In re the Marriage of Drake F. Rooks, Appellee, and Mandy Rooks, Appellant.
County District Court No. 14DR30080 Honorable John F. Neiley,
W. Giese, P.C., James W. Giese, Grand Junction, Colorado, for
Azizpour Donnelly LLC, Katayoun A. Donnelly, Denver,
Colorado, for Appellant
TERRY Hawthorne and Fox, JJ., concur
1 This appeal from the permanent orders entered in the
dissolution of marriage proceedings between Mandy Rooks
(wife) and Drake F. Rooks (husband) presents an issue of
first impression in Colorado: how to determine who gets the
couple's cryogenically frozen embryos on dissolution of
their marriage. (Though the accurate medical term for such
unimplanted embryos is "pre-embryos, " we will
refer to them as "embryos" for simplicity.)
2 The parties already have three children together. It is
undisputed that wife used her last eggs to create the
3 Husband and wife agreed in their storage agreement with the
fertility clinic that the embryos should be discarded if
certain events (inapplicable here) occurred. But if they
dissolved their marriage, unless they could agree who would
get the embryos, the agreement left it up to the trial court
to award them. Wife argued at the permanent orders hearing
that the embryos should remain frozen in cryo-storage so that
she can have another child in the future, because otherwise
she would be infertile. Husband argued that the embryos
should be discarded.
4 In its lengthy, detailed, and carefully reasoned permanent
orders, the trial court awarded the embryos to husband. The
court relied on two alternative theories derived from the
case law of our sister states:
(1)Applying the "contract approach, " the court
construed the parties' intent as requiring the embryos to
be discarded on dissolution of their marriage, unless they
could agree otherwise.
(2)Applying the "balancing of interests approach, "
the court determined that husband's interest in not
having more children with wife outweighed wife's interest
in having another child.
5 The court determined that both approaches weighed in favor
of awarding the embryos to husband.
6 Wife appeals from the portion of the permanent orders
awarding the embryos. She obtained a stay in the trial court
to permit the embryos to remain in cryo-storage pending
completion of appellate proceedings. We affirm the trial
court's judgment under the balancing of interests
7 The parties married in 2002, and husband petitioned for
dissolution of the marriage in 2014. The major issues decided
in this dissolution case concerned property division and the
wife's plan to relocate with the parties' children to
North Carolina. The parties spent relatively little time
addressing the issues now raised on appeal.
8 All three of the parties' children were conceived using
in vitro fertilization (IVF) techniques, and in that process,
six additional embryos were created and placed in
cryo-storage. Together with the fertility clinic, the parties
signed two agreements pertaining to the embryos: a
participation agreement and a storage consent agreement.
9 The participation agreement advises the parties that they
can choose to leave the cryopreserved embryos in storage
indefinitely for future use, or they can donate or discard
them. The agreement describes the embryos as a "unique
form of 'property, '" about which the law is
still developing, and alerts the parties that it is important
to have a disposition plan for the embryos in case of the
parties' death, separation, or divorce.
10 The storage agreement addresses disposition of the
cryopreserved embryos in the event of dissolution of the
parties' marriage or a party's death.
11 The Colorado General Assembly has determined that embryos
are not "persons" and therefore are also not
"children." See § 13-21-1204, C.R.S.
2016 (construing Civil Remedy for Unlawful Termination of
Pregnancy Act as not "confer[ring] the status of
'person' upon a human embryo"); §
18-3.5-110, C.R.S. 2016 (similarly construing Offenses
Against Pregnant Women statutes); see also Deborah
L. Forman, Embryo Disposition, Divorce & Family Law
Contracting: A Model for Enforceability, 24 Colum. J.
Gender & L. 378, 423 (2013) ("All appellate
decisions to date have rejected the notion that embryos are
'children' under the law . . . .").
