A Whole New Take on "Splitting the Baby"

The Colorado Supreme Court created new guidelines for what divorcing spouses can do with frozen embryos when the two cannot come to an agreement.

“This landmark ruling addresses for the first time in Colorado how to deal with frozen embryos in a divorce,” said attorney Rich Harris. “Some may be shocked to learn that there are some situations where someone could be forced to become a parent against their will.”

The late October judgment determined that courts must take both parties interests into account when deciding what happens to the embryos, and included a list of factors that can and cannot be considered when making those decisions.

Judges are required to:

• Consider the emotional and/or financial hardships a person who does not want to become a parent would face;
• Consider whether a person could have children without the frozen embryos;
• Consider how both people would use the frozen embryos.

Judges cannot:

• Consider whether a person could raise or adopt non-biological children;
• Consider how many children either parent already has;
• Consider if either person wants to bring the embryos to term.

However, the ruling was not unanimous. Three of the Colorado Supreme Court Justices did not agree with the majority opinion, arguing that courts should not be in a position to force a person to become a parent. They argued that both donors should instead agree to either use or destroy the frozen embryos, and that if an agreement cannot be reached then the embryos should remain frozen in storage.

“The decision to have children is one of the most consequential choices people make in life,” Justice William Hood wrote in the dissenting opinion. “The considerations that go into it are numerous and personal; it is not a decision that most would leave to their dearest friends, let alone the state.”

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