Elken v. Bain

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
October 16, 2025

2025COA83

No. 24CA0590, Elken v. Bain — Family Law — Parents and
Children — Assisted Reproduction — Embryos — Unmarried
Parties

In this declaratory judgment action regarding the disposition

of pre-embryos, a division of the court of appeals concludes that the

multi-factor balancing test adopted by the Colorado Supreme Court

in In re Marriage of Rooks, 2018 CO 85 — a framework developed in

the context of a dissolution of marriage proceeding — applies to a

dispute between nonmarried individuals. The division also

concludes that the district court correctly applied the Rooks

framework to a situation in which one party seeks to implant the

pre-embryos to have a genetic child, while the other party seeks to

donate them to avoid sharing a genetic child with the first party.

Finally, the division concludes that the district court did not abuse
its discretion in balancing the Rooks factors. Accordingly, the

division affirms the judgment.
COLORADO COURT OF APPEALS 2025COA83

Court of Appeals No. 24CA0590
City and County of Denver District Court No. 23CV30717
Honorable Mark T. Bailey, Judge

Rachael Elken,

Plaintiff-Appellant,

v.

Tyler Bain,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE BROWN
J. Jones and Yun, JJ., concur

Announced October 16, 2025

Burg Simpson Eldredge Hersh & Jardine, P.C., Michael S. Burg, D. Dean
Batchelder, Patrick M. Sweet, Elizabeth N. Torma, Englewood, Colorado, for
Plaintiff-Appellant

Tyler Bain, Pro Se
¶1 Plaintiff, Rachael Elken, appeals the district court’s judgment

ordering that she and defendant, Tyler Bain, donate four

cryogenically frozen pre-embryos they created before their

relationship ended. Elken contends that the district court

(1) misapplied the multi-factor balancing test developed by the

Colorado Supreme Court in In re Marriage of Rooks, 2018 CO 85;

and (2) abused its discretion in balancing the Rooks factors.

¶2 In resolving this case, we first conclude that the Rooks

framework, which was developed in the context of a dissolution of

marriage proceeding, applies to a dispute between nonmarried

individuals over the disposition of pre-embryos created from their

genetic material. We also conclude that the district court correctly

applied the Rooks factors to a situation in which one party seeks to

implant the pre-embryos to have genetic children, while the other

party seeks to donate them to avoid sharing a genetic child with the

first party. Finally, we conclude that the court did not abuse its

discretion in weighing the Rooks factors in this case. Accordingly,

we affirm the judgment.

1
I. Background

¶3 Rachael Elken and Tyler Bain began a romantic relationship in

2018. Bain had two children from a previous marriage, while Elken

had none. During their relationship, Elken and Bain wanted to

start a family together — Bain even reversed his vasectomy, and

Elken purchased a home large enough to accommodate Bain’s two

children and any future children they might have together.

¶4 After unsuccessfully trying to conceive children naturally,

Elken contacted the Colorado Center for Reproductive Medicine

(CCRM). Following a discussion of the various options, Bain and

Elken decided to use in vitro fertilization (IVF) to combine their

genetic material and create pre-embryos.

¶5 Bain and Elken signed a CCRM form agreement titled

“Disposition of Embryos and Declaration of Intent.” The CCRM

agreement clarified what the parties wanted CCRM to do with the

pre-embryos in four situations: Elken’s death; Bain’s death; the

parties’ simultaneous deaths; and “Divorce, Dissolution of

Relationship, or Discontinuation of IVF Treatment.” As relevant

here, in the event their relationship ended, Elken and Bain agreed

to the following option: “A court decree, settlement agreement, or

2
written instructions signed by each party and notarized will be

presented to [CCRM] directing use to achieve a pregnancy in one of

us or anonymously donate the embryos to another couple for

reproductive purposes . . . .”

¶6 CCRM created four viable pre-embryos from Elken’s and

Bain’s genetic material. A few months later, an argument between

Elken and Bain escalated into physical violence. The details of the

incident are disputed, but the altercation led to the end of their

relationship. Bain then independently contacted CCRM to request

that it “stop the [IVF] process.”

¶7 Over the next several months, the parties could not reach an

agreement regarding the fate of their pre-embryos. In March 2023,

Elken filed a complaint for declaratory relief, seeking possession of

the pre-embryos under the CCRM agreement so that she could use

them to become a genetic parent.

¶8 Following a two-day bench trial, the district court made

detailed findings of fact and carefully balanced the parties’

respective interests under the Rooks factors. The court concluded

that “Mr. Bain’s interest in procreative autonomy outweighs Ms.

Elken’s interest in the use of these four [pre-]embryos” and ordered

3
that the pre-embryos be anonymously donated to another couple

for reproductive purposes. The court stayed its judgment pending

this appeal.

