In re the Marriage of Rooks

COLORADO COURT OF APPEALS 2016COA153

Court of Appeals No. 15CA0990
Garfield County District Court No. 14DR30080
Honorable John F. Neiley, Judge

In re the Marriage of

Drake F. Rooks,

Appellee,

and

Mandy Rooks,

Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE TERRY
Hawthorne and Fox, JJ., concur

Announced October 20, 2016

James W. Giese, P.C., James W. Giese, Grand Junction, Colorado, for Appellee

Azizpour Donnelly LLC, Katayoun A. Donnelly, Denver, Colorado, for Appellant
¶1 This appeal from the permanent orders entered in the

dissolution of marriage proceedings between Mandy Rooks (wife)

and Drake F. Rooks (husband) presents an issue of first impression

in Colorado: how to determine who gets the couple’s cryogenically

frozen embryos on dissolution of their marriage. (Though the

accurate medical term for such unimplanted embryos is “pre-

embryos,” we will refer to them as “embryos” for simplicity.)

¶2 The parties already have three children together. It is

undisputed that wife used her last eggs to create the embryos.

¶3 Husband and wife agreed in their storage agreement with the

fertility clinic that the embryos should be discarded if certain events

(inapplicable here) occurred. But if they dissolved their marriage,

unless they could agree who would get the embryos, the agreement

left it up to the trial court to award them. Wife argued at the

permanent orders hearing that the embryos should remain frozen in

cryo-storage so that she can have another child in the future,

because otherwise she would be infertile. Husband argued that the

embryos should be discarded.

¶4 In its lengthy, detailed, and carefully reasoned permanent

orders, the trial court awarded the embryos to husband. The court

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relied on two alternative theories derived from the case law of our

sister states:

(1) Applying the “contract approach,” the court construed the

parties’ intent as requiring the embryos to be discarded on

dissolution of their marriage, unless they could agree otherwise.

(2) Applying the “balancing of interests approach,” the court

determined that husband’s interest in not having more children

with wife outweighed wife’s interest in having another child.

¶5 The court determined that both approaches weighed in favor of

awarding the embryos to husband.

¶6 Wife appeals from the portion of the permanent orders

awarding the embryos. She obtained a stay in the trial court to

permit the embryos to remain in cryo-storage pending completion of

appellate proceedings. We affirm the trial court’s judgment under

the balancing of interests approach.

I. Background

¶7 The parties married in 2002, and husband petitioned for

dissolution of the marriage in 2014. The major issues decided in

this dissolution case concerned property division and the wife’s

plan to relocate with the parties’ children to North Carolina. The

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parties spent relatively little time addressing the issues now raised

on appeal.

¶8 All three of the parties’ children were conceived using in vitro

fertilization (IVF) techniques, and in that process, six additional

embryos were created and placed in cryo-storage. Together with the

fertility clinic, the parties signed two agreements pertaining to the

embryos: a participation agreement and a storage consent

agreement.

¶9 The participation agreement advises the parties that they can

choose to leave the cryopreserved embryos in storage indefinitely for

future use, or they can donate or discard them. The agreement

describes the embryos as a “unique form of ‘property,’” about which

the law is still developing, and alerts the parties that it is important

to have a disposition plan for the embryos in case of the parties’

death, separation, or divorce.

¶ 10 The storage agreement addresses disposition of the

cryopreserved embryos in the event of dissolution of the parties’

marriage or a party’s death.

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II. Colorado Law

¶ 11 The Colorado General Assembly has determined that embryos

are not “persons” and therefore are also not “children.” See

§ 13-21-1204, C.R.S. 2016 (construing Civil Remedy for Unlawful

Termination of Pregnancy Act as not “confer[ring] the status of

‘person’ upon a human embryo”); § 18-3.5-110, C.R.S. 2016

(similarly construing Offenses Against Pregnant Women statutes);

see also Deborah L. Forman, Embryo Disposition, Divorce & Family

Law Contracting: A Model for Enforceability, 24 Colum. J. Gender &

L. 378, 423 (2013) (“All appellate decisions to date have rejected the

notion that embryos are ‘children’ under the law . . . .”).

