COLORADO COURT OF APPEALS 2016COA153
Court of Appeals No. 15CA0990 Garfield County District Court No. 14DR30080 Honorable John F. Neiley, Judge
In re the Marriage of
Drake F. Rooks,
Appellee,
and
Mandy Rooks,
Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE TERRY Hawthorne and Fox, JJ., concur
Announced October 20, 2016
James W. Giese, P.C., James W. Giese, Grand Junction, Colorado, for Appellee
Azizpour Donnelly LLC, Katayoun A. Donnelly, Denver, Colorado, for Appellant ¶1 This appeal from the permanent orders entered in the
dissolution of marriage proceedings between Mandy Rooks (wife)
and Drake F. Rooks (husband) presents an issue of first impression
in Colorado: how to determine who gets the couple’s cryogenically
frozen embryos on dissolution of their marriage. (Though the
accurate medical term for such unimplanted embryos is “pre-
embryos,” we will refer to them as “embryos” for simplicity.)
¶2 The parties already have three children together. It is
undisputed that wife used her last eggs to create the embryos.
¶3 Husband and wife agreed in their storage agreement with the
fertility clinic that the embryos should be discarded if certain events
(inapplicable here) occurred. But if they dissolved their marriage,
unless they could agree who would get the embryos, the agreement
left it up to the trial court to award them. Wife argued at the
permanent orders hearing that the embryos should remain frozen in
cryo-storage so that she can have another child in the future,
because otherwise she would be infertile. Husband argued that the
embryos should be discarded.
¶4 In its lengthy, detailed, and carefully reasoned permanent
orders, the trial court awarded the embryos to husband. The court
1 relied on two alternative theories derived from the case law of our
sister states:
(1) Applying the “contract approach,” the court construed the
parties’ intent as requiring the embryos to be discarded on
dissolution of their marriage, unless they could agree otherwise.
(2) Applying the “balancing of interests approach,” the court
determined that husband’s interest in not having more children
with wife outweighed wife’s interest in having another child.
¶5 The court determined that both approaches weighed in favor of
awarding the embryos to husband.
¶6 Wife appeals from the portion of the permanent orders
awarding the embryos. She obtained a stay in the trial court to
permit the embryos to remain in cryo-storage pending completion of
appellate proceedings. We affirm the trial court’s judgment under
the balancing of interests approach.
I. Background
¶7 The parties married in 2002, and husband petitioned for
dissolution of the marriage in 2014. The major issues decided in
this dissolution case concerned property division and the wife’s
plan to relocate with the parties’ children to North Carolina. The
2 parties spent relatively little time addressing the issues now raised
on appeal.
¶8 All three of the parties’ children were conceived using in vitro
fertilization (IVF) techniques, and in that process, six additional
embryos were created and placed in cryo-storage. Together with the
fertility clinic, the parties signed two agreements pertaining to the
embryos: a participation agreement and a storage consent
agreement.
¶9 The participation agreement advises the parties that they can
choose to leave the cryopreserved embryos in storage indefinitely for
future use, or they can donate or discard them. The agreement
describes the embryos as a “unique form of ‘property,’” about which
the law is still developing, and alerts the parties that it is important
to have a disposition plan for the embryos in case of the parties’
death, separation, or divorce.
¶ 10 The storage agreement addresses disposition of the
cryopreserved embryos in the event of dissolution of the parties’
marriage or a party’s death.
3 II. Colorado Law
¶ 11 The Colorado General Assembly has determined that embryos
are not “persons” and therefore are also not “children.” See
§ 13-21-1204, C.R.S. 2016 (construing Civil Remedy for Unlawful
Termination of Pregnancy Act as not “confer[ring] the status of
‘person’ upon a human embryo”); § 18-3.5-110, C.R.S. 2016
(similarly construing Offenses Against Pregnant Women statutes);
see also Deborah L. Forman, Embryo Disposition, Divorce & Family
Law Contracting: A Model for Enforceability, 24 Colum. J. Gender &
L. 378, 423 (2013) (“All appellate decisions to date have rejected the
notion that embryos are ‘children’ under the law . . . .”).
