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What Happens to Frozen Embryos in the Event of Divorce?

With an estimated eight million children having been born using IVF, there is no question that in vitro fertilization (“IVF”) has served as a break through option for families struggling to conceive children. As medical and technological advances assist couples seeking to have children, courts have had to address the sensitive issue of determining which parent should receive fertilized cryogenically frozen embryos when parties decide to divorce. In October of 2018, the Colorado Supreme Court provided Colorado courts with new guidelines on how courts should weigh the interests of the respective parties in cases like these.

IVF is an assisted reproductive technology (“ART”), which uses the extraction of eggs, retrieval of sperm samples, and combining the two in a laboratory dish to be transferred to a uterus to assist with fertilization and facilitate pregnancy. IVF is often used for women and men who struggle with fertility issues and have been unsuccessful in conceiving a child through traditional means. IVF often produces multiple fertilized embryos which can be cryogenically frozen for later use. Fertility clinics often have clients sign contracts; such as medical consent forms, which may dictate how the fertilized cryogenically frozen embryos are to be used, specifically in the case of divorce.

Drake and Mandy Rooks were a married couple who sought the use of IVF to assist in conceiving children. In re Marriage of Rooks, 429 P.3d 579 (Colo. 2018). The fertility clinic provided a medical consent form which stated that, if the couple was to divorce, the court would have final authority regarding who would obtain the rights to the embryo for possible use. Id. The parties subsequently divorced, and Mr. Rooks was awarded the right to the embryos as property. Mr. Rooks sought to have the embryos destroyed. Id. Both the District Court and the Colorado Court of Appeals agreed with Mr. Rooks and awarded him the embryos. Ms. Rooks appealed to the Colorado Supreme Court, for which the Court issued its ruling on October 29, 2018. Id.

First, the Court held that, in cases of divorce, pre-embryos are marital property of a special character. Id. In resolving disagreements over a couple’s cryogenically frozen preserved pre-embryos when a couple divorces, the Colorado Supreme Court held that a court should first look to any existing agreement expressing the spouses’ intent regarding the disposition of the embryos in the event of divorce. Id.

Absent such an agreement, the court should seek to balance the parties’ respective interests when awarding the pre-embryos. Id. The Colorado Supreme Court found the following factors should be considered by the court when balancing the parties’ respective interests, including:
1. The intended use of a party seeking to preserve disputed pre-embryos;
2. Demonstrated physical ability, or inability, of a party seeking to implant disputed pre-embryos to have biological children through other means; parties’ original reasons for pursuing IVF;
3. The hardship for a person seeking to avoid becoming a genetic parent to an embryo should it be implanted and carried to full-term, including emotional, financial, or logistical considerations; and
4. Either spouse’s demonstrated bad faith or attempt to use pre-embryos as unfair leverage in divorce proceedings. Id.

The Court found that other factors may be relevant on a case-by-case basis. Id.

The Colorado Supreme Court also held that the following factors should not be considered by a court, including:
1. Whether the party seeking to become a genetic parent using the pre-embryos can afford another child;
2. The sheer number of a party’s existing children; or
3. Whether a spouse seeking to use the pre-embryos to become a genetic parent could instead adopt a child or otherwise parent non-biological children. Id.

It is likely that the Colorado Supreme Court found these factors to be inappropriate given the restrictions it would place on a party’s constitutional rights, potentially limiting the use of a pre-embryo to parents based on their financial circumstances.

Ultimately, the Colorado Supreme Court remanded the case (sending it back to the trial court) to balance these factors. This decision is significant in both providing specific factors for a trial court to consider when deciding who should be awarded an embryo, while also limiting the court’s ability to consider inappropriate factors that may violate a potential parent’s rights. What will happen to Drake and Mandy Rook’s embryos has yet to be decided, but their conflict has provided important guidance for similar cases in Colorado.

If you have used IVF and are considering separating from your spouse, you should speak with a seasoned family law attorney as soon as possible to discuss your particular situation and how such frozen pre-embryos might be handled in your case. At GEM Family Law, our well-respected attorneys can help you understand your rights and options.

Authored by: Anthony J. Zarsky, Esq., Associate Attorney

1. European Society of Human Reproduction and Embryology (3 Jul 2018). “More than 8 million babies born from IVF since the world’s first in 1978” Science Daily. Retrieved 1 Mar 2019.

2. In re Marriage of Rooks, 429 P.3d 579 (Colo. 2018)