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Case Law Update: Divorce, Frozen Embryos, and to Give or Not to Give.

In May of 2019, the Colorado appellate court handed down a decision regarding cryogenically frozen pre-embryos in In re the Marriage of Olsen, 2019COA80. This decision arose from a couple who was divorcing but had frozen pre-embryos saved from before the relationship dissolved. The agreement regarding the pre-embryos did not specify who would have ownership of them if the parties divorced. However, the parties had initialed an option to donate the pre-embryos to another couple, but had not initialed the options to “thaw and discard” or “donate the pre-embryo[s] for research.” The agreement stated that ownership of the embryos would be as directed by court order or agreement of the parties in the event of divorce, but did not otherwise specify disposition or ownership of the pre-embryos if they divorced.

During the divorce, the parties had different objectives regarding the remaining pre-embryos. Wife wanted the pre-embryos donated to another infertile couple whereas Husband wanted them discarded. Husband was against procreating a child he wouldn’t father, but the district court and the appellate court found his argument to be disingenuous since he was willing to donate the pre-embryos in other contexts (i.e. when Wife turned 55). Ultimately, the district court engaged in a balancing act and concluded that Wife should be awarded the pre-embryos so she could donate them to another couple.


Husband appealed the district court’s decision. The appellate court reversed and remanded for further proceedings with directions to the lower court to rebalance the parties’ interest in accordance with Rooks II, which had been issued while this case was pending and thus the district court did not have it to use as a guide in its decision. As part of its decision, the appellate court concluded that the district court had given greater weight to Wife’s subjective beliefs about the pre-embryos being human lives than Husband’s desire not to procreate.


The appellate court, in making its decision, analyzed In re the Marriage of Rooks, 2016 COA 153. The court first concluded that if there are agreements regarding the ownership of the pre-embryos, then that agreement should be followed. However, if there is no agreement, as was the case in Olsen, the court must look at a “non-exhaustive list” of factors, which were set out in Rooks. These factors include such things as the intended use of the pre-embryos, the physical ability of a party wanting to preserve the pre-embryos to have biological children, attempts to use the pre-embryos as leverage during the divorce, and several other factors.


Ultimately, Husband in the Olsen case contended, and the appellate court agreed, that the district court improperly weighed wife’s interest more heavily than Husband’s because of Wife’s moral belief that the pre-embryos were human lives. In fact, Wife’s argument that the pre-embryos were human lives was improper because the legal system does not view an embryo as human life. Further, Wife also argued for the first time on appeal that her right to donate the pre-embryos implicated her religious beliefs, which the appellate court declined to address since it did not appear to have been raised in the district court and there was no authority cited for her proposition. The appellate court stated, in issuing its remand, that Wife’s subjective belief that the pre-embryos were human lives should not be given greater weight that Husband’s interest in not procreating.


The appellate court disregarded Wife’s argument that Husband had waived his rights against procreation when he consented to create the pre-embryos in the first place. The appellate court, citing Rooks, also found that a party’s interest in becoming the genetic parent of the pre-embryos will be given precedence over one who seeks to donate the pre-embryos, even though the court was not going to give draw a bright line rule regarding donation v. becoming the parent.


Ultimately, the lesson learned is to get a well drafted agreement that specifies how any pre-embryos shall be handled in the event of divorce.

Elle J. Byram is a native Midwesterner, born and raised in the Kansas City area.  Elle earned her law degree at the University of California Davis, School of Law.  She earned her Bachelors in Psychology at the University of Colorado at Boulder as well as a Masters in clinical psychology at Pacific Graduate School of Psychology in Palo Alto, CA. Elle has worked for small and large firms doing litigation, corporate work and technology. 


Desiring to start her own practice, Elle stepped out of the corporate world in 2013 and began her own solo firm focused on family law, estate planning and probate administration. Elle's practice focuses primarily in family law, where Elle litigates divorces, represents victims of domestic violence and assists in every other aspect of family law. 

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