Disposition of Pre-Embryos upon Dissolution of Marriage in Colorado, 0221 COBJ, Vol. 50, No. 2 Pg. 40

• Author: BY PAIGE MACKEY MURRAY
• Position: Vol. 50, 2 [Page 40]

50 Colo.Law. 40

Disposition of Pre-Embryos upon Dissolution of Marriage in Colorado

Vol. 50, No. 2 [Page 40]

Colorado Lawyer

February, 2021

FAMILY LAW

BY PAIGE MACKEY MURRAY

This article discusses recent developments in Colorado law regarding the disposition of pre-embryos upon dissolution of marriage.

In the 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.^[1] In general, in vitro fertilization (IVF) is the most common type of assisted reproductive technology.^[2] IVF involves extracting a woman's eggs from her ovaries, fertilizing them with sperm in the laboratory, and then returning them to a female patient or gestational carrier or donating them to another patient.^[3]

The IVF 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 use.^[4] The exact number of pre-embryos in storage in the United States is unknown, but researchers estimate there are at least 400,000.^[5]

Couples 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.^[6]

In 2018 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).^[7] While Rooks II was pending, the Court of Appeals was considering In re Marriage of Fabos and Olsen, released in May 2019.^[8] To date, Colorado appellate courts have published no other cases addressing this issue.

The Legal Status of IVF Pre-Embryos

One of 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 birth."^[9] Recently, the Colorado Supreme Court concluded that a "person" for purposes of the child abuse statute, CRS § 18-6-401(1) (a), does not include a fetus that is later born alive.^[10] This conclusion that a pre-embryo is not granted the same legal status as a person is shared by many courts throughout the country.^[11]

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.^[12]

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

The contract approach requires enforcement of any agreement entered into by spouses with respect to disposition of pre-embryos upon dissolution.^[13] These agreements are usually required by a clinic performing IVF services and in some states are required by statute.^[14] Commonly, clinic agreements ask spouses to choose from a number of options for disposition of the pre-embryos under a variety of situations, such as death, divorce, or abandonment of the pre-embryos.^[15]

However, 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.^[16] The agreement provided that in the event of husband's death, the pre-embryos should be "[transferred to the care of the female partner if she wishes," but if wife died, the pre-embryos should be "[t]hawed and discarded."^[17] If both died, the couple agreed the pre-embryos should be discarded.^[18] The agreement further stated that in the event of dissolution of marriage, "the disposition of our embryos will be part of the divorce/dissolution decree paperwork," and the fertility clinic "may deal exclusively with the person to whom all rights in the pre-embryos are awarded."^[19] The agreement also provided that '"[i]n the event that the divorce/dissolution decree paperwork does not address the disposition of the embryo(s),' the pre-embryos should be thawed and discarded."^[20]

The 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 resolution."^[21] As a result, the court concluded that, under the contract approach, husband should receive the pre-embryos because he wished to discard them.^[22]

The Court of Appeals and Supreme Court disagreed, finding that there was an "absence of enforceable contract terms on the issue,"^[23] and thus the contract "does not resolve how the pre-embryos should be allocated in the event of divorce."^[24]

Similarly, 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.^[25] In that case, the spouses' contract provided an option for the parties to elect a disposition for their pre-embryos in the event of death or incapacitation or when wife reached age 55.^[26] For these scenarios, the parties initialed the option to donate the pre-embryos to another couple.^[27] The contract further stated that in the event of divorce the ownership and/or rights to the pre-embryo(s) would be "as directed by court decree and/ or settlement agreement."^[28] On appeal, wife argued that because other contract provisions regarding death or reaching age 55 indicated a desire for donation, this informed the parties' intent upon divorce and indicated a general intent to donate.^[29]

The Court in Fabos and Olsen rejected wife’s arguments, concluding that the contract did not indicate what to do in the event of divorce.^[30] The Court discussed wife’s testimony that there was an oral agreement to donate the pre-embryos in the event of divorce but concluded there was insufficient evidence to find an oral agreement.^[31] The Court also pointed out that Rooks II required an “express” agreement. But the Court did not decide conclusively whether a written agreement is required.^[32]

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

In 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' respective interests.^[33] The Court began by discussing the history of reproductive rights in the United States leading to the landmark decision Roe v. Wade, which established that the constitutionally derived right of privacy "encompass [es] a woman's decision whether or not to terminate her pregnancy."^[34] The Court summarized Roe v. Wade's progeny, which affirmed an individual's ability to make his or her own decisions regarding matters involving procreation and reproduction.^[35]

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."^[36] 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 couple."^[37]

■ the demonstrated physical ability or inability of the party seeking to implant the disputed pre-embryos to have biological children through other means.^[38]

■ 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 chemotherapy."^[39]

■ the hardship for the person seeking to avoid becoming a genetic parent, "including emotional, financial, or logistical considerations."^[40]

■ either spouse's demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in the divorce proceedings.^[41] Although this factor does not appear to reflect the facts before the Supreme Court in Rooks II, it echoes concerns that had been raised by other courts over adoption of the...