Divorce and Frozen Embryo Disputes in Colorado

For couples struggling to start a family, modern reproductive technologies can be a godsend, one of which is cryopreservation or embryo-freezing. But when a couple decides to divorce after getting cryopreservation, legal questions arise regarding the fate of the frozen embryo, made more complicated when the spouses disagree on the matter.

As a Denver-based family law firm, Goldman Law has extensively helped clients navigate the complex landscape of divorce in Colorado, including the increasingly common issue of frozen embryo disputes. In this guide, we’ll explore the legal, ethical, and emotional challenges surrounding divorce and frozen embryo disputes in the Centennial State. If you need legal guidance in your particular situation, don’t hesitate to consult with our experienced family law attorneys.

Understanding Divorce in Colorado

Before delving into the specifics of frozen embryo disputes, it’s crucial to understand the basics of divorce in Colorado. The state follows a “no-fault” divorce system, meaning that neither spouse is required to prove the other’s wrongdoing to obtain a divorce. All that’s needed is for at least one partner to say that the union is “irretrievably broken.”

To file for divorce in Colorado, at least one spouse must have been a resident of the state for a minimum of 91 days prior to filing. Once filed, there’s a mandatory 91-day waiting period before the divorce can be finalized, even if both parties agree on all terms.

Colorado is an equitable distribution state, which means that the court will divide marital property fairly, but not necessarily equally, between spouses. This principle can become particularly complex when it comes to frozen embryos, which occupy a unique legal and ethical space.

The Rise of Frozen Embryo Disputes

With advances in reproductive technology, more couples are turning to in vitro fertilization (IVF) to conceive. This process often results in the creation of multiple embryos, some of which may be frozen for future use. When couples with frozen embryos divorce, the question of what happens to these potential future children can become a contentious issue.

Frozen embryo disputes are relatively new in the legal world, and laws surrounding them are still evolving. In Colorado, as in many states, there’s currently no specific legislation addressing the disposition of frozen embryos in divorce cases. This legal ambiguity has led to several high-profile court cases that have helped shape the current approach to these disputes.

Colorado’s Approach to Frozen Embryo Disputes

In 2018, the Colorado Supreme Court heard the case of Rooks v. Rooks, which set a precedent for how frozen embryo disputes are handled in the state. In that divorce case, the wife wanted to keep their frozen embryos to have more children in the future, claiming that she couldn’t conceive more children “naturally.” However, the husband did not want any more genetic offspring and sought to destroy the preserved material.

The Supreme Court adopted a balancing approach, weighing the interests of both parties rather than automatically favoring either the party seeking to use or destroy the embryos. The high court outlined several factors that judges should consider in these cases:

• The intended use of the party seeking to preserve the embryos
• The physical ability (or inability) of the party seeking to implant the embryos to have biological children through other means
• The original reasons for undergoing IVF
• The hardship for the person wanting to avoid becoming a genetic parent
• Either party’s attempt to utilize the embryos for unfair leverage in the divorce process or their identified bad faith
• Other case-specific factors relevant to this decision.

This approach aims to provide a fair and nuanced way of resolving these complex disputes, taking into account the unique circumstances of each case.

Legal Considerations in Frozen Embryo Disputes

When facing a frozen embryo dispute during divorce proceedings, there are several legal considerations to keep in mind:

Contractual Agreements

Many fertility clinics require couples to sign agreements regarding the disposition of embryos in various scenarios, including divorce. These agreements can play a significant role in legal proceedings, although courts may not always consider them binding. In Rooks v. Rooks, the couple’s contract at the fertility clinic left it up to the courts to decide what would happen to the embryos in the event of divorce.

Constitutional Rights

Courts often grapple with balancing the right to procreate against the right not to procreate. Both are considered fundamental rights under the US Constitution, making these cases particularly complex.

Property versus Personhood

The legal status of embryos is a contentious issue. While some argue that embryos should be treated as property to be divided in divorce, others contend that they should be considered potential human life and given special consideration.