¶ 12 The Uniform Parentage Act (UPA) provides that a former

spouse will not be a parent of any child born as a result of the

placement of embryos through assisted reproduction after

dissolution of marriage unless the former spouse consents to be a

parent. See § 19-4-106(7)(a), C.R.S. 2016. The Colorado Probate

Code provides that such a child will not be considered a former

spouse’s child, unless the former spouse gives consent to that effect

and the consent is specific to assisted reproduction occurring after

divorce. See § 15-11-120(9), C.R.S. 2016. Under the UPA, a former

4
spouse may withdraw consent to placement of embryos “at any

time” before they are placed. § 19-4-106(7)(b); see also § 15-11-

120(10).

¶ 13 Because there is no Colorado statute or appellate decision

addressing the specific issue raised here, namely, the disposition of

cryopreserved embryos on dissolution of marriage, see Suzanne

Griffiths & Logan Martin, Assisted Reproduction and Colorado Law:

Unanswered Questions and Future Challenges, 35 Colo. Law. 39

(Nov. 2006), we look to other jurisdictions that have addressed the

issue. See P.W. v. Children’s Hosp. Colo., 2016 CO 6, ¶ 23 (“With no

Colorado case directly on point, we look to the decisions of other

jurisdictions for persuasive guidance.”).

III. Other Jurisdictions

¶ 14 Courts in other jurisdictions have adopted three different

approaches for determining the disposition of divorcing spouses’

cryopreserved embryos: the contract approach, the balancing of

interests approach, and the contemporaneous mutual consent

approach. See Szafranski v. Dunston, 993 N.E.2d 502, 506 (Ill.

App. Ct. 2013) (Szafranski I); see also Michael T. Flannery,

“Rethinking” Embryo Disposition Upon Divorce, 29 J. Contemp.

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Health L. & Pol’y 233, 237-38 (2013); Forman, 24 Colum. J. Gender

& L. at 383-86.

A. The Contract Approach

¶ 15 Under the contract approach, an agreement between spouses

that was entered into when the embryos were created and cryo-

stored will be enforced as to the disposition of the embryos on

dissolution of marriage. See Davis v. Davis, 842 S.W.2d 588, 597

(Tenn. 1992). In Davis, the divorcing spouses had agreed on all

terms relating to the dissolution of their marriage except one: who

was to have “custody” of their seven cryopreserved embryos held in

storage at a fertility clinic. Id. at 589. The Tennessee court held

that, “as a starting point” in resolving such a dispute, an agreement

regarding disposition of the embryos in the event of divorce “should

be presumed valid and should be enforced as between the

progenitors.” Id. at 597.

¶ 16 Other states have since followed Tennessee’s lead and have

ruled, citing Davis, that agreements between spouses that are

entered into at the time of IVF are enforceable with respect to any

agreed-upon disposition of cryopreserved embryos on dissolution of

marriage. See Kass v. Kass, 696 N.E.2d 174, 180 (N.Y. 1998); In re

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Marriage of Dahl, 194 P.3d 834, 840 (Or. Ct. App. 2008); Roman v.

Roman, 193 S.W.3d 40, 50 (Tex. App. 2006); but see A.Z. v. B.Z.,

725 N.E.2d 1051, 1053-59 (Mass. 2000) (refusing to enforce parties’

agreement that if they separated, the wife, who had already given

birth to two children using the parties’ embryos, would receive their

remaining embryos for implantation).

¶ 17 Advantages of the contract approach, as the New York court

observed in Kass, are that it “reserv[es] to the progenitors the

authority to make what is in the first instance a quintessentially

personal, private decision”; it avoids litigation in “personal matters

of reproductive choice”; and it “provide[s] the certainty needed for

effective operation of IVF programs.” 696 N.E.2d at 180; see also

Szafranski I, 993 N.E.2d at 515; Roman, 193 S.W.3d at 50.