12 The Uniform Parentage Act (UPA) provides that a former
spouse will not be a parent of any child born as a result of
the placement of embryos through assisted reproduction
after dissolution of marriage unless the former
spouse consents to be a parent. See §
19-4-106(7)(a), C.R.S. 2016. The Colorado Probate Code
provides that such a child will not be considered a former
spouse's child, unless the former spouse gives consent to
that effect and the consent is specific to assisted
reproduction occurring after divorce. See §
15-11-120(9), C.R.S. 2016. Under the UPA, a former spouse may
withdraw consent to placement of embryos "at any
time" before they are placed. § 19-4-106(7)(b);
see also § 15-11-120(10).
13 Because there is no Colorado statute or appellate decision
addressing the specific issue raised here, namely, the
disposition of cryopreserved embryos on dissolution of
marriage, see Suzanne Griffiths & Logan Martin,
Assisted Reproduction and Colorado Law: Unanswered
Questions and Future Challenges, 35 Colo. Law. 39 (Nov.
2006), we look to other jurisdictions that have addressed the
issue. See P.W. v. Children's Hosp. Colo., 2016
CO 6, ¶ 23 ("With no Colorado case directly on
point, we look to the decisions of other jurisdictions for
14 Courts in other jurisdictions have adopted three different
approaches for determining the disposition of divorcing
spouses' cryopreserved embryos: the contract approach,
the balancing of interests approach, and the contemporaneous
mutual consent approach. See Szafranski v. Dunston,
993 N.E.2d 502, 506 (Ill.App.Ct. 2013) (Szafranski
I); see also Michael T. Flannery,
"Rethinking" Embryo Disposition Upon
Divorce, 29 J. Contemp. Health L. & Pol'y 233,
237-38 (2013); Forman, 24 Colum. J. Gender & L. at
15 Under the contract approach, an agreement between spouses
that was entered into when the embryos were created and
cryo-stored will be enforced as to the disposition of the
embryos on dissolution of marriage. See Davis v.
Davis, 842 S.W.2d 588, 597 (Tenn. 1992). In
Davis, the divorcing spouses had agreed on all terms
relating to the dissolution of their marriage except one: who
was to have "custody" of their seven cryopreserved
embryos held in storage at a fertility clinic. Id.
at 589. The Tennessee court held that, "as a starting
point" in resolving such a dispute, an agreement
regarding disposition of the embryos in the event of divorce
"should be presumed valid and should be enforced as
between the progenitors." Id. at 597.
16 Other states have since followed Tennessee's lead and
have ruled, citing Davis, that agreements between
spouses that are entered into at the time of IVF are
enforceable with respect to any agreed-upon disposition of
cryopreserved embryos on dissolution of marriage. See
Kass v. Kass, 696 N.E.2d 174, 180 (N.Y. 1998); In re
Marriage of Dahl, 194 P.3d 834, 840 (Or. Ct. App. 2008);
Roman v. Roman, 193 S.W.3d 40, 50 (Tex. App. 2006);
but see A.Z. v. B.Z., 725 N.E.2d 1051, 1053-59
(Mass. 2000) (refusing to enforce parties' agreement that
if they separated, the wife, who had already given birth to
two children using the parties' embryos, would receive
their remaining embryos for implantation).
17 Advantages of the contract approach, as the New York court
observed in Kass, are that it "reserv[es] to
the progenitors the authority to make what is in the first
instance a quintessentially personal, private decision";
it avoids litigation in "personal matters of
reproductive choice"; and it "provide[s] the
certainty needed for effective operation of IVF
programs." 696 N.E.2d at 180; see also Szafranski
I, 993 N.E.2d at 515; Roman, 193 S.W.3d at 50.
Balancing of Interests Approach
18 Though the Tennessee Supreme Court in Davis
endorsed a contract approach, it was unable to use that
approach to guide its decision because the spouses had not
entered into an agreement regarding disposition of their
embryos. This led the court to use a balancing of interests
approach, and it ultimately weighed the husband's
interest in avoiding procreation more heavily than ...