The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY June 23, 2022
2022COA66
No. 20CA1881, In re Marriage of Olsen — Family Law — Parents and Children — Assisted Reproduction — Embryos
As a matter of first impression, a division of the court of
appeals applies the test set forth in In re Marriage of Rooks, 2018
CO 85, to the following situation: one party wishes to donate pre-
embryos based on her sincerely held religious beliefs, and the other
party wishes to destroy the pre-embryos to avoid procreation.
Applying the principle that “ordinarily a party not wanting to
procreate should prevail when the other party wants to donate the
pre-embryos instead of using them to have a child of his or her
own,” the division concludes that the party seeking to donate here
does not prevail. In re Marriage of Fabos, 2019 COA 80, ¶ 45
(emphasis in original). COLORADO COURT OF APPEALS 2022COA66
Court of Appeals No. 20CA1881 El Paso County District Court No. 12DR5458 Honorable Timothy Schutz, Judge
In re the Marriage of
Jamie R. Fabos, f/k/a Jamie R. Olsen,
Appellee,
and
Justin R. Olsen,
Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE BERGER Brown and Johnson, JJ., concur
Announced June 23, 2022
Telios Law PLLC, Theresa Lynn Sidebotham, Joseph B. Brown, Monument, Colorado, for Appellee
Paige Mackey Murray LLC, Paige Mackey Murray, Boulder, Colorado, for Appellant ¶1 Jamie R. Fabos (wife), formerly known as Jamie R. Olsen, and
Justin R. Olsen (husband) continue to dispute the disposition of
their cryogenically frozen pre-embryos after their divorce. This case
is before us again on husband’s appeal from the district court’s
judgment on remand after his first appeal, In re Marriage of Fabos,
2019 COA 80.
¶2 In this second appeal, we review the district court’s award of
the parties’ pre-embryos to wife based on its application of the
multi-factor balancing test from In re Marriage of Rooks, 2018 CO
85, as well as the remand instructions from Fabos. Rooks resolved
a dispute between one spouse who wanted to implant pre-embryos
to have children and the other spouse who wanted to destroy the
pre-embryos to avoid becoming a genetic parent. Id. at ¶¶ 3, 14.
The supreme court recognized that the parties’ constitutionally
based interests “in either achieving or avoiding genetic parenthood”
formed the underpinnings of the analysis. Id. at ¶ 64. Rooks,
however, did not address, as part of its balancing test, the issue of
one party’s desire to donate the pre-embryos versus the other
party’s desire to destroy them.
1 ¶3 This case centers on a dispute between one spouse who wants
to donate the pre-embryos to another couple because of her
religious belief that they are human lives and must be preserved
and the other spouse who wants to destroy the pre-embryos to
avoid procreation. Therefore, this case presents an issue not
addressed by Rooks: how to account for one party’s religious beliefs
as part of the balancing test.
¶4 We greatly respect the district court’s careful consideration of
these extraordinarily difficult legal questions and its extensive order
after remand. But, for the reasons explained below, we conclude
that the district court erred by misapplying the Rooks factors and
by failing to comply with the mandate from Fabos. We reverse the
judgment, direct entry of judgment for husband, and remand the
case solely for the entry of judgment and any collateral orders
necessary to enforce that judgment.
Relevant Facts and Procedural History
¶5 During their marriage, the parties wanted to have children but
were unable to conceive naturally. They visited a fertility clinic for
in vitro fertilization (IVF). Two of the resulting pre-embryos were
implanted successfully, resulting in wife giving birth to the parties’
2 twins in October 2011. Two additional pre-embryos were
cryogenically frozen and placed in storage.
¶6 Before the parties underwent IVF, the fertility clinic presented
them with a form agreement entitled “Informed Consent for Assisted
Reproduction.” The form agreement contained choices for the
disposition of the pre-embryos in two scenarios — (1) on their
mutual death or incapacity, and (2) when wife reaches age fifty-five.
Those choices were:
1. thaw and discard the pre-embryos;
2. donate the pre-embryos for research; or
3. donate the pre-embryos to another couple.
For both scenarios, the parties each initialed the line next to the
third option — to donate the pre-embryos to another couple.
¶7 The form agreement did not, however, contain an option
regarding the disposition of the pre-embryos in the event of divorce.
Instead, the form agreement provided that ownership of the pre-
embryos on dissolution of marriage will be “as directed by court
decree and/or settlement agreement.” The parties signed the form
agreement, without altering the form agreement’s divorce provision
3 or separately specifying in a different agreement the disposition of
the pre-embryos in the event of divorce.