Future Financial Obligations

Courts may consider the potential future financial obligations of genetic parenthood when making decisions about frozen embryos.

Emotional and Ethical Considerations

Beyond the legal aspects, frozen embryo disputes often involve deep emotional and ethical considerations:

Attachment and Loss

For many spouses, especially those who have struggled with infertility, frozen embryos represent hope for future children. The prospect of losing these potential children can be emotionally devastating.

Reproductive Autonomy

These disputes often pit one partner’s desire for children against the other’s wish to avoid unwanted genetic parenthood, raising complex questions about reproductive rights and autonomy.

Religious and Moral Beliefs

Some individuals have strong religious or moral beliefs about the status of embryos, which can further complicate these disputes.

Future Relationships

The possibility of genetic children with an ex-spouse can impact future relationships and family dynamics.

Strategies for Resolving Frozen Embryo Disputes

While court intervention is sometimes necessary, there are other strategies that couples can use to resolve frozen embryo disputes:

Mediation

Communication between disputing spouses can be emotionally charged. A neutral third party can facilitate discussions between the spouses to help them reach a mutually agreeable solution.

Collaborative Law

This approach involves a team of professionals, including lawyers, mental health experts, and financial advisors, working together to help the couple reach a resolution outside of court.

Negotiation

With the help of skilled attorneys, couples may be able to negotiate an agreement that addresses both parties’ concerns.

Pre-emptive Planning

Among couples considering IVF or embryo-freezing, future disputes can be prevented by discussing and documenting their wishes regarding embryo disposition in various scenarios, including divorce. Thorough documentation such as a legal contract can provide clarity in such situations.

The Role of Legal Representation

Given the complexity of frozen embryo disputes, having experienced legal representation is crucial. At Goldman Law, we understand the nuances of Colorado family law and the unique challenges posed by frozen embryo disputes. Our attorneys can:

• Explain your legal rights and options
• Help you understand the potential outcomes of different approaches
• Represent your interests in negotiations or court proceedings
• Assist in drafting or reviewing agreements related to embryo disposition
• Provide compassionate support throughout this emotionally challenging process.

Looking to the Future

As reproductive technology continues to advance, it’s likely that frozen embryo disputes will become increasingly common. This may lead to more specific legislation or further refinement of legal approaches to these cases.

For individuals and couples in Colorado, staying informed about the legal landscape and seeking expert advice when needed can help navigate these complex issues. Whether you’re considering IVF or facing a frozen embryo dispute during divorce, understanding your rights and options is crucial.

FAQs About Divorce and Frozen Embryo Disputes in Colorado

What happens to frozen embryos in a Colorado divorce?

In Colorado, the disposition of frozen embryos in a divorce case is determined on a case-by-case basis using a balancing approach. This means that the court will consider various factors to weigh the interests of both parties involved. These factors include the intended use of the embryos, the ability of each party to have biological children through other means, the reasons for undergoing IVF in the first place, and the potential hardship for the person wanting to avoid becoming a genetic parent.

Instead of automatically favoring either the party wishing to use the embryos or to avoid procreation, Colorado’s approach seeks a fair resolution based on the specific circumstances of each case.

Note that if the couple signed an agreement with their fertility clinic regarding the disposition of embryos in case of divorce, the court will consider this agreement. However, such agreements are not always considered binding, especially if circumstances have significantly changed since the agreement was made.

Can one spouse be forced to become a genetic parent against their will in Colorado?

While there’s no absolute rule preventing one spouse from being forced to become a genetic parent against their will in Colorado, the courts generally give significant weight to the desire to avoid unwanted genetic parenthood. This is based on the constitutional right not to procreate, which is considered a fundamental right.

However, this right is balanced against the other spouse’s right to procreate, especially if the embryos represent their only chance of having biological children. In the Rooks v. Rooks case, the Colorado Supreme Court stated that a party’s interest in not becoming a genetic parent may be overcome if the other party has no reasonable alternatives for becoming a biological parent.