¶ 12 The Uniform Parentage Act (UPA) provides that a former
spouse will not be a parent of any child born as a result of the
placement of embryos through assisted reproduction after
dissolution of marriage unless the former spouse consents to be a
parent. See § 19-4-106(7)(a), C.R.S. 2016. The Colorado Probate
Code provides that such a child will not be considered a former
spouse’s child, unless the former spouse gives consent to that effect
and the consent is specific to assisted reproduction occurring after
divorce. See § 15-11-120(9), C.R.S. 2016. Under the UPA, a former
4 spouse may withdraw consent to placement of embryos “at any
time” before they are placed. § 19-4-106(7)(b); see also § 15-11-
120(10).
¶ 13 Because there is no Colorado statute or appellate decision
addressing the specific issue raised here, namely, the disposition of
cryopreserved embryos on dissolution of marriage, see Suzanne
Griffiths & Logan Martin, Assisted Reproduction and Colorado Law:
Unanswered Questions and Future Challenges, 35 Colo. Law. 39
(Nov. 2006), we look to other jurisdictions that have addressed the
issue. See P.W. v. Children’s Hosp. Colo., 2016 CO 6, ¶ 23 (“With no
Colorado case directly on point, we look to the decisions of other
jurisdictions for persuasive guidance.”).
III. Other Jurisdictions
¶ 14 Courts in other jurisdictions have adopted three different
approaches for determining the disposition of divorcing spouses’
cryopreserved embryos: the contract approach, the balancing of
interests approach, and the contemporaneous mutual consent
approach. See Szafranski v. Dunston, 993 N.E.2d 502, 506 (Ill.
App. Ct. 2013) (Szafranski I); see also Michael T. Flannery,
“Rethinking” Embryo Disposition Upon Divorce, 29 J. Contemp.
5 Health L. & Pol’y 233, 237-38 (2013); Forman, 24 Colum. J. Gender
& L. at 383-86.
A. The Contract Approach
¶ 15 Under the contract approach, an agreement between spouses
that was entered into when the embryos were created and cryo-
stored will be enforced as to the disposition of the embryos on
dissolution of marriage. See Davis v. Davis, 842 S.W.2d 588, 597
(Tenn. 1992). In Davis, the divorcing spouses had agreed on all
terms relating to the dissolution of their marriage except one: who
was to have “custody” of their seven cryopreserved embryos held in
storage at a fertility clinic. Id. at 589. The Tennessee court held
that, “as a starting point” in resolving such a dispute, an agreement
regarding disposition of the embryos in the event of divorce “should
be presumed valid and should be enforced as between the
progenitors.” Id. at 597.
¶ 16 Other states have since followed Tennessee’s lead and have
ruled, citing Davis, that agreements between spouses that are
entered into at the time of IVF are enforceable with respect to any
agreed-upon disposition of cryopreserved embryos on dissolution of
marriage. See Kass v. Kass, 696 N.E.2d 174, 180 (N.Y. 1998); In re
6 Marriage of Dahl, 194 P.3d 834, 840 (Or. Ct. App. 2008); Roman v.
Roman, 193 S.W.3d 40, 50 (Tex. App. 2006); but see A.Z. v. B.Z.,
725 N.E.2d 1051, 1053-59 (Mass. 2000) (refusing to enforce parties’
agreement that if they separated, the wife, who had already given
birth to two children using the parties’ embryos, would receive their
remaining embryos for implantation).
¶ 17 Advantages of the contract approach, as the New York court
observed in Kass, are that it “reserv[es] to the progenitors the
authority to make what is in the first instance a quintessentially
personal, private decision”; it avoids litigation in “personal matters
of reproductive choice”; and it “provide[s] the certainty needed for
effective operation of IVF programs.” 696 N.E.2d at 180; see also
Szafranski I, 993 N.E.2d at 515; Roman, 193 S.W.3d at 50.