¶8 In December 2012, wife petitioned to dissolve the parties’
marriage. The parties disagreed on the disposition of the stored
pre-embryos. Wife wanted to donate them to another infertile
couple, whereas husband wanted to thaw and discard them.
¶9 After an evidentiary hearing, the district court awarded the
pre-embryos to wife for donation to another couple. Husband
appealed. A division of this court in Fabos reversed and remanded
for the district court to reconsider the case, applying the supreme
court’s balancing of interests framework from Rooks, ¶¶ 65-72,
which had been announced after the entry of the district court’s
first judgment. See Fabos, ¶¶ 9, 16, 57.
¶ 10 The division further instructed the district court not to weight
“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.” Id. at ¶ 57. And, critical to our
disposition, the Fabos division held that “ordinarily a party not
wanting to procreate should prevail when the other party wants to
4 donate the pre-embryos instead of using them to have a child of his
or her own.” Id. at ¶ 45 (emphasis in original).
¶ 11 On remand, the district court held another evidentiary
hearing. At the second hearing, wife claimed that her firmly held
religious beliefs and corresponding constitutional right to freedom
of religion under the First Amendment to the United States
Constitution compelled a decision in her favor.
¶ 12 In a comprehensive order, the district court again awarded the
pre-embryos to wife for donation to third parties.1 Husband again
appealed. The district court stayed the judgment pending the
issuance of the mandate of this court.
1 At the hearing on remand, wife presented an alternative intended use of the pre-embryos by saying that she would have them implanted if her interest in donating them was not strong enough to overcome husband’s interest in avoiding procreation. However, the district court found that, given the acrimony between the parties since the dissolution of their marriage and the potential that more genetic children between the parties would result, wife’s alternative use would not prevail in a balancing analysis against husband’s interest. Accordingly, it ordered that wife could only donate the pre-embryos and not have them implanted. Wife did not cross- appeal this part of the district court’s judgment.
5 Disposition of the Parties’ Stored Pre-Embryos
¶ 13 Husband contends that the district court erred by awarding
the pre-embryos to wife based on the subjective importance of her
religious belief that the pre-embryos are human lives. He argues
that the court violated Fabos and Rooks by again weighting wife’s
religious beliefs more heavily than his interest in avoiding
procreation.
¶ 14 We agree that the district court’s judgment cannot stand. The
court misapplied the Rooks factors and did not follow the mandate
from Fabos to avoid “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, ¶ 57. We conclude, as a matter of law based on a proper
application of the Rooks factors and the Fabos mandate, that the
present case is not one of the rare circumstances where a party
wanting to donate the pre-embryos to third parties can prevail over
the other party who opposes procreating with the pre-embryos. See
Rooks, ¶ 32; Fabos, ¶¶ 34, 38, 45.
6 A. Standard of Review
¶ 15 Whether a district court applied the correct legal standard is
an issue we review de novo. See LaFond v. Sweeney, 2015 CO 3,
¶ 12. We also review de novo whether the district court complied
with this court’s mandate in Fabos. See Thompson v. Catlin Ins. Co.
(UK), 2018 CO 95, ¶ 20.
¶ 16 Because pre-embryos are marital property (albeit of a “special
character,” Rooks, ¶ 57) we apply an abuse of discretion standard to
the court’s award of the pre-embryos to one of the parties, Fabos, ¶
21. A court abuses its discretion when its decision is manifestly
arbitrary, unreasonable, or unfair, or when it misconstrues or
misapplies the law. In re Marriage of Evans, 2021 COA 141, ¶ 25.
B. Legal Standards
1. Rooks
¶ 17 As noted, Rooks similarly involved a divorcing couple’s dispute
over the disposition of their cryogenically frozen pre-embryos when
their IVF agreement did not specify the disposition of the pre-
embryos on divorce but provided only that the dissolution court
would decide the issue. See Rooks, ¶¶ 2-3, 13. Like the parties
here, the couple in Rooks had successfully implanted some of their
7 pre-embryos, resulting in the births of their children, and they had
frozen and stored the remaining pre-embryos. Id. at ¶¶ 3, 7, 12.
¶ 18 Because the parties’ agreement in Rooks did not address the
disposition of the pre-embryos on divorce, the district court in that
case applied a balancing of the interests test and awarded the pre-
embryos to the husband, who wanted to thaw and discard them,
finding that, under the circumstances, his right “not to be forced to
become a genetic parent” outweighed the wife’s right to use the pre-
embryos to have more children. Id. at ¶¶ 18-22. The wife appealed,
and a division of this court affirmed the district court’s ruling. Id.
at ¶¶ 23-30.
