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                                                         ADVANCE SHEET HEADNOTE
                                                                    October 29, 2018
                                        2018 CO 85

No. 16SC906, In re Marriage of Rooks— Divorce—Assisted Reproduction—Embryos.

       In this dissolution of marriage proceeding, the supreme court reviews how courts

should resolve disagreements over the disposition of a couple’s cryogenically preserved

pre-embryos when that couple divorces. The supreme court holds that because the

underlying interests at stake are the equivalently important, yet competing, right to

procreate and right to avoid procreation, courts should strive, where possible, to honor

both parties’ interests in procreational autonomy. Thus, courts 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,

courts should seek to balance the parties’ respective interests in receipt of the

pre-embryos. In balancing those interests, courts should consider the intended use of the

party seeking to preserve the pre-embryos; a party’s demonstrated ability, or inability, to

become a genetic parent through means other than use of the disputed pre-embryos; the

parties’ reasons for undertaking in vitro fertilization in the first place; the emotional,

financial, or logistical hardship for the person seeking to avoid becoming a genetic parent;

any demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in the
divorce process; and other considerations relevant to the parties’ specific situation.

However, courts should not consider whether the party seeking to become a genetic

parent using the pre-embryos can afford a child. Nor shall the sheer number of a party’s

existing children, standing alone, be a reason to preclude preservation or use of the

pre-embryos. Finally, courts should not consider whether the party seeking to become a

genetic parent using the pre-embryos could instead adopt a child or otherwise parent

non-biological children. The court reverses the judgment of the court of appeals and

remands with directions to return the matter to the trial court to apply the announced

balancing framework.
                     The Supreme Court of the State of Colorado
                     2 East 14th Avenue • Denver, Colorado 80203

                                       2018 CO 85

                          Supreme Court Case No. 16SC906
                        Certiorari to the Colorado Court of Appeals
                         Court of Appeals Case No. 15CA990

                                 In re the Marriage of

                                       Petitioner:

                                     Mandy Rooks,

                                           and

                                      Respondent:

                                      Drake Rooks.

                                  Judgment Reversed
                                        en banc
                                    October 29, 2018


Attorneys for Petitioner:
Azizpour Donnelly, LLC
Katayoun A. Donnelly
      Denver, Colorado

Attorneys for Respondent:
James W. Giese, P.C.
James W. Giese
Cheryl J. Lee
      Grand Junction, Colorado

Attorneys for Amicus Curiae Academy of Adoption and Assisted Reproduction
Attorneys:
Sherman & Howard L.L.C.
Christopher M. Jackson
Rajesh Kukreja
      Denver, Colorado
Grob & Eirich, LLC
Seth Grob
      Lakewood, Colorado

Attorneys for Amicus Curiae American Association of Pro-Life Obstetricians and
Gynecologists:
Thomas More Society
Thomas Olp
Rita Louise Lowery Gitchell
       Chicago, Illinois

Messall Law Firm, LLC
Rebecca Messall
      Englewood, Colorado

Attorneys for Amicus Curiae Colorado Chapter of the American Academy of
Matrimonial Lawyers:
David M. Johnson
      Colorado Springs, Colorado

Willoughby & Associates
Kim Willoughby
      Denver, Colorado

Attorneys for Amicus Curiae The Colorado Women’s Bar Association:
Brownstein Hyatt Farber Schreck, LLP
Carrie E. Johnson
Amanda K. Houseal
       Denver, Colorado




JUSTICE MÁRQUEZ delivered the Opinion of the Court.
JUSTICE HOOD dissents, and CHIEF JUSTICE COATS and JUSTICE SAMOUR join
in the dissent.
¶1       In vitro fertilization (“IVF”) has given individuals and couples who are unable to

conceive conventionally the opportunity to have genetic children. IVF technology

permits the pre-embryos created through this process to be cryogenically frozen and later

implanted in the carrier’s uterus to be brought to term. IVF thus allows individuals and

couples to delay childbearing while preserving the pre-embryos and the possibility of

future children. However, when married couples turn to this technology and later

divorce, IVF can present a host of legal dilemmas, including how to resolve

disagreements over the disposition of cryogenically preserved pre-embryos that remain

at the time of dissolution.

¶2       Here, a written agreement with the fertility clinic signed by Ms. Mandy Rooks and

Mr. Drake Rooks fails to specify what should be done with their remaining pre-embryos

in the event of divorce. Instead, per their agreement, the couple has turned to the

dissolution court to resolve their dispute.       Ms. Rooks wishes to keep the couple’s

pre-embryos to use them to become pregnant. Mr. Rooks does not want to have genetic

children using the pre-embryos and wishes to have them discarded.

¶3       We are asked to decide how a court should determine, in dissolution of marriage

proceedings, which spouse should receive remaining cryogenically preserved

pre-embryos produced by the couple during their marriage.1            Although this case




1   We granted certiorari to review the following issues:
                                              3
fundamentally concerns the disposition of a couple’s 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, and because the fundamental liberty and privacy

interests at stake are deeply personal and emotionally charged. And although Colorado

statutes touch on some aspects of assisted reproduction, they do not address what should

happen with a couple’s cryogenically preserved pre-embryos when the couple divorces.

Thus, in the absence of specific legislative guidance in these circumstances, we adopt an

approach that seeks to balance the parties’ interests given the legislature’s general

command in dissolution proceedings requiring the court to divide the marital property

equitably.

¶4    Considering the nature and equivalency of the underlying liberty and privacy

interests at stake, a court presiding over dissolution proceedings should strive, where

possible, to honor both parties’ interests in procreational autonomy when resolving




      1. Whether, in the absence of an agreement between the parties, the court
         of appeals erred in its adoption of the balancing of interests approach to
         determine the disposition of the parties’ cryogenically frozen
         pre-embryos in a dissolution of marriage.
      2. Whether the court of appeals erred in applying an abuse of discretion
         standard of review in reviewing the trial court’s determination of the
         disposition of a couple’s cryogenically frozen pre-embryos in a
         dissolution of marriage.
                                           4
disputes over a couple’s cryogenically preserved pre-embryos. Thus, 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. In so doing, a court should consider (1) the intended use of the

pre-embryos by the spouse who wants to preserve them (for example, whether the spouse

wants to use the pre-embryos to become a genetic parent him- or herself, or instead wants

to donate them); (2) the demonstrated physical ability (or inability) of the spouse seeking

to implant the pre-embryos to have biological children through other means; (3) the

parties’ original reasons for undertaking IVF (for example, whether the couple sought to

preserve a spouse’s future ability to bear children in the face of fertility-implicating

medical treatment); (4) the hardship for the spouse seeking to avoid becoming a genetic

parent, including emotional, financial, or logistical considerations; (5) a spouse’s

demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in the

divorce proceedings; and (6) other considerations relevant to the parties’ specific

situation. However, a court should not consider whether the spouse seeking to use the

pre-embryos to become a genetic parent can afford a child. Nor shall the sheer number

of a party’s existing children, standing alone, be a reason to preclude implantation of the

pre-embryos. Finally, a court should not consider whether the spouse seeking to use the

pre-embryos to become a genetic parent could instead adopt a child or otherwise parent

non-biological children.


                                            5
¶5    Here, the parties’ written agreement does not squarely resolve how remaining

cryogenically preserved pre-embryos should be allocated in the event of divorce, and

thus, for purposes of this dissolution proceeding, the disposition of these remaining

pre-embryos must be resolved by balancing the parties’ interests. Because the trial court

and court of appeals considered certain inappropriate factors in attempting to balance

the parties’ interests here, we reverse the judgment of the court of appeals and remand

the case with directions to return the matter to the trial court to balance the parties’

interests under the framework we adopt today.

                            I. Facts and Procedural History

¶6    Petitioner Ms. Mandy Rooks and Respondent Mr. Drake Rooks married in 2002.

They separated in August 2014, and Mr. Rooks filed a petition for dissolution of marriage

the following month. When the trial court entered its final orders in the dissolution

proceedings in 2015, Mr. and Ms. Rooks had three children, and Ms. Rooks was not

pregnant.

¶7    Mr. and Ms. Rooks used IVF to have their three children. In 2011, and again in

2013, they entered into agreements with the Colorado Center for Reproductive Medicine

(“CCRM”) and Fertility Laboratories of Colorado (“FLC”) for the IVF services. The

agreements identify Ms. Rooks as the “Female Patient” and Mr. Rooks as the

“Spouse/Partner.”     These agreements provide information about the IVF and

cryopreservation process.




                                           6
¶8     IVF is a procedure that helps those facing fertility issues to become pregnant. The

technique involves several steps: (1) developing eggs in the contributor’s ovaries using

hormones to stimulate ovulation, (2) removing the eggs from the contributor’s ovaries,

(3) placing the eggs and sperm together in a laboratory to allow fertilization to occur, and

(4) transferring fertilized pre-embryos into the carrier’s uterus.

¶9     As described in the agreements with CCRM and FLC, the purpose of

cryopreservation is to preserve excess pre-embryos produced in an IVF treatment cycle

in order to (1) reduce the risks of multiple gestation, (2) preserve fertility potential in the

face of certain medical procedures, and (3) minimize the medical risk and cost to the

patient by decreasing the number of hormone stimulation cycles and egg retrievals.

¶10    According to the agreements, pre-embryos are frozen on day 1, 2, 3, 5, or 6 after

fertilization. The pre-embryos frozen on day 1 are at the pronuclear stage, when the

single cell zygote has two nuclei. Pre-embryos frozen on day 2 or day 3 are at the

multicellular stage, when the pre-embryo has four to eight cells.             In most cases,

pre-embryos are frozen on day 5 or 6 at the blastocyst stage, when the pre-embryo has

eighty or more cells, an inner fluid-filled cavity, and a small cluster of inner cells. The

FLC embryologists transfer the pre-embryos to a special solution where they are cooled

to -35° C in a machine designed to control the rate of freezing. The pre-embryos are then

plunged directly into liquid nitrogen at -196° C (-321° F). Finally, the frozen pre-embryos

are transferred to storage containers and maintained at a temperature of -196° C (-321° F)

until they are thawed.


                                              7
¶11    Although the couple’s agreements with CCRM and FLC use the terms “embryo”

and “pre-embryo” interchangeably,2 we use the term “pre-embryos” in this opinion to

refer to eggs that have been fertilized using the IVF process but not implanted in a uterus.

