Case Law Around Frozen Embryo Ownership Begins to Develop

Court of Appeals ruling follows Rooks precedent but highlights unaddressed issues

A body of Colorado case law around frozen embryos as marital property is beginning to emerge. The Court of Appeals released an opinion May 23 that’s guided by the state Supreme Court’s fall 2018 ruling in Marriage of Rooks, governing how courts should decide which ex-spouse in a dissolving marriage gets ownership of frozen embryos created by the couple.


In a first-of-its-kind case, the Ccreated a list of factors for lower courts to consider in marriage dissolution cases that involve disputes over unused frozen embryos created from in vitro fertilization. The court recognized that the constitutional rights to procreate, or not procreate, carry equal legal weight, making the disputes difficult to decide. 

Factors such as a spouse’s ability to have biological children by other means can factor in, the court said, but their ability to adopt or considerations about other non-biological parenting means can’t be considered. Under the decision, courts also can’t consider the parties’ financial abilities to support additional children. 

In re Marriage of Olsen, Justin Olsen and Jamie Fabos divorced, and the El Paso County District Court had the task of deciding which spouse would get ownership of leftover frozen embryos they created during their marriage. Fabos and Olsen had agreed a court would award ownership in the event they divorced. In the event one or both of them died, or Fabos reached age 55, they had agreed to donate the pre-embryos to another couple.

Unlike the Rooks case, in which Mandy Rooks wanted to have more children, Fabos still wished to donate the embryos to another couple. Olsen wanted the embryos discarded. The district court awarded them to Fabos. 

Although the district court decided the case before the Supreme Court came out with its ruling in Rooks last fall, the Court of Appeals found the factors it chose to use in its balancing test were mostly “pertinent.” The Court of Appeals based its decision to overturn the district court on its determination the lower court gave too much weight to the wife’s belief in the beginning of life at conception.

Paige Mackey Murray, Olsen’s attorney said, the Court of Appeals decision broke new ground in case law because it involved one spouse’s desire to donate frozen embryos rather than to have more children herself. 

The Colorado Court of Appeals further developed guidance on how to decide spousal ownership of frozen embryos following a divorce. / LAW WEEK FILE

“What this court did, I think, was it gave a pretty clear ruling that it’s inappropriate when resolving these IVF cases for a person’s belief about life at conception to drive the case,” she said. While the Court of Appeals didn’t say courts can’t weigh the belief at all, Murray said she believes the court clarified that it doesn’t carry the same weight of a constitutional right as a person’s desire not to procreate does. 

An attorney for Fabos declined to provide specific comment on the ruling or any plans to appeal. In an email to Law Week, a spokesperson for the Thomas More Society said “the attorneys are in the process of deciding next steps.”

The Court of Appeals declined to make a bright-line rule requested by Olsens’s side, that an ex-partner wishing not to procreate using embryos should prevail if the other partner wishes to donate the embryos. 

“That would be a way to give parties clear guidance and avoid protracted litigation … but the courts have left it pretty loose, and it’s a case-by-case analysis,” Murray said. 

The Rooks case has been appealed to the U.S. Supreme Court, asking the court to answer whether cryopreserved embryos are people or marital property. But Jordan Fox, a family law attorney and member at Sherman & Howard, said he believes it’s unlikely the Supreme Court will take the Rooks case because the lower courts treated the embryos’ status as property as settled.

“Even with the change in the U.S. Supreme Court, I don’t think this is the case that they would address that issue on,” he said.

But he said since the state Supreme Court clarified the list of factors in its balancing test isn’t exhaustive, an open avenue for future cases attempting to challenge the Rooks decision. 

Fox said the thorny balance of rights to procreate or not seems to run headlong into the issue raised in another recent decision from the Court of Appeals, which said a psychological parent who seeks parenting time or custody of a child not biologically theirs can also be ordered to pay child support. 

If a mother wanting to have more children from leftover embryos wins ownership of them, Fox explained, it seems plausible the father still may eventually seek visitation time with any children he didn’t originally wish to have when the marriage dissolved.

“I could see a court saying it’s in that child’s best interest to have the father of their full siblings also in their lives, but then we just created the child support obligation from a back door perspective on the theory that if you’re going to exercise the rights, you’re going to have the obligations.”

Fox added it’s likely courts may also eventually grapple with whether the contracts created when couples decide to do in vitro fertilization actually represent the parties’ intents. 

The American Academy of Matrimonial Lawyers, which Fox is part of, filed an amicus brief in Rooks arguing a person’s right not to procreate should take priority if a couple doesn’t have a clear agreement when they create embryos. Desires to procreate or not, or to donate the embryos, “are so emotionally intertwined that a court resolution really is impossible.”

The contracts are long and typically not explained to the spouses by lawyers, Fox said, and the provision addressing the disposal of the embryos is addressed by a box the couple checks. At their heart, Fox said, the contracts are designed to protect the medical facilities rather than couples’ rights.

“Even though [the courts’] preference was for the contract approach, there hasn’t been any analysis as to whether or not that contract truly represents the intent of the parties.”

—Julia Cardi

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