¶ 19 The supreme court granted certiorari review. After finding no
controlling Colorado authority, it examined the various approaches
courts in other states have taken to resolve disputes between
divorcing spouses over the disposition of stored pre-embryos. Id. at
¶¶ 31-32, 40-48. It held that Colorado courts must resolve such
disputes by first looking to any agreement between the parties
concerning the disposition of the pre-embryos on divorce. Id. at
¶¶ 59-63. If the parties agreed to a disposition on divorce, that
agreement must be enforced. Id. In the absence of an agreement,
8 however, courts “should balance the parties’ respective interests
and award the pre-embryos accordingly.” Id. at ¶ 64; see also id. at
¶¶ 33-34. The supreme court provided the following “non-
exhaustive list” of factors that courts should weigh in determining
whose wishes concerning marital pre-embryos should prevail:
1. A court should consider “the intended use of the party
seeking to preserve the disputed pre-embryos.” Id. at ¶ 66.
Important to our disposition of this case, the supreme
court held that “[a] party who seeks to become a genetic
parent through implantation of the pre-embryos . . . has a
weightier interest than one who seeks to donate the pre-
embryos to another couple.” Id.
2. A court should consider the demonstrated physical ability
or inability of the party seeking to implant the pre-embryos
to have a genetic child through other means. Id. at ¶ 67.
3. Relatedly, a court should consider the parties’ original
reasons for pursuing IVF, which may favor preservation if,
for example, they used IVF to preserve a spouse’s ability to
have a genetic child in the face of fertility-impairing
medical treatment. Id. at ¶ 68.
9 4. A court should consider the hardship to the party seeking to
avoid becoming a genetic parent, including emotional,
financial, or logistical considerations. Id. at ¶ 69.
5. A court should consider either party’s demonstrated bad
faith or attempt to use the pre-embryos as unfair leverage
in the divorce proceedings. Id. at ¶ 70.
6. Finally, other factors “may be relevant on a case-by-case
basis.” Id. at ¶ 71.
¶ 20 Rooks also identified certain factors that a court can never
consider when balancing the parties’ interests relative to the
disposition of their pre-embryos. See id. at ¶¶ 65, 71, 73.
Specifically, a court may not consider whether a party seeking to
become a genetic parent using the pre-embryos can afford to have
another child, the number of either party’s existing children as the
sole factor in the analysis, or that a party could adopt a child
instead of having a genetic child using the pre-embryos. Id. at ¶ 71.
¶ 21 The Rooks court stated that its balancing framework
“recognizes that both spouses have equally valid, constitutionally
based interests in procreational autonomy.” Id. at ¶ 72. The
supreme court also characterized the parties’ interests in either
10 achieving procreation or avoiding procreation as “equivalently
important, yet competing.” Id. at ¶ 74.
2. Fabos
¶ 22 In reversing the district court’s first award of the pre-embryos
to wife, the Fabos division instructed the court to apply the Rooks
balancing of interests test on remand. Fabos, ¶¶ 16, 57. The
division concluded that the district court erred by crediting wife’s
belief that the pre-embryos are human lives and her desire to
donate them for “a productive purpose” as “innately and
unavoidably superior” to husband’s desire to avoid procreation. Id.
at ¶ 53. By doing so, the district court “tilted the scale” in favor of
wife based on a factor the Rooks court didn’t recognize — the
relative strength or sincerity of the parties’ respective personal or
moral convictions. According to the Fabos division, the district
court’s additional factor “does not advance the [Rooks] court’s
charge of giving primacy to one of ‘the equivalently important, yet
competing, right to procreate and right to avoid procreation’”; is
“contrary to established law” that pre-embryos are not persons
under Colorado law; and is inconsistent with the fact that a party
who wants to donate has a less weighty interest than a party who
11 wants to have children using the pre-embryos. Id. at ¶¶ 51-55
(quoting Rooks, ¶ 74); see also Rooks, ¶¶ 56, 66.
