In re the Marriage of Mandy Rooks, Petitioner and Drake Rooks, Respondent
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
Attorneys for Amicus Curiae The Colorado Women's Bar
Association: Brownstein Hyatt Farber Schreck, LLP Carrie E.
Johnson Amanda K. Houseal Denver, Colorado
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.
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
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. 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.
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.
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
Facts and Procedural History
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.
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
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
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.
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.
Although the couple's agreements with CCRM and FLC use
the terms "embryo" and "pre-embryo"
interchangeably,  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 ___.
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.
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.
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.
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.
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
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
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
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."
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.
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.
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.
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.
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 ¶
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.
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.
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
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 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.
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.
The court of appeals thus affirmed the trial court's
judgment awarding the pre-embryos to Mr. Rooks under the
balancing of interests approach.
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
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.
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.
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.
Reproductive Rights and Autonomy
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.
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," ...