The hearings before the trial court did not include testimony regarding the medical

aspects of the IVF process or the stages of development of the pre-embryos at issue in this

case. In the absence of such trial testimony, other courts have looked to secondary

sources discussing the correct terminology. See McQueen v. Gadberry, 507 S.W.3d 127, 134

n.4 (Mo. Ct. App. 2016) (“‘Pre-embryo’ is a medically accurate term for a zygote or

fertilized egg that has not been implanted in a uterus. It refers to the approximately 14–

day period of development from fertilization to the time when the embryo implants in

the uterine wall and the ‘primitive streak,’ the precursor to the nervous system, appears.

An embryo proper develops only after implantation. The term ‘frozen embryos’ is a term

of art denoting cryogenically preserved pre-embryos.” (quoting Elizabeth A. Trainor,

Annotation, Right of Husband, Wife, or Other Party to Custody of Frozen Embryo, Pre-embryo,

or Pre-zygote in Event of Divorce, Death, or Other Circumstances, 87 A.L.R. 5th 253 (2001))).

As the court of appeals noted below, the medically accurate term for the




2 The agreement with FLC states that “in this consent and agreement, anywhere the word
‘embryo’ is used the word ‘pre-embryo’ would also apply.” The agreement further states
that “[p]atient and partner acknowledge the ‘cryopreserved embryos’ will have no
capacity to produce human life until by proper thawing and ascertainment of survival an
embryo has been produced and properly transferred into the patient’s uterus.”
                                             8
not-yet-implanted fertilized eggs at issue here is “pre-embryos.” See In re Marriage of

Rooks, 2016 COA 153, ¶ 1, __ P.3d __.

¶12   Both the 2011 and 2013 agreements with CCRM and FLC include an “Embryo and

Pre-Embryo Cryopreservation/Storage Consent” form with a “Disposition Plan”

recording the couple’s decisions regarding the disposition of the frozen pre-embryos

under certain scenarios. Mr. and Ms. Rooks selected the same options in both the 2011

and 2013 disposition plans. For example, in the event of Mr. Rooks’s death, the couple

agreed the pre-embryos should be “[t]ransferred to the care of the female partner if she

wishes,” but in the event of Ms. Rooks’s death, the pre-embryos should be “[t]hawed and

discarded.” In the event they both died, the couple agreed the pre-embryos should be

discarded.

¶13   The disposition plans further state that in the event of divorce or dissolution of

marriage, “the disposition of our embryos will be part of the divorce/dissolution decree

paperwork,” and that FLC may deal exclusively with the person to whom all rights in the

pre-embryos are awarded.      The plans also provide that “[i]n the event that the

divorce/dissolution decree paperwork does not address the disposition of the

embryo(s),” the pre-embryos should be thawed and discarded.

¶14   In 2015, the trial court held an evidentiary hearing and issued its final orders in

the dissolution of marriage case. Relevant here, the couple disagreed about what to do

with the pre-embryos that were still in storage under the 2011 and 2013 agreements with

CCRM and FLC. Ms. Rooks wished to preserve the pre-embryos for future implantation;


                                           9
at the hearing, she testified that she wished to have more children but, to her knowledge,

she was not able to have further children “naturally.” Mr. Rooks wished to thaw and

discard the pre-embryos; he testified that he did not wish to have more children from his

relationship with Ms. Rooks.

¶15   The trial court devoted nearly twenty pages of discussion in its final orders to the

disposition of the couple’s six remaining cryogenically preserved pre-embryos. It first

reasoned that the pre-embryos are not “persons” under Colorado law. Although it

referenced other states’ treatment of pre-embryos in judicial opinions, it based this

conclusion on Colorado statutes and case law.

¶16   After surveying the law regarding frozen pre-embryo disputes in other

jurisdictions, the trial court identified three approaches for resolving such disputes: (1)

the contract approach, which looks to a prior agreement between the parties to determine

their intent regarding the disposition of the pre-embryos; (2) the balancing of interests

approach, which evaluates the parties’ competing interests in receiving the pre-embryos;

and (3) the contemporaneous mutual consent approach, which prevents any use or

disposition of the pre-embryos without the written consent of both parties. The trial court

was most persuaded by the application of the contract approach and concluded that it is

most consistent with Colorado law. The court further reasoned that if the parties’

agreement did not specifically address the disposition of the pre-embryos, or was “so

ambiguous as to be unenforceable,” the court would apply the balancing approach. It




                                            10
rejected the contemporaneous mutual consent approach, reasoning that such an

approach “merely grants one party the right to make a decision by default.”

¶17   Starting with the contract approach, the court reviewed the text of the parties’ 2011

and 2013 agreements with CCRM and FLC. It noted that the disposition plans did not

specify how the dissolution court should determine which spouse should receive the

pre-embryos.   Rather, the plans stated that if the dissolution decree awarded the

pre-embryos to one spouse, the clinic would deal exclusively with that spouse regarding

disposition of the pre-embryos. Alternatively, the plans provided that if the parties’

divorce decree did not address disposition of the pre-embryos, the pre-embryos would

be thawed and discarded. To determine which spouse should receive the pre-embryos,

the court looked to the agreement as a whole and concluded that (1) the agreement did

not allow either spouse to “unilaterally” thaw and implant the pre-embryos without the

other’s consent, and (2) the couple intended that the pre-embryos should be thawed and

discarded in the event of divorce where they could not achieve “mutual resolution.”

Therefore, the court concluded that under the contract approach, Mr. Rooks should

receive the pre-embryos.

¶18   The trial court then proceeded to evaluate the dispute under the balancing of

interests approach as well, weighing Mr. Rooks’s “inherent privacy right not to conceive

children” against Ms. Rooks’s “right to become a parent.”

¶19   The court reasoned that Mr. Rooks had the right to avoid the burdens of

parenthood. It observed that although Colorado “does not statutorily impose support


                                           11
and other parental obligations on a non-consenting genetic parent,” Mr. Rooks could

potentially face financial obligations based on a credit for an additional child on Ms.

Rooks’s child support worksheet. It further observed that the laws in North Carolina

(where Ms. Rooks had since relocated) could be different from those in Colorado and

could potentially subject Mr. Rooks to financial obligations should Ms. Rooks seek to

modify or enforce her support order there. The court also noted the emotional and

psychological implications for Mr. Rooks of having a biological child, stating that, “Even

if [Mr. Rooks] is not legally obligated to support the new child, there are moral and social

obligations that cannot be ignored.”

¶20    In addition to these concerns, the trial court considered the potential effects of an

additional child on the best interests of the three existing children from the marriage. The

court posited that, for parenting time and other reasons, it could be detrimental for the

existing children to have an additional sibling who would be the genetic but not legal

child of Mr. Rooks.

¶21    Regarding Ms. Rooks’s desire to use the pre-embryos to have additional children,

the court reasoned that because Ms. Rooks already had three children, discarding the

pre-embryos would not deprive her of her only chance to become a mother. It also

expressed concerns about Ms. Rooks’s financial ability to provide for another child,

noting that she has no income and that one of the couple’s three children has a significant

medical condition.




                                            12
¶22    Overall, the court found that Mr. Rooks’s right “not to be forced to become a

genetic parent” outweighed Ms. Rooks’s “desire to preserve the [pre-]embryos and

possibly have more children.” Thus, the court determined that the balancing of interests

approach also weighed in favor of awarding the pre-embryos to Mr. Rooks.

¶23    Ms. Rooks appealed from the portion of the permanent orders awarding the

pre-embryos to Mr. Rooks, contending that (1) the trial court erred in its interpretation of

the agreements regarding the disposition of the pre-embryos, (2) the trial court erred as

a matter of law in considering certain factors in its balancing of interests calculation, and

(3) the trial court’s consideration of her other children and financial situation violated her

constitutional rights.3

¶24    The court of appeals affirmed the trial court’s ruling. Like the trial court, the court

of appeals discussed the three basic approaches used in other jurisdictions for

determining the disposition of divorcing spouses’ cryopreserved pre-embryos: the

contract approach, the balancing of interests approach, and the contemporaneous mutual

consent approach. Marriage of Rooks, ¶¶ 14–22. The court of appeals concurred with those

courts that have adopted the contract approach but also concluded that, in the absence of

a valid agreement between the spouses regarding the disposition of remaining




3 Ms. Rooks obtained a stay in the trial court to permit the pre-embryos to remain in
cryo-storage pending resolution of appellate proceedings.
                                             13
pre-embryos in the event of divorce, the court should seek to balance the parties’ interests.

Id. at ¶ 24.

¶25    Reviewing the trial court’s interpretation of the written storage agreement de

novo, the court of appeals concluded that the trial court erred by inferring contract terms

that did not exist. Id. at ¶¶ 28, 31, 36. “Given the absence of enforceable contract terms

on the issue,” the court of appeals construed the agreement to require the dissolution

court to determine who should receive the pre-embryos. Id. at ¶ 37.

¶26    The court of appeals then reviewed the trial court’s decision under the balancing

of interests test for an abuse of discretion, reasoning that the application of that test is an

exercise of the court’s equitable discretion. Id. at ¶ 40. It concluded that the trial court

properly exercised its discretion in balancing the parties’ competing interests and

awarding the pre-embryos to Mr. Rooks. Id. at ¶ 41.

¶27    The court of appeals observed that the pre-embryos did not present Ms. Rooks’s

only opportunity to bear a child; Ms. Rooks had already borne three children. Id. at ¶ 44.

Accordingly, it reasoned, the trial court could reasonably conclude that Mr. Rooks’s

interest in not producing additional offspring prevailed over Ms. Rooks’s interest in

having a fourth child. Id. at ¶ 45. The court of appeals also concluded that the trial court

“appropriately considered [Mr. Rooks’s] emotional and psychological well-being, in that

he would likely feel a moral and social obligation for a fourth biological child, even

though he may have no legal obligation to the child.” Id. at ¶ 46. It rejected Ms. Rooks’s

argument that the trial court erred as a matter of law by considering the potential risk


                                              14
that Mr. Rooks could face financial obligations for a child eventually born using the

pre-embryos. Id. at ¶¶ 47–49. And it disagreed with Ms. Rooks that the trial court

impermissibly implied that she should not have another child; rather, the trial court

properly considered the inevitable financial consequences of another child for Mr. Rooks.

Id. at ¶ 49.