B. The Balancing of Interests Approach

¶ 18 Though the Tennessee Supreme Court in Davis endorsed a

contract approach, it was unable to use that approach to guide its

decision because the spouses had not entered into an agreement

regarding disposition of their embryos. This led the court to use a

balancing of interests approach, and it ultimately weighed the

husband’s interest in avoiding procreation more heavily than the

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wife’s interest in wanting to donate the embryos to another couple.

Davis, 842 S.W.2d at 598, 603-04.

¶ 19 Other courts have also held that, when the parties have not

agreed as to who should receive cryopreserved embryos on

dissolution of marriage, the trial court must balance the parties’

interests to resolve the issue. See J.B. v. M.B., 783 A.2d 707, 713-

14, 719-20 (N.J. 2001); Reber v. Reiss, 42 A.3d 1131, 1136 (Pa.

Super. Ct. 2012).

¶ 20 In applying this approach, the Davis court said, “[o]rdinarily,

the party wishing to avoid procreation should prevail, assuming

that the other party has a reasonable possibility of achieving

parenthood by means other than use of the []embryos in question.”

842 S.W.2d at 604; accord Szafranski I, 993 N.E.2d at 514-15; see

also Szafranski v. Dunston, 34 N.E.3d 1132, 1161-64 (Ill. App. Ct.

2015) (Szafranski II) (upholding lower court’s ruling that the

interests of a woman, who had embryos created with a male friend

before undergoing chemotherapy, were paramount because she had

no other option for having a biological child); J.B., 783 A.2d at 719-

20 (ruling in favor of the wife’s interest to avoid procreation after

considering that the husband was already a father and was capable

8
of fathering other children); Reber, 42 A.3d at 1132-43 (upholding

ruling in favor of forty-four-year-old wife, who had no children and

had undergone IVF before cancer treatment in order to preserve her

ability to conceive a child).

C. The Contemporaneous Mutual Consent Approach

¶ 21 Iowa employs a contemporaneous mutual consent approach.

There, if the parties have not previously agreed how to allocate their

cryopreserved embryos on dissolution of marriage, the dissolution

court will not allocate them. Instead, the embryos are left in

storage indefinitely until the parties can agree as to their

disposition. In re Marriage of Witten, 672 N.W.2d 768, 783 (Iowa

2003); see Szafranski I, 993 N.E.2d at 510-11.

¶ 22 The Iowa court rejected the contract approach, reasoning that

judicial enforcement of an embryo disposition agreement “in this

highly personal area of reproductive choice” would be against public

policy. Witten, 672 N.W.2d at 781. The court also noted its “grave

public policy concerns” with the balancing test, which “substitute[s]

the courts as decision makers in this highly emotional and personal

area.” Id. at 779, 783.

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¶ 23 The Iowa court’s approach has been criticized as being “totally

unrealistic,” because if the parties had any ability to reach an

agreement on disposition of their embryos, they would not need a

court’s ruling. Reber, 42 A.3d at 1135 n.5; see Szafranski I, 993

N.E.2d at 511. As the trial court aptly noted in rejecting the Iowa

approach in this case, it “essentially gives one party a de facto veto

over the other party” because the issue will inevitably be

determined by the passage of time. See Szafranski I, 993 N.E.2d at

512 (noting that Iowa’s approach may provide a bargaining chip for

an ex-spouse to effectively hold embryos hostage to punish the

other ex-spouse or to gain other advantages). We join the Reber

and Szafranski courts in rejecting the contemporaneous mutual

consent approach.

IV. Application of the Contract and Balancing Approaches

¶ 24 We concur with those courts that have adopted the contract

approach and have enforced a valid agreement entered into between

the spouses as to disposition of the embryos on dissolution of

marriage. We are also in accord that, where there is no such

agreement between the parties, a balancing of interests approach

should be taken.

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A. The Trial Court’s Application of the Contract Approach

¶ 25 As argued by wife on appeal, the contract approach has two

components: an oral agreement between her and husband, and the

written storage agreement.

¶ 26 Wife’s appellate briefs argue that the trial court erred by failing

to enforce an alleged oral agreement between the parties that she

could have a total of four children using the embryos. Because wife

did not raise this issue in the district court and did not obtain a

ruling on it, we do not address it. See Estate of Stevenson v.

Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992)

(“Arguments never presented to, considered [by,] or ruled upon by a

trial court may not be raised for the first time on appeal.”). And

because the record does not show that she preserved her related

promissory estoppel argument, we will not address that argument,

either. See id.

¶ 27 We agree, however, with wife’s contention that the trial court

erred in interpreting the written storage agreement.

¶ 28 We review de novo the trial court’s interpretation of the parties’

written storage agreement, including the court’s determination that

the agreement is ambiguous. See Ad Two, Inc. v. City & Cty. of

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Denver ex rel. Manager of Aviation, 9 P.3d 373, 376-77 (Colo. 2000);

In re Marriage of Crowder, 77 P.3d 858, 860 (Colo. App. 2003).

¶ 29 The goal in interpreting the agreement is to give effect to the

parties’ intent as discerned from the contract language. Ad Two, 9

P.3d at 376; Crowder, 77 P.3d at 860-61. Extraneous evidence of

such intent may be considered only if the written agreement is

ambiguous, meaning that it is fairly susceptible of more than one

reasonable interpretation. Ad Two, 9 P.3d at 376-77; Crowder, 77

P.3d at 861.

¶ 30 A court may not rewrite an agreement under the guise of

interpreting it. See Bledsoe Land Co. v. Forest Oil Corp., 277 P.3d

838, 842 (Colo. App. 2011); see also In re Marriage of Stokes, 43

Colo. App. 461, 466, 608 P.2d 824, 829 (1979) (“Courts cannot

rewrite contracts or add terms thereto.”).

¶ 31 We conclude that the storage agreement leaves it to the

dissolution court to decide which party should receive the embryos

in the event of dissolution of their marriage.

¶ 32 The pertinent language is as follows:

In the event of divorce or dissolution of our
marriage, we acknowledge that the disposition

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of our embryos will be part of the
divorce/dissolution decree paperwork.

. . . [I]f any court of competent jurisdiction
award[s] to either Husband or Wife all rights
with respect to the Cryopreserved embryos to
the exclusion of the other spouse, by an order
or decree which is final and binding to them,
the [laboratory] shall have the right to deal
exclusively with him or her to whom such
rights were awarded (the prevailing party) . . . .

In the event that the divorce/dissolution
decree paperwork does not address the
disposition of the embryo(s), we elect the
following disposition of our embryo(s):

....

[Parties’ initials] Thawed and discarded
without undergoing any further development
for any purpose.

¶ 33 Both husband and wife initialed the above-quoted “thawed

and discarded” option, and one of them apparently underlined the

word “discarded.”

¶ 34 We construe this contract provision to mean:

1. The parties elected a default option of discarding the embryos

if they did not make any other provision for the embryos in a

stipulation in their dissolution proceeding and if the

dissolution court did not rule on the issue.

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2. In their dissolution proceeding, the parties could stipulate to a

disposition other than discarding the embryos.

3. If the parties disagreed about the disposition of the embryos in

their dissolution proceeding and sought a ruling from the

dissolution court on the issue, that court would decide which

party would be awarded the embryos.

¶ 35 The trial court found that the contract was ambiguous as to

how the court should award the embryos in the event of dissolution.

It resolved the ambiguity by construing the agreement to require

both parties’ mutual agreement before any of the embryos could be

thawed and implanted, and it therefore ruled that absent such an

agreement, the embryos would be thawed and discarded on

dissolution of the parties’ marriage. According to the court, “[t]he

fact that the parties agreed to mutually approve any reproductive

transfer or use of the embryos is a strong indication of their intent

that [wife] should not now be awarded that exclusive right in the

event of divorce.”

¶ 36 We conclude that the court erred in attempting to infer

contract terms that did not exist. The contract gives no guidance as

to how the court is to make the decision regarding who will be

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awarded control over the embryos in the event of divorce if the

parties disagree on the issue. The contract approach employed by

other courts could not be used because there was no agreement

that could be enforced as to who should receive the embryos.

