CourtListener 6480717

Gesamter Gesetzestext

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-

embryos should be protected as human life more heavily than

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;

Marriage of Olsen

Gesamter Gesetzestext

Setzen Sie Ihre Recherche in ChatGPT oder Claude fort