embryos so she can have more children. Her attorney says she has a constitutional right to do so.
Lower courts sided with dad
The trial court and the Colorado Court of Appeals both sided with Drake.
Drake's attorney, James Giese, told Denver7 the appeals court used a balancing test.
"They weighed whether mom has more than one kid," he said, "whether she is going to be able to have more and whether she can economically afford the kids."
Mandy's attorney, Katayoun Donnelly, said the father made his decision when he agreed to the fertilized eggs.
She said the eggs now belong to the gestational parent. She said it's actually a gender-neutral decision.
"If it was Mr. Rooks, under these circumstances, who wanted to go ahead and use these embryos, the answer would be the same. He should be able to do so," Donnelly said.
A decision could come as early as this summer.