¶ 37 Given the absence of enforceable contract terms on the issue,

we construe the contract as requiring the dissolution court to

exercise its inherent equitable power to determine whom to award

the embryos to if the parties cannot agree on that point. See In re

Marriage of Balanson, 25 P.3d 28, 35 (Colo. 2001) (noting trial

court’s role in ordering equitable distribution of marital property

based upon facts and circumstances of an individual case); see also

Szafranski II, 34 N.E.3d at 1161; J.B., 783 A.2d at 713-19 (where a

contract did not manifest a clear intent by the parties regarding

disposition of their embryos on dissolution of their marriage, but

instead permitted them to obtain a court order directing such

disposition, “the interests of both parties must be evaluated” by the

court); Reber, 42 A.3d at 1136; Davis, 842 S.W.2d at 604; but cf.

Roman, 193 S.W.3d at 52-54 (the parties were well aware of other

options when they chose the option to have embryos destroyed in

the event of divorce).

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¶ 38 Because the court had to rely on its equitable discretion to

determine how to award the embryos, it necessarily had to employ

the balancing approach. See Davis, 842 S.W.2d at 598, 603-04

(using balancing approach where spouses had not agreed on

disposition of embryos in event of divorce).

B. The Trial Court’s Application of the Balancing Approach

¶ 39 Given that there was no enforceable agreement between the

parties as to disposition of the embryos on dissolution, the court

was required to balance the parties’ interests. We reject wife’s

contention that the trial court erred in doing so.

¶ 40 Application of the balancing test is an exercise of the trial

court’s equitable discretion, and we therefore review its decision for

an abuse of discretion. See Balanson, 25 P.3d at 35 (trial court has

great latitude to effect an equitable distribution of marital property

based on facts and circumstances of each case, and an appellate

court will not disturb a trial court’s decision absent a clear abuse of

discretion); Szafranski II, 34 N.E.3d at 1161-62 (balancing of

interests approach involves “a fact-intensive inquiry into each

party’s interest in using or preventing the use of the []embryos”); cf.

In re Marriage of Ciesluk, 113 P.3d 135, 142, 147-48 (Colo. 2005) (in

16
parental relocation case, conducting abuse of discretion review of

trial court’s balancing of child’s best interests with relocating

parent’s constitutional right to travel and other parent’s

constitutional right to parent).

¶ 41 Wife argues that some of the factors the trial court applied in

its balancing approach are legally erroneous and that others violate

her constitutional rights. We conclude that the trial court properly

exercised its discretion in balancing the parties’ competing interests

in the embryos and in deciding to award them to husband.

1. Wife’s Interest in Having a Fourth Child

¶ 42 As previously discussed, we do not address wife’s contention

that she had a binding agreement with husband to have four

children because she failed to preserve that issue for appeal.

¶ 43 Nevertheless, she argues that the court was required to

balance her desire to have another child with husband’s desire not

to father additional children with her. We conclude that the court

appropriately balanced the parties’ competing interests.

¶ 44 Given that wife has already borne three children, this is not a

situation like Davis, 842 S.W.2d at 591-92, Szafranski I, 993

N.E.2d at 503-05, or Reber, 42 A.3d at 1132-33, where the woman’s

17
only opportunity to bear children would be foreclosed if the court

did not award the embryos to her. See J.B., 783 A.2d at 717

(considering, when balancing parties’ interests, that the husband

was already a father); cf. A.Z., 725 N.E.2d at 1053-55, 1057-59

(upholding lower court’s refusal to enforce contract allowing the

wife, who had already conceived and given birth to twins during the

marriage, to implant the parties’ four remaining cryopreserved

embryos on the parties’ separation).

¶ 45 Accordingly, under the balancing of interests approach, the

court could reasonably conclude that husband’s interest in not

producing additional offspring prevails over wife’s interest in having

a fourth child. See Davis, 842 S.W.2d at 603-04; see also

Szafranski I, 993 N.E.2d at 515; J.B., 783 A.2d at 719-20; but cf.

