2022 COA 66
Colo. Ct. App.2022Background
- Parties underwent IVF; two embryos were implanted (resulting in twins) and two pre-embryos remained cryogenically stored.
- The clinic consent form provided disposition options on mutual death/incapacity and when wife turned 55 (both parties initialed donation to another couple) but said divorce disposition would be set by court decree; no divorce-specific agreement existed.
- After divorce, wife (Fabos) sought to donate the stored pre-embryos based on sincerely held religious beliefs that the embryos are human life; husband (Olsen) sought to thaw and discard them to avoid genetic parenthood.
- District court initially awarded the embryos to wife; this court (Fabos) reversed and remanded instructing the district court to apply the Colorado Supreme Court’s Rooks balancing test and not to weight wife’s moral/religious views more heavily than husband’s interest in avoiding procreation.
- On remand the district court again awarded the embryos to wife, giving substantial weight to her religious beliefs; the Court of Appeals reverses, holds the court misapplied Rooks and Fabos, and directs entry of judgment for husband to discard the embryos.
Issues
| Issue | Wife's Argument | Husband's Argument | Held |
|---|---|---|---|
| Proper application of Rooks balancing test for embryo disposition | Court should honor wife’s request to preserve/donate based on her stated intended use and convictions | Rooks and Fabos require giving greater weight to a party who refuses to procreate; donation interest is weaker than implantation/avoidance interest | Court misapplied Rooks by equating donation (backed by religious belief) with implantation; on proper application husband prevails |
| Consideration of wife’s religious beliefs / Free Exercise | Wife contends her Free Exercise rights require strict scrutiny and dispositive weight; she cannot be forced to participate in destruction | Husband argues Rooks governs and district court can mitigate religious-complicity concerns by permitting husband to control disposal so wife is not compelled | Religious beliefs may be considered as an additional factor, but Fabos forbids overweighting them; no Free Exercise violation where court awards disposal to husband and relieves wife of participation |
| Promissory estoppel / oral promise about embryos | Wife says parties had an oral promise the embryos wouldn’t be destroyed on divorce | Husband denies any such promise; IVF agreement contained no divorce disposition | No evidence of a promise specific to divorce; promissory estoppel claim fails |
| Use of general property-distribution statute (§14-10-113) | Wife argues pre-embryos should be allocated under marital property statute because she contributed more | Husband and court contend pre-embryos are a special category governed by Rooks balancing test, not ordinary distribution statute | Statutory property-distribution provisions not the correct standard; Rooks balancing framework governs |
Key Cases Cited
- In re Marriage of Rooks, 2018 CO 85 (Colorado Supreme Court) (establishes Rooks balancing test for disposition of stored pre-embryos)
- Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) (influential framework treating procreative interests as competing constitutional rights)
- Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018) (courts must respect sincerity of religious beliefs and avoid hostile treatment)
- Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (limits on government action that substantially burdens religious exercise)
- Van Osdol v. Vogt, 908 P.2d 1122 (Colo. 1996) (courts should not judge the importance of a litigant’s personal beliefs)