¶28    The court of appeals further concluded that, in balancing the couple’s competing

interests, the trial court did not violate Ms. Rooks’s constitutional rights 4 when it

discussed the fact that she already had three children; considered the potential economic

impact of another child; raised concerns about the impact of another child on the parties’

existing children; and remarked on Ms. Rooks’s ability to manage “such a large family”

as a single parent, given her lack of employment and financial resources and the

significant health issues faced by one of the children. Id. at ¶ 56. The court of appeals

rejected Ms. Rooks’s contention that the trial court impermissibly limited the number of

children she could have, reasoning that, “To the extent that the permanent orders may

result in a limitation on the number of children [Ms. Rooks] may ultimately wind up

bearing through biological means, that is simply a consequence of the parties’ having left

it up to the court to decide who gets the remaining [pre-]embryos.” Id. at ¶ 58.




4 Ms. Rooks asserted a violation of her rights to equal protection, due process,
procreational autonomy, privacy, and of her liberty interest in the care, custody, and
management of her children. Marriage of Rooks, ¶ 52.
                                           15
¶29      Finally, the court of appeals rejected Ms. Rooks’s argument that Mr. Rooks

relinquished his constitutional right not to procreate by consenting to the use of his sperm

to fertilize Ms. Rooks’s eggs. It reasoned that the agreement specifically provides for

allocation of the pre-embryos to be decided in the dissolution decree and noted that

section 19-4-106(7)(b), C.R.S. (2018), expressly allows Mr. Rooks, as a former spouse, to

withdraw his consent for placement of the pre-embryos “at any time” before they are

placed. Id. at ¶ 60.

¶30      The court of appeals thus affirmed the trial court’s judgment awarding the

pre-embryos to Mr. Rooks under the balancing of interests approach.

¶31      After this court granted certiorari review of the court of appeals’ ruling, Ms. Rooks

notified this court that she had become pregnant, but that she still wishes to use the

cryogenically frozen pre-embryos to have more children.5

                                        II. Analysis

¶32      We begin by briefly reviewing the U.S. Supreme Court’s and this court’s

reproductive rights decisions to identify the nature of the rights that underlie this marital

property dispute. Because this case presents an issue of first impression in Colorado, we

then examine case law from courts in other jurisdictions that have confronted similar

disputes. These courts have taken various approaches, but all the approaches generally

seek to (1) secure both parties’ consent where possible and (2) avoid results that compel




5   At oral argument, the parties noted that Ms. Rooks had since given birth.
                                              16
one party to become a genetic parent against his or her will except in rare circumstances.

Turning next to Colorado law, we discuss the Colorado statutes relevant to assisted

reproduction. These statutes demonstrate the General Assembly’s intent to allow an

individual to opt out of legal parenthood of a child born of assisted reproduction in the

event of divorce or where the individual no longer consents to assisted reproduction.

However, these statutes do not provide a method for resolving disputes over which

spouse should be awarded a couple’s remaining pre-embryos in the event of divorce. In

the absence of specific legislative guidance in these circumstances, we look to the general

statutory command in dissolution proceedings requiring a court to divide the marital

property equitably after considering all relevant factors.

¶33    Consistent with this requirement, we follow a number of courts in adopting a

balancing of interests approach to determine the proper disposition of a couple’s

pre-embryos where, as here, the parties’ written agreement does not address disposition

of the pre-embryos in the event of divorce. In crafting the framework we adopt today,

we emphasize that, where possible, courts should strive to award pre-embryos in a

manner that allows both parties to exercise their rights to procreational autonomy.

¶34    Here, the parties’ written agreement does not resolve how the pre-embryos should

be allocated in the event of divorce, and thus, for purposes of this dissolution proceeding,

the disposition of these remaining pre-embryos must be resolved by balancing the

parties’ interests.   Because the trial court and court of appeals considered certain

inappropriate factors in attempting to balance the parties’ interests here, we reverse the


                                            17
judgment of the court of appeals and remand the case with directions to return the matter

to the trial court to apply the framework we adopt today.

                       A. Reproductive Rights and Autonomy

¶35    Although this case concerns the equitable division of marital property in a divorce

proceeding, we recognize that the parties’ competing interests in the disputed

pre-embryos derive from constitutional rights in the realm of reproductive choice. We

therefore briefly discuss the governing case law in this area.

¶36    The U.S. Supreme Court has recognized the importance of individual autonomy

over decisions involving reproduction.         Over seventy-five years ago, the Court

recognized that procreation is “one of the basic civil rights” and that marriage and

procreation are fundamental to human existence and survival. Skinner v. Oklahoma,

316 U.S. 535, 541 (1942). As the Court considered new questions involving reproductive

rights, such as the right to access contraception, it began to articulate those rights as part

of a cluster of privacy rights grounded in several fundamental constitutional guarantees.

See Griswold v. Connecticut, 381 U.S. 479, 485 (1965). The Court also began to acknowledge

an individual’s privacy right to control decisions regarding procreation and family

relationships: “If the right of privacy means anything, it is the right of the individual,

married or single, to be free from unwarranted governmental intrusion into matters so

fundamentally affecting a person as the decision whether to bear or beget a child.”

Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). In addition to encompassing choices relating

to “marriage,” “procreation,” “contraception,” “family relationships,” and “child rearing


                                             18
and education,” the right of privacy “encompass[es] a woman’s decision whether or not

to terminate her pregnancy.” Roe v. Wade, 410 U.S. 113, 152–53 (1973).

¶37    The Supreme Court’s more recent opinions in this area have preserved an

individual’s ability to make his or her own decisions regarding matters involving

procreation and reproduction. See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52,

70 (1976) (“[W]e cannot hold that the State has the constitutional authority to give the

spouse unilaterally the ability to prohibit the wife from terminating her pregnancy, when

the State itself lacks that right.”); Bellotti v. Baird, 443 U.S. 622, 639–43 (1979) (reaffirming

that a state may not lawfully authorize an absolute parental veto over the decision of a

minor to terminate her pregnancy); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292,

2309 (2016) (“[A] statute which . . . has the effect of placing a substantial obstacle in the

path of a woman’s choice cannot be considered a permissible means of serving its

legitimate ends.” (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992)

(plurality opinion))).

¶38    This court has similarly recognized the importance of individual choice and

consent in exercising such rights. In addressing a petition to sterilize an incapacitated

woman, this court recognized an individual’s fundamental right to procreate and to

avoid procreation, noting that “[t]he decision whether to bear or beget a child is a

constitutionally protected choice.” Matter of Romero, 790 P.2d 819, 822 (Colo. 1990).

Although practices such as compulsory sterilization amount to an unconstitutional

infringement of the fundamental right to procreate, the “right to bear or beget children


                                               19
implies a more general right to reproductive autonomy which must include under certain

circumstances the opportunity to prevent procreation through a variety of means

including non-compulsory sterilization.” Matter of A.W., 637 P.2d 366, 369 (Colo. 1981).

We have observed that the cases addressing restrictions on abortions “also have as their

basis the constitutional right of individual control over procreative decisions.”         Id.

“Reading [the abortion] cases in conjunction with Skinner leads to the conclusion that an

individual has the fundamental right not only to bear children, but to decide not to be the

source of another life as well.” Id.

¶39    We note that the right to procreate or to avoid procreation does not depend on the

means by which that right is exercised. An individual may exercise her right to procreate

through conventional conception or IVF—or she may exercise her right to avoid

procreation through abstinence, contraception, voluntary sterilization, or even

abortion—but the nature of the right itself (to procreate or to avoid procreation) remains

the same.

                                 B. Other Jurisdictions

¶40    Having acknowledged the rights that underlie the parties’ dispute here, we turn

to case law from courts in other jurisdictions that have confronted similar disputes. These

courts have adhered to or combined aspects of three main approaches: (1) interpreting

the parties’ contract or agreement regarding disposition of the pre-embryos; (2) balancing

the parties’ respective interests in receiving the pre-embryos; or (3) requiring the parties’

mutual contemporaneous consent regarding disposition of the pre-embryos.


                                             20
¶41    Many jurisdictions begin by looking for a preexisting agreement between the

parties regarding disposition of remaining pre-embryos, as evidenced by consent or

storage agreements between the IVF facility and the parties. See, e.g., Kass v. Kass,

696 N.E.2d 174, 180 (N.Y. 1998) (“Agreements between progenitors, or gamete donors,

regarding disposition of their pre-zygotes should generally be presumed valid and

binding, and enforced in any dispute between them.”); In re Marriage of Dahl & Angle,

194 P.3d 834, 842 (Or. Ct. App. 2008) (“Absent a countervailing policy, it is just and proper

to dispose of the [pre-]embryos in the manner that the parties chose at the time that they

underwent the IVF process.”); Roman v. Roman, 193 S.W.3d 40, 49–50 (Tex. App. 2006)

(recognizing that “the public policy of [Texas] would permit a husband and wife to enter

voluntarily into an agreement, before implantation, that would provide for a[]

[pre-]embryo’s disposition in the event of a contingency, such as divorce, death, or

changed circumstances” and that such agreements should be presumed valid and

enforced).6 In Kass, the New York Court of Appeals determined that the IVF program




6 Some courts have concluded that such agreements are unenforceable for public policy
reasons. See, e.g., A.Z. v. B.Z., 725 N.E.2d 1051, 1056–57 (Mass. 2000) (concluding it was
“dubious at best that [the clinic consent form] represents the intent of the husband and
the wife regarding disposition of the [pre-embryos] in the case of a dispute between
them,” and that, in any event, the court “would not enforce an agreement that would
compel one donor to become a parent against his or her will”); see also J.B. v. M.B.,
783 A.2d 707, 719 (N.J. 2001) (adopting rule that, for public policy reasons, courts should
“enforce agreements entered into at the time in vitro fertilization is begun, subject to the
right of either party to change his or her mind about disposition up to the point of use or
destruction of any stored [pre-embryos]”).
                                             21
consent forms signed by the couple during their marriage manifested their mutual intent

that, in the event of divorce, the pre-embryos should be donated for research to the IVF

program. 696 N.E.2d at 180–81. The court thus ordered that the agreement be enforced.

Id. at 182. Similarly, in Marriage of Dahl & Angle and Roman, the courts resolved the

dispute by interpreting the agreements the parties signed with the IVF clinics when they

created the pre-embryos. See Marriage of Dahl & Angle, 194 P.3d at 842; Roman, 193 S.W.3d

at 54–55.

¶42    In some cases, courts have concluded that no enforceable agreement existed or that

an existing agreement did not address who should receive the remaining pre-embryos in

the event of divorce. For example, in Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), the

parties did not execute a written agreement regarding the disposition of any preserved

pre-embryos when they signed up for the IVF program. Id. at 590; see also McQueen,

507 S.W.3d at 155–56 (affirming finding that agreement regarding disposition of

pre-embryos upon divorce was “not entered into freely, fairly, knowingly,

understandingly, and in good faith with full disclosure” and was therefore not

enforceable); Reber v. Reiss, 42 A.3d 1131, 1136 (Pa. Super. Ct. 2012) (finding no

enforceable agreement where neither party signed portion of consent form related to

disposition of pre-embryos upon divorce).

