In re Marriage of Rooks

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 15CA990

          Attorneys for Petitioner: Azizpour Donnelly, LLC Katayoun A. Donnelly Denver, Colorado

          Attorneys for Respondent: James W. Giese, P.C. James W. Giese Cheryl J. Lee Grand Junction, Colorado

          Attorneys for Amicus Curiae Academy of Adoption and Assisted Reproduction Attorneys: Sherman & Howard L.L.C. Christopher M. Jackson Rajesh Kukreja Denver, Colorado Grob & Eirich, LLC Seth Grob Lakewood, Colorado

          Attorneys for Amicus Curiae American Association of Pro-Life Obstetricians and Gynecologists: Thomas More Society Thomas Olp, Rita Louise Lowery Gitchell Chicago, Illinois Messall Law Firm, LLC Rebecca Messall Englewood, Colorado

          Attorneys for Amicus Curiae Colorado Chapter of the American Academy of Matrimonial Lawyers: David M. Johnson Colorado Springs, Colorado Willoughby & Associates Kim Willoughby Denver, Colorado

          Attorneys for Amicus Curiae The Colorado Women's Bar Association: Brownstein Hyatt Farber Schreck, LLP Carrie E. Johnson Amanda K. Houseal Denver, Colorado

          OPINION

          MÁRQUEZ, JUSTICE

         ¶1 In vitro fertilization ("IVF") has given individuals and couples who are unable to conceive conventionally the opportunity to have genetic children. IVF technology permits the pre-embryos created through this process to be cryogenically frozen and later implanted in the carrier's uterus to be brought to term. IVF thus allows individuals and couples to delay childbearing while preserving the pre-embryos and the possibility of future children. However, when married couples turn to this technology and later divorce, IVF can present a host of legal dilemmas, including how to resolve disagreements over the disposition of cryogenically preserved pre-embryos that remain at the time of dissolution.

         ¶2 Here, a written agreement with the fertility clinic signed by Ms. Mandy Rooks and Mr. Drake Rooks fails to specify what should be done with their remaining pre-embryos in the event of divorce. Instead, per their agreement, the couple has turned to the dissolution court to resolve their dispute. Ms. Rooks wishes to keep the couple's pre-embryos to use them to become pregnant. Mr. Rooks does not want to have genetic children using the pre-embryos and wishes to have them discarded.

         ¶3 We are asked to decide how a court should determine, in dissolution of marriage proceedings, which spouse should receive remaining cryogenically preserved pre-embryos produced by the couple during their marriage.^[1] Although this case fundamentally concerns the disposition of a couple's marital property, it presents difficult issues of procreational autonomy for which there are no easy answers because it pits one spouse's right to procreate directly against the other spouse's equivalently important right to avoid procreation, and because the fundamental liberty and privacy interests at stake are deeply personal and emotionally charged. And although Colorado statutes touch on some aspects of assisted reproduction, they do not address what should happen with a couple's cryogenically preserved pre-embryos when the couple divorces. Thus, in the absence of specific legislative guidance in these circumstances, we adopt an approach that seeks to balance the parties' interests given the legislature's general command in dissolution proceedings requiring the court to divide the marital property equitably.

         ¶4 Considering the nature and equivalency of the underlying liberty and privacy interests at stake, a court presiding over dissolution proceedings should strive, where possible, to honor both parties' interests in procreational autonomy when resolving disputes over a couple's cryogenically preserved pre-embryos. Thus, we hold that a court should look first to any existing agreement expressing the spouses' intent regarding disposition of the couple's remaining pre-embryos in the event of divorce. In the absence of such an agreement, a court should seek to balance the parties' interests when awarding the pre-embryos. In so doing, a court should consider (1) the intended use of the pre-embryos by the spouse who wants to preserve them (for example, whether the spouse wants to use the pre-embryos to become a genetic parent him- or herself, or instead wants to donate them); (2) the demonstrated physical ability (or inability) of the spouse seeking to implant the pre-embryos to have biological children through other means; (3) the parties' original reasons for undertaking IVF (for example, whether the couple sought to preserve a spouse's future ability to bear children in the face of fertility-implicating medical treatment); (4) the hardship for the spouse seeking to avoid becoming a genetic parent, including emotional, financial, or logistical considerations; (5) a spouse's demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in the divorce proceedings; and (6) other considerations relevant to the parties' specific situation. However, a court should not consider whether the spouse seeking to use the pre-embryos to become a genetic parent can afford a child. Nor shall the sheer number of a party's existing children, standing alone, be a reason to preclude implantation of the pre-embryos. Finally, a court should not consider whether the spouse seeking to use the pre-embryos to become a genetic parent could instead adopt a child or otherwise parent non-biological children.

