Updated: Jan 9
A Successful Appeal Protecting Reproductive Freedom in the Context of a Dispute over Pre-Embryos
I have always been an avid supporter of reproductive freedom and the separation of church and state. The desire to protect these and other basic liberties was an impetus for attending law school more than 20 years ago. But, despite those original motivations for becoming a lawyer, I rarely get the opportunity to use my professional skill to directly safeguard these liberties.
In 2019, the Colorado Court of Appeals published In re Marriage of Fabos & Olsen, a case I had the privilege of arguing on behalf of Mr. Olsen. The appeal involved the disposition of frozen pre-embryos after divorce. Mr. Olsen wished to allow the pre-embryos that remained after in vitro fertilization to be destroyed. His ex-wife, Ms. Fabos, wished to donate those pre-embryos to another couple. Ms. Fabos’s position was driven by her belief that the pre-embryos should be protected as “human life.”
The case was originally heard in the El Paso County District Court. The court had little in Colorado law to guide it, as the Colorado Supreme Court had not yet weighed in on how to resolve these cases. Parties and courts addressing these issues were forced to sort through contradictory and complex cases from other jurisdictions to reach resolution.
As we briefed Fabos & Olsen in the court of appeals, another case, In re Marriage of Rooks, 2018 CO 85, ¶ 4, 429 P.3d 579, was published by the supreme court. Rooks was the first case to address the disposition of pre-embryos in Colorado. In Rooks, the supreme court adopted the contract approach, which applies the terms of any enforceable written contract entered into between the parties regarding disposition of the pre-embryos. In the absence of an enforceable written contract, the court is to apply a “balancing of interests” approach. The balancing of interests approach necessitates a case-by-case analysis of the competing interests of the parties. In Rooks, the supreme court listed a number of factors that were relevant to the facts before it, and a number of factors that the court of appeals erred in considering. The court then remanded for the lower court to apply those factors.
The facts in Fabos & Olsen were critically different from those in Rooks, such that the holding in Rooks was only minimally applicable. In Rooks, the wife wanted to use the pre-embryos to procreate herself; thus, her constitutional right to procreate was directly implicated. However, in Fabos & Olsen, Ms. Fabos wanted to donate the pre-embryos to another couple, which called into question the extent of her constitutional interest. Also, in Fabos & Olsen, Ms. Fabos’s beliefs that the pre-embryos were human life and should not be destroyed drove the trial court’s decision in a way not implicated in Rooks. Indeed, the trial court in Fabos & Olsen ruled in Ms. Fabos’s favor primarily because of her personal beliefs about the pre-embryos, weighing that interest higher than any other factor.
On appeal, we successfully argued that the trial court erred in weighting Ms. Fabos’s beliefs about the pre-embryos higher than Mr. Olsen’s desire not to procreate. The court of appeals remanded the case back to the trial court for reconsideration of the balancing of the interests, with a specific finding that the trial court “should do so without weighting 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.” Fabos & Olsen, 2019 COA 80, ¶ 57. In so ruling, the court also agreed with our argument that although Ms. Fabos had a right to hold those subjective beliefs, those beliefs were “also contrary to established law regarding pre-embryos and, as such, were ultimately weighted too heavily by the district court vis-a-vis husband’s constitutional right to avoid procreating using the pre-embryos.” Fabos & Olsen, 2019 COA 80, ¶ 55.
The ruling in Fabos & Olsen is important in clearly establishing that one party cannot force another party to procreate against his or her will based on individual subjective moral beliefs about the destruction of pre-embryos. The ruling thus upholds foundational tenants of reproductive freedom also potentially applicable in the area of contraception and abortion. Moreover, the ruling helps protect in vitro fertilization in Colorado; a contrary ruling could have provided the basis for a legal interpretation that pre-embryos may be recognized as “human life” in the law, which would undermine the future of in vitro fertilization as a medical procedure.
I am proud to have argued this case successfully on behalf of Mr. Olsen.
Paige Mackey Murray is a solo practitioner at Paige Mackey Murray LLC and is of counsel at Kaplan Law LLC. She is a former law clerk for Justice Gregory J. Hobbs, Chief Judge Alan Loeb, and Chief Judge Janice B. Davidson. Paige has enjoyed a long and diverse practice in Colorado since graduating from the University of Colorado School of Law in 1998. She has been an entrepreneur, a law clerk in the appellate courts, and an attorney for a number of private law firms practicing in multiple areas. She started her own solo practice in 2010 and focuses exclusively on appellate litigation.