In re the Marriage of Jamie R. Fabos, f/k/a Jamie R. Olsen, Appellee, and Justin R. Olsen, Appellant.
Paso County District Court No. 12DR5458 Honorable Timothy
Theresa Sidebotham, Monument, Colorado; Joan M. Mannix,
Chicago, Illinois, for Appellee
Mackey Murray, LLC, Paige Mackey Murray, Boulder, Colorado,
1 In this dissolution of marriage proceeding, we are called
upon, as was the division in In re Marriage of
Rooks, 2016 COA 153 (Rooks I),
rev'd, 2018 CO 85 (Rooks II), to review
a district court's disposition of a divorcing
couple's cryogenically frozen pre-embryos.
Background and Procedural History
2 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 wife's 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.
3 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.
4 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 wife's 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."
5 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.
6 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.
7 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 court's 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 couple.
8 Husband appeals the district court's judgment,
contending that the court erred in balancing the parties'
interests. The district court granted husband's
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 husband's appeal.
9 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 court's 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 husband's 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
10 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 concerning 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
11 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 court's
responsibility to resolve an issue on which the parties have
proven unable to agree. Id. at ¶¶ 45, 60.
12 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.
13 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 party's 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 party's demonstrated bad faith or attempt
to use the pre-embryos as leverage in the dissolution
• other relevant factors based on the circumstances of
Id. at ¶¶ 65-71, 74.
14 The supreme court also listed certain other factors that
courts must not consider in a balancing test: economic
considerations such as whether the party seeking to become a
genetic parent can afford to have another child, whether that
party could instead adopt or otherwise parent nonbiological
children, and the sheer number of a party's existing
children. Id. at ¶¶ 71, 74. Because the
division of our court in Rooks I had upheld a
district court's disposition that relied in part on these
prohibited factors, the supreme court in Rooks II
reversed that decision and remanded the case for the district
court to rebalance the parties' interests under the
framework it adopted. Id. at ¶¶ 5, 73.
15 Although the district court in the present case did not
have the benefit of the decision of the supreme court in
Rooks II, it did apply a balancing test using
pertinent factors. The district court identified seven
specific factors to be balanced, and, although phrased
differently than the supreme court's list of factors in
Rooks II, the pertinent factors applied by the
district court are sufficiently ...