Elken v. Bain.
2025 COA 83. No. 24CA0590. Assisted Reproduction—Pre-Embryos—Unmarried Parties—Factors for Weighing Parties’ Interests.
October 16, 2025
Elken and Bain were in a romantic relationship. They decided to use in vitro fertilization to create pre-embryos and signed a Colorado Center for Reproductive Medicine (CCRM) form agreement. Under the CCRM agreement, Elken and Bain agreed that if their relationship ended, “A court decree, settlement agreement, or written instructions signed by each party and notarized will be presented to [CCRM] directing use to achieve a pregnancy in one of us or anonymously donate the embryos to another couple for reproductive purposes . . . .” CCRM created four viable pre-embryos from Elken’s and Bain’s genetic material, but their relationship subsequently ended. The parties could not agree on the disposition of their pre-embryos, and Elken filed a complaint for declaratory relief seeking possession of the pre-embryos so that she could use them to become a genetic parent. The district court applied the multifactor balancing test in In re Marriage of Rooks, 2018 CO 85, and concluded that Bain’s interest in procreative autonomy outweighed Elken’s interest in the use of the pre-embryos. The court ordered that the pre-embryos be anonymously donated to another couple for reproductive purposes.
On appeal, Elken argued that the district court misapplied Rooks by not recognizing that a person who wants to become a genetic parent has a weightier interest than one who wants to donate pre-embryos. Rooks involved a divorcing couple’s dispute on the disposition of their cryogenically frozen pre-embryos, but the parties agreed that Rooks should apply to their dispute. The court of appeals first concluded that trial courts should apply the Rooks framework when resolving disputes between unmarried parties concerning the disposition of their jointly created pre-embryos. The court stated that when genetic contributors disagree on the disposition of their frozen pre-embryos, a court must first determine whether the parties have an enforceable agreement on disposition of the pre-embryos if their relationship ends. If there is no agreement, or if the agreement is not dispositive, the court must then apply the six non-exhaustive Rooks factors. Elken’s weightier-interest argument focuses on the court’s application of the first Rooks factor, “the intended use of the party seeking to preserve the disputed pre-embryos.” Here, in assessing this factor, the court explained that a party’s interest in seeking to use pre-embryos themselves has a greater weight than a party’s interest in seeking to donate. The court reasoned that Elken’s intended use of the pre-embryos was entitled to significant weight under Rooks, and its order clearly showed that it weighed this factor heavily in Elken’s favor. The district court thus did not err in applying the first Rooks factor.
Elken also argued that the district court misapplied Rooks by considering a “self-imposed” hardship to the party who wanted to donate the pre-embryos. This argument implicates the fourth Rooks factor, “consideration of hardship for the person seeking to avoid becoming a genetic parent, including emotional, financial, or logistical considerations.” Elkin asserted that this factor only allows the court to consider hardship to the party who seeks to avoid becoming a genetic parent; and because Bain would become a genetic parent even if the pre-embryos are donated, the court erred by considering any hardship to him that could result from her using the pre-embryos to become pregnant. The Rooks balancing test arose in a case where one party sought to procreate with the pre-embryos and the other party sought to discard them. As applicable in the factual scenario at issue here, the court of appeals did not construe Rooks as prohibiting a court from considering the extent to which a party may seek to avoid becoming a genetic parent on terms they find objectionable. Here, Bain’s hardship does not arise from his inability to avoid genetic parenthood generally but from his inability to avoid genetic parenthood with Elken. The court concluded that the district court did not err by considering the hardship to Bain that would result from Elken becoming pregnant with his child under either the fourth Rooks factor or the sixth Rooks factor, which looks at other considerations relevant to the parties’ specific situation.
Elken further contended that the district court abused its discretion in balancing several Rooks factors because she has a weightier interest in using the pre-embryos for procreation that should have prevailed over Bain’s lesser interest in donating them. Having concluded that the district court correctly applied the law, the court declined to reweigh the evidence. Here, the district court did not misunderstand or misapply the law, and its decision fell within the range of reasonable options. The decision is thus not manifestly arbitrary, unreasonable, or unfair.
The judgment was affirmed.