In Re Marriage Of Rooks

429 P.3d 579 (2018)

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Nature of the Case

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Facts

H and Mandy (W) married in 2002. They separated in August 2014, and H filed a petition for dissolution of marriage. H and W had three children, and W was not pregnant at the time. They had used IVF to have their three children. In 2011, and again in 2013, they entered into agreements with the Colorado Center for Reproductive Medicine (CCRM) and Fertility Laboratories of Colorado (FLC) for the IVF services. W was identified as the 'Female Patient' and H as the 'Spouse/Partner.' According to the agreements, pre-embryos are frozen on day 1, 2, 3, 5, or 6 after fertilization. Both the 2011 and 2013 agreements with CCRM and FLC include an 'Embryo and Pre-Embryo Cryopreservation/Storage Consent' form with a 'Disposition Plan' recording the couple's decisions regarding the disposition of the frozen pre-embryos under certain scenarios. The disposition plans further state that in the event of divorce or dissolution of marriage, 'the disposition of our embryos will be part of the divorce/dissolution decree paperwork,' and that FLC may deal exclusively with the person to whom all rights in the pre-embryos are awarded. If the divorce/dissolution decree paperwork does not address the disposition of the embryo(s), the pre-embryos were to be discarded. H and W disagreed about what to do with the pre-embryos that were still in storage. W wished to preserve the pre-embryos for future implantation. H wished to discard the pre-embryos. There were six remaining cryogenically preserved pre-embryos. The court examined (1) the contract approach, (2) the balancing of interests approach, and (3) the contemporaneous mutual consent approach. Under the contract approach, the court reviewed the text of the parties' 2011 and 2013 agreements with CCRM and FLC. The agreement did not allow either spouse to 'unilaterally' thaw and implant the pre-embryos without the other's consent, and the couple intended that the pre-embryos should be thawed and discarded in the event of divorce where they could not achieve 'mutual resolution.' Therefore, the court concluded that under the contract approach, H should receive the pre-embryos. Under the balancing of interests approach, H had the right to avoid the burdens of parenthood. The trial court considered the potential effects of an additional child on the best interests of the three existing children from the marriage. The court posited that, for parenting time and other reasons, it could be detrimental for the existing children to have an additional sibling who would be the genetic but not the legal child of H. The court expressed concerns about W's financial ability to provide for another child, noting that she has no income and that one of the couple's three children has a significant medical condition. The court determined that the balancing of interests approach also weighed in favor of awarding the pre-embryos to H. W appealed. The court of appeals concluded that the trial court erred by inferring contract terms that did not exist. The court of appeals construed the agreement to require the dissolution court to determine who should receive the pre-embryos. It concluded that the trial court properly exercised its discretion in balancing the parties' competing interests and awarding the pre-embryos to H. The court of appeals concluded that in balancing the couple's competing interests, the trial court did not violate W's constitutional rights when it discussed the fact that she already had three children; considered the potential economic impact of another child; raised concerns about the impact of another child on the parties' existing children; and remarked on W’s ability to manage 'such a large family' as a single parent, given her lack of employment and financial resources and the significant health issues faced by one of the children. The court of appeals affirmed the trial court's judgment awarding the pre-embryos to H under the balancing of interests approach. This appeal resulted.