         ¶5 Here, the parties' written agreement does not squarely resolve how remaining cryogenically preserved pre-embryos should be allocated in the event of divorce, and thus, for purposes of this dissolution proceeding, the disposition of these remaining pre-embryos must be resolved by balancing the parties' interests. Because the trial court and court of appeals considered certain inappropriate factors in attempting to balance the parties' interests here, we reverse the judgment of the court of appeals and remand the case with directions to return the matter to the trial court to balance the parties' interests under the framework we adopt today.

         I. Facts and Procedural History

         ¶6 Petitioner Ms. Mandy Rooks and Respondent Mr. Drake Rooks married in 2002. They separated in August 2014, and Mr. Rooks filed a petition for dissolution of marriage the following month. When the trial court entered its final orders in the dissolution proceedings in 2015, Mr. and Ms. Rooks had three children, and Ms. Rooks was not pregnant.

         ¶7 Mr. and Ms. Rooks used IVF to have their three children. In 2011, and again in 2013, they entered into agreements with the Colorado Center for Reproductive Medicine ("CCRM") and Fertility Laboratories of Colorado ("FLC") for the IVF services. The agreements identify Ms. Rooks as the "Female Patient" and Mr. Rooks as the "Spouse/Partner." These agreements provide information about the IVF and cryopreservation process.

         ¶8 IVF is a procedure that helps those facing fertility issues to become pregnant. The technique involves several steps: (1) developing eggs in the contributor's ovaries using hormones to stimulate ovulation, (2) removing the eggs from the contributor's ovaries, (3) placing the eggs and sperm together in a laboratory to allow fertilization to occur, and (4)transferring fertilized pre-embryos into the carrier's uterus.

         ¶9 As described in the agreements with CCRM and FLC, the purpose of cryopreservation is to preserve excess pre-embryos produced in an IVF treatment cycle in order to (1) reduce the risks of multiple gestation, (2) preserve fertility potential in the face of certain medical procedures, and (3) minimize the medical risk and cost to the patient by decreasing the number of hormone stimulation cycles and egg retrievals.

         ¶10 According to the agreements, pre-embryos are frozen on day 1, 2, 3, 5, or 6 after fertilization. The pre-embryos frozen on day 1 are at the pronuclear stage, when the single cell zygote has two nuclei. Pre-embryos frozen on day 2 or day 3 are at the multicellular stage, when the pre-embryo has four to eight cells. In most cases, pre-embryos are frozen on day 5 or 6 at the blastocyst stage, when the pre-embryo has eighty or more cells, an inner fluid-filled cavity, and a small cluster of inner cells. The FLC embryologists transfer the pre-embryos to a special solution where they are cooled to -35° C in a machine designed to control the rate of freezing. The pre-embryos are then plunged directly into liquid nitrogen at -196° C (-321° F). Finally, the frozen pre-embryos are transferred to storage containers and maintained at a temperature of -196° C (-321° F) until they are thawed.

         ¶11 Although the couple's agreements with CCRM and FLC use the terms "embryo" and "pre-embryo" interchangeably, ^[2] we use the term "pre-embryos" in this opinion to refer to eggs that have been fertilized using the IVF process but not implanted in a uterus. The hearings before the trial court did not include testimony regarding the medical aspects of the IVF process or the stages of development of the pre-embryos at issue in this case. In the absence of such trial testimony, other courts have looked to secondary sources discussing the correct terminology. See McQueen v. Gadberry, 507 S.W.3d 127, 134 n.4 (Mo.Ct.App. 2016) ("'Pre-embryo' is a medically accurate term for a zygote or fertilized egg that has not been implanted in a uterus. It refers to the approximately 14- day period of development from fertilization to the time when the embryo implants in the uterine wall and the 'primitive streak,' the precursor to the nervous system, appears. An embryo proper develops only after implantation. The term 'frozen embryos' is a term of art denoting cryogenically preserved pre-embryos." (quoting Elizabeth A. Trainor, Annotation, Right of Husband, Wife, or Other Party to Custody of Frozen Embryo, Pre-embryo, or Pre-zygote in Event of Divorce, Death, or Other Circumstances, 87 A.L.R. 5th 253 (2001))). As the court of appeals noted below, the medically accurate term for the not-yet-implanted fertilized eggs at issue here is "pre-embryos." See In re Marriage of Rooks, 2016 COA 153, ¶ 1, ___ P.3d ___.

