One Wants Them Destroyed, the Other Wants Them Implanted

From In re Marriage of Fabos & Olsendecided today by the Colorado Court of Appeals (written by Judge Michael Berger and joined by Judges Jaclyn Casey Brown & Sueanna Johnson), in which the wife (Fabos) and the husband (Olsen) were “disput[ing] the disposition of their cryogenically frozen pre-embryos after their divorce:

[W]e 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 (Colo. 2018)…. 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. The supreme court recognized that the parties’ constitutionally based interests “in either achieving or avoiding genetic parenthood” formed the underpinnings of the analysis. Rookshowever, 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.

This case centers on a dispute between one spouse [here, the wife] 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…. We reverse the judgment[ and] direct entry of judgment for husband….

The opinion is long and interesting, but here’s an excerpt:

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.

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. that pre-embryos are human life,” which is “grounded in [her] sincerely held religious beliefs.” …

[But] 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. 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 parenthood. See Fabos (“[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)….

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. 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…. [And] the court [should not] weight that new factor more heavily than husband’s interest in not procreating …. Essentially, correctly Rooks would cause these two factors to offset each other.

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 (emphasis in original)….

[W]e do not adopt a “bright line” rule that a party seeking to donate pre-embryos rather than 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. Or if the parties had undergone IVF exclusively for the altruistic purpose of donating the pre-embryos rather than to produce their own genetic children, the party seeking to donate may prevail.

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….

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 in the destruction of the pre-embryos, which she considers her children.

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 … wife’s religious view [should not be elevated] over husband’s secular view.

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. 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.

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