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Although Colorado statutes do not address the proper disposition of marital pre-embryos upon divorce, the Uniform Dissolution of Marriage Act does generally direct a court presiding over dissolution proceedings to divide the marital property in such proportions as the court deems just. Colo. Rev. Stat. § 14-10-113(1) (2018).
Petitioner Ms. Mandy Rooks and respondent Mr. Drake Rooks married in 2002. They separated in August 2014, and respondent 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. The parties used in vitro fertilization (IVF) to have their three children. In 2011, and again in 2013, they entered into agreements for the IVF services. IVF gave individuals and couples who were unable to conceive conventionally the opportunity to have genetic children. IVF technology permitted 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 allowed individuals and couples to delay childbearing while preserving the pre-embryos and the possibility of future children. However, in the written agreement with the fertility clinic signed by the parties failed to specify what should be done with their remaining pre-embryos in the event of divorce. Instead, per their agreement, the couple had turned to the dissolution court to resolve their dispute. Petitioner wished to keep the couple's pre-embryos to use them to become pregnant. Respondent, on the other, did not want to have genetic children using the pre-embryos and wished to have them discarded. The trial court found that respondent’s right not to be forced to become a genetic parent outweighed petitioner’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 respondent. Petitioner appealed from that judgment but the court of appeals affirmed the trial court's ruling awarding the pre-embryos to respondent under the balancing of interest approach.
Were the lower courts correct in awarding the pre-embryos to respondent?
The court reversed the judgment. The court held that the parties' written agreement did not squarely resolve how remaining cryogenically preserved pre-embryos should be allocated in the event of divorce, and since the lower courts considered certain inappropriate factors in attempting to balance the parties' interests in the pre-embryos, the supreme court reversed and remanded the case. The court ruled that the trial court shall balance certain factors in dividing that marital property of a special character under Colo. Rev. Stat. § 14-10-113(1) (2018), including the intended use of the pre-embryos by the spouse who wants to preserve them, the demonstrated physical ability or inability of the spouse seeking to implant the pre-embryos to have biological children through other means, and the parties' original reasons for undertaking in vitro fertilization.