Szafranski II, 34 N.E.3d at 1162-63 (upholding ruling that childless

woman’s interest in using embryos she created with friend before

she underwent fertility-destroying chemotherapy was paramount

over friend’s interest in not procreating); Reber, 42 A.3d at 1140-42

(holding that balancing of interests tipped in favor of the wife

because the embryos were “likely her only chance at genetic

parenthood”).

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¶ 46 The court appropriately considered husband’s emotional and

psychological well-being, in that he would likely feel a moral and

social obligation for a fourth biological child, even though he may

have no legal obligation to the child. This finding further supports

the court’s allocation of the embryos to husband under the

balancing of interests approach. See J.B., 783 A.2d at 717 (noting

“life-long emotional and psychological repercussions” for the wife if

her biological child is born in the future to the husband and a

surrogate mother).

2. Financial Responsibility for Additional Children Born of the
Embryos

¶ 47 Wife next argues that the trial court erred as a matter of law

by considering the potential risk that husband could face financial

obligations for a child born in the future using the embryos. We are

not persuaded.

¶ 48 The court noted that wife declared her intention to relocate to

North Carolina, and that the court allocated parental

responsibilities to allow the parties’ three children to move there

with her. According to the court, North Carolina does not have

statutory provisions, such as Colorado’s sections 19-4-106(7) and

19
15-11-120(10), that would relieve husband of financial

responsibility for a future child born using the embryos without his

consent.

¶ 49 To the extent wife further argues that the trial court erred by

considering the potential increase in husband’s child support

obligation for the parties’ existing children if wife chooses to have a

fourth child, we discern no abuse of discretion by the court in

considering this factor. We disagree that, in doing so, the court

impermissibly implied that wife should not have another child.

Rather, the court merely noted an inevitable financial consequence

for husband if wife chooses to have another child using the embryos

— an appropriate consideration when balancing the parties’

interests.

3. Wife’s Constitutional Arguments

¶ 50 Wife relies on various provisions of the constitutions of the

United States and Colorado to raise numerous challenges to the

trial court’s balancing of interests. She contends that she was not

required to take specific action to preserve those arguments in the

trial court because they arose from the trial court’s various

comments in its permanent orders. We agree that her arguments

20
are sufficiently preserved, but we disagree that her constitutional

rights were violated by the permanent orders.

¶ 51 To the extent that the Colorado Constitution may have

provisions different from those of the United States Constitution,

wife has not identified any different analysis that would be required

under the state constitution. We therefore confine our analysis to

the United States Constitution’s provisions. See Holliday v. Reg’l

Transp. Dist., 43 P.3d 676, 681 (Colo. App. 2001).

¶ 52 Wife asserts that the following rights were violated, and that

these rights derive from the United States Constitution:

 the right to equal protection of the law;

 the right to due process;

 the right to “procreational autonomy”;

 the right of privacy;

 the “freedom of choice in procreation”; and

 the “fundamental liberty interest in the care, custody,

and management of her children.”

¶ 53 We begin by recognizing that for every one of the rights

identified by wife, husband has corresponding and equal rights,

including the right to determine that he does not want to have

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additional children who are joint genetic offspring of husband and

wife. See Davis, 842 S.W.2d at 601 (noting that “right of

procreational autonomy is composed of two rights of equal

significance — the right to procreate and the right to avoid

procreation”); Forman, 24 Colum. J. Gender & L. at 425 (“[B]oth

parties have constitutional procreation rights at stake.”).

¶ 54 Wife argues that husband would have no future financial

responsibility for any additional children born from the embryos.

Even if she were correct about that — and it is not entirely clear

under the law of North Carolina where she now lives whether that is

so — it is nevertheless true that father would in fact (though not in

law) be the father of any such children. And any such children

would be the siblings of father’s three existing children, and would

be part of their lives.

¶ 55 The trial court’s task, then, was to balance all of those

competing rights of wife and husband and come to a difficult,

discretionary decision. We conclude that, in reaching that decision,

it did not violate wife’s constitutional rights.

