BY PAIGE MACKEY MURRAY
This article discusses recent developments in Colorado law regarding the disposition of pre-embryos upon dissolution of marriage.
most recent report on assisted reproductive technology (ART),
the Centers for Disease Control (CDC) reported 284,385 ART
cycles in the United States in 2017.
process often results in the creation of more pre-embryos
than a couple can immediately use, and usually those excess
pre-embryos are cryopreserved and stored for potential future
who divorce after the cryopreservation of excess pre-embryos
may find themselves in disagreement over the future of those
unused pre-embryos. The disposition of pre-embryos upon
divorce is a developing area of law fraught with political
and emotional consequences.
and 2019 the Colorado Supreme Court and Court of Appeals
published their first opinions on the disposition of
pre-embryos of divorced couples. The first case was the
Supreme Court’s October 2018 opinion in In re Marriage
of Rooks (Rooks II).
The Legal Status of IVF Pre-Embryos
the foundational principles that guides courts in determining
how to resolve disputes over pre-embryos is whether
pre-embryos are considered "persons" under the law.
In Colorado, a pre-embryo is not granted the same legal
status as a person. CRS § 13-21-1204, involving damages
for unlawful termination of pregnancy, and CRS §
18-3.5-110, regarding criminal offenses against pregnant
women, both provide that "[n]othing in this [part 12/
article] shall be construed to confer the status of
'person' upon a human embryo, fetus, or unborn child
at any stage of development prior to live
The Three Approaches to Disposition of Pre-Embryos
In Rooks II the Supreme Court analyzed cases from other jurisdictions and enumerated three main approaches courts have adopted or combined when resolving disputes over pre-embryos:
1. interpreting the parties' contract or agreement regarding disposition of the pre-embryos;
2. balancing the parties' respective interests in receiving the pre-embryos; and/or
3. requiring the parties' mutual contemporaneous consent
regarding disposition of the pre-embryos.
The Rooks II decision was split, with the four-justice majority adopting the contract approach and, where no express contract applies, the balancing of the interests approach. A three-justice dissent, written by Justice Hood and joined by Chief Justice Coats and Justice Samour, would have adopted the mutual contemporaneous consent approach.
The Contract Approach
contract approach requires enforcement of any agreement
entered into by spouses with respect to disposition of
pre-embryos upon dissolution.
the contract terms do not always clearly determine the fate
of the pre-embryos. For instance, in Rooks II, the
written agreement with the fertility clinic did not specify
what to do with the pre-embryos in the event of divorce and
instead left the question to the courts.
district court had interpreted this language to mean that the
couple intended the pre-embryos to be thawed and discarded in
the event of divorce if they could not achieve "mutual
Court of Appeals and Supreme Court disagreed, finding that
there was an "absence of enforceable contract terms on
in Fabos and Olsen, the Court of Appeals determined
there was no express agreement on the disposition of the
pre-embryos in the event of a divorce.
Court in Fabos and Olsen rejected wife’s arguments,
concluding that the contract did not indicate what to do in
the event of divorce.
The conclusion that can be derived from these cases is that absent an express agreement indicating the parties' chosen disposition in the event of divorce, application of the contract approach will not resolve the dispute, and an oral agreement, if adequately proven and express, might suffice.
The Balancing of the Interests Approach
Rooks II, the Supreme Court concluded that in the
absence of an express agreement indicating the spouses'
intent, a court should seek to balance the parties'
In looking to other jurisdictions for guidance, the Court noted that all approaches generally seek to "(1) secure both parties' consent where possible and (2) avoid results that compel one party to become a genetic parent against his or her will except in rare circumstances." The Court then outlined factors to be considered in balancing the parties' interests, which include:
■ the intended use of the pre-embryos by the spouse who
wants to preserve them. The Court noted that "[a] party
who seeks to become a genetic parent through implantation of
the pre-embryos, for example, has a weightier interest than
one who seeks to donate the pre-embryos to another
■ the demonstrated physical ability or inability of the
party seeking to implant the disputed pre-embryos to have
biological children through other means.
■ the parties' reasons for pursuing IVF, which may
favor preservation over disposition. "For example, the
couple may have turned to IVF to preserve a spouse's
future ability to have biological children in the face of
fertility-implicating medical treatment, such as
■ the hardship for the person seeking to avoid becoming
a genetic parent, "including emotional, financial, or
■ either spouse's demonstrated bad faith or attempt
to use the pre-embryos as unfair leverage in the divorce