IN RE the MARRIAGE OF Jamie R. FABOS, f/k/a Jamie R. Olsen, Appellee and Justin R. OLSEN, Appellant.
[Copyrighted Material Omitted]
Paso County District Court No. 12DR5458, Honorable Timothy
Sidebotham, Monument, Colorado; Joan M. Mannix, Chicago,
Illinois, for Appellee
Mackey Murray, LLC, Paige Mackey Murray, Boulder, Colorado,
In this dissolution of marriage proceeding, we are called
upon, as was the division in In re Marriage of
Rooks, 2016 COA 153, __ P.3d __ (Rooks I ),
revd, 2018 CO 85, 429 P.3d 579 (Rooks II
), to review a district courts disposition of a divorcing
couples cryogenically frozen pre-embryos.
Background and Procedural History
Similar to the couple in Rooks, the divorcing couple
here, Jamie R. Fabos, formerly known as Jamie R. Olsen
(wife), and Justin R. Olsen (husband), sought in vitro
fertilization (IVF) during their marriage after they were
unable to conceive otherwise. Four of wifes eggs were
fertilized; two of the resulting pre-embryos were implanted
successfully, leading to the births of the parties twins in
2011; and the remaining two pre-embryos
were cryogenically frozen for possible future use.
Also similar to the situation in Rooks, although the
parties had entered into an agreement with the fertility
center where they underwent IVF — entitled
"Informed Consent for Assisted Reproduction"
— that agreement did not specify a disposition of their
remaining pre-embryos if they divorced. Rather, it provided,
as did the agreement in Rooks, that in the event of
divorce ownership of the pre-embryos would be "as
directed by court decree and/or settlement agreement."
See Rooks II, ¶¶ 2, 13, 73.
But the agreement provided an option for the parties to elect
a disposition for their pre-embryos in the event of death or
incapacitation of both of them, as well as when wife reached
age fifty-five. Unlike in Rooks, where the couple
agreed that in the event of the wifes death, or the death of
both partners, the embryos would be "thawed and
discarded," see id. at ¶ 12, here for both of
these scenarios, wife and husband initialed the option to
donate the pre-embryos to another couple. They did not
initial the other available options: to "thaw and
discard" the pre-embryos or "donate the
pre-embryo(s) for research."
In 2012, wife petitioned for dissolution of marriage. A
decree was entered in 2013 resolving all dissolution issues
except for the disposition of the pre-embryos, which was
reserved for further proceedings.
It is at this point where the facts of this case diverge
materially from those in Rooks . Mrs. Rooks asked
the divorce court to award the pre-embryos to her because she
wanted to preserve them for future implantation so that she
could have more children, whereas Mr. Rooks wanted to thaw
and discard them. Id. at ¶ 14. In this case,
however, wife does not want more children and instead wants
to donate the pre-embryos to another infertile couple,
whereas husband wants to discard them.
After a hearing, the district court, in a lengthy,
thoughtful, and detailed order, first determined that the
parties did not have an agreement on the disposition of their
remaining pre-embryos in the event they divorced. Thus,
consistent with this courts decision in Rooks I, ¶
24, the district court engaged in a balancing of the parties
interests, concluding that the pre-embryos should be awarded
to wife so that she could donate them to another
Husband appeals the district courts judgment, contending
that the court erred in balancing the parties
interests. The district court granted husbands
request to stay its decision and ordered the parties to share
equally the cost of maintaining the pre-embryos in cryogenic
storage pending resolution of husbands appeal.
Because the supreme court announced Rooks II while
this appeal was pending, we requested supplemental briefs
addressing that decision. Considering the parties initial
and supplemental briefs and their oral arguments, we reverse
the district courts judgment and remand the case for further
proceedings. In doing so, we first address the framework
established in Rooks II for resolving disagreements
over the disposition of pre-embryos in the event of divorce.
We then address husbands contentions under that framework,
thereby resolving several issues not arising in, and thus not
resolved by, Rooks II .
Rooks and the Balancing of Interests Approach
In Rooks II, ¶¶ 32, 49-55, the supreme court noted
that Colorado law relevant to assisted reproduction is not
helpful in resolving disputes between divorcing parties
the disposition of their cryogenically frozen pre-embryos.
The court further considered the three methods that have been
used in other jurisdictions for resolving such disputes: the
contract approach, the balancing of interests approach, and
the contemporaneous mutual consent approach. Id. at
It rejected the contemporaneous mutual consent approach,
which essentially maintains the status quo by leaving the
pre-embryos in storage indefinitely until and unless the
parties agree otherwise. The court noted, among other bases
for rejecting this approach, that it gives one party a de
facto veto over the issue and abdicates the courts
responsibility to resolve an issue on which the parties have
proven unable to agree. Id. at ¶¶ 45, 60.
The court held that, instead, a dissolution court must first
look to any existing agreement between the parties as to
disposition of their pre-embryos in the event of divorce.
Id. at ¶¶ 61, 74. The court agreed with other
jurisdictions applying a contract approach that if there is
such an agreement the court must enforce it, thereby allowing
the parties, as progenitors, and not the court, to decide the
private, personal matter of what will happen to their
pre-embryos. See id. at ¶¶ 63, 72. When
there is no express agreement on the disposition of the
pre-embryos in the event of a divorce, however, the court
should apply a balancing of interests approach to determine
the issue. Id. at ¶¶ 33, 64, 72, 74.
The Rooks II court provided "a non-exhaustive
list" of factors that the court should consider in
balancing the parties interests:
• the intended use of the disputed pre-embryos by the
party who seeks to preserve them;
• the demonstrated physical ability or inability of the
party seeking to preserve the pre-embryos to have biological
children through other means;
• the parties original reasons for undergoing IVF
— for example, to preserve a partys future ability to
have biological children in the face of potential fertility
loss due to medical treatment;
• the hardship for the party seeking to avoid becoming a
genetic parent, including emotional, financial, or logistical
• either partys demonstrated bad faith or attempt to
use the pre-embryos as leverage in the ...