         ¶12 Both the 2011 and 2013 agreements with CCRM and FLC include an "Embryo and Pre-Embryo Cryopreservation/Storage Consent" form with a "Disposition Plan" recording the couple's decisions regarding the disposition of the frozen pre-embryos under certain scenarios. Mr. and Ms. Rooks selected the same options in both the 2011 and 2013 disposition plans. For example, in the event of Mr. Rooks's death, the couple agreed the pre-embryos should be "[t]ransferred to the care of the female partner if she wishes," but in the event of Ms. Rooks's death, the pre-embryos should be "[t]hawed and discarded." In the event they both died, the couple agreed the pre-embryos should be discarded.

         ¶13 The disposition plans further state that in the event of divorce or dissolution of marriage, "the disposition of our embryos will be part of the divorce/dissolution decree paperwork," and that FLC may deal exclusively with the person to whom all rights in the pre-embryos are awarded. The plans also provide that "[i]n the event that the divorce/dissolution decree paperwork does not address the disposition of the embryo(s)," the pre-embryos should be thawed and discarded.

         ¶14 In 2015, the trial court held an evidentiary hearing and issued its final orders in the dissolution of marriage case. Relevant here, the couple disagreed about what to do with the pre-embryos that were still in storage under the 2011 and 2013 agreements with CCRM and FLC. Ms. Rooks wished to preserve the pre-embryos for future implantation; at the hearing, she testified that she wished to have more children but, to her knowledge, she was not able to have further children "naturally." Mr. Rooks wished to thaw and discard the pre-embryos; he testified that he did not wish to have more children from his relationship with Ms. Rooks.

         ¶15 The trial court devoted nearly twenty pages of discussion in its final orders to the disposition of the couple's six remaining cryogenically preserved pre-embryos. It first reasoned that the pre-embryos are not "persons" under Colorado law. Although it referenced other states' treatment of pre-embryos in judicial opinions, it based this conclusion on Colorado statutes and case law.

         ¶16 After surveying the law regarding frozen pre-embryo disputes in other jurisdictions, the trial court identified three approaches for resolving such disputes: (1) the contract approach, which looks to a prior agreement between the parties to determine their intent regarding the disposition of the pre-embryos; (2) the balancing of interests approach, which evaluates the parties' competing interests in receiving the pre-embryos; and (3) the contemporaneous mutual consent approach, which prevents any use or disposition of the pre-embryos without the written consent of both parties. The trial court was most persuaded by the application of the contract approach and concluded that it is most consistent with Colorado law. The court further reasoned that if the parties' agreement did not specifically address the disposition of the pre-embryos, or was "so ambiguous as to be unenforceable," the court would apply the balancing approach. It rejected the contemporaneous mutual consent approach, reasoning that such an approach "merely grants one party the right to make a decision by default."

         ¶17 Starting with the contract approach, the court reviewed the text of the parties' 2011 and 2013 agreements with CCRM and FLC. It noted that the disposition plans did not specify how the dissolution court should determine which spouse should receive the pre-embryos. Rather, the plans stated that if the dissolution decree awarded the pre-embryos to one spouse, the clinic would deal exclusively with that spouse regarding disposition of the pre-embryos. Alternatively, the plans provided that if the parties' divorce decree did not address disposition of the pre-embryos, the pre-embryos would be thawed and discarded. To determine which spouse should receive the pre-embryos, the court looked to the agreement as a whole and concluded that (1) the agreement did not allow either spouse to "unilaterally" thaw and implant the pre-embryos without the other's consent, and (2) the couple intended that the pre-embryos should be thawed and discarded in the event of divorce where they could not achieve "mutual resolution." Therefore, the court concluded that under the contract approach, Mr. Rooks should receive the pre-embryos.

         ¶18 The trial court then proceeded to evaluate the dispute under the balancing of interests approach as well, weighing Mr. Rooks's "inherent privacy right not to conceive children" against Ms. Rooks's "right to become a parent."

