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In re Marriage of Rooks

Court of Appeals of Colorado, Fourth Division

October 20, 2016

In re the Marriage of Drake F. Rooks, Appellee, and Mandy Rooks, Appellant.

         Garfield County District Court No. 14DR30080 Honorable John F. Neiley, Judge

          James W. Giese, P.C., James W. Giese, Grand Junction, Colorado, for Appellee

          Azizpour Donnelly LLC, Katayoun A. Donnelly, Denver, Colorado, for Appellant

          JUDGE 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 embryos.

         ¶ 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 approach.

         I. Background

         ¶ 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.

         II. Colorado Law

         ¶ 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 persuasive guidance.").

         III. Other Jurisdictions

         ¶ 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 383-86.

         A. The Contract Approach

         ¶ 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.

         B. The 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 ...

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