B. The Balancing of Interests Approach
¶ 18 Though the Tennessee Supreme Court in Davis endorsed a
contract approach, it was unable to use that approach to guide its
decision because the spouses had not entered into an agreement
regarding disposition of their embryos. This led the court to use a
balancing of interests approach, and it ultimately weighed the
husband’s interest in avoiding procreation more heavily than the
7 wife’s interest in wanting to donate the embryos to another couple.
Davis, 842 S.W.2d at 598, 603-04.
¶ 19 Other courts have also held that, when the parties have not
agreed as to who should receive cryopreserved embryos on
dissolution of marriage, the trial court must balance the parties’
interests to resolve the issue. See J.B. v. M.B., 783 A.2d 707, 713-
14, 719-20 (N.J. 2001); Reber v. Reiss, 42 A.3d 1131, 1136 (Pa.
Super. Ct. 2012).
¶ 20 In applying this approach, the Davis court said, “[o]rdinarily,
the party wishing to avoid procreation should prevail, assuming
that the other party has a reasonable possibility of achieving
parenthood by means other than use of the []embryos in question.”
842 S.W.2d at 604; accord Szafranski I, 993 N.E.2d at 514-15; see
also Szafranski v. Dunston, 34 N.E.3d 1132, 1161-64 (Ill. App. Ct.
2015) (Szafranski II) (upholding lower court’s ruling that the
interests of a woman, who had embryos created with a male friend
before undergoing chemotherapy, were paramount because she had
no other option for having a biological child); J.B., 783 A.2d at 719-
20 (ruling in favor of the wife’s interest to avoid procreation after
considering that the husband was already a father and was capable
8 of fathering other children); Reber, 42 A.3d at 1132-43 (upholding
ruling in favor of forty-four-year-old wife, who had no children and
had undergone IVF before cancer treatment in order to preserve her
ability to conceive a child).
C. The Contemporaneous Mutual Consent Approach
¶ 21 Iowa employs a contemporaneous mutual consent approach.
There, if the parties have not previously agreed how to allocate their
cryopreserved embryos on dissolution of marriage, the dissolution
court will not allocate them. Instead, the embryos are left in
storage indefinitely until the parties can agree as to their
disposition. In re Marriage of Witten, 672 N.W.2d 768, 783 (Iowa
2003); see Szafranski I, 993 N.E.2d at 510-11.
¶ 22 The Iowa court rejected the contract approach, reasoning that
judicial enforcement of an embryo disposition agreement “in this
highly personal area of reproductive choice” would be against public
policy. Witten, 672 N.W.2d at 781. The court also noted its “grave
public policy concerns” with the balancing test, which “substitute[s]
the courts as decision makers in this highly emotional and personal
area.” Id. at 779, 783.
9 ¶ 23 The Iowa court’s approach has been criticized as being “totally
unrealistic,” because if the parties had any ability to reach an
agreement on disposition of their embryos, they would not need a
court’s ruling. Reber, 42 A.3d at 1135 n.5; see Szafranski I, 993
N.E.2d at 511. As the trial court aptly noted in rejecting the Iowa
approach in this case, it “essentially gives one party a de facto veto
over the other party” because the issue will inevitably be
determined by the passage of time. See Szafranski I, 993 N.E.2d at
512 (noting that Iowa’s approach may provide a bargaining chip for
an ex-spouse to effectively hold embryos hostage to punish the
other ex-spouse or to gain other advantages). We join the Reber
and Szafranski courts in rejecting the contemporaneous mutual
consent approach.
IV. Application of the Contract and Balancing Approaches
¶ 24 We concur with those courts that have adopted the contract
approach and have enforced a valid agreement entered into between
the spouses as to disposition of the embryos on dissolution of
marriage. We are also in accord that, where there is no such
agreement between the parties, a balancing of interests approach
should be taken.
10 A. The Trial Court’s Application of the Contract Approach
¶ 25 As argued by wife on appeal, the contract approach has two
components: an oral agreement between her and husband, and the
written storage agreement.
¶ 26 Wife’s appellate briefs argue that the trial court erred by failing
to enforce an alleged oral agreement between the parties that she
could have a total of four children using the embryos. Because wife
did not raise this issue in the district court and did not obtain a
ruling on it, we do not address it. See Estate of Stevenson v.
Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992)
(“Arguments never presented to, considered [by,] or ruled upon by a
trial court may not be raised for the first time on appeal.”). And
because the record does not show that she preserved her related
promissory estoppel argument, we will not address that argument,
either. See id.
¶ 27 We agree, however, with wife’s contention that the trial court
erred in interpreting the written storage agreement.
¶ 28 We review de novo the trial court’s interpretation of the parties’
written storage agreement, including the court’s determination that
the agreement is ambiguous. See Ad Two, Inc. v. City & Cty. of
11 Denver ex rel. Manager of Aviation, 9 P.3d 373, 376-77 (Colo. 2000);
In re Marriage of Crowder, 77 P.3d 858, 860 (Colo. App. 2003).
¶ 29 The goal in interpreting the agreement is to give effect to the
parties’ intent as discerned from the contract language. Ad Two, 9
P.3d at 376; Crowder, 77 P.3d at 860-61. Extraneous evidence of
such intent may be considered only if the written agreement is
ambiguous, meaning that it is fairly susceptible of more than one
reasonable interpretation. Ad Two, 9 P.3d at 376-77; Crowder, 77
P.3d at 861.
¶ 30 A court may not rewrite an agreement under the guise of
interpreting it. See Bledsoe Land Co. v. Forest Oil Corp., 277 P.3d
838, 842 (Colo. App. 2011); see also In re Marriage of Stokes, 43
Colo. App. 461, 466, 608 P.2d 824, 829 (1979) (“Courts cannot
rewrite contracts or add terms thereto.”).
¶ 31 We conclude that the storage agreement leaves it to the
dissolution court to decide which party should receive the embryos
in the event of dissolution of their marriage.
¶ 32 The pertinent language is as follows:
In the event of divorce or dissolution of our marriage, we acknowledge that the disposition
12 of our embryos will be part of the divorce/dissolution decree paperwork.
. . . [I]f any court of competent jurisdiction award[s] to either Husband or Wife all rights with respect to the Cryopreserved embryos to the exclusion of the other spouse, by an order or decree which is final and binding to them, the [laboratory] shall have the right to deal exclusively with him or her to whom such rights were awarded (the prevailing party) . . . .
In the event that the divorce/dissolution decree paperwork does not address the disposition of the embryo(s), we elect the following disposition of our embryo(s):
....
[Parties’ initials] Thawed and discarded without undergoing any further development for any purpose.
¶ 33 Both husband and wife initialed the above-quoted “thawed
and discarded” option, and one of them apparently underlined the
word “discarded.”
¶ 34 We construe this contract provision to mean:
1. The parties elected a default option of discarding the embryos
if they did not make any other provision for the embryos in a
stipulation in their dissolution proceeding and if the
dissolution court did not rule on the issue.
13 2. In their dissolution proceeding, the parties could stipulate to a
disposition other than discarding the embryos.
3. If the parties disagreed about the disposition of the embryos in
their dissolution proceeding and sought a ruling from the
dissolution court on the issue, that court would decide which
party would be awarded the embryos.
¶ 35 The trial court found that the contract was ambiguous as to
how the court should award the embryos in the event of dissolution.
It resolved the ambiguity by construing the agreement to require
both parties’ mutual agreement before any of the embryos could be
thawed and implanted, and it therefore ruled that absent such an
agreement, the embryos would be thawed and discarded on
dissolution of the parties’ marriage. According to the court, “[t]he
fact that the parties agreed to mutually approve any reproductive
transfer or use of the embryos is a strong indication of their intent
that [wife] should not now be awarded that exclusive right in the
event of divorce.”
¶ 36 We conclude that the court erred in attempting to infer
contract terms that did not exist. The contract gives no guidance as
to how the court is to make the decision regarding who will be
14 awarded control over the embryos in the event of divorce if the
parties disagree on the issue. The contract approach employed by
other courts could not be used because there was no agreement
that could be enforced as to who should receive the embryos.