         ¶19 The court reasoned that Mr. Rooks had the right to avoid the burdens of parenthood. It observed that although Colorado "does not statutorily impose support and other parental obligations on a non-consenting genetic parent," Mr. Rooks could potentially face financial obligations based on a credit for an additional child on Ms. Rooks's child support worksheet. It further observed that the laws in North Carolina (where Ms. Rooks had since relocated) could be different from those in Colorado and could potentially subject Mr. Rooks to financial obligations should Ms. Rooks seek to modify or enforce her support order there. The court also noted the emotional and psychological implications for Mr. Rooks of having a biological child, stating that, "Even if [Mr. Rooks] is not legally obligated to support the new child, there are moral and social obligations that cannot be ignored."

         ¶20 In addition to these concerns, the trial court considered the potential effects of an additional child on the best interests of the three existing children from the marriage. The court posited that, for parenting time and other reasons, it could be detrimental for the existing children to have an additional sibling who would be the genetic but not legal child of Mr. Rooks.

         ¶21 Regarding Ms. Rooks's desire to use the pre-embryos to have additional children, the court reasoned that because Ms. Rooks already had three children, discarding the pre-embryos would not deprive her of her only chance to become a mother. It also expressed concerns about Ms. Rooks's financial ability to provide for another child, noting that she has no income and that one of the couple's three children has a significant medical condition.

         ¶22 Overall, the court found that Mr. Rooks's right "not to be forced to become a genetic parent" outweighed Ms. Rooks's "desire to preserve the [pre-]embryos and possibly have more children." Thus, the court determined that the balancing of interests approach also weighed in favor of awarding the pre-embryos to Mr. Rooks.

         ¶23 Ms. Rooks appealed from the portion of the permanent orders awarding the pre-embryos to Mr. Rooks, contending that (1) the trial court erred in its interpretation of the agreements regarding the disposition of the pre-embryos, (2) the trial court erred as a matter of law in considering certain factors in its balancing of interests calculation, and (3) the trial court's consideration of her other children and financial situation violated her constitutional rights.^[3]

         ¶24 The court of appeals affirmed the trial court's ruling. Like the trial court, the court of appeals discussed the three basic approaches used in other jurisdictions for determining the disposition of divorcing spouses' cryopreserved pre-embryos: the contract approach, the balancing of interests approach, and the contemporaneous mutual consent approach. Marriage of Rooks, ¶¶ 14-22. The court of appeals concurred with those courts that have adopted the contract approach but also concluded that, in the absence of a valid agreement between the spouses regarding the disposition of remaining pre-embryos in the event of divorce, the court should seek to balance the parties' interests. Id. at ¶ 24.

         ¶25 Reviewing the trial court's interpretation of the written storage agreement de novo, the court of appeals concluded that the trial court erred by inferring contract terms that did not exist. Id. at ¶¶ 28, 31, 36. "Given the absence of enforceable contract terms on the issue," the court of appeals construed the agreement to require the dissolution court to determine who should receive the pre-embryos. Id. at ¶ 37.

         ¶26 The court of appeals then reviewed the trial court's decision under the balancing of interests test for an abuse of discretion, reasoning that the application of that test is an exercise of the court's equitable discretion. Id. at ¶ 40. It concluded that the trial court properly exercised its discretion in balancing the parties' competing interests and awarding the pre-embryos to Mr. Rooks. Id. at ¶ 41.

         ¶27 The court of appeals observed that the pre-embryos did not present Ms. Rooks's only opportunity to bear a child; Ms. Rooks had already borne three children. Id. at ¶ 44. Accordingly, it reasoned, the trial court could reasonably conclude that Mr. Rooks's interest in not producing additional offspring prevailed over Ms. Rooks's interest in having a fourth child. Id. at ¶ 45. The court of appeals also concluded that the trial court "appropriately considered [Mr. Rooks's] emotional and psychological well-being, in that he would likely feel a moral and social obligation for a fourth biological child, even though he may have no legal obligation to the child." Id. at ¶ 46. It rejected Ms. Rooks's argument that the trial court erred as a matter of law by considering the potential risk that Mr. Rooks could face financial obligations for a child eventually born using the pre-embryos. Id. at ¶¶ 47-49. And it disagreed with Ms. Rooks that the trial court impermissibly implied that she should not have another child; rather, the trial court properly considered the inevitable financial consequences of another child for Mr. Rooks. Id. at ¶ 49.