¶43    In cases where no enforceable agreement exists, many courts have conducted what

has been termed a “balancing of interests” test to decide how to award or dispose of the

pre-embryos. The Supreme Court of Tennessee employed such an approach in Davis.


                                            22
842 S.W.2d at 603. There, the court acknowledged that the conflicting interests at stake

were of “equal significance—the right to procreate and the right to avoid procreation.”

Id. at 601. Given the absence of an enforceable agreement, the court resolved the dispute

by considering “the positions of the parties, the significance of their interests, and the

relative burdens that will be imposed by differing resolutions.” Id. at 603. In balancing

these interests, the court considered several factors, including (1) the burden of unwanted

parenthood on the ex-husband who wished to discard the pre-embryos, particularly in

light of his own childhood experience of being separated from his parents; (2) the

ex-wife’s interest in donating the pre-embryos to another couple to avoid the emotional

burden of knowing that the IVF procedures were futile; and (3) the ex-wife’s ability to

become a parent by other reasonable means in the future. Id. at 603–04. Ultimately, the

Davis court concluded that the balance of interests weighed in favor of the ex-husband’s

desire to discard the pre-embryos. Id. at 604.

¶44    Other courts have employed a similar balancing of interests approach where no

enforceable agreement exists, including in cases where one party wishes to implant the

pre-embryos to have a child. See J.B., 783 A.2d at 719 (evaluating the interests of both

parties); Reber, 42 A.3d at 1137 (balancing wife’s interest in having a biological child

against husband’s interest in avoiding unwanted procreation); Szafranski v. Dunston,

34 N.E.3d 1132, 1162 (Ill. Ct. App. 2015) (reviewing the trial court’s balancing of one

partner’s interest in having a biological child against the other partner’s interest in

avoiding becoming a parent). In balancing the parties’ interests, these courts have


                                            23
considered whether the party wishing to use the pre-embryos to procreate has alternate

means to become a biological parent. See J.B., 783 A.2d at 717 (reasoning that the

ex-husband was already a father and was capable of fathering additional children and

thus affirming the ex-wife’s right to prevent implantation of the [pre-]embryos); Reber, 42

A.3d at 1142 (reasoning that the balance of interests weighed in wife’s favor where the

“pre-embryos are likely Wife’s only opportunity to achieve biological parenthood”);

Szafranski, 34 N.E.3d at 1162 (affirming the lower court’s determination that the female

partner’s interest in using the pre-embryos outweighed the male partner’s interest in not

using them because “the sole purpose for using [his] sperm to fertilize [her] last viable

eggs was to preserve her ability to have a biological child in the future at some point after

her chemotherapy treatment ended”).

¶45    Finally, a small minority of courts have adopted a “mutual contemporaneous

consent” approach, under which the court will not award the pre-embryos over the

objection of either party.    Instead, “no transfer, release, disposition, or use of the

[pre-]embryos can occur without the signed authorization of both donors.” In re Marriage

of Witten, 672 N.W.2d 768, 783 (Iowa 2003); see also McQueen, 507 S.W.3d at 157 (affirming

the trial court’s judgment awarding the pre-embryos to the parties jointly and ordering

that no transfer, release, or use shall occur without the signed authorization of both

parties). This approach recognizes that disputed pre-embryos are “not easily susceptible

to a just division because conflicting constitutional rights are at issue.” McQueen, 507

S.W.3d at 157. In theory, the mutual contemporaneous consent approach purportedly


                                             24
“subjects neither party to any unwarranted governmental intrusion but rather leaves the

intimate decision of whether to potentially have more children to the parties alone.” Id.

¶46    However, the mutual contemporaneous consent approach has been criticized by

other courts as being “totally unrealistic” because if the parties were capable of reaching

an agreement, then they would not be in court. Reber, 42 A.3d at 1135 n.5. As both the

trial court and court of appeals recognized in this case, the mutual contemporaneous

consent approach gives one party a de facto veto over the other party by avoiding any

resolution until the issue is eventually mooted by the passage of time. See Marriage of

Rooks, ¶ 23. And as at least one scholar has pointed out, this de facto veto creates

incentives for one party to leverage his or her power unfairly. See Mark P. Strasser, You

Take the Embryos but I Get the House (and the Business): Recent Trends in Awards Involving

Embryos Upon Divorce, 57 Buff. L. Rev. 1159, 1210 (2009) (“[O]ne could imagine such a

person imposing continuing psychic damage by hinting that he or she might consent to

the ex-spouse’s use of the [pre-]embryos sometime in the future—the ex-spouse might

well continue to be on an emotional rollercoaster when considering the possibility of

finally becoming a parent. Or the [pre-]embryos might in effect be held hostage—they

would be released for use only if the ex-spouse were willing to give up something

valuable in return, for example, in a property settlement or in exchange for more

favorable support terms.”). Because the mutual contemporaneous consent approach

allows one party to “change his or her mind about disposition up to the point of use or

destruction of any stored [pre-]embryo,” regardless of any preexisting agreement, see


                                            25
Marriage of Witten, 672 N.W. 2d at 782, it injects legal uncertainty into the process. Thus,

this approach potentially increases litigation in already emotionally charged and

fundamentally private matters.

¶47    Although these three approaches have been characterized and discussed as three

different “rules” or “methods” for resolving disputes over frozen pre-embryos, we note

that the approaches share conceptual underpinnings and reflect common goals. Both the

contract approach and the mutual contemporaneous consent approach prioritize the

parties’ mutual consent and agreement. The contract approach simply encourages the

parties to arrive at agreement regarding the disposition of the pre-embryos in advance of

divorce. By contrast, the mutual contemporaneous consent approach requires the parties’

mutual consent whenever a disposition occurs—regardless of any preexisting

agreements. See Marriage of Witten, 672 N.W.2d at 777–78 (explaining that although the

two approaches share an underlying premise, the important question is “at what time

does the partners’ consent matter?” (quoting Carl H. Coleman, Procreative Liberty and

Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 Minn.

L. Rev. 55, 91 (1999))).    (Indeed, the mutual contemporaneous consent approach

eliminates any incentive for parties to agree up front about what should happen with the

pre-embryos in the event of divorce and thereby avoid litigation.)

¶48    Further, many courts combine one or more of the approaches in order to resolve

disputes—e.g., applying the contract approach first and, if no enforceable agreement

exists, then balancing the parties’ competing interests. See, e.g., Davis, 842 S.W.2d at 604


                                            26
(holding that disputes involving the disposition of frozen pre-embryos should be

resolved first by looking to an agreement between the parties but that “[i]f no prior

agreement exists, then the relative interests of the parties in using or not using the

[pre-embryos] must be weighed”).

                                 C. Colorado Statutes

¶49    Keeping in mind the approaches taken in other jurisdictions, we now turn to

Colorado statutes for direction in resolving the case before us.

¶50    The Colorado Probate Code addresses legal parenthood in the context of assisted

reproduction.    Relevant here, section 15-11-120(4), C.R.S. (2018), provides that “a

parent-child relationship exists between a child of assisted reproduction and the husband

of the child’s birth mother if the husband provided the sperm that the birth mother used

during his lifetime for assisted reproduction.” However, this provision acknowledges

two exceptions to this general rule of legal parenthood. First, section 15-11-120(9)

provides, “[i]f a married couple is divorced before placement of eggs, sperm, or embryos,

a child resulting from the assisted reproduction is not a child of the birth mother’s former

spouse, unless the former spouse consented in a record that if assisted reproduction were

to occur after divorce, the child would be treated as the former spouse’s child.” Second,

section 15-11-120(10) provides that “[i]f, in a record, an individual withdraws consent to

assisted reproduction before placement of eggs, sperm, or embryos, a child resulting from

the assisted reproduction is not a child of that individual.” In other words, subsections

(9) and (10) make clear that a spouse who either divorces or withdraws consent to assisted


                                            27
reproduction prior to the placement of eggs, sperm, or embryos is not the legal parent of

a resulting child. Importantly, subsections (9) and (10) show that the legislature has

implicitly rejected the mutual contemporaneous consent approach.                If mutual

contemporaneous consent were required to proceed with implantation, there would be

no need to address the legal relationship between a non-consenting party and a resulting

child because that child could not be born in the first place. That these provisions refer

to a “resulting” child despite a divorce or a spouse’s withdrawal of “consent” shows that

the consent contemplated is to legal parenthood of the resulting child, not to implantation

of the couple’s pre-embryo.

¶51   Article 4 of the Colorado Children’s Code, titled the “Uniform Parentage Act,”

similarly addresses consent to legal parenthood in the context of assisted reproduction.

Section 19-4-106(1), C.R.S. (2018), which addresses assisted reproduction by married

couples using sperm or eggs donated by a third party, states that when a married couple

“consents” to such assisted reproduction, the spouse who does not contribute eggs or

sperm is nevertheless “treated in law as if [they] were the natural [parent] of a child

thereby conceived.” Section 19-4-106(7)(a) goes on to provide that “[i]f a marriage is

dissolved before placement of eggs, sperm, or embryos, the former spouse is not a parent

of the resulting child unless the former spouse consented in a record that if assisted

reproduction were to occur after a dissolution of marriage, the former spouse would be

a parent of the child.” Section 19-4-106(7)(b) adds that “[t]he consent of a former spouse




                                            28
to assisted reproduction may be withdrawn by that individual in a record at any time

before placement of eggs, sperm, or embryos.”