¶ 37 Given the absence of enforceable contract terms on the issue,
we construe the contract as requiring the dissolution court to
exercise its inherent equitable power to determine whom to award
the embryos to if the parties cannot agree on that point. See In re
Marriage of Balanson, 25 P.3d 28, 35 (Colo. 2001) (noting trial
court’s role in ordering equitable distribution of marital property
based upon facts and circumstances of an individual case); see also
Szafranski II, 34 N.E.3d at 1161; J.B., 783 A.2d at 713-19 (where a
contract did not manifest a clear intent by the parties regarding
disposition of their embryos on dissolution of their marriage, but
instead permitted them to obtain a court order directing such
disposition, “the interests of both parties must be evaluated” by the
court); Reber, 42 A.3d at 1136; Davis, 842 S.W.2d at 604; but cf.
Roman, 193 S.W.3d at 52-54 (the parties were well aware of other
options when they chose the option to have embryos destroyed in
the event of divorce).
15 ¶ 38 Because the court had to rely on its equitable discretion to
determine how to award the embryos, it necessarily had to employ
the balancing approach. See Davis, 842 S.W.2d at 598, 603-04
(using balancing approach where spouses had not agreed on
disposition of embryos in event of divorce).
B. The Trial Court’s Application of the Balancing Approach
¶ 39 Given that there was no enforceable agreement between the
parties as to disposition of the embryos on dissolution, the court
was required to balance the parties’ interests. We reject wife’s
contention that the trial court erred in doing so.
¶ 40 Application of the balancing test is an exercise of the trial
court’s equitable discretion, and we therefore review its decision for
an abuse of discretion. See Balanson, 25 P.3d at 35 (trial court has
great latitude to effect an equitable distribution of marital property
based on facts and circumstances of each case, and an appellate
court will not disturb a trial court’s decision absent a clear abuse of
discretion); Szafranski II, 34 N.E.3d at 1161-62 (balancing of
interests approach involves “a fact-intensive inquiry into each
party’s interest in using or preventing the use of the []embryos”); cf.
In re Marriage of Ciesluk, 113 P.3d 135, 142, 147-48 (Colo. 2005) (in
16 parental relocation case, conducting abuse of discretion review of
trial court’s balancing of child’s best interests with relocating
parent’s constitutional right to travel and other parent’s
constitutional right to parent).
¶ 41 Wife argues that some of the factors the trial court applied in
its balancing approach are legally erroneous and that others violate
her constitutional rights. We conclude that the trial court properly
exercised its discretion in balancing the parties’ competing interests
in the embryos and in deciding to award them to husband.
1. Wife’s Interest in Having a Fourth Child
¶ 42 As previously discussed, we do not address wife’s contention
that she had a binding agreement with husband to have four
children because she failed to preserve that issue for appeal.
¶ 43 Nevertheless, she argues that the court was required to
balance her desire to have another child with husband’s desire not
to father additional children with her. We conclude that the court
appropriately balanced the parties’ competing interests.
¶ 44 Given that wife has already borne three children, this is not a
situation like Davis, 842 S.W.2d at 591-92, Szafranski I, 993
N.E.2d at 503-05, or Reber, 42 A.3d at 1132-33, where the woman’s
17 only opportunity to bear children would be foreclosed if the court
did not award the embryos to her. See J.B., 783 A.2d at 717
(considering, when balancing parties’ interests, that the husband
was already a father); cf. A.Z., 725 N.E.2d at 1053-55, 1057-59
(upholding lower court’s refusal to enforce contract allowing the
wife, who had already conceived and given birth to twins during the
marriage, to implant the parties’ four remaining cryopreserved
embryos on the parties’ separation).
¶ 45 Accordingly, under the balancing of interests approach, the
court could reasonably conclude that husband’s interest in not
producing additional offspring prevails over wife’s interest in having
a fourth child. See Davis, 842 S.W.2d at 603-04; see also
Szafranski I, 993 N.E.2d at 515; J.B., 783 A.2d at 719-20; but cf.
