July 21, 2019

Colorado Supreme Court: Balancing Test Appropriate when Deciding Competing Interests of Potential Parents in IVF Divorce Case

The Colorado Supreme Court issued its opinion in In re Marriage of Rooks on Monday, October 29, 2018.

Divorce—Assisted Reproduction—Embryos.

In this dissolution of marriage proceeding, the supreme court reviewed how courts should resolve disagreements over the disposition of a couple’s cryogenically preserved pre-embryos when that couple divorces. The court held 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 reversed the judgment of the court of appeals and remanded the case with directions to return the matter to the trial court to apply the announced balancing framework.

Summary provided courtesy of Colorado Lawyer.

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