¶52    Amicus Colorado Chapter of the American Academy of Matrimonial Lawyers

reads subsection (7)(b) to convey a public policy that, like the contemporaneous mutual

consent approach, requires a former spouse’s consent to the placement of eggs, sperm, or

embryos. We disagree. We “must read and consider the statutory scheme as a whole to

give consistent, harmonious[,] and sensible effect to all its parts.” People v. Stellabotte,

2018 CO 66, ¶ 32, 421 P.3d 174, 180 (quoting Martin v. People, 27 P.3d 846, 851 (Colo. 2001)).

If paragraph (b) were instead its own subsection, amicus might have a point. But

paragraph (b) is not a freestanding subsection. It is part of subsection (7) and therefore

must be read accordingly. Read in conjunction with subsection (7)(a), the “consent” in

subsection (7)(b) logically refers to the former spouse’s consent to legal parenthood of a

“resulting child” conceived by assisted reproduction.7




7The 2000 version (amended in 2002) of the Uniform Parentage Act promulgated by the
National Conference of Commissioners on Uniform State Laws contains a similar
provision addressing the effect of dissolution or withdrawal of consent on legal
parenthood of a resulting child:
       (a) If a marriage is dissolved before placement of eggs, sperm, or embryos,
       the former spouse is not a parent of the resulting child unless the former
       spouse consented in a record that if assisted reproduction were to occur
       after a divorce, the former spouse would be a parent of the child.
       (b) The consent of a woman or a man to assisted reproduction may be
       withdrawn by that individual in a record at any time before placement of
       eggs, sperm, or embryos. An individual who withdraws consent under this
       section is not a parent of the resulting child.
                                             29
¶53      Section 19-4-106(8) does not alter our view. Subsection (8) provides that “[i]f a

spouse dies before placement of eggs, sperm, or embryos, the deceased spouse is not a

parent of the resulting child unless the deceased spouse consented in a record that if

assisted reproduction were to occur after death, the deceased spouse would be a parent

of the child.” This provision simply terminates a spouse’s consent to be a legal parent

upon that spouse’s death, unless the spouse affirmatively agrees in a record that his or

her consent to be the legal parent of a resulting child will extend beyond that spouse’s

death.

¶54      In sum, the legislature’s repeated references in both the Probate Code and

Children’s Code to the resulting “child,” see §§ 15-11-120(9)-(10); § 19-4-106(7), make clear

that these provisions address the legal parentage of a child eventually born using assisted

reproduction—and not whether the assisted reproduction process may continue (via

implantation of preserved pre-embryos) over one partner’s objection.

¶55      Thus, Colorado statutes provide that 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. Although these statutes

address the resulting legal relationships with any children eventually born using assisted

reproductive technology, they do not address how a trial court should resolve disputes




Effect of Dissolution of Marriage or Withdrawal of Consent., Unif. Parentage Act (2000)
§ 706.
                                             30
over how to allocate remaining cryogenically preserved pre-embryos in a dissolution of

marriage proceeding. In the absence of instructions from the legislature in these specific

circumstances, it falls to us provide a framework for courts to apply when addressing

these disputes.

¶56    Before turning to that task, we note that Colorado law generally provides that

pre-embryos are not “persons,” as a legal matter.         See § 13-21-1204, C.R.S. (2018)

(“Nothing in this part [Damages for Unlawful Termination of Pregnancy] shall be

construed to confer the status of ‘person’ upon a human embryo, fetus, or unborn child

at any stage of development prior to live birth.”); § 18-3.5-110, C.R.S. (2018) (“Nothing in

this article [Offenses Against Pregnant Women] shall be construed to confer the status of

‘person’ upon a human embryo, fetus, or unborn child at any stage of development prior

to live birth.”).

¶57    At the same time, we acknowledge that pre-embryos contain the potential for

human life and are formed using genetic material from two parties with significant, but

potentially competing, interests in their ultimate disposition. Thus, we agree with courts

that have categorized pre-embryos as marital property of a special character. See Davis,

842 S.W. 2d at 597 (“We conclude that pre-embryos are not, strictly speaking, either

‘persons’ or ‘property,’ but occupy an interim category that entitles them to special

respect . . . .”); McQueen, 507 S.W.3d at 149 (trial court did not err in classifying

pre-embryos as marital property of a special character instead of children).




                                            31
¶58    Although Colorado statutes do not address the proper disposition of marital

pre-embryos upon divorce, the Uniform Dissolution of Marriage Act (“UMDA”) does

generally direct a court presiding over dissolution proceedings to “divide the marital

property . . . in such proportions as the court deems just.” § 14-10-113(1), C.R.S. (2018);

see also In re Balanson, 25 P.3d 28, 35 (Colo. 2001) (a court must make an equitable

distribution of marital property after considering all relevant factors). That the UMDA

requires the court to divide the marital property “in such proportions as the court deems

just” directs that some sort of balancing is appropriate here. See § 14-10-113(1).

                    D. Resolving Pre-Embryo Disputes in Colorado

¶59    With these legal principles in mind—which derive from the foregoing discussion

of case law regarding constitutional rights in the realm of reproductive choice, case law

from other jurisdictions resolving similar disputes, and applicable Colorado statutes—

we now address how courts in Colorado should resolve disagreements over a couple’s

cryogenically preserved pre-embryos when that couple divorces.

¶60    First, we reject the mutual contemporaneous consent approach. As discussed

above, the repeated references in both the Probate Code and Children’s Code to a

resulting child, see §§ 15-11-120(9)-(10); § 19-4-106(7), reflect the legislature’s implicit

rejection of the mutual contemporaneous consent approach. Again, if the parties’ mutual

contemporaneous consent were required to proceed with implantation, there would be

no need to address the legal relationship between a non-consenting party and a resulting

child, because that child could not exist. We also agree with those courts that have


                                            32
criticized the mutual contemporaneous consent approach as being “totally unrealistic”

because if the parties were capable of reaching an agreement, they would not be in court.

Reber, 42 A.3d at 1135 n.5. It is similarly unrealistic to think that parties who cannot reach

agreement on a topic so emotionally charged will somehow reach resolution after a

divorce is finalized. In addition, we share the concern expressed by the trial court and

court of appeals that the mutual contemporaneous consent approach gives one party a

de facto veto over the other party by avoiding any resolution until the issue is eventually

mooted by the passage of time. See Marriage of Rooks, ¶ 23. And we worry that this de

facto veto creates incentives for a party to leverage this issue unfairly in divorce

proceedings. Moreover, because it disregards the parties’ preexisting agreements, the

mutual contemporaneous consent approach injects legal uncertainty into the process and

eliminates any incentive for the parties to avoid litigation by agreeing in advance about

disposition of remaining pre-embryos in the event of divorce.           Finally, the mutual

contemporaneous consent approach essentially requires us to abdicate our judicial

responsibilities by ignoring the legislature’s directive to distribute equitably the parties’

marital property in a dissolution proceeding. The parties here have turned to the courts

to resolve their dispute. We cannot simply do nothing.

¶61    Instead, considering the nature and equivalency of the underlying liberty and

privacy interests at stake, we conclude that a court presiding over dissolution

proceedings should strive, where possible, to honor both parties’ interests in

procreational autonomy when resolving these disputes. Thus, we hold that a court


                                             33
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’ respective interests when

awarding the pre-embryos, as discussed more fully below.

¶62    We agree with those courts that first look for an enforceable agreement between

the parties regarding the disposition of the pre-embryos upon divorce. We do not

interpret a party’s commencement of the IVF process, on its own, to establish the party’s

automatic consent to become the genetic parent of all possible children that could result

from successful implantation of the pre-embryos. In fact, the forms that ask parties to

elect specific disposition options for various contingencies recognize that, by undergoing

IVF, parties do not automatically consent to use of the pre-embryos potentially years

later, under changed circumstances.         Additionally, the statutes addressing legal

parenthood in this context recognize that divorce likely alters the parties’ mutual intent

to become parents that existed when the couple embarked on the IVF process.

See § 15-11-120(9) (if a married couple divorces before pre-embryos are implanted, “a

child resulting from the assisted reproduction is not a child of the birth mother’s former

spouse, unless the former spouse consented in a record”); see also § 19-4-106(7)(a).

¶63    On the other hand, binding agreements “minimize misunderstandings and

maximize procreative liberty by reserving to the progenitors the authority to make what

is in the first instance a quintessentially personal, private decision.” Kass, 696 N.E. 2d at

180. We agree that, “[t]o the extent possible, it should be the progenitors—not the State


                                             34
and not the courts—who by their prior directive make this deeply personal life choice.”

Id.; see also Davis, 842 S.W.2d at 597 (noting that starting with a prior agreement regarding

the disposition of the pre-embryos “is in keeping with the proposition that the

progenitors, having provided the gametic material giving rise to the pre-embryos, retain

decision-making authority as to their disposition”).        Thus, disputes in dissolution

proceedings over the disposition of cryogenically preserved pre-embryos should be

resolved first by looking to an existing agreement expressing the spouses’ intent in the

event of divorce.

¶64    However, in the absence of an enforceable agreement regarding disposition of the

pre-embryos, and where the parties have turned to the courts to resolve their dispute, the

dissolution court should balance the parties’ respective interests and award the

pre-embryos accordingly. Recognizing a couple’s cryogenically preserved pre-embryos

as marital property of a special character, see Davis, 842 S.W. 2d at 597, the underlying

principle that informs our balancing test is autonomy over decisions involving

reproduction. Thus, the framework we adopt in this special context is distinct from, and

more narrow than, the trial court’s consideration of various factors in determining

equitable distribution of other forms of marital property. See Balanson, 25 P.3d at 35.

Here, underlying the court’s disposition of this special form of property are the parties’

individual interests in either achieving or avoiding genetic parenthood through use of

the disputed pre-embryos.




                                             35
¶65    We first discuss a non-exhaustive list of considerations that a court should weigh

in disposing of the marital pre-embryos. Factors not discussed here may also be relevant

to the analysis depending on the circumstances of the parties before the dissolution court.

We then identify certain factors that should never be taken into account.

¶66    To begin with, courts should consider the intended use of the party seeking to

preserve the disputed pre-embryos. A party who seeks to become a genetic parent

through implantation of the pre-embryos, for example, has a weightier interest than one

who seeks to donate the pre-embryos to another couple. See Davis, 842 S.W.2d at 603–04

(concluding that ex-husband’s interest in avoiding becoming a genetic parent

outweighed wife’s interest in donating the pre-embryos to another couple); J.B., 783 A.2d

at 717 (prioritizing ex-wife’s interest in preventing further use of the pre-embryos over

ex-husband’s desire to donate them).

¶67    A court should also consider the demonstrated physical ability (or, conversely,

inability) of the party seeking to implant the disputed pre-embryos to have biological

children through other means.8         Compare J.B., 783 A.2d at 717 (observing that

ex-husband’s opportunity to have additional genetic children did not depend on the




8 Courts in other jurisdictions have resolved the factual question regarding one party’s
ability reasonably to achieve genetic parenthood without the preserved pre-embryos by
looking to testimony from the parties regarding their medical history and consultations
with medical professionals. See Reber, 42 A.3d at 1138; Szafranski, 34 N.E. 3d at 1162.
                                            36
pre-embryos), with Reber, 42 A.3d at 1137 (considering that ex-wife had “no ability to

procreate biologically without the use of the disputed pre-embryos”).

