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In re Marriage of Fabos.

2022 COA 66. No. 20CA1881.  Dissolution of Marriage—Assisted Reproduction—Embryos.

June 23, 2022

During their marriage, the parties participated in in vitro fertilization and had two cryogenically frozen pre-embryos in storage. In their dissolution of marriage, the district court awarded the pre-embryos to wife for donation to another couple. Husband appealed, and a Court of Appeals division reversed and remanded for the district court to reconsider the case, applying the Colorado Supreme Court’s balancing of interests framework from In re Marriage of Rooks, 2018 CO 85, ¶¶ 65–72, which had been announced after entry of the district court’s first judgment. The division held that “ordinarily a party not wanting to procreate should prevail when the other party wants to donate the pre-embryos instead of using them to have a child of his or her own,” In re Marriage of Fabos, 2019 COA 80 at ¶ 45, and it instructed the district court not to weight “wife’s subjective belief that the pre-embryos should be protected as human life more heavily than husband’s interest in not procreating using the pre-embryos.” Id. at ¶ 57. On remand, the district court held another evidentiary hearing and again awarded the pre-embryos to wife for donation to third parties.

On appeal, husband argued that that the district court erred by awarding the pre-embryos to wife in violation of Fabos and Rooks by again weighting wife’s religious beliefs more heavily than his interest in avoiding procreation. Here, the district court erred by considering wife’s religious belief that the pre-embryos are human lives when weighing the first Rooks factor—the intended use of the party seeking to preserve the disputed pre-embryos. The district court also misapplied the second Rooks factor—the demonstrated physical ability or inability of the party seeking to implant the disputed pre-embryos to have biological children through other means—by weighting it slightly in favor of wife when she wanted to donate rather than implant. Further, though the district court appropriately considered wife’s religious beliefs, it did not comply with the Fabos mandate not to weight those beliefs more heavily than husband’s interest in not procreating. Lastly, this case does not present one of the rare circumstances where a party wanting to donate can prevail against a party wanting to avoid procreating.

Wife argued that the district court should have used strict scrutiny when it applied Rooks and given dispositive weight to her free exercise of religion rights because it cannot require her to participate in the destruction of the pre-embryos, which she considers her children. However, the district court can enter orders to mitigate wife’s concern that she would be forced to participate in the destruction of the pre-embryos. For example, the court could award husband the pre-embryos and authorize him to direct their disposal. Accordingly, there is no Free Exercise Clause violation.

Wife also argued that the district court should have applied promissory estoppel principles to enforce the parties’ alleged oral agreement that the pre-embryos would not be destroyed. However, the record does not show that husband made a promise that the pre-embryos would not be destroyed on divorce.

Wife further contended that she should be awarded the pre-embryos under CRS § 14-10- 113(1)(a) because her contributions to creating and preserving them were greater than husband’s contribution. However, that statute is not the legal standard for allocating a divorcing couple’s pre-embryos. As the district court correctly concluded, pre-embryos are a special kind of marital property that are instead allocated under the Rooks balancing test.

Lastly, wife contended that the district court should have considered husband’s failure to pay one-half of the storage fees for the pre-embryos as demonstrating his bad faith and use of the pre-embryos as leverage in the dissolution proceedings. Here, husband’s failure to consistently pay the storage fees is not indicative of bad faith in relation to the pre-embryos specifically; rather, it is an example of the parties’ continuing inability to resolve their financial obligations amicably.

The judgment was reversed. The district court was directed to enter judgment for husband on remand and award him the pre-embryos to discard. The case was remanded for the sole purposes of entry of this judgment and the entry of such collateral orders as may be necessary to effectuate that judgment.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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