The Colorado Court of Appeals ruled on a dispute case over their frozen embryos, addressing issues of personhood, reproductive autonomy, and religious beliefs –– after a lower court twice insisted on weighting the ex-wife’s religious beliefs over her ex-husband’s secular ones in applying a balancing test and allowing her to donate the embryos for procreation over his desire to discard them.

The Court of Appeals reversed.

The divorce settlement between now-former spouses had left only one remaining issue: disposition of their two remaining cryopreserved embryos. One wanted to donate them to another couple, arguing they represented human life to her, while her spouse wanted to thaw and discard them.

The signed clinic agreement only addressed disposition in the event of their mutual death, incapacity or reaching age 55 years and they had chosen donation to another couple in those circumstances. The document, however, was silent as to disposition in the event of divorce, providing instead that “ownership” of embryos upon dissolution of marriage will be “as directed by court decree and/or settlement agreement.” (SART model consents and cryopreservation agreements include dispositional instructions at divorce to attempt to avoid or reduce that uncertainty and potential litigation)

The Initial Trial Decision

After the initial trial decision, the Colorado Supreme Court decided a frozen embryo dispute without a prior dispositional agreement in In Re Marriage of Rooks (LS, ___), so the Court of Appeals “remanded” this case back to the district court with instructions to consider new factors established by the Rooks decision. In Rooks, the state supreme court held that without an agit was required to undertake a ‘balancing of interests’ framework, including weighing a non-exhaustive list of factors, including: the intended use by each party post-divorce- with more weight given to a party who wants to procreate themselves as opposed to donate for procreation, the possibility of having a genetic child through other means, the original reasons the couple pursued IVF (including fertility preservation), any emotional, financial or logistical hardships caused to the party seeking to avoid becoming a genetic parent, any acts of bad faith by the parties, as well as any other factors relevant on a case-by-case basis.

The Court of Appeals specifically instructed the trial court not to weigh the “wife’s subjective belief that the pre-embryos should be protected as human life more heavily than the husband’s interest in not procreating” as, “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.” Ignoring those instructions, the trial court again awarded the embryos to the female partner for donation based on her claims of a First Amendment Constitutional right to freedom of religion, finding that her desire to donate them for a “productive purpose” was “innately and unavoidably superior” to her ex-husband’s desire to destroy them.

Appeals Court Ruling of Error

The Appeals Court ruled this was error, noting procreative use by the party themselves- but not procreative donation- was entitled to greater weight, and that the trial court “misapplied the Rooks factors,” and failed to follow its prior instructions. While it found the free exercise of religion claim was relevant as an “additional factor beyond those articulated in Rooks,” it had been weighted too heavily. The court awarded the embryos to the male spouse, so his ex-wife would not be directly involved in their destruction, contrary to her beliefs.

The Colorado court’s distinction over the relative weight to be given religious beliefs depending on patient or donor procreative use is an interesting one, and whether other states faced with these types of question will reach similar outcomes remains to be seen. Especially in this post-Dobbs era, with states enacting a wide variety of abortion laws, many of which include definitions of when life begins that may easily include IVF embryos (see next entry), more and more complex and contentious litigation over IVF embryos and practices may be anticipated.