Fetus floating in clouds with scales of justice

Frozen Embryos at Divorce – a Balancing Test

It was inevitable that litigation would follow. In 2018, the Colorado Supreme Court issued a ruling on the disposition of frozen embryos in a Colorado divorce when the parties’ agreement with the fertility clinic does not address divorce. Rooks.1

Rather than adopting a bright-line rule, the Court held that trial judges should apply a balancing test which considers::

  • The intended use of the pre-embryo by the spouse who wants to preserve it, and a spouse seeking to use it through implantation has “weightier interest” than one seeking to donate it. ¶ 66.
  • Whether the spouse seeking the frozen embryo can have biological children through other means, so a spouse who could not conceive any other way had a greater interest than a spouse who still could conceive. ¶ 67.
  • The original reasons for IVF treatment (e.g. to preserve one spouse’s ability to have children later) – a factor the court acknowledged favors preservation over destruction. ¶ 68.
  • Any hardship on the spouse seeking to avoid becoming a parent. ¶ 69.
  • Any bad faith by a spouse, e.g. using the frozen embryos as leverage in the dissolution. ¶ 70.
  • Any other relevant considerations. ¶ 71.

For a more comprehensive discussion of the Rooks case and legal issues surrounding frozen embryos in a Colorado divorce, see the Disposition of Frozen Embryos article in the Colorado Family Law Guide.

What Happens to Frozen Embryos in Colorado after Rooks?

The Colorado Court of Appeals just issued a ruling in Fabos,2 the first such case since Rooks. The parties were divorced pre-Rooks, and the trial court issued balanced various factors which were similar to the ones ultimately set forth in Rooks, holding that the wife could donate the couple’s two frozen embryos rather than letting them be destroyed, as the husband wanted.

The couple had two frozen embryos that the wife wanted to donate, rather than using herself (she had already had two children using different frozen embryos). The fertility agreement signed by the couple provided for donation in case of death, incapacitation, or turning 55, but did not address disposition in case of divorce.

The trial court sided with the wife, finding that her desire to donate the embryos, thereby using them for a productive purpose, outweighed the husband’s interest in avoiding procreation. The trial court also “heavily” weighed the wife’s moral belief that the embryos were human lives.

The Court of Appeals reversed, holding that no greater weight should be given to the wife’s strong moral wishes. Rather, since the wife was planning on donating them rather them using them, she had a weaker interest: “ordinarily a party not wanting to procreate should prevail when the other party wants to donate the pre-embryos instead of using them to have a child of his or her own.”

Moreover, “although wife is constitutionally entitled to her sincerely held personal moral beliefs, such beliefs cannot be accorded dispositive weight.” Fabos.4

What does the Fabos case settle? Not much, and if couples don’t address divorce in their fertility agreements, they are simply setting themselves up for prolonged litigation.

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