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So, my spouse wants to donate our embryos….

Ending a marriage takes an emotional toll on all individuals involved, especially those who have struggled with fertility issues and taken the expensive and emotional path through IVF. Since IVF requires the creation of several embryos to increase the odds of a successful pregnancy, some embryos may last longer than the marriage.

Determining the ultimate fate of any cryogenically frozen embryos can be particularly contentious and raise a lot of questions that are tough to answer. What do you do with the embryos? What if the wife wants more children, but the husband doesn’t? What if the husband wants to donate the embryos to another couple struggling with infertility, but the wife wants to destroy the embryos? Are there moral or religious implications to destroying the embryo? The Colorado Court of Appeals just provided some insight into the rights of a couple and how their moral or religious view of human life can factor into the Court’s decision.

How does the court view the embryos?
In the state of Colorado, the embryos are considered marital property but are classified as a marital property of a special character. They do not consider the embryos as human life but instead the potential for human life. (See our March 6, 2019 blog on the decision of In Re. Rooks for more information).

What if the parties cannot agree on what should happen to the embryos? Who gets the embryos?

In the divorce proceedings, the embryos will become part of the marital estate that must be distributed either through settlement or litigation. If the Court becomes involved, it will first look to see if there is an agreement between the couple as to what will happen to the embryo’s in case of divorce of the parties. Colorado Courts have taken the stance that if the parties had an agreement, the court should not get involved in the private and personal matter of what will happen to their pre-embryos.

If there is not an agreement, then the court can take one of two approaches. The first approach is to simply maintain the status quo of the embryos until mutual consent can be reached between the couple. If the couple is in a contentious high conflict divorce, this is not a viable solution.

If the couple cannot reach an agreement and the Court has to get involved, then the Court will look at a variety of factors to determine the appropriate balance between the competing rights of the couple. These factors can include what will the person ultimately do with the embryos; the couple’s original reason for undergoing IVF, and if either person has demonstrated bad faith or attempted to use the embryos as leverage while negotiating a settlement.

However, the parties’ moral or religious views may not be considered as factors. Per the recent ruling In re Marriage of Olsen, the Colorado Court of Appeals took into consideration one of the couple’s belief that the embryo was a human life and was morally opposed to the destruction of the embryos and determined those beliefs should not carry more weight than the other party’s constitutional right relating to their reproductive choice to not procreate.

Reaching a decision as to what happens to your cryogenically embryos can be overwhelming. The experienced family law attorneys at GEM Family law can help explore your options and protect your rights. If you have questions about divorce and your IVF embryos, call GEM Family Law for a free consultation today.

Authored by: Sarah Wolter, Senior Associate Attorney

Sources:
In re the Marriage of Olsen, 2019 COA 80 (Colo. App. 2019 citing In re Marriage of Rooks, 2018 CO 85, ¶¶ 63, 72.