2019 COA 80
Colo. Ct. App.2019Background
- Parties (Jamie and Justin Olsen) underwent IVF during marriage; four eggs fertilized, two implanted (twins), two pre-embryos cryogenically frozen.
- Their fertility-center consent form did not specify disposition on divorce; it allowed selection of dispositions in other scenarios (death, age 55), and the parties initialed donation for those scenarios but did not specify divorce.
- Divorce decree reserved disposition of the two remaining pre-embryos; at hearing wife sought to donate them to another couple, husband sought thaw-and-discard.
- The district court applied a balancing-of-interests test and awarded the pre-embryos to wife, heavily crediting her moral belief that embryos are human life; husband appealed.
- After the Colorado Supreme Court’s decision in In re Marriage of Rooks (Rooks II), the Court of Appeals reviewed the balancing analysis, held the district court had over-weighted wife’s subjective moral views, reversed, and remanded for rebalancing under Rooks II.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper legal framework for disposition when no divorce agreement exists | Olsen (wife) argued the district court’s balancing-of-interests approach was appropriate | Olsen (husband) initially argued for contemporaneous mutual consent but abandoned after Rooks II | Rooks II’s contract-then-balancing framework controls; contemporaneous mutual consent rejected; appellate review is abuse of discretion (with heightened scrutiny for constitutional interests) |
| Weight to give parties’ constitutional interests (donate vs avoid procreation) | Wife: her interest in donating (and her moral/religious views that embryos are lives) merited significant weight | Husband: his right to avoid genetic parenthood should ordinarily prevail over donation and should be given substantial weight | The court may consider both constitutional interests, but may not give dispositive weight to a party’s subjective moral beliefs; husband’s interest in avoiding procreation is ordinarily decisive against donation unless balancing shows otherwise; district court abused discretion by over-weighting wife’s beliefs |
| Existence/enforceability of any oral agreement to preserve/donate embryos | Wife: alleged an oral agreement that unused embryos would not be destroyed and should be donated | Husband: denied an enforceable oral agreement; written consent reserved disposition to court on divorce | No enforceable agreement for disposition on divorce was proven; the written consent designated court decree/settlement to control, so balancing was required |
| Whether participation in IVF waives right to avoid procreation | Wife: argued husband waived his right by consenting to IVF | Husband: maintained consent to IVF does not equal consent to become genetic parent to all future embryos | Waiver rejected: commencing IVF does not automatically establish consent to become genetic parent to all possible children; no waiver under Rooks II |
Key Cases Cited
- Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) (ordinarily the party wishing to avoid procreation should prevail in embryo-disposition disputes)
- J.B. v. M.B., 783 A.2d 707 (N.J. 2001) (rejecting oral-agreement claim and upholding destruction where one spouse objected based on competing interests)
- In re Marriage of Balanson, 25 P.3d 28 (Colo. 2001) (district court has broad discretion to equitably divide marital property)
- In re Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005) (appellate review of decisions balancing competing constitutional parental rights is for abuse of discretion)