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Partner's Corner: The Rights of Spouses to Pre-Embryos When Divorcing


The Colorado Court of Appeals decided an important case this week concerning the rights of divorcing parties to frozen pre-embryos. In 2018, the Colorado Supreme Court decided a similar case that involved divorcing spouses who had frozen pre-embryos while married to one another. In re Marriage of Rooks, 429 P.3d 579 (Colo. 2018).

In Rooks, a married couple had signed an agreement with a fertility clinic to store their frozen pre-embryos, but the agreement did not specify what should happen to the embryos in the event that the parties divorced. Once they did divorce, the former wife wanted to keep the pre-embryos and to use them to become pregnant. The former husband did not want to have genetic children using the embryos and wanted them destroyed. The Supreme Court recognized that the case pitted the right of one spouse to procreate against the right of the other spouse not to procreate, which implicated fundamental liberty and privacy interests.

In Rooks, the Supreme Court set forth a balancing test to determine how a court should resolve that sort of dispute. The balancing test requires a court to consider:

(1)The intended use of the pre-embryos by the spouse who wants to preserve them;

(2)The physical ability of the spouse seeking to implant them to have biological children through other means;

(3)The parties’ original reasons for freezing the embryos;

(4)The hardship on the spouse who was opposed to using the embryos;

(5)Whether one of the spouses was acting in bad faith by trying to leverage the embryos to gain unfair leverage regarding other issues; and

(6)Any other relevant considerations to that specific situation.

In 2019, another couple sought relief from the Colorado legal system for a dispute regarding pre-embryos they had frozen while married. In re Marriage of Fabos and Olsen, 451 P.3d 1218 (Colo. App. 2019). In that case, the parties similarly had not specified what should happen to their embryos if they divorced, but their agreement with the fertility clinic did state that they wanted their pre-embryos to be donated to another couple if they both died, were incapacitated, or when the wife reached the age of fifty-five. In Fabos/Olsen, the wife wanted to donate the embryos, and the husband wanted them destroyed.

The Court of Appeals ultimately sent that case back to the trial court with instructions for the court to apply the balancing test that the Supreme Court set forth in Rooks. In its opinion, however, the Court of Appeals noted that “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.”

The parties went back to the trial court, which decided in favor of the wife and awarded the pre-embryos to wife for donation to third parties. Husband appealed that decision as well, resulting in a new appellate decision, In re the Marriage of Olsen, 20CA1881, that was released on June 23, 2022.

In the second round of the Fabos/Olsen litigation, the Court of Appeals criticized the trial court for “elevating wife’s personal moral beliefs over husband’s constitutional right to avoid procreation.” The Court of Appeals found that it was not proper for the court to evaluate the subjective importance of each party’s constitutionally-based beliefs – either the wife’s religious beliefs or the husband’s secular beliefs. Ultimately, the Court of Appeals applied the Rooks factors itself and reversed the trial court’s order. The Court of Appeals awarded the pre-embryos to the husband so that he could discard them.

For couples undergoing invitro fertilization, the clear take-away from this string of appellate cases is to think carefully when going through that process about what they want done with their pre-embryos if they end up divorcing. Had either of the couples in the Rooks or Fabos/Olsen cases included language in their initial fertility agreements discussing indicating what they wanted to happen in the event of divorce, they would not have needed extensive litigation to resolve those disputes. Making that decision when parties are beginning the process of invitro fertilization also reduces the risk that either party will act in bad faith at the time of divorce to use the existing pre-embryos as leverage or to punish a former partner for issues that are unrelated to their procreation goals. It is also a good reminder for anyone going through a divorce who has utilized invitro fertilization prior to their divorce to make sure to address the issue of any remaining pre-embryos as part of the divorce process.

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