In re Marriage of Rooks
429 P.3d 579, 2018 CO 85 (2018)
Rule of Law:
When divorcing couples disagree over the disposition of cryogenically preserved pre-embryos, courts must first look to any existing agreement between the spouses; in the absence of such an agreement, courts should balance the parties' equivalently important interests in procreational autonomy by considering specific, relevant factors while excluding others.
Facts:
- Mandy Rooks and Drake Rooks married in 2002.
- The Rooks used in vitro fertilization (IVF) to have their three children.
- In 2011 and again in 2013, Mandy and Drake Rooks entered into agreements with the Colorado Center for Reproductive Medicine (CCRM) and Fertility Laboratories of Colorado (FLC) for IVF services and cryopreservation of pre-embryos.
- These agreements included disposition plans for certain scenarios (e.g., death of one or both spouses) but stated that in the event of divorce, disposition would be part of the divorce decree paperwork, or discarded if not addressed.
- Mandy Rooks separated from Drake Rooks in August 2014.
- Mandy Rooks desired to preserve the six remaining pre-embryos for future implantation, believing she could not have more children naturally.
- Drake Rooks wished to thaw and discard the pre-embryos, not wanting to have more genetic children from his relationship with Mandy Rooks.
Procedural Posture:
- Drake Rooks filed a petition for dissolution of marriage in state trial court in 2014.
- The trial court held an evidentiary hearing in 2015 and issued final orders, concluding that pre-embryos are not 'persons' under Colorado law.
- The trial court reviewed three approaches (contract, balancing of interests, contemporaneous mutual consent) and applied the contract approach first, concluding the agreement implied pre-embryos should be discarded if mutual resolution wasn't reached.
- Alternatively, the trial court applied the balancing of interests approach and found Mr. Rooks's right to avoid genetic parenthood outweighed Ms. Rooks's desire, considering factors like her having three existing children, her financial ability, and the potential impact on existing children.
- Mandy Rooks appealed the trial court's order regarding pre-embryo disposition to the Colorado Court of Appeals, contending errors in contract interpretation and the balancing factors considered.
- The Colorado Court of Appeals affirmed the trial court's ruling, agreeing with the contract approach but concluding the trial court erred in interpreting the specific agreement as inferring terms not present.
- The Court of Appeals then reviewed the trial court's decision under the balancing of interests test for an abuse of discretion and affirmed the award of pre-embryos to Drake Rooks, considering Ms. Rooks already had three children and Mr. Rooks's emotional and psychological well-being.
- The Colorado Supreme Court granted certiorari review of the court of appeals’ ruling.
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Issue:
Does a court, in dissolution of marriage proceedings and in the absence of an agreement, err in adopting a balancing of interests approach to determine the disposition of a couple’s cryogenically frozen pre-embryos, and if not, what factors should be considered and excluded in that balancing test?
Opinions:
Majority - Justice Márquez
No, a court does not err by adopting a balancing of interests approach when no agreement exists, but the lower courts erred by considering inappropriate factors. The court holds that when divorcing couples dispute the disposition of cryogenically preserved pre-embryos, courts must first look to any existing enforceable agreement expressing the spouses’ intent regarding disposition in the event of divorce. In the absence of such an agreement, courts should balance the parties' respective interests, recognizing the equivalently important and competing constitutional rights to procreate and to avoid procreation. The court rejects the mutual contemporaneous consent approach, finding it implicitly rejected by Colorado statutes concerning legal parentage after divorce or withdrawal of consent (citing §§ 15-11-120(9)-(10), 19-4-106(7)), and because it gives one party a de facto veto, creates leverage incentives, and leads to judicial abdication. Colorado statutes establish that pre-embryos are not 'persons' but are 'marital property of a special character' subject to equitable division under the Uniform Dissolution of Marriage Act (§ 14-10-113(1)). The court outlines specific factors for the balancing test: the intended use of the pre-embryos, the seeking party's demonstrated ability or inability to have biological children through other means, the original reasons for undertaking IVF, the emotional, financial, or logistical hardship for the party seeking to avoid genetic parenthood, and any demonstrated bad faith or leverage attempts. Importantly, it explicitly excludes considering the seeking party's financial ability to afford a child, the sheer number of a party’s existing children, or the availability of adoption as alternative means of parenting. The court reversed the judgment of the court of appeals and remanded with instructions for the trial court to apply this new framework.
Dissenting - Justice Hood
Yes, a court errs by employing a multi-factor balancing test that infringes on a person’s constitutional right to avoid procreation through IVF. Justice Hood argues that the state should never compel procreation, and the impediment to Ms. Rooks's procreative right is Mr. Rooks's exercise of his right to avoid procreation, not state action. The dissent advocates for the 'contemporaneous mutual consent' approach, under which no disposition or use of pre-embryos can occur without the signed authorization of both donors, thereby preserving the status quo if no agreement is reached. This approach, the dissent contends, adequately shields citizens from unwarranted governmental intrusion and prevents the state from inflicting 'constitutional harms' on the non-consenting donor, such as societal pressure or the emotional burden of having an unwanted genetic child, even without legal parental responsibilities. Justice Hood interprets Colorado statute § 19-4-106(7)(b) as codifying the contemporaneous mutual consent approach, arguing it allows a former spouse to withdraw consent to 'assisted reproduction' at any time before placement, distinguishing it from consent to 'legal parentage' in subsection (7)(a). Finally, the dissent asserts this approach advances sound public policy by minimizing governmental entanglement in deeply personal decisions and avoiding complex, amorphous judicial inquiries into personal hardships, past experiences, and financial ability, which the majority's balancing test would necessitate.
Analysis:
This case provides crucial guidance for resolving highly contentious and emotionally charged disputes over cryogenically preserved pre-embryos in divorce proceedings. By rejecting the 'mutual contemporaneous consent' approach and establishing a clear, multi-factor balancing test rooted in procreational autonomy, the Colorado Supreme Court aims to standardize judicial decision-making in a rapidly evolving area of law. The explicit identification of permissible and impermissible factors prevents courts from infringing upon privacy rights or making judgments based on socio-economic status, which could significantly impact future cases involving reproductive technology and marital dissolution across the country.
