January 16, 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.

Colorado Court of Appeals: Distribution of Cryopreserved Embryos in Dissolution Proceeding Subject to Contract and Balancing Approaches

The Colorado Court of Appeals issued its opinion in In re Marriage of Rooks on Thursday, October 20, 2016.

Dissolution of Marriage—Possession of Cryogenically Frozen Embryos.

The parties had three children together, and it was undisputed that wife used her last eggs to create embryos. The parties’ storage agreement with the fertility clinic provided that in the event of a dissolution of marriage, unless they could agree on who would get the embryos, the trial court would award the embryos. In their dissolution of marriage proceeding, wife argued that the embryos should remain frozen so that she could have another child in the future, and husband argued they should be discarded. The trial court entered a lengthy, detailed, and carefully reasoned decision awarding the embryos to husband. Wife appealed.

This appeal presented an issue of first impression in Colorado: how to determine the disposition of a couple’s cryogenically frozen embryos on their dissolution of marriage. Because there is not case law in Colorado on this issue, the Colorado Court of Appeals reviewed the three different approaches adopted by other jurisdictions for determining the disposition of divorcing spouses’ cryopreserved embryos: (1) the contract approach, which enforces a valid agreement entered into between the parties as to disposition of the embryos; (2) the balancing of interests approach, which the court applies when there is no such agreement between the parties; and (3) the contemporaneous mutual consent approach, under which the court will not allocate the embryos in the absence of an agreement between the parties (the embryos are left in storage indefinitely until the parties can agree to their disposition). The trial court had applied the contract and balancing of interests approaches in awarding the embryos to husband.

On appeal, wife argued that the trial court erred in interpreting the written storage agreement. The court agreed, but concluded that the storage agreement left it to the dissolution court to decide which party should receive the embryos in the event of dissolution of their marriage. Because the contract gave no guidance for this decision, the court construed it to require the trial court to exercise its inherent equitable powers if the parties could not agree. Because the trial court had to apply its equitable discretion, it necessarily had to use the balancing of interests approach.

Wife also argued that some factors the trial court applied in its balancing approach were legally erroneous and others violated her constitutional rights. Based on its review of the record, the court found the trial court’s conclusion that husband’s interest in not producing additional offspring prevailed over wife’s interest in having a fourth child to be reasonable.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

The State of Kansas Wants a Sperm Donor To Pay Child Support. Could This Happen in Colorado?

Laura Koupal PhotoKansas, 2009. William Marotta provided sperm to a lesbian couple, Angela Bauer and Jennifer Schreiner, to enable them to have their first child together. Schreiner conceived a child, a girl, by artificial insemination done at home with Marotta’s sperm. Marotta has never had a relationship with the child.

Several years later Bauer and Schreiner broke off their relationship but both women continued to co-parent and provide for their child. Schreiner applied for state assistance for the child. Although Schreiner was listed as the sole parent on the birth certificate for the child, the Kansas Department of Children and Families required that she list a father’s name. Schreiner listed Marotta as the father and the state is now ordering Marotta to pay child support.

It is being reported that the parties had entered into a sperm donor agreement prior to the insemination. According to the reports, the donor agreement contained language stating that Marotta waived any parental rights and that Bauer and Schreiner agreed to indemnify Marotta and hold him harmless for any child support payments demanded of him by any other person or entity, public or private.

The state of Kansas is arguing that it does not recognize the agreement because the artificial insemination was not performed by a licensed physician. Kansas statutory law provides that the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman. Kan. Stat. Ann §23-2212(f).

This story has made national news in the last week. Colorado sperm donors and intended parents may be wondering if a similar claim could be brought in Colorado. The short answer is yes. Colorado statutory law has a similar requirement stating that the assisted reproductive procedure must be done under the supervision of a licensed physician or advanced practice nurse. Specifically, the statute states, in part: “If, under the supervision of a licensed physician or advanced practice nurse, and with the consent of her husband, a wife consents to assisted reproduction with an egg donated by another woman, to conceive a child for herself, not as a surrogate, the wife is treated in law as if she were the natural mother of a child thereby conceived. Both the husband’s and the wife’s consent must be in writing and signed by each of them. The physician or advanced practice nurse shall certify their signatures and the date of the assisted reproduction and shall file the consents with the department of public health and environment, where they shall be kept confidential and in a sealed file; however, the physician’s failure to do so does not affect the father and child relationship or the mother and child relationship.” C.R.S. §19-4-106. Colorado has the added requirement that the recipient of the sperm must be married.

However, Colorado does allow second parent adoptions. After a child is born to a sole legal parent, same-sex couples may petition the court to have the other non-biological parent added to the birth certificate. The child’s two legal parents responsible for support and care would then be the biological mother and the adoptive mother, not the sperm donor.

Laura Koupal founded Koupal Law Firm, P.C. this year. Prior to starting her own firm, Laura spent nine years in private practice representing clients in assisted reproductive technology matters, complex divorce litigation, non-traditional family formation and dissolution, adoption and estate planning matters. Laura also completed a one-year clerkship with the Honorable Christina M. Habas of Denver District Court following law school.

Laura holds a Bachelor of Science degree from the University of Colorado and a Juris Doctor from the University of Denver. She is a Fellow of the American Academy of Assisted Reproductive Technology Attorneys, a professional Member of the American Society for Reproductive Medicine and RESOLVE, a Member of the Colorado Bar Association Family Law Section and the Denver Bar Association, and a Member of the American Bar Association Assisted Reproductive Technology Committee. Laura regularly writes and speaks on the issues of family law and assisted reproductive technology law. You can visit her website at www.koupallaw.com.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.