Szafranski II, 34 N.E.3d at 1162-63 (upholding ruling that childless
woman’s interest in using embryos she created with friend before
she underwent fertility-destroying chemotherapy was paramount
over friend’s interest in not procreating); Reber, 42 A.3d at 1140-42
(holding that balancing of interests tipped in favor of the wife
because the embryos were “likely her only chance at genetic
parenthood”).
18 ¶ 46 The court appropriately considered husband’s emotional and
psychological well-being, in that he would likely feel a moral and
social obligation for a fourth biological child, even though he may
have no legal obligation to the child. This finding further supports
the court’s allocation of the embryos to husband under the
balancing of interests approach. See J.B., 783 A.2d at 717 (noting
“life-long emotional and psychological repercussions” for the wife if
her biological child is born in the future to the husband and a
surrogate mother).
2. Financial Responsibility for Additional Children Born of the Embryos
¶ 47 Wife next argues that the trial court erred as a matter of law
by considering the potential risk that husband could face financial
obligations for a child born in the future using the embryos. We are
not persuaded.
¶ 48 The court noted that wife declared her intention to relocate to
North Carolina, and that the court allocated parental
responsibilities to allow the parties’ three children to move there
with her. According to the court, North Carolina does not have
statutory provisions, such as Colorado’s sections 19-4-106(7) and
19 15-11-120(10), that would relieve husband of financial
responsibility for a future child born using the embryos without his
consent.
¶ 49 To the extent wife further argues that the trial court erred by
considering the potential increase in husband’s child support
obligation for the parties’ existing children if wife chooses to have a
fourth child, we discern no abuse of discretion by the court in
considering this factor. We disagree that, in doing so, the court
impermissibly implied that wife should not have another child.
Rather, the court merely noted an inevitable financial consequence
for husband if wife chooses to have another child using the embryos
— an appropriate consideration when balancing the parties’
interests.
3. Wife’s Constitutional Arguments
¶ 50 Wife relies on various provisions of the constitutions of the
United States and Colorado to raise numerous challenges to the
trial court’s balancing of interests. She contends that she was not
required to take specific action to preserve those arguments in the
trial court because they arose from the trial court’s various
comments in its permanent orders. We agree that her arguments
20 are sufficiently preserved, but we disagree that her constitutional
rights were violated by the permanent orders.
¶ 51 To the extent that the Colorado Constitution may have
provisions different from those of the United States Constitution,
wife has not identified any different analysis that would be required
under the state constitution. We therefore confine our analysis to
the United States Constitution’s provisions. See Holliday v. Reg’l
Transp. Dist., 43 P.3d 676, 681 (Colo. App. 2001).
¶ 52 Wife asserts that the following rights were violated, and that
these rights derive from the United States Constitution:
the right to equal protection of the law;
the right to due process;
the right to “procreational autonomy”;
the right of privacy;
the “freedom of choice in procreation”; and
the “fundamental liberty interest in the care, custody,
and management of her children.”
¶ 53 We begin by recognizing that for every one of the rights
identified by wife, husband has corresponding and equal rights,
including the right to determine that he does not want to have
21 additional children who are joint genetic offspring of husband and
wife. See Davis, 842 S.W.2d at 601 (noting that “right of
procreational autonomy is composed of two rights of equal
significance — the right to procreate and the right to avoid
procreation”); Forman, 24 Colum. J. Gender & L. at 425 (“[B]oth
parties have constitutional procreation rights at stake.”).
¶ 54 Wife argues that husband would have no future financial
responsibility for any additional children born from the embryos.
Even if she were correct about that — and it is not entirely clear
under the law of North Carolina where she now lives whether that is
so — it is nevertheless true that father would in fact (though not in
law) be the father of any such children. And any such children
would be the siblings of father’s three existing children, and would
be part of their lives.
¶ 55 The trial court’s task, then, was to balance all of those
competing rights of wife and husband and come to a difficult,
discretionary decision. We conclude that, in reaching that decision,
it did not violate wife’s constitutional rights.
