Disposition of Frozen Embryos at Divorce

What is In Vitro Fertilization (IVF)?

Under in vitro fertilization, or IVF, a physician removes eggs from a woman’s ovaries, fertilizes them with sperm, then either implants them into the woman’s uterus, or freezes them for later use. The process enhances the chances of pregnancy, but does not guarantee it. In 1978, when the process was first used, the term “test tube baby” to refer to a person conceived outside of the womb.

According to WebMD, IVF is both expensive (about $20,000, according to most sources, with additional cycles being about $7000 each), and rare, with only 5% of couples using it for infertility treatment. But that has still resulted in more than 200,000 babies being born in the U.S. between 1981 and 2018.

With the more common artificial insemination, sperm is implanted directly into a woman, so if a baby is born, that child is the same as any other, and the law addresses those issue based upon the “best interests of the children.”

Legal Issues Surrounding Frozen Embryos

The “best interests” standard applies to children, but not to frozen embryos. When embryos are stored, a legal issue is created as to what happens to them when a couple divorces? Are they destroyed? Awarded to a spouse for donation or destruction? Or award them to a spouse to actually use them, which could result in the other spouse becoming a biological parent in the future based upon a consent given years previously? These thorny questions have resulted in litigation, as well as articles in the mainstream media. And there is no clear answer.

There is no federal law on disposition of embryos, so states are creating their own. While this area of the law is brand-new, and most states are only now starting to address the issue, a consensus appears to be emerging that courts should look to the contract. If the couple executed an agreement with the fertility clinic as to the disposition of the embryos upon dissolution, that contract will generally be binding. Unfortunately, and surprisingly, most contracts do not address this, resulting in protracted legal battles over the embryos.

Colorado Law on Dividing Embryos

In October 2018, the Colorado Supreme Court issued a ruling addressing disposition of the fertilized embryo in a divorce when the agreement with the fertility clinic did not address that issue. In re: Marriage of Rooks, 2018 CO 85. The bottom line is that instead of a simple rule, the court endorsed a balancing test, where individual factors are considered on a case-by-case basis.

The court recognized that while a frozen embryo was fundamentally marital property, “it presents difficult issues of procreational autonomy for which there are no easy answers because it pits one spouse’s right to procreate directly against the other spouse’s equivalently important right to avoid procreation.” ¶ 3. The trial court’s duty is to balance those interests.

“[W]we hold that a court should look first to any existing agreement expressing the spouses’ intent regarding disposition of the couple’s remaining pre-embryos in the event of divorce. In the absence of such an agreement, a court should seek to balance the parties’ interests when awarding the pre-embryos.” ¶ 4.

And in doing this balancing act, the court should consider:

1. The intended use of the pre-embryos by the spouse who wants to preserve them, and a spouse seeking to use them through implantation has “weightier interest” than one seeking to donate them. ¶ 66.
2. Whether the spouse seeking them can have biological children through other means, so a spouse who could not conceive any other way had a greater interest than a spouse who still could conceive. ¶ 67.
3. The original reasons for IVF treatment (e.g. to preserve one spouse’s ability to have children later) - a factor the court acknowledged favors preservation over destruction. ¶ 68.
4. Any hardship on the spouse seeking to avoid becoming a parent. ¶ 69.
5. Any bad faith by a spouse, e.g. using the embryos as leverage in the dissolution. ¶ 70.
6. Any other relevant considerations. ¶ 71.

The court instructed that other relevant considerations should not include whether the spouse seeking to become a parent can afford to have a child, the number of children that spouse already has, or the availability of alternatives, such as adoption. ¶ 71.

In Rooks, the parties already had three children. The wife wanted to preserve the embryos to have more children, and the husband sought the destruction of the embryos. The trial court balanced numerous factors, including some not ultimately approved by the Supreme Court, and determined that the husband’s right to not be forced to be a genetic parent outweighed wife’s desire to possibly have more children.

Citing Skinner v Oklahoma, 316 U.S. 535 (1942), the court noted that procreation is “one of the basic civil rights”, and that marriage and procreation are fundamental to human existence. The court then noted the development of a whole body of law pertaining to reproductive autonomy, the right to privacy, and individual choice. ¶ 36.

The court then analyzed the various Colorado statutes on assisted reproduction, and determined that they made clear “an individual is not obligated to be the legal parent of a child eventually born as a result of their contribution of genetic material where the couple divorces, or where one party withdraws consent.” ¶ 55.

The court noted that while an embryo is not a person (C.R.S. 13-21-1204), it contains the potential for human life using both parties’ genetic material, so is “marital property of a special character.” ¶ 57. (Emphasis added). And as the embryo is property, the law requires that that the embryo, like other property, be resolved in an equitable manner. C.R.S. 14-10-113(1). ¶ 58.

Court rejected the “mutual contemporaneous consent” approach, by which the parties’ mutual consent would be required to proceed with implantation, as being unrealistic - if the parties were able to agree, they would not be litigating disposition of the embryo in court. So that approach effectively gave one party a veto over the embryo ever being implanted. ¶ 60.

Three justices dissented, arguing that only the “mutual contemporaneous consent” approach adequately shielded people from government intrusion by requiring both parties to consent before either of them becomes a biological parent. In other words, any other approach could result in forced reproduction with lifelong emotional and psychological repercussions. ¶ 83.

Post-Rooks Case Law on Frozen Embryos in a Divorce

The case of In re: Marriage of Olson, 2019 COA 80, is interesting in that the trial court issued its ruling on the embryos at a dissolution hearing before the Rooks decision, but by the time the case was appealed, the Colorado Supreme Court had issued its decision. At divorce, the trial court balanced numerous factors which were similar to the ones ultimately handed down by the Supreme Court.

The couple had signed an agreement with a fertility clinic that provided for the couple's two frozen embryos to be donated in case of death, incapacitation, or the wife reaching the age of 55. However, the agreement simply stated they would be disposed of as determined by the court in case of divorce.

At divorce, the husband wanted them destroyed, whereas the wife wanted to donate them. The trial court sided with the wife, finding that her desire to donate the embryos, thereby using them for a productive purpose, outweighed the husband's interest in avoiding his genes being used for procreation. The court also "heavily" weighed the wife's moral belief that the embryos were human lives.

The Court of Appeals reversed, holding that the trial judge should not have given greater weight to the wife's wishes than the husband's,. but instead it should have been the other way around: "ordinarily a party not wanting to procreate should prevail when the other party wants to donate the pre-embryos instead of using them to have a child of his or her own." ¶ 45.

Moreover, "although wife is constitutionally entitled to her sincerely held personal moral beliefs, such beliefs cannot be accorded dispositive weight." ¶ 56.

The teaching point? While the Rooks court determined factors for trial courts to consider, it is far from clear guidance, and the outcome is going to be determined on a case-by-case basis, with no one factor being given any greater or lesser weight than the others.

More Information

Colorado's own Ellen Trachman is one of the nation's leading authorities on this topic (and a great speaker to boot), and has a blog discussing the latest developments in assisted reproduction and family law in general.

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