Each case is evaluated on its own merits, and the court will consider relevant factors. For instance, the court will look at whether the party wanting to avoid parenthood knew of the other party’s intentions when agreeing to create the embryos. The judge will also examine whether there are alternatives available to the party seeking to use the embryos, and the potential psychological impact on both parties.

How does Colorado law view frozen embryos: as property or as potential life?

Colorado law does not explicitly define the legal status of frozen embryos. This ambiguity is part of what makes these cases so complex. In practice, courts in Colorado have treated frozen embryos as occupying a unique middle ground between property and potential life.

While embryos are not given the same legal status as a born child, they’re also not treated purely as property to be divided like other marital assets in a divorce. Instead, the courts recognize the special nature of embryos as potential human life and apply a more nuanced approach to determining their disposition.

This perspective is reflected in the balancing test used by Colorado courts, which takes into account both the property-like aspects of embryos (such as the financial investment in creating them) and their potential to become human life (considering the parties’ intentions regarding future children).

It’s worth noting that this view can evolve as societal attitudes and scientific understanding change. Future legislation or court decisions could provide more clarity on the legal status of embryos in Colorado.

What if we signed an agreement about our embryos when we started IVF? Is it binding in Colorado?

When couples undergo IVF, they normally sign agreements with their fertility clinic regarding the disposition of any resulting embryos in various scenarios, including divorce. While these agreements are important and will be considered by Colorado courts, they are not automatically binding.

In the Rooks v. Rooks case, the Colorado Supreme Court stated that these agreements should be given “primary weight” in determining the disposition of frozen embryos. However, the court also recognized that circumstances can change significantly between the time an agreement is signed and when a dispute arises.

For example, if one party has become infertile since signing the agreement and the embryos represent their only chance of having biological children, the court might consider this changed circumstance when deciding whether to enforce the agreement.

Additionally, the court will examine whether the agreement was entered into voluntarily and with full understanding. If there’s evidence of coercion or lack of informed consent, the agreement may be considered invalid.

Therefore, while having a clear, well-drafted agreement is very helpful in these cases, it’s not an absolute guarantee of how a court will rule. The agreement will be one important factor among several that the court considers in reaching its decision.

Can I use our frozen embryos if my ex-spouse disagrees in Colorado?

The ability to use frozen embryos over an ex-spouse’s objection in Colorado depends on the specific circumstances of your case. As mentioned earlier, Colorado courts use a balancing approach to resolve these disputes, weighing various factors to determine the most equitable outcome.

If you’re seeking to use the embryos, some factors that might work in your favor include:

• If the embryos represent your only reasonable chance of having biological children (for example, if you’ve become infertile since creating the embryos)
• If you and your ex-spouse originally created the embryos with the intention of having children, rather than for medical research or donation
• If you can demonstrate that the emotional and financial burden on your ex-spouse would be minimal (for example, if you’re willing to take full legal and financial responsibility for any resulting children).

However, there are also factors that might work against you:

• If your ex-spouse has a strong objection to becoming a genetic parent
• If you have other options for having biological children
• If there’s evidence that you’re trying to use the embryos as leverage in other aspects of the divorce proceedings.

Even if the court rules in your favor, there may be additional legal considerations regarding parental rights and responsibilities that need to be addressed.

Let Experienced Colorado Family Law Attorneys Handle Your Embryo and Divorce Disputes. Call Goldman Law Today.

Divorce is never easy, and when frozen embryos are involved, the process becomes even more complex. Given the complexity of these cases, it’s crucial to consult with an experienced family law attorney who can evaluate your specific situation and advise you on the best course of action.

At Goldman Law, LLC, we are adept at handling these sensitive cases and can provide the guidance you need. If you’re facing a frozen embryo dispute or have questions about how to protect your interests in case of future disputes, don’t hesitate to reach out to us at (303) 656-9529.