In re of Fabos

          El Paso County District Court No. 12DR5458 Honorable Timothy Schutz, Judge

          Theresa Sidebotham, Monument, Colorado; Joan M. Mannix, Chicago, Illinois, for Appellee

          Paige Mackey Murray, LLC, Paige Mackey Murray, Boulder, Colorado, for Appellant

          OPINION

          RICHMAN JUDGE

         ¶ 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.

         I. 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.^[1]

         ¶ 8 Husband appeals the district court's judgment, contending that the court erred in balancing the parties' interests.^[2] 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.

         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 ¶¶ 40-48.

         ¶ 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.^[3] 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 considerations;

• either party's demonstrated bad faith or attempt to use the pre-embryos as leverage in the dissolution proceedings; and

• other relevant factors based on the circumstances of the case.

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 ...