¶ 23 Although the Rooks factors are not exhaustive and the record
supported the district court’s finding that wife sincerely and
passionately believed that the pre-embryos are human lives, the
division concluded that the district court erred by elevating wife’s
personal moral beliefs over husband’s constitutional right to avoid
procreation. Fabos, ¶¶ 54-55. The division declined to adopt a
“bright line” rule that, because wife wants to donate the pre-
embryos rather than implant them to have children, she cannot
prevail under any circumstance over husband’s interest in avoiding
procreation. See id. at ¶¶ 35-40. Echoing language in Rooks, the
division further held, however, that “ordinarily a party not wanting
to procreate should prevail when the other party wants to donate
the pre-embryos instead of using them to have a child of his or her
own.” Id. at ¶ 45 (emphasis in original); see id. at ¶¶ 34, 38.2
2In re Marriage of Rooks referred to this language in a section of its opinion surveying how other jurisdictions have resolved these questions, not in its holding. 2018 CO 85, ¶ 32. But the supreme court relied on Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), in articulating the Rooks factors, specifically citing Davis for the
12 ¶ 24 On remand, Fabos instructed the district court to
rebalance the parties’ interests in accord with Rooks;
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”; and
allow the parties an opportunity to present additional
evidence and argument.
Id. at ¶ 57.
C. The Judgment on Remand
¶ 25 This brings us to the proceedings and judgment on remand, in
which the district court addressed the Rooks factors as follows:
1. Intended Use by the Party Wanting to Preserve the Pre-
Embryos. The court weighted wife’s interest under this
proposition that a “party who seeks to become a genetic parent through implantation of the pre-embryos, for example, has a weightier interest than one who seeks to donate the pre-embryos to another couple.” Rooks, ¶¶ 66, 69. Consistent with Rooks, Fabos extended Colorado’s reliance on Davis for the proposition that “ordinarily a party not wanting to procreate should prevail when the other party wants to donate the pre-embryos instead of using them to have a child of his or her own.” In re Marriage of Fabos, 2019 COA 80, ¶ 45 (emphasis in original).
13 factor as “substantial.” The court acknowledged that “[o]n
an objective scale,” a party’s interest in wanting to have a
child using the pre-embryos is entitled to greater weight
than a party’s interest in donating the pre-embryos to a
third party. But it did not accord wife’s interest in donation
less weight than if she wanted to have the pre-embryos
implanted. Instead, based on the “subjective importance” of
wife’s “bona fide, long-standing, and sincere” religious
beliefs and her “deeply rooted conviction that pre-embryos
are human life,” it weighted her interest in donating the pre-
embryos the same as if she wanted to implant them.
2. Ability or Inability to Become a Genetic Parent Otherwise.
The court weighted this factor slightly in wife’s favor, even
though the parties had already had genetic children using
the pre-embryos and wife’s primary interest was to donate
the pre-embryos, not to have more children herself.
3. Reasons for Undertaking IVF. The court found this factor to
be neutral, noting that the parties had participated in IVF to
have a genetic child, they had achieved that goal, and their
14 current interests were no longer consistent with their
original reason for undergoing IVF.
4. Emotional, Financial, or Logistical Hardship for the Party
Seeking to Avoid Becoming a Genetic Parent. The court
found that the emotional burden on husband would be
“significant” if wife were permitted to preserve the pre-
embryos and donate them to another couple to have a child.
The court said it was persuaded that husband’s concern
about not being a part of a child’s life if that child was
created with his genetic material was “an essential part of
how [husband] views himself,” “sincere,” and “grounded in
his life experiences.” The court found that husband’s
characterization of this value was “somewhat overstated”
based on the IVF agreement to donate the pre-embryos in
other scenarios — on the parties’ mutual death or incapacity
and when wife reaches age fifty-five. It viewed the IVF
agreement as the parties’ “prior balancing” of their respective
values in favor of wife. Still, the court concluded that “the
emotional, financial, and intangible burdens on” husband if
15 wife were permitted to donate the pre-embryos “would be
significant.”
5. Bad Faith. The court found that neither party acted in bad
faith, and therefore this factor did not weigh in favor of
either party.
6. Other Considerations. The court weighted this “catch-all”
factor in wife’s favor. It considered the parties’ agreement to
donate the pre-embryos in other scenarios and its
assessments of the parties’ credibility and the subjective
importance of their constitutionally based beliefs to each of
them. It found that wife’s belief that the pre-embryos are
human lives was “bona fide, passionate, [and] antedate[s]
this dispute,” whereas husband failed to articulate a basis
for changing his mind concerning the parties’ previous
decision to prioritize wife’s beliefs by agreeing to donate the
pre-embryos in other scenarios.
¶ 26 In conclusion, the court stated that both parties’ interests —
wife’s interest in preserving the pre-embryos and husband’s interest
in discarding them — were grounded in rights guaranteed by the
Constitution. But it concluded that wife’s interest in donating the
16 pre-embryos was weightier than husband’s interest in avoiding
procreation. Therefore, it awarded the pre-embryos to wife to
donate to another couple.
