2018 CO 85
Colo.2018Background
- Mandy and Drake Rooks created and cryopreserved pre-embryos via IVF during marriage; their clinic consent/storage forms addressed several contingencies but left disposition upon divorce to the dissolution court.
- After separation and divorce proceedings, six pre-embryos remained in storage; Mandy sought to preserve them for future implantation, Drake sought thaw-and-discard.
- The trial court first analyzed the clinic agreement, then applied a balancing-of-interests framework and awarded the pre-embryos to Drake; the court of appeals affirmed, reviewing the balancing decision for abuse of discretion.
- The Colorado Supreme Court granted certiorari to decide the proper legal framework for resolving disputes over marital pre-embryos when parties’ agreements do not resolve disposition.
- The Supreme Court held that courts should (1) first honor any enforceable agreement about disposition, and (2) absent such an agreement apply a balancing-of-interests test tailored to competing procreational autonomy interests, reversing and remanding for application of its framework.
Issues
| Issue | Plaintiff's Argument (Rooks) | Defendant's Argument (Rooks) | Held |
|---|---|---|---|
| Proper rule for allocating cryopreserved pre-embryos when parties’ agreement is silent or ambiguous | Court should permit Mandy to preserve/use the pre-embryos to procreate | Court should honor Drake’s objection and allow discard; some urge contemporaneous mutual consent | Court: Look first to any enforceable agreement; if none, apply a balancing-of-interests test focused on procreational autonomy (adopted) |
| Standard of review for appellate review of trial court’s pre-embryo allocation | Mandy: interpretation of agreement reviewed de novo; balancing outcome subject to appropriate standard | Court of appeals used abuse of discretion for balancing result | Supreme Court: agreement interpretation is reviewed de novo; equitable balancing implicates trial discretion but must follow adopted framework (case remanded for correct application) |
| Whether pre-embryos are legal "persons" or ordinary property for disposition purposes | Mandy argued property of special character but not persons | Drake argued they are not persons and should be treated as marital property subject to division | Court: Pre-embryos are marital property of a special character (not persons) and disposition implicates constitutional procreational liberty interests |
| Permissible and impermissible factors in balancing test | Mandy: trial court erred by considering her ability to have children and financial status as disqualifying | Drake: trial court permissibly considered hardships and impacts on existing family | Court: Approve factors like intended use, ability to procreate otherwise, reasons for IVF, hardship to objecting spouse, bad-faith leverage, and other case-specific factors; expressly forbid considering ability to afford a child, sheer number of existing children alone, or adoption/parenting alternatives |
Key Cases Cited
- Skinner v. Oklahoma, 316 U.S. 535 (U.S. 1942) (procreation recognized as a basic civil right)
- Griswold v. Connecticut, 381 U.S. 479 (U.S. 1965) (privacy in marital procreative decisions)
- Eisenstadt v. Baird, 405 U.S. 438 (U.S. 1972) (individual right to reproductive choice)
- Roe v. Wade, 410 U.S. 113 (U.S. 1973) (privacy rights include reproductive choices)
- Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) (adopted balancing-of-interests approach where no enforceable agreement exists)
- Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998) (enforce clinic consent agreements re disposition of pre-zygotes)
- J.B. v. M.B., 783 A.2d 707 (N.J. 2001) (contracts enforceable but parties may change mind up to point of use; balancing considerations)
- In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003) (contemporaneous mutual consent approach articulated)
- McQueen v. Gadberry, 507 S.W.3d 127 (Mo. Ct. App. 2016) (pre-embryos classified as marital property of special character; mutual consent discussion)
- Reber v. Reiss, 42 A.3d 1131 (Pa. Super. Ct. 2012) (balancing where no enforceable agreement; consider whether disputed pre-embryos are only opportunity for biological parenthood)
- Szafranski v. Dunston, 34 N.E.3d 1132 (Ill. Ct. App. 2015) (considered chemotherapy-related fertility preservation reasons for IVF)
- In re Balanson, 25 P.3d 28 (Colo. 2001) (equitable distribution principle under Colorado dissolution law)