¶68   Relatedly, the court should consider the parties’ original reasons for pursuing IVF,

which may favor preservation over disposition. For example, the couple may have

turned to IVF to preserve a spouse’s future ability to have biological children in the face

of fertility-implicating medical treatment, such as chemotherapy.       See Szafranski, 34

N.E.3d at 1162 (“[T]he sole purpose for [undergoing IVF] was to preserve [one partner’s]

ability to have a biological child in the future at some point after her chemotherapy

treatment ended. The parties both recognized this when they agreed to create the

pre-embryos together.”); Reber, 42 A.3d at 1137 (“Wife testified that she underwent IVF

only after she was diagnosed with breast cancer, after consultation with her doctor, and

then she delayed chemotherapy by two to three weeks to undergo the process.”).

¶69   The court’s analysis should also include consideration of hardship for the person

seeking to avoid becoming a genetic parent, including emotional, financial, or logistical

considerations. See Davis, 842 S.W.2d at 603–04 (considering ex-husband’s opposition to

fathering a child who would not live with both parents because of his own childhood

experiences involving separation from his parents).

¶70   In addition, a court should consider either spouse’s demonstrated bad faith or

attempt to use the pre-embryos as unfair leverage in the divorce proceedings. See In re

Marriage of Manzo, 659 P.2d 669, 674 (Colo. 1983) (“[B]efore a court incorporates property

division provisions of a separation agreement into a dissolution decree, it should first


                                            37
review the provisions for fraud, overreaching, . . . or sharp dealing not consistent with

the obligations of marital partners to deal fairly with each other . . . .”).

¶71    Factors other than the ones described above may be relevant on a case-by-case

basis. That said, we hold that the following are improper considerations in a dissolution

court’s allocation of a couple’s cryogenically preserved pre-embryos. First, we decline to

adopt a test that would allow courts to limit the size of a family based on financial and

economic distinctions. Cf. Skinner, 316 U.S. at 541 (discussing procreation as “one of the

basic civil rights of man”). Thus, a dissolution court should not assess whether the party

seeking to become a genetic parent using the pre-embryos can afford another child. Nor

shall the sheer number of a party’s existing children, standing alone, be a reason to

preclude preservation or use of the pre-embryos. Finally, we note that some courts have

mentioned adoption as an alternative to biological or genetic parenthood through

conventional or assisted reproduction. See Davis, 842 S.W.2d at 604. However, because

we conclude the relevant interest at stake is the interest in achieving or avoiding genetic

parenthood, courts should not consider whether a spouse seeking to use the pre-embryos

to become a genetic parent could instead adopt a child or otherwise parent non-biological

children. See Reber, 42 A.2d at 1138 (“There is no question that the ability to have a

biological child and/or be pregnant is a distinct experience from adoption. Thus, simply

because adoption or foster parenting may be available . . . does not mean that such options

should be given equal weight in a balancing test.”).




                                               38
¶72    The framework that we adopt today recognizes that both spouses have equally

valid, constitutionally based interests in procreational autonomy. It encourages couples

to record their mutual consent regarding the disposition of remaining pre-embryos in the

event of divorce by an express agreement. Under such an agreement, if one spouse has

consented to awarding the pre-embryos to the other spouse or to donating them to

another couple for implantation, courts should give effect to that decision. Where the

parties’ consent to disposition of the pre-embryos in the event of divorce is not

memorialized in an enforceable agreement, and the parties therefore must turn to a court

to resolve their dispute, the approach we adopt today tasks the dissolution court with

weighing the interests at stake and awarding the pre-embryos accordingly. Importantly,

the balancing of interests approach we adopt is consistent with Colorado law directing

dissolution courts to divide marital property based on a consideration of relevant factors,

while taking into account that pre-embryos are marital property of a special character.

                                        E. Application

¶73    Here, Mr. and Ms. Rooks reached agreement regarding the disposition of

pre-embryos in the event of certain contingencies (such as the death of one or both of the

spouses).   However, they failed to agree in advance how remaining cryogenically

preserved pre-embryos should be allocated in the event of divorce. Instead, as the court

of appeals correctly concluded, their written agreement left it to the dissolution court to

determine how to allocate the pre-embryos. Marriage of Rooks, ¶ 31. Thus, awarding the

pre-embryos in accordance with law governing the distribution of marital property also


                                            39
satisfies the expectations of the parties, who specified that in the event of divorce, the

dissolution decree would address the disposition of any remaining cryogenically

preserved pre-embryos. Because we announce a new framework for resolving disputes

regarding the disposition of pre-embryos frozen during marriage in the event of divorce,

and because the trial court and court of appeals considered certain inappropriate factors

in attempting to balance the parties’ interests here, we reverse the judgment of the court

of appeals and remand the case with instructions to return the matter to the trial court to

balance the parties’ interests under the approach we adopt today.

                                    III. Conclusion

¶74    In the absence of more specific legislative guidance in these circumstances, we

adopt a balancing framework for courts to apply in allocating disputed pre-embryos in

divorce proceedings. Because the underlying interests at stake are the equivalently

important, yet competing, right to procreate and right to avoid procreation, courts should

strive, where possible, to honor both parties’ interests in procreational autonomy. Thus,

we hold that courts should award pre-embryos first by looking to an existing enforceable

agreement addressing the parties’ wishes regarding disposition of remaining

pre-embryos in the event of divorce. In the absence of such an agreement, a dissolution

court tasked with resolving such a dispute should weigh the parties’ respective interests

in receipt of the pre-embryos. In balancing those interests, courts should consider the

intended use of the party seeking to preserve the pre-embryos; a party’s demonstrated

ability, or inability, to become a genetic parent through means other than use of the


                                            40
disputed pre-embryos; the parties’ reasons for undertaking IVF in the first place; the

emotional, financial, or logistical hardship for the person seeking to avoid becoming a

genetic parent; any demonstrated bad faith or attempt to use the pre-embryos as unfair

leverage in the divorce process; and other considerations relevant to the parties’ specific

situation. However, courts should not consider whether the party seeking to become a

genetic parent using the pre-embryos can afford a child. Nor shall the sheer number of a

party’s existing children, standing alone, be a reason to preclude preservation or use of

the pre-embryos. Finally, courts should not consider whether the party seeking to

become a genetic parent using the pre-embryos could instead adopt a child or otherwise

parent non-biological children.

¶75    We reverse the judgment of the court of appeals and remand with directions to

return the matter to the trial court to apply the balancing framework we adopt today.



JUSTICE HOOD dissents, and CHIEF JUSTICE COATS and JUSTICE SAMOUR join
in the dissent.




                                            41
JUSTICE HOOD, dissenting.

¶76      This case requires us to consider the proper role of courts when parties disagree

during a divorce about whether to use their cryogenically frozen pre-embryos to

procreate through in vitro fertilization (“IVF”). Because I believe a court should never

infringe on a person’s constitutional right to avoid procreation through IVF, I disagree

with the majority’s decision to entangle our courts in such deeply personal disputes by

employing a multi-factor balancing test. Instead, I would embrace the contemporaneous

mutual consent approach outlined by the majority. Maj. op. ¶ 45. Doing so would not

only avoid invading citizens’ constitutional rights but also comport with relevant

Colorado statutes and advance sound public policy. Therefore, I respectfully dissent.

              I. Freedom from Government Infringement on a Person’s
                             Decision to Not Procreate

¶77      The majority has provided a comprehensive overview of the relevant case law.

Maj. op. ¶¶ 36–48. Therefore, I will refrain from simply echoing it now. Instead, I focus

on how the tenets of constitutional law outlined by the majority should apply to IVF

cases.

¶78      As the majority discusses, there are two fundamental rights implicated when

considering this type of IVF dispute: (1) the right to procreate of the party who wants to

implant the pre-embryo and (2) the right to avoid procreation of the party who does not

want to implant the pre-embryo. Id. at ¶ 3. When there is such disagreement, only one

party can prevail. Here, as to these pre-embryos, either Mr. Rooks will exercise his right



                                             1
to not procreate or Ms. Rooks will exercise her right to procreate. So, what is the role of

the courts in this legal minefield?

¶79    To answer this question, we must first consider whether we really must balance

constitutional rights at all. Stated differently: Would a court’s inaction infringe on any

right of the party who wishes to procreate? My answer is no, because while the U.S.

Constitution affords many protections related to procreation, there exists no

constitutional right to use the coercive power of the state to compel procreation. Indeed,

“[i]f the right of privacy means anything, it is the right of the individual, married or

single, to be free from unwarranted governmental intrusion into matters so

fundamentally affecting a person as the decision whether to bear or beget a child.”

Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). “[T]he right to bear or beget children implies

a more general right to reproductive autonomy which must include under certain

circumstances the opportunity to prevent procreation through a variety of means . . . .”

In re A. W., 637 P.2d 366, 369 (Colo. 1981).

¶80    Here, the impediment to Ms. Rooks exercising her right to procreate is not the

court, it is Mr. Rooks. In order for a person to exercise his or her right to procreate,

obviously a second party is needed. Whether it be two parties through conventional

procreation or two parties through IVF, procreation cannot occur without a sperm and

an egg. The fact that the person wanting to procreate does not have a second party also

willing to procreate does not mean the court has infringed on anyone’s rights. It is not

the role of the court to compel the second party to consent. Here, Ms. Rooks cannot


                                               2
exercise her right to procreate, not because of any state action but, instead, because Mr.

Rooks is exercising his right to avoid procreation.

¶81    Under the majority’s test, the courts are forced to mediate a fundamentally

personal decision and, in the process, infringe on a litigant’s constitutional rights. In

some contexts, this judicial choice may be unavoidable.               Not so here.       The

contemporaneous mutual consent approach appropriately minimizes the government’s

role in resolving this constitutional dilemma.

                   II. Contemporaneous Mutual Consent Approach

¶82    Of the approaches outlined by the majority, only the contemporaneous mutual

consent approach adequately shields citizens from unwarranted governmental intrusion.

See In re Marriage of Witten, 672 N.W.2d 768, 783 (Iowa 2003); A.Z. v. B.Z., 725 N.E.2d 1051,

1057–59 (Mass. 2000); McQueen v. Gadberry, 507 S.W.3d 127, 157 (Mo. Ct. App. 2016).

Under this test:

       no transfer, release, disposition, or use of the embryos can occur without
       the signed authorization of both donors. If a stalemate results, the status
       quo would be maintained. The practical effect will be that the embryos are
       stored indefinitely unless both parties can agree to destroy the fertilized
       eggs. Thus, any expense associated with maintaining the status quo should
       logically be borne by the person opposing destruction.

