The intersection between divorce and embryos

A recent case was just decided in Colorado prompting the following article in the Denver Post: Colorado case spotlights divorce dilemma on frozen embryos.  The case in Colorado is the In Re Marriage of Rooks, No. 16COA153 (Colo. App. October, 2016) in which cert. was granted.  This case presents an interesting issue regarding what constitutes marital property in the cryogenic embryo context and how it is to be divided.

The main issue presented in the case is which spouse of a divorcing couple has rights to cryogenic embryos that are still in existence after finalization of a divorce.  In the Colorado case, there were three embryos remaining from in vitro vertilization when the couple sought a divorce.  The husband wanted the embryos destroyed, but the wife wanted to keep the embryos.

One of the questions the court first decided was whether the embryos were marital property.  In Colorado, as in many states, the courts will divide marital property equitably (not necessarily equally) between the couple upon divorce.  Each party’s separate property remains his or hers.  If the embryos were considered marital property, they would need to be divided upon divorce like all other property.  So who would get the embryos in this instance?  Or would one party get one and the other get two of the three remaining?

This of course disregards all of the political, ethical and religious issues that arise in cases like this.  The Denver Post article states some of these, which won’t be discussed here.  Regardless, the Colorado General Assembly has concluded that embryos are not “persons” and therefore not “children.”  Moreover, a child born to one spouse through assisted reproduction after a dissolution of marriage is not the former spouse’s child (who did not want the child born) unless that former spouse consent.

The appellate court analyzed the case from three perspectives: the contract approach, a balancing of interests approach, and a contemporaneous mutual consent approach.  The approaches in themselves are more than this article will cover.  However, the court ultimately awarded the embroys to the husband under the balancing of interests approach.  In this approach, the court may give preference to the party who does not want procreation with the embryos because the other party has a reasonable possibility of parenthood through other means.

That doesn’t really strike me as a balancing of interests approach since the party wanting the embryos destroyed appears likely to prevail the majority of the time.  Regardless, I am in agreement that they should be destroyed.  However, because this case has been granted certiorari, we will have to await the decision of the supreme court.

Posted by Elle in Divorce