D. The District Court Misapplied the Rooks Factors and Failed to Comply with the Fabos Mandate
1. The District Court Misapplied Rooks by Considering Wife’s Religious Beliefs as Part of the First Factor
¶ 27 The district court erred by considering wife’s religious belief
that the pre-embryos are human lives when weighting the first
Rooks factor — the intended use of the party seeking to preserve the
disputed pre-embryos.
¶ 28 It is undisputed that wife’s primary intended use of the pre-
embryos is to donate them to another infertile couple. The court
first acknowledged that, “[o]n an objective scale,” a party’s desire to
implant pre-embryos to bear children is entitled to greater weight
than a party’s desire to donate them. See Rooks, ¶ 66. But it noted
that wife’s desire to preserve the pre-embryos “is based upon her
deeply rooted conviction that pre-embryos are human life,” which is
“grounded in [her] sincerely held religious beliefs.” It then
acknowledged that Fabos instructed it not to give this factor greater
or dispositive weight solely because it is based upon wife’s religious
17 views. See Fabos, ¶ 53. Nonetheless, the court refused to “ignore[]
or discount[]” the subjective importance of this factor to wife “simply
because it is bound up with her religious beliefs.” Because of the
sincerity of wife’s religious belief that the pre-embryos are human
life, the court weighted her intent to donate the pre-embryos the
same as if she desired to implant them. And it weighted this factor
substantially in wife’s favor.
¶ 29 The district court’s application of this first Rooks factor was
erroneous in two ways. First, contrary to Rooks, the court weighted
wife’s desire to donate the pre-embryos as equivalent to a desire to
implant them to become a genetic parent. See Rooks, ¶ 66. The
supreme court made clear that “[a] party who seeks to become a
genetic parent through implantation of the pre-embryos, for
example, has a weightier interest than one who seeks to donate the
pre-embryos to another couple.” Id.
¶ 30 Second, contrary to Fabos, the court again considered wife’s
subjective beliefs regarding the morality of preserving the pre-
embryos. See Fabos, ¶ 52. The first Rooks factor simply asks what
the party seeking to preserve the pre-embryos intends to do with
them. Rooks, ¶ 66. Does that party seek to implant the pre-
18 embryos to achieve genetic parenthood or does that party seek to
donate them? The first factor is not concerned with why the party
prefers to preserve the pre-embryos over discarding them.
¶ 31 When reviewing how the district court evaluated wife’s interest
in donating the pre-embryos in its original, pre-remand order, the
Fabos division explained that
the district court identified what appears to be a corollary factor that turned on the “the parties’ personal views of the morality of discarding fertilized embryos” and weighted that factor heavily in favor of wife. Nothing in [Rooks] suggests that the weight to be attributed to a party’s interest in donating should in any way turn on that party’s personal views of the morality of donating.
Fabos, ¶ 52. The division criticized the court for “weighting ‘heavily’
wife’s personal beliefs that the pre-embryos were human lives and
describing her interest in donating them as a ‘productive purpose’
as compared with husband’s intent to discard them.” Id. at ¶ 53.
¶ 32 We recognize that, on remand, the court did not again make
its own value judgment about the parties’ desired disposition of the
pre-embryos — that wife intends to use the pre-embryos for a
“productive purpose” whereas husband intends to “simply” discard
them. See id. Nevertheless, the court weighted the first Rooks
19 factor substantially in wife’s favor by doing the very thing Fabos
instructed it not to do. The court weighted this factor based on
wife’s deeply held personal views of the morality of discarding the
pre-embryos. The only difference between how the court treated
this factor before and after remand is that wife’s moral views were
more clearly “bound up with her religious beliefs” on remand. But
regardless of whether such moral beliefs are religious or secular,
they should not form part of the court’s consideration of the first
Rooks factor.
¶ 33 The result of the district court’s errors in applying the first
Rooks factor is that it weighted that factor far more significantly in
wife’s favor than it should have. Rooks instructs us that a party’s
right to achieve procreation and a party’s right to avoid procreation
are “equivalently important,” constitutionally based rights. Rooks,
¶¶ 3, 74. It follows that a party’s desire to implant pre-embryos to
achieve genetic parenthood and a party’s desire to avoid genetic
parenthood likewise are “equivalently important.” And, because a
party’s desire to donate pre-embryos is entitled to less weight than
a party’s desire to implant them, a party’s desire to donate must
also be entitled to less weight than a party’s desire to avoid genetic
20 parenthood. See Fabos, ¶ 45 (“[O]rdinarily a party not wanting to
procreate should prevail when the other party wants to donate the
pre-embryos instead of using them to have a child of his or her
own.”) (emphasis in original).