Witten, 672 N.W.2d at 783. By emphasizing that consent is always essential, the mutual

contemporaneous consent approach leaves this highly personal choice in the hands of

donors. Id. at 783 (reasoning that balancing tests in this context merely “substitute[] the

court as decision maker”); A.Z., 725 N.E.2d at 1058 (“[F]orced procreation is not an area

amenable to judicial enforcement.”); McQueen, 507 S.W.3d at 157 (finding that mutual

                                             3
consent “subjects neither party to any unwarranted governmental intrusion”). At the

same time, this approach recognizes the validity of agreements between donors and

clinics. Witten, 672 N.W.2d at 782. Thus, under contemporaneous mutual consent, one

or both partners can change their minds at any time before placement of the pre-embryos,

while simultaneously protecting contractual interests between donors and clinics. Id.

¶83   Some of those jurisdictions that purport to adopt a balancing test still recognize

the dangerous implications of forcing a non-consenting donor to procreate. For example,

the New Jersey Supreme Court found that implantation could have “life-long emotional

and psychological repercussions.” J.B. v. M.B., 783 A.2d 707, 717 (N.J. 2001). Because of

these significant concerns, the court held that disposition agreements were subject to

revision “up to the point of use or destruction of any stored preembryos.” Id. at 719. If

that occurred, the court would look to “the interests of both parties,” but nevertheless

reasoned that “ordinarily the party choosing not to become a biological parent will

prevail.” Id. Thus, although the New Jersey Supreme Court seems to adopt a balancing

test like the majority’s here, it still recognizes the significant costs of doing so and

presumes that the right to not procreate would triumph in most circumstances.

¶84   Even the Davis court, which endorsed and spearheaded the balancing test

approach to pre-embryo disputes, noted that “decisional authority rests in the

gamete-providers alone.” Davis v. Davis, 842 S.W.2d 588, 602 (Tenn. 1992). Therefore,

“no other person has an interest sufficient to permit interference with the

gamete-providers’ decision to continue or terminate the IVF process, because no one else


                                           4
bears the consequences of these decisions in the way that gamete-providers do.” Id.

Adopting the contemporaneous mutual consent approach would ensure that

“gamete-providers alone” make the “decision to continue or terminate the IVF process.”

Id.

                      A. Protection Against Constitutional Harm

¶85      Yet what exactly is it that the contemporaneous mutual consent test guards

against? True, it keeps the courts from intruding on a donor’s constitutional right to not

procreate. But to properly understand this right, we must see what types of harms a

violation of it would engender. This is vital given that, even if a court were to award the

pre-embryos to Ms. Rooks, Mr. Rooks will not become the legal parent of Ms. Rooks’s

eventual children. See 19-4-106(7)(a), C.R.S. (2018) (allowing an ex-spouse to withdraw

consent to legal parentage); see also infra Section II.B. So, how will Mr. Rooks be harmed

by a decision granting Ms. Rooks the pre-embryos given that he will have no legal

responsibilities to his genetic children?

¶86      For the non-consenting donor, there are several harms that may be inflicted, each

of which derives “from the unwanted existence of a child to whom one stands in

relationship of parent.” See I. Glenn Cohen, The Right Not to Be a Genetic Parent?, 81 S. Cal.

L. Rev. 1115, 1135 (2008). While Mr. Rooks will not be the legal or (obviously) the

gestational parent, he will still have some residual, societal parenthood attached to him

by both the nature of his previous relationship with Ms. Rooks and his genetic tie to the

child.


                                              5
¶87    First, how is Mr. Rooks to respond when someone tells him how brilliant or

troubled his new daughter is growing up to be? See id. at 1136. Should he be required to

explain that he is not the child’s legal parent and that he only became a genetic parent

over his objection? Or must he simply smile and nod? Either one is a constitutional harm

against which the right to not procreate protects. But the majority’s test may very well

require the state to inflict these harms.

¶88    Second, Ms. Rooks’s resulting child could, quite understandably, perceive Mr.

Rooks as her father, irrespective of the legal technicalities we discuss today. See id.

Adopted children and children born of sperm donors sometimes seek out their genetic

parents. Id. There is no guarantee that the new child will not discover and want to

explore her genetic circumstances. Mr. Rooks then must endure another constitutional

harm: the potential for pressure to be placed on him by his unwanted genetic child.

¶89    Third, Mr. Rooks, himself, may view the resulting child as his own, even though

the law does not recognize him as the parent. See id. at 1137. Presumably, a consenting

spouse does not view a child born from IVF as his or her own simply because the law

bestows legal parentage. Rather, it is more typically the social and genetic tie that causes

the spouse to care for and love the child. But both are still present in the case of the

non-consenting former spouse. And that former spouse is stuck with the “powerful

attendant reverberations of guilt, attachment, or responsibility which . . . knowledge [of

the resulting child] can ignite.” John A. Robertson, In the Beginning: The Legal Status of




                                             6
Early Embryos, 76 Va. L. Rev. 437, 479 (1990). It seems reasonable to infer that, if Mr. Rooks

didn’t fear such reverberations, we probably wouldn’t be here today.

¶90    As each of these examples demonstrates, the majority’s test permits the state to use

its power to inflict constitutional harm. Citizens are meant to be “free from unwarranted

governmental intrusion” when deciding “whether to bear or beget a child.” Eisenstadt,

405 U.S. at 453. But instead of unfettering citizens, the majority’s test places the state

directly between two people in a decision that “fundamentally affect[s]” their lives. Id.

It is true that some harm is suffered by the parent wanting to procreate under the

contemporaneous mutual consent approach.

¶91    1   The crucial difference is that the state has no role in perpetrating it. Ms. Rooks

has the right to be free from “unwarranted governmental intrusion” in exercising her

right to procreate. Eisenstadt, 405 U.S. at 453. She does not have the right to compel

genetic procreation against another person’s will.

                             B. Colorado Statutory Scheme

¶92    That the state should avoid inflicting constitutional harms on its citizens should

be enough to caution this court away from adopting any sort of test that forces it to choose

sides. If that concern is insufficient, a portion of the Colorado Uniform Parentage Act,




1 Indeed, the donor wishing to implant would be required to “try again,” with all its
attendant monetary costs and physical invasions. In some cases, a donor may lose the
ability to have more children or any children at all. These harms are real. But under the
contemporaneous mutual consent approach, they are not inflicted by the state.
                                              7
specifically section 19-4-106(7)(b), arguably codifies the contemporaneous mutual

consent approach. At the very least, this statutory provision sheds light on the policy

preference of the Colorado General Assembly. Subsection (7) reads, in whole, as follows:

       (7)(a) If a marriage is dissolved before placement of eggs, sperm, or
       embryos, the former spouse is not a parent of the resulting child unless the
       former spouse consented in a record that if assisted reproduction were to
       occur after a dissolution of marriage, the former spouse would be a parent
       of the child.

       (b) The consent of a former spouse to assisted reproduction may be
       withdrawn by that individual in a record at any time before placement of
       eggs, sperm, or embryos.

§ 19-4-106(7).

¶93    Subsection (7)(b) seems to embrace the contemporaneous mutual consent

approach, stating that a former spouse maintains the power to veto assisted reproduction

at any point before placement of the pre-embryo.

¶94    The majority argues that (7)(b) should be read to modify (7)(a), referring to the

same “consent” as in (7)(a), or consent to be a legal parent, not consent to placement. Maj.

op. ¶¶ 51–52. Under the majority’s reading, (7)(a) permits a former spouse to consent to

be a legal parent, and (7)(b) empowers a former spouse who has previously given that

consent to withdraw it. Id.

¶95    I am not persuaded by the majority’s limited reading. As I see it, the two

subsections describe precisely the type of consent at issue for each subsection. And the

two types of consent are different. Subsection (7)(a) frames the consent in more narrow

language, “that if the assisted reproduction were to occur after the dissolution of


                                             8
marriage, the former spouse would be a parent of the child.” § 19-4-106(7)(a). In contrast,

the “consent” in (7)(b) is framed more broadly as consent “to assisted reproduction.”

§ 19-4-106(7)(b). Thus, I read subsection (7)(a) to encompass consent to be a legal parent,

whereas I read subsection (7)(b) to refer generally to consent to have one’s genetic

material used in assisted reproduction.

¶96    My reading ensures that no portion of the statute is rendered superfluous. See

Wolford v. Pinnacol Assurance, 107 P.3d 947, 951 (Colo. 2005) (“[W]e must interpret a

statute to give effect to all its parts and avoid interpretations that render statutory

provisions redundant or superfluous.”).          Subsection (8) contains language nearly

identical to subsection (7)(a): “If a spouse dies before placement . . . the deceased spouse

is not a parent . . . unless the deceased spouse consented . . . .” §19-4-106(8).2 Subsection

(8), however, does not contain a subsection (7)(b) equivalent.        Id. Even without a

subsection (8)(b), the natural implication of subsection (8)’s language is that a spouse

could revoke consent prior to death and ensure that no legal parentage posthumously

results. Any other interpretation would leave the deceased spouse’s estate at the whims

of the surviving spouse’s posthumous procreational decisions. Thus, I read subsection

(8) to authorize a spouse to both give and revoke consent prior to death. And because




2The full text reads: “If a spouse dies before placement of eggs, sperm, or embryos, the
deceased spouse is not a parent of the resulting child unless the deceased spouse
consented in a record that if assisted reproduction were to occur after death, the deceased
spouse would be a parent of the child.” § 19-4-106(8).
                                             9
“identical words used in different parts of the same act are intended to have the same

meaning,” subsection (7)(a) must be read correspondingly. Dep’t of Revenue of Or. v. ACF

Indus., Inc., 510 U.S. 332, 342 (1994).