¶ 56 Specifically, it was not a violation of her constitutional rights

for the trial court to discuss the following matters in its final orders:

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 The fact that wife already has three children. As other

courts applying the balancing approach have recognized,

it may weigh in a party’s favor if preserving the embryos

would provide a party’s only chance to create genetic

offspring. See Szafranski II, 34 N.E.3d at 1161-64

(considering woman’s infertility in weighing competing

interest of male friend who no longer wanted to

procreate); Reber, 42 A.3d at 1132-43 (ruling that

interests of divorcing wife, who was forty-four, had no

children, and had undergone IVF before cancer treatment

in order to preserve her ability to conceive a child,

prevailed over those of the husband); cf. J.B., 783 A.2d at

719-20 (ruling that divorcing wife’s interest in avoiding

procreation outweighed the husband’s where he was

already a father and was capable of fathering other

children).

 What would happen if wife had another child (or children)

from the embryos. The court noted that if she were to

have more children, she would get a credit on any child

support worksheet, which would indirectly increase the

23
amount of child support owed by husband to wife. Given

that husband’s constitutional rights in not having

additional children were implicated by the court’s

decision, we see no abuse of discretion in the court’s

consideration of the potential economic impact on the

parties.

 How the addition of another child (or children) might

affect the parties’ existing children, and whether such an

addition might challenge wife’s ability to “manage such a

large family alone as a single parent,” given her lack of

employment and financial resources, and the significant

health issues faced by one of the children. The court

remarked on those circumstances as part of its

ruminations on how the parties might fare in the future.

We see no constitutional impediment to the court’s

discussion of the practicalities of wife’s situation.

Contrary to her assertions on appeal, there is no

indication that the court ruled in favor of husband based

on improper considerations, i.e., because wife is poor. It

is clear to us that the court did not base its decision on

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wife’s economic or social circumstances. Rather, it

carefully balanced the parties’ competing interests.

¶ 57 Though wife argues that the trial court improperly injected a

“best interest of the child” test in the final orders, we find no

instance where the court applied such a test. The court merely

mentioned the potential impacts of various factual circumstances

on the parties’ existing children, and we discern no constitutional

violation or abuse of its discretion in doing so.

¶ 58 Wife cites Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

535 (1942), which dealt with involuntary sterilization of persons

convicted of certain felonies, and argues that “the court may not

dictate to American citizens the number of children they may have.”

To the extent that the permanent orders may result in a limitation

on the number of children wife may ultimately wind up bearing

through biological means, that is simply a consequence of the

parties’ having left it up to the court to decide who gets the

remaining embryos. Wife could have contracted to receive the

embryos on dissolution of the marriage, but did not do so, and

instead requested in her supplemental trial brief that the court

decide the issue based on a balancing of the parties’ interests.

25
¶ 59 By leaving such an important decision up to the court, the

parties should have expected the court to thoroughly examine the

parties’ desires, life circumstances, and financial state, as it does in

balancing the interests in every permanent orders case. See

Balanson, 25 P.3d at 35.

¶ 60 We reject wife’s unsupported argument that husband

relinquished his constitutional right not to procreate by consenting

to the use of his sperm to fertilize wife’s “last eggs.” The storage

agreement contradicts this theory by specifically providing for

allocation of the embryos on dissolution to be decided in the

“divorce/dissolution decree paperwork.” Moreover, the UPA

expressly allows husband, as a former spouse, to withdraw his

consent for placement of the embryos “at any time” before they are

placed. § 19-4-106(7)(b).

¶ 61 Wife and husband have equal claim to constitutional and

other rights. The decision allocating the embryos required the court

to balance those competing interests, and the court did so

appropriately.

¶ 62 Accordingly, we perceive no constitutional violation. See

Szafranski I, 993 N.E.2d at 516 (finding no constitutional obstacle

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to contract or balancing of interests approach because friend who

participated in creating embryos did not have unilateral

constitutional right to prohibit their use without regard to the

woman’s equal rights); see also Szafranski II, 34 N.E.3d at 1163-64.

V. Conclusion

¶ 63 The trial court’s judgment awarding the parties’ embryos to

husband under the balancing of interests approach is affirmed.

JUDGE HAWTHORNE and JUDGE FOX concur.

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