2. Although It Was Appropriate to Consider Wife’s Religious Beliefs, the District Court Did Not Comply with the Fabos Mandate Not to Weight Those Beliefs More Heavily than Husband’s Interest in Not Procreating
¶ 34 Our analysis relating to the first Rooks factor should not be
read to mean that the district court erred by considering wife’s
religious beliefs. To the contrary, it was proper — and required —
for the court to hear evidence concerning wife’s religious beliefs
about the disposition of pre-embryos. See Masterpiece Cakeshop,
Ltd. v. Colo. Civ. Rights Comm’n, 584 U.S. ___, ___, 138 S. Ct. 1719,
1731 (2018); United States v. Seeger, 380 U.S. 163, 185 (1965). But
instead of considering wife’s religious beliefs as part of the first
Rooks factor, which erroneously caused the district court to weight
that factor substantially in wife’s favor, the court should have
considered wife’s beliefs as an additional factor beyond those
articulated in Rooks.
21 ¶ 35 True, Rooks identified the “hardship for the person seeking to
avoid becoming a genetic parent” as a factor a court should
consider without identifying as a corresponding factor the hardship
to the person seeking to preserve the pre-embryos if a court
authorized the pre-embryos to be discarded. Rooks, ¶ 69; Fabos,
¶ 56 (“[T]o the extent the supreme court in [Rooks] identified
hardship or emotional toll as a consideration, it was only with
respect to ‘the spouse seeking to avoid becoming a genetic parent.’”
(quoting Rooks, ¶ 4)). But Rooks also authorized courts to consider
other relevant factors on a case-by-case basis. Rooks, ¶ 71. And no
one’s sincerely held religious beliefs were at issue in Rooks.
¶ 36 Thus, we agree with the district court that it was proper to
consider wife’s religiously grounded beliefs and husband’s secularly
grounded beliefs as part of the Rooks balancing framework.
Husband’s beliefs were properly considered as part of the fourth
Rooks factor — the hardship to the person seeking to avoid
becoming a genetic parent — and wife’s beliefs were properly
considered as an additional factor beyond those articulated in
Rooks.
22 ¶ 37 We also acknowledge that it is the district court’s prerogative
to make credibility determinations. Fabos, ¶ 46; In re Marriage of
Farr, 228 P.3d 267, 270 (Colo. App. 2010). And we acknowledge
that, based on the parties’ IVF agreement, the court found
husband’s “characterization” of his stated values “somewhat
overstated.” But the court concluded that husband’s beliefs were
“an essential part of how [he] views himself” and that the emotional
burden on him would be significant.3 It did not find that husband’s
beliefs were not credible.
¶ 38 Under these circumstances, it was not proper for the court to
take the further step of attempting to evaluate the “subjective
importance” of the parties’ constitutionally based beliefs to them —
either wife’s religious beliefs to her or husband’s secular beliefs to
him. See Masterpiece Cakeshop, 584 U.S. at ___, 138 S. Ct. at 1731
3 As Rooks directed, the district court on remand considered the “emotional, financial, or logistical considerations” as part of its consideration of the hardship to husband. Rooks, ¶ 69. But the court found the financial aspect of this factor to be neutral and the logistical aspect of this factor capable of mitigation through appropriate orders placing limitations on the manner in which the pre-embryos could be donated. Accordingly, the only consideration given any weight as part of this factor was the emotional burden on husband, which the court found would be significant.
23 (a court cannot “pass[] judgment upon” a party’s religious beliefs);
see also Van Osdol v. Vogt, 908 P.2d 1122, 1130 (Colo. 1996) (“[I]t is
not the position of a judge to decide what a person’s belief system is
or should be, or how important those beliefs are to that person.”)
(emphasis added). By doing so, the court ran afoul of Fabos’
mandate that it rebalance the parties’ interests in accord with
Rooks “without weighting wife’s subjective belief that the pre-
husband’s interest in not procreating using the pre-embryos.”
Fabos, ¶ 57.
3. The District Court Misapplied the Second Rooks Factor by Weighting it Slightly in Favor of Wife when Wife Wanted to Donate Rather Than Implant
¶ 39 The second Rooks factor requires the district court to consider
“the demonstrated physical ability (or conversely, inability) of the
party seeking to implant the disputed pre-embryos to have biological
children through other means.” Rooks, ¶ 67 (emphasis added).