¶97    Reading subsection (7)(a) consistently with subsection (8) means that subsection

(7)(a) must also allow for the withdrawal of consent to be a legal parent. If subsection

(7)(a) and subsection (8) are not both construed to authorize withdrawal of consent to be

a legal parent, we wouldn’t be giving “identical words . . . the same meaning.” Id. But

because subsection (7)(a) already provides a process for withdrawing such consent—as

the previous paragraph demonstrates it must—then subsection (7)(b) must do something

different to avoid becoming “mere surplusage.” Colo. Med. Bd. v. Office of Admin. Courts,

2014 CO 51, ¶ 19, 333 P.3d 70, 74. What subsection (7)(b) does differently is clear from its

plain text: It empowers a former spouse to withdraw consent to assisted reproduction.3




3 It is worth noting that the comment to the subsection (7) equivalent of the Uniform
Parentage Act (“UPA”) states that the UPA does not attempt to resolve issues regarding
disputed pre-embryos, but leaves such decisions to the states. Unif. Parentage Act § 706
cmt. (Nat’l Conference of Comm’rs on Unif. State Laws 2002). However, the comment to
section 707, the subsection (8) equivalent, does state that section 707 seeks to avoid
posthumous effects on intestate succession. Id. § 707 cmt. Thus, even though the framers
of the UPA did not attempt to explicitly resolve pre-embryo disputes, they did insert
language for deceased spouses that does allow for the withdrawal of consent, and
subsequently used that same language for former spouses. This, at a minimum,
demonstrates that the UPA framers knew that the section 706 language was capable of
an interpretation that pertained to pre-embryo disputes. And, given that our General
Assembly wanted to ensure that IVF consent laws are “balanced and fair,” and sought to
address “all . . . contingencies” regarding withdrawal of consent, the UPA comment to
section 706 is inapposite to a proper interpretation of the Colorado statute. See Hearings
on S.B.03-79 before H. Comm. on Info. & Tech., 64th General Assembly (Mar. 17, 2003).
                                            10
¶98    The majority suggests that the General Assembly’s use of “resulting child” renders

this reading implausible. Maj. op. ¶ 54. But the “resulting child” language that the

majority relies on is from sections 15-11-120(9) and (10), C.R.S. (2018), of the Colorado

Probate Code and subsection (7)(a). It does not appear in subsection (7)(b). Its absence

in subsection (7)(b) is central to understanding the statutory scheme. Subsection (7)(a)

refers to the narrower consent relevant in divorce proceedings where consent to assisted

reproduction has not been withdrawn. It simply enables ex-spouses to amicably choose

to continue with IVF without a former spouse becoming a legal parent.

¶99    The Colorado Probate Code, however, deals with situations where ex-spouses or

now-deceased spouses are unable to withdraw their consent (unless they happened to do

so in a will or other instrument). See § 15-11-120(9)–(10). In fact, the sections that the

majority quotes come from that act’s “intestate succession” provisions. Thus, these

sections, which refer to a “resulting child,” just ensure that a deceased spouse or

ex-spouse, who is unable to withdraw consent to assisted reproduction, does not bear

posthumous legal children. That’s also why the “resulting child” language is used in

subsection (8). The “resulting child” language appears exactly where it makes sense to

appear—where a child could still result from IVF, either because consent has already

been given or because someone is physically unable to withdraw consent.

¶100    Conspicuously absent is any “resulting child” language in subsection (7)(b),

which deals directly with consent to assisted reproduction. The language isn’t there

because there’s no reason for it to be. If a former spouse withdraws consent, then there


                                           11
is no resulting child. It would make little sense to place such language in a provision that

prohibits a former spouse from implanting pre-embryos in the first place.

¶101   Even if one might question whether the General Assembly intended to create a

contemporaneous mutual consent rule in subsection (7)(b), that does not give us license

to craft a test that inflicts constitutional harm. If the General Assembly has not embraced

the contemporaneous mutual consent rule, as the majority contends, courts should still

steer away from decisions that compel procreation. See Maj. op. ¶ 55.

¶102   So, mutual consent is essential. This begs the question of when the mutual consent

must occur for it to be binding.

                        C. When Must Both Parties Consent?

¶103   Some proponents of other approaches argue that the parties consent when they

allow the sperm and eggs to be harvested and united. This strikes me as simplistic, as it

suggests that a party supplying an egg or sperm for IVF forever consents to becoming a

genetic parent. Instead, parties should be allowed to withdraw consent until the last

point at which an additional affirmative step must be taken in the IVF process in order to

produce a child. Before placement, both parties should retain veto power. From a

practical point, to hold otherwise would suggest that a person who provides sperm or

eggs during IVF consents to procreate as to each and every sperm or egg harvested at any

point in the future. As the amicus brief for the American Academy of Matrimonial

Lawyers states, eight to twenty-five eggs are often harvested at a time. Amicus Br.

Colorado Chapter of the American Academy of Matrimonial Lawyers 4–5. Imagine


                                            12
twenty-five eggs are successfully fertilized. Do we really want to say that partners who

agree to IVF thereby forever consent to genetically parent all children resulting from

successful implantation of any of those pre-embryos? My answer is no.

        D. The Contemporaneous Mutual Consent Approach Advances
                             Public Policy

¶104   While the constitutional right of a person to not procreate should drive this

discussion, I note that the contemporaneous mutual consent approach advances sound

public policy. First, I address the two critiques of this model that the majority highlights.

Maj. op. ¶ 46. Then I address the inevitable difficulty that courts will have in applying

the majority’s test to the numerous situations in which these disputes could arise.

¶105   The majority describes how some find the contemporaneous mutual consent

approach unrealistic. After all, they say, if the parties could reach an agreement, they

would not be in court. Id. But this pragmatic observation ignores another: After the

dissolution of a marriage, rancor typically subsides. However unlikely it might seem that

these parties will eventually reach agreement about these pre-embryos, common ground

might not prove so elusive in other cases, particularly with the passage of time after

dissolution. Moreover, by adopting the contemporaneous mutual consent model, the

parties do leave the divorce process with some resolution. If there is no agreement, there

is no change. The status quo is simply preserved. And that is a resolution that will

engender far less contentiousness and potentially wrenching litigation.                   Cf.

§ 14-10-102(2)(b), C.R.S. (2018) (noting that one of the underlying purposes of the



                                             13
Uniform Dissolution of Marriage Act is to mitigate the potential harm to spouses and

their children caused by the process of legal dissolution of marriage).

¶106   The majority also points out that some argue the contemporaneous mutual

consent approach would give one partner undue leverage in divorce proceedings. Maj.

op. ¶ 46. For example, a husband might use a wife’s desire for pre-embryos to obtain a

more beneficial outcome on division of assets or debt, or allocation of parental

responsibilities as to existing children of the marriage. While this is a legitimate concern,

surely it is better to let trial courts address the potential for such misbehavior on an ad

hoc basis through the vast discretion trial courts have under the Uniform Dissolution of

Marriage Act rather than to endow courts with the authority to violate a person’s

constitutional right to avoid procreation.4 The majority approves of the trial court’s




4 Colorado’s Uniform Dissolution of Marriage Act (UDMA), §§ 14-10-101 to -133, C.R.S.
(2018), provides trial courts the power to make certain “inextricably intertwined”
determinations related to a dissolution of marriage, including property distribution,
maintenance, and attorney fees. See In Re Marriage of de Koning, 2016 CO 2, ¶ 26, 364 P.3d
494, 498 (describing how “awards of spousal maintenance and attorney’s fees flow from
the property distribution”). In making the required determinations after a contested
hearing, trial courts have latitude to ensure a just resolution.                   See, e.g.,
§ 14-10-114(3)(c)(XIII) (stating that courts should determine an amount of spousal
maintenance that is fair and equitable after considering relevant factors, including “[a]ny
other factor that the court deems relevant”); In re Marriage of Aldrich, 945 P.2d 1370, 1378
(Colo. 1997) (“The district court then apportions [attorney] fees and costs in light of the
statute’s equitable purpose . . . .”). And for some decisions, the legislature has expressly
directed the trial court to consider a parent’s behavior as related to children and the other
party. See § 14-10-124(1.5)(a)(VI) (listing one factor for the court to consider when
determining the best interest of the child as “[t]he ability of the parties to encourage the
                                              14
discretion to do so, as their balancing test explicitly requires courts to look at “a spouse’s

demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in the

divorce proceedings.” Maj. op. ¶ 4.

¶107   Whatever the shortcomings of the contemporaneous mutual consent approach, it

remains a workable test that keeps donors free from governmental intrusion. For

example, the court need not enter the fray as to whether a person is capable of genetically

reproducing, as the majority’s approach requires. Id. That is no small matter. Consider

that here Ms. Rooks alleged in the lower courts that she could not procreate without use

of these pre-embryos, only to discover during the course of her appearance before us that

she could.

¶108   Or consider the amorphous requirement to look to the “hardship” of the spouse

seeking to avoid becoming a genetic parent, which includes “emotional, financial, or




sharing of love, affection, and contact between the child and the other party”). In the
event that parties are able to reach an out-of-court settlement and present a separation
agreement to the court, the court still has the ability to review the agreement for
unconscionability. See § 14-10-112(2). “If the court finds the separation agreement
unconscionable, the court may request the parties to submit a revised separation
agreement, or the court may make orders for the disposition of property, support, and
maintenance.” § 14-10-112(3); see also In re Marriage of Manzo, 659 P.2d 669, 674 (Colo.
1983) (describing that before the court incorporates the property division provisions of a
separate agreement into a dissolution decree, the court should review the agreement for
“sharp dealing not consistent with the obligation of marital partners to deal fairly with
each other” and determine “whether under the totality of the circumstances the property
disposition is fair, just and reasonable”). It follows, then, that when one party tries to use
pre-embryos as an unfair negotiating tool, the trial court would be able to intervene
through the various provisions of the UDMA to ensure a just result.
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logistical considerations.” Id. Which “emotional” factors are relevant? And in which

direction should such factors cut? The majority cites favorably Davis, which considered

the ex-husband’s childhood experiences involving divorce. Id. at ¶ 68 (citing Davis,

842 S.W.2d at 603–04). Is the court now to probe the intimate early childhood experiences

of non-consenting donors just so they can avoid being compelled to produce genetic

offspring? These factors leave too much undecided—particularly because the majority

expressly makes the list of factors in the balancing test “non-exhaustive.” Maj. op. ¶ 65.

Rather than limiting litigation, the majority invites predictable appeals. Inevitably, the

losing party will appeal and claim that the lower court misapplied the relevant factors,

further enmeshing the government.

                                     III. Conclusion

¶109   The decision to have children is one of the most consequential choices people make

in life. The considerations that go into it are numerous and personal; it is not a decision

that most would leave to their dearest friends, let alone the state. It is difficult, if not

impossible, for a court to properly determine whose constitutional rights should prevail

in cases like the one before us. Sometimes courts are left with no choice but to balance

and choose competing constitutional rights. But here, where the decision is ultimately a

private one between two people, the court need not get involved. Only once the court

involves itself is there any constitutional violation. Up to and until that point, it is an

intimate, personal decision.




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¶110   Because the contemporaneous mutual consent approach better protects the

constitutional rights at stake, aligns with Colorado law, and is more sound as a matter of

policy, I respectfully dissent.

       I am authorized to state that CHIEF JUSTICE COATS and JUSTICE SAMOUR join

in this dissent.




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