¶ 56 Specifically, it was not a violation of her constitutional rights
for the trial court to discuss the following matters in its final orders:
22 The fact that wife already has three children. As other
courts applying the balancing approach have recognized,
it may weigh in a party’s favor if preserving the embryos
would provide a party’s only chance to create genetic
offspring. See Szafranski II, 34 N.E.3d at 1161-64
(considering woman’s infertility in weighing competing
interest of male friend who no longer wanted to
procreate); Reber, 42 A.3d at 1132-43 (ruling that
interests of divorcing wife, who was forty-four, had no
children, and had undergone IVF before cancer treatment
in order to preserve her ability to conceive a child,
prevailed over those of the husband); cf. J.B., 783 A.2d at
719-20 (ruling that divorcing wife’s interest in avoiding
procreation outweighed the husband’s where he was
already a father and was capable of fathering other
children).
What would happen if wife had another child (or children)
from the embryos. The court noted that if she were to
have more children, she would get a credit on any child
support worksheet, which would indirectly increase the
23 amount of child support owed by husband to wife. Given
that husband’s constitutional rights in not having
additional children were implicated by the court’s
decision, we see no abuse of discretion in the court’s
consideration of the potential economic impact on the
parties.
How the addition of another child (or children) might
affect the parties’ existing children, and whether such an
addition might challenge wife’s ability to “manage such a
large family alone 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
remarked on those circumstances as part of its
ruminations on how the parties might fare in the future.
We see no constitutional impediment to the court’s
discussion of the practicalities of wife’s situation.
Contrary to her assertions on appeal, there is no
indication that the court ruled in favor of husband based
on improper considerations, i.e., because wife is poor. It
is clear to us that the court did not base its decision on
24 wife’s economic or social circumstances. Rather, it
carefully balanced the parties’ competing interests.
¶ 57 Though wife argues that the trial court improperly injected a
“best interest of the child” test in the final orders, we find no
instance where the court applied such a test. The court merely
mentioned the potential impacts of various factual circumstances
on the parties’ existing children, and we discern no constitutional
violation or abuse of its discretion in doing so.
¶ 58 Wife cites Skinner v. Oklahoma ex rel. Williamson, 316 U.S.
535 (1942), which dealt with involuntary sterilization of persons
convicted of certain felonies, and argues that “the court may not
dictate to American citizens the number of children they may have.”
To the extent that the permanent orders may result in a limitation
on the number of children wife may ultimately wind up bearing
through biological means, that is simply a consequence of the
parties’ having left it up to the court to decide who gets the
remaining embryos. Wife could have contracted to receive the
embryos on dissolution of the marriage, but did not do so, and
instead requested in her supplemental trial brief that the court
decide the issue based on a balancing of the parties’ interests.
25 ¶ 59 By leaving such an important decision up to the court, the
parties should have expected the court to thoroughly examine the
parties’ desires, life circumstances, and financial state, as it does in
balancing the interests in every permanent orders case. See
Balanson, 25 P.3d at 35.
¶ 60 We reject wife’s unsupported argument that husband
relinquished his constitutional right not to procreate by consenting
to the use of his sperm to fertilize wife’s “last eggs.” The storage
agreement contradicts this theory by specifically providing for
allocation of the embryos on dissolution to be decided in the
“divorce/dissolution decree paperwork.” Moreover, the UPA
expressly allows husband, as a former spouse, to withdraw his
consent for placement of the embryos “at any time” before they are
placed. § 19-4-106(7)(b).
¶ 61 Wife and husband have equal claim to constitutional and
other rights. The decision allocating the embryos required the court
to balance those competing interests, and the court did so
appropriately.
¶ 62 Accordingly, we perceive no constitutional violation. See
Szafranski I, 993 N.E.2d at 516 (finding no constitutional obstacle
26 to contract or balancing of interests approach because friend who
participated in creating embryos did not have unilateral
constitutional right to prohibit their use without regard to the
woman’s equal rights); see also Szafranski II, 34 N.E.3d at 1163-64.
V. Conclusion
¶ 63 The trial court’s judgment awarding the parties’ embryos to
husband under the balancing of interests approach is affirmed.
JUDGE HAWTHORNE and JUDGE FOX concur.