¶ 40 In its original, pre-remand order allocating the pre-embryos to
wife, the district court considered a similarly phrased factor: “The
Parties’ Respective Ability to Bear Children in the Future.” Because
neither party desired to use the pre-embryos “to conceive and
24 parent another child,” the court concluded that this factor was
“largely irrelevant to the present dispute.”
¶ 41 On remand, however, it appears that the court reweighed this
factor “slightly” in wife’s favor because she was incapable of
otherwise having more biological children and was willing to
implant the pre-embryos rather than donate them as “an alternative
means of achieving her ultimate objective of preserving the pre-
embryos.” But the district court determined that wife’s alternative
request to implant the pre-embryos would not prevail under the
Rooks balancing test and wife did not cross-appeal that portion of
the court’s judgment. The scenario on review is one in which wife
seeks to donate the pre-embryos rather than implant them. Under
that scenario, wife is not a party “seeking to implant the disputed
pre-embryos,” so wife’s ability or inability to have biological children
through other means is irrelevant for purposes of the second Rooks
factor.
¶ 42 By weighting this factor in favor of wife — even “slightly” — the
district court again improperly elevated mother’s “ultimate objective
of preserving the pre-embryos” over husband’s interest in avoiding
25 genetic parenthood, contrary to the Fabos mandate. Given the facts
of this case, this Rooks factor should have been weighted neutrally.
4. This Case Is Not One of Those Rare Circumstances Where the Party Wanting to Donate Prevails Against the Party Wanting to Avoid Procreation
¶ 43 Ordinarily, when a district court misapplies the law, remand is
required to allow the court to reweigh the evidence and rebalance
the factors. See Fabos, ¶ 57; see also Buckmiller v. Safeway Stores,
Inc., 727 P.2d 1112, 1117-18 (Colo. 1986). But here, properly
applying the Rooks factors and faithfully following the Fabos
mandate leads us to conclude, as a matter of law, that this is not
one of the rare circumstances in which a court may compel a party
to procreate against their will. See Fabos, ¶¶ 34, 45.
¶ 44 The district court weighted the third and fifth Rooks factors
neutrally. And it considered another factor not addressed by Rooks
— that the parties previously prioritized wife’s beliefs over
husband’s by agreeing to donate the pre-embryos in other scenarios
— and weighted that factor in wife’s favor. We see no errors in the
court’s consideration of these factors.
¶ 45 But, as we have explained, correctly applying the Rooks
factors to the facts as the district court found them to be would
26 require the court to weight the first Rooks factor in favor of husband
rather than significantly in favor of wife and to weight the second
Rooks factor neutrally. Although the court was permitted to
consider a factor not addressed by Rooks — wife’s religious beliefs
— applying the Fabos mandate would require the court not to
weight that new factor more heavily than husband’s interest in not
procreating, which the court considered under the fourth Rooks
factor. Essentially, correctly applying Rooks and Fabos would
cause these two factors to offset each other.
¶ 46 When these adjustments are made, determining which party
would prevail in the balancing of interests becomes a close call.
And if it is a close call, husband should prevail because “[o]rdinarily
a party not wanting to procreate should prevail when the other
party wants to donate the pre-embryos instead of using them to
have a child of his or her own.” Id. at ¶ 45 (emphasis in original);
see also Szafranski v. Dunston, 2013 IL App (1st) 122975, ¶ 42; J.B.
v. M.B., 783 A.2d 707, 716 (N.J. 2001); Davis v. Davis, 842 S.W.2d
588, 604 (Tenn. 1992).
¶ 47 Like the division in Fabos, however, we do not adopt a “bright
line” rule that a party seeking to donate pre-embryos rather than
27 implant them can never prevail over the other party’s interest in
avoiding procreation. A party seeking to donate may prevail based
on other Rooks factors that were not implicated by this case or
based on other case-specific factors not contemplated by Rooks.
For example, if a court found that the party wanting to avoid
procreation had engaged in bad faith, that factor might tilt the
analysis in favor of the party wanting to donate. See Rooks, ¶ 70.
Or if the parties had undergone IVF solely for the altruistic purpose
of donating the pre-embryos rather than to produce their own
genetic children, the party seeking to donate may prevail.
¶ 48 But none of those circumstances are present here.
Accordingly, we conclude that this case does not present the rare
circumstance where a party wanting to donate can prevail against a
party wanting to avoid procreating. See Fabos, ¶¶ 34, 38, 45; see
also Rooks, ¶ 32.