         ¶28 The court of appeals further concluded that, in balancing the couple's competing interests, the trial court did not violate Ms. Rooks's constitutional rights^[4] when it discussed the fact that she already had three children; considered the potential economic impact of another child; raised concerns about the impact of another child on the parties' existing children; and remarked on Ms. Rooks's ability to manage "such a large family" as a single parent, given her lack of employment and financial resources and the significant health issues faced by one of the children. Id. at ¶ 56. The court of appeals rejected Ms. Rooks's contention that the trial court impermissibly limited the number of children she could have, reasoning that, "To the extent that the permanent orders may result in a limitation on the number of children [Ms. Rooks] may ultimately wind up bearing through biological means, that is simply a consequence of the parties' having left it up to the court to decide who gets the remaining [pre-]embryos." Id. at ¶ 58.

         ¶29 Finally, the court of appeals rejected Ms. Rooks's argument that Mr. Rooks relinquished his constitutional right not to procreate by consenting to the use of his sperm to fertilize Ms. Rooks's eggs. It reasoned that the agreement specifically provides for allocation of the pre-embryos to be decided in the dissolution decree and noted that section 19-4-106(7)(b), C.R.S. (2018), expressly allows Mr. Rooks, as a former spouse, to withdraw his consent for placement of the pre-embryos "at any time" before they are placed. Id. at ¶ 60.

         ¶30 The court of appeals thus affirmed the trial court's judgment awarding the pre-embryos to Mr. Rooks under the balancing of interests approach.

         ¶31 After this court granted certiorari review of the court of appeals' ruling, Ms. Rooks notified this court that she had become pregnant, but that she still wishes to use the cryogenically frozen pre-embryos to have more children.^[5]

         II. Analysis

         ¶32 We begin by briefly reviewing the U.S. Supreme Court's and this court's reproductive rights decisions to identify the nature of the rights that underlie this marital property dispute. Because this case presents an issue of first impression in Colorado, we then examine case law from courts in other jurisdictions that have confronted similar disputes. These courts have taken various approaches, but all the approaches generally seek to (1) secure both parties' consent where possible and (2) avoid results that compel one party to become a genetic parent against his or her will except in rare circumstances. Turning next to Colorado law, we discuss the Colorado statutes relevant to assisted reproduction. These statutes demonstrate the General Assembly's intent to allow an individual to opt out of legal parenthood of a child born of assisted reproduction in the event of divorce or where the individual no longer consents to assisted reproduction. However, these statutes do not provide a method for resolving disputes over which spouse should be awarded a couple's remaining pre-embryos in the event of divorce. In the absence of specific legislative guidance in these circumstances, we look to the general statutory command in dissolution proceedings requiring a court to divide the marital property equitably after considering all relevant factors.

         ¶33 Consistent with this requirement, we follow a number of courts in adopting a balancing of interests approach to determine the proper disposition of a couple's pre-embryos where, as here, the parties' written agreement does not address disposition of the pre-embryos in the event of divorce. In crafting the framework we adopt today, we emphasize that, where possible, courts should strive to award pre-embryos in a manner that allows both parties to exercise their rights to procreational autonomy.

         ¶34 Here, the parties' written agreement does not resolve how the pre-embryos should be allocated in the event of divorce, and thus, for purposes of this dissolution proceeding, the disposition of these remaining pre-embryos must be resolved by balancing the parties' interests. Because the trial court and court of appeals considered certain inappropriate factors in attempting to balance the parties' interests here, we reverse the judgment of the court of appeals and remand the case with directions to return the matter to the trial court to apply the framework we adopt today.

         A. Reproductive Rights and Autonomy

         ¶35 Although this case concerns the equitable division of marital property in a divorce proceeding, we recognize that the parties' competing interests in the disputed pre-embryos derive from constitutional rights in the realm of reproductive choice. We therefore briefly discuss the governing case law in this area.

         ¶36 The U.S. Supreme Court has recognized the importance of individual autonomy over decisions involving reproduction. Over seventy-five years ago, the Court recognized that procreation is "one of the basic civil rights" and that marriage and procreation are fundamental to human existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). As the Court considered new questions involving reproductive rights, such as the right to access contraception, it began to articulate those rights as part of a cluster of privacy rights grounded in several fundamental constitutional guarantees. See Griswold v. Connecticut, 381 U.S. 479, 485 (1965). The Court also began to acknowledge an individual's privacy right to control decisions regarding procreation and family relationships: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). In addition to encompassing choices relating to "marriage," ...