E. Wife’s Alternative Arguments for Affirming the Judgment
1. Free Exercise
¶ 49 Wife argues that the district court should have applied strict
scrutiny to the application of Rooks and given dispositive weight to
her Free Exercise rights because it cannot require her to participate
28 in the destruction of the pre-embryos, which she considers her
children.
¶ 50 The court rejected wife’s argument that strict scrutiny applied
to its application of the Rooks test because of her religious beliefs.
The court found that applying strict scrutiny would improperly tilt
the Rooks test in wife’s favor because her position is based on
religion, and that neither Rooks nor Fabos sanctions elevating wife’s
religious view over husband’s secular view. See Fabos, ¶¶ 52-57;
see also Rooks, ¶¶ 72, 74.
¶ 51 Although we are sensitive to wife’s concern that awarding the
pre-embryos to husband will force her to participate in their
destruction against her religious beliefs, the district court can enter
orders to mitigate this concern. The district court can award
husband the pre-embryos and authorize him to direct their
disposal. Wife need not be involved in the process. See Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682, 731 (2014). Because the
decision will belong to husband, wife will not be compelled to do
anything in violation of her religious beliefs, and therefore there is
no Free Exercise violation.
29 2. Promissory Estoppel
¶ 52 Wife argues that the district court should have applied
promissory estoppel principles to enforce the parties’ alleged oral
agreement that the pre-embryos would not be destroyed. But wife
admitted at the hearing in 2017 that the parties had no discussion
about what would happen to the pre-embryos if they divorced and
that, in retrospect, she wished that they had addressed that issue
in the IVF agreement. See Fabos, ¶ 29 (concluding consistent with
wife’s testimony that the parties had no agreement for disposition of
the pre-embryos in the event they divorced).
¶ 53 Therefore, neither the evidence nor Fabos supports that
husband made a promise that the pre-embryos would not be
destroyed on divorce. As the Rooks court noted, divorce is an event
likely to change the parties’ intent concerning the disposition of any
pre-embryos they created during their marriage. Rooks, ¶ 62.
Accordingly, without evidence of a promise concerning the
disposition of the pre-embryos specifically on divorce, wife’s
promissory estoppel claim fails. See Pinnacol Assurance v. Hoff,
2016 CO 53, ¶ 66; see also Kiely v. St. Germain, 670 P.2d 764, 767
30 (Colo. 1983) (describing the doctrine of promissory estoppel as
applying when a party’s action is “induced by a specific promise”).
3. Property Distribution Principles
¶ 54 Wife also argues that the court could have awarded (and that
we should award) the pre-embryos to her under section 14-10-
113(1)(a), C.R.S. 2021, because her contributions to creating and
preserving them were greater than husband’s contribution.
¶ 55 We reject this argument because that statute is not the legal
standard for allocating a divorcing couple’s pre-embryos. Rather,
as the district court correctly concluded in rejecting wife’s section
14-10-113(1) argument, pre-embryos are a special kind of marital
property that are instead allocated under Rooks’ balancing test.
See Rooks, ¶¶ 61-72; see also Fabos, ¶¶ 12-13.
4. Bad Faith
¶ 56 Wife argues that the court should have considered husband’s
failure to pay one-half of the storage fees for the pre-embryos as
demonstrating his bad faith and use of the pre-embryos as leverage
in the dissolution proceedings. See Rooks, ¶ 70. The court found
that husband’s failure to timely and consistently pay his half of the
storage fee “is not the type of bad faith conduct that is potentially
31 relevant in a dispute over the disposition of pre-embryos,” and that
neither party had acted in bad faith. The court further ordered wife
to pay all storage costs for the pre-embryos going forward.
¶ 57 The court’s findings are supported by the record. Husband
testified that he did not intentionally fail to pay his half of the
storage fees but rather he had not received “conclusive evidence”
that wife had made the storage payments and he thought he was
entitled to offset the obligation with amounts wife had agreed to pay
him for their children’s extracurricular activities. The court noted
that the parties had “a myriad of financial disputes since their
divorce.” Thus, husband’s failure to consistently pay the storage
fees is properly viewed as an example of the parties’ continuing
inability to resolve their financial obligations amicably and is not
indicative of bad faith in relation to the pre-embryos specifically.
Disposition
¶ 58 The judgment is reversed, and we direct entry of judgment for
husband on remand, awarding the pre-embryos to him to discard.
We remand the case to the district court for the sole purposes of
entry of this judgment and the entry of such collateral orders as
may be necessary to effectuate that judgment.
32 JUDGE BROWN and JUDGE JOHNSON concur.