II. The Rooks Framework Applies to Nonmarried Individuals Who
Have Created Pre-Embryos

¶9 Rooks involved a divorcing couple’s dispute over the

disposition of their cryogenically frozen pre-embryos. Rooks,

¶¶ 2-4. Although the matter could have been characterized simply

as a dispute over “the equitable division of marital property in a

divorce proceeding,” the supreme court acknowledged that “the

parties’ competing interests in the disputed pre-embryos derive

from constitutional rights in the realm of reproductive choice,” not

from the right to marry. Id. at ¶ 35. Indeed, “[t]he decision whether

to bear or beget a child is a constitutionally protected choice.” In re

Romero, 790 P.2d 819, 822 (Colo. 1990). Consequently, deciding

the fate of the pre-embryos after a relationship ends “presents

difficult issues of procreational autonomy for which there are no

easy answers because it pits one spouse’s right to procreate directly

against the other spouse’s equivalently important right to avoid

procreation, and because the fundamental liberty and privacy

4
interests at stake are deeply personal and emotionally charged.”

Rooks, ¶ 3.

¶ 10 Even though the parties here were never married, they agree

that the Rooks framework should apply to the dispute over their

pre-embryos. We do too. Notwithstanding the supreme court’s

characterization of the pre-embryos in Rooks as “marital property of

a special character,” it was individual “autonomy over decisions

involving reproduction” that animated the balancing test the court

adopted to resolve the dispute. Id. at ¶ 64. The supreme court

even clarified that “the framework [it] adopt[ed] in this special

context is distinct from, and more narrow than, the trial court’s

consideration of various factors in determining equitable

distribution of other forms of marital property.” Id. Regardless of

whether the parties are married, their “individual interests in either

achieving or avoiding genetic parenthood through use of the

disputed pre-embryos” are implicated just the same. Id.

¶ 11 Thus, we conclude that a trial court should apply the Rooks

framework to resolve disputes between unmarried parties as to the

disposition of pre-embryos they jointly created. See Szafranski v.

Dunston, 2015 IL App (1st) 122975-B, ¶ 3, 34 N.E.3d 1132, 1137

5
(applying a Rooks-like framework to resolve a dispute between

unmarried parties over the disposition of their pre-embryos). We

set forth that framework next, modifying the language used in

Rooks to facilitate its application outside the context of a

dissolution of marriage proceeding.

¶ 12 When the genetic contributors cannot agree on the disposition

of their frozen pre-embryos, a court must apply a two-part

framework to balance the parties’ “equally valid, constitutionally

based interests in procreational autonomy.” Rooks, ¶ 72. A court

must first “look for an enforceable agreement between the parties

regarding the disposition of the pre-embryos” in the event their

relationship ends. Id. at ¶ 62. If the parties do not have such an

agreement, or if their agreement is not dispositive, the court must

weigh the following nonexhaustive factors:

1. the intended use of the pre-embryos by the party who wants

to preserve them (for example, whether the party wants to

use the pre-embryos to become a genetic parent or wants to

donate them), id. at ¶ 66;

6
2. the demonstrated physical ability (or inability) of the party

seeking to implant the pre-embryos to have biological

children through other means, id. at ¶ 67;

3. the parties’ original reasons for undertaking IVF (for

example, whether the couple sought to preserve a party’s

future ability to bear children in the face of

fertility-implicating medical treatment), id. at ¶ 68;

4. the hardship for the party seeking to avoid becoming a

genetic parent, including emotional, financial, or logistical

considerations, id. at ¶ 69;

5. a party’s demonstrated bad faith or attempt to use the

pre-embryos as unfair leverage, id. at ¶ 70; and

6. any other considerations relevant to the parties’ specific

situation, id. at ¶ 71.

¶ 13 A court should not consider whether a party seeking to

become a genetic parent can afford a child or could adopt a child or

otherwise parent nonbiological children. Id. “Nor shall the sheer

number of a party’s existing children, standing alone, be a reason to

preclude preservation or use of the pre-embryos.” Id.

7
¶ 14 “Considering the nature and equivalency of the underlying

liberty and privacy interests at stake, a court . . . should strive,

where possible, to honor both parties’ interests in procreational

autonomy when resolving disputes over a couple’s cryogenically

preserved pre-embryos.” Id. at ¶ 4. But a court should also

generally avoid compelling one party to become a genetic parent

against that party’s will, except in rare circumstances. In re

Marriage of Fabos, 2019 COA 80, ¶¶ 34, 45 (Fabos I); In re Marriage

of Fabos, 2022 COA 66, ¶¶ 14, 43 (Fabos II).

III. The District Court’s Application of the Rooks Framework

¶ 15 To resolve the parties’ dispute over the disposition of their

cryogenically frozen pre-embryos, the district court applied the

Rooks framework and recognized its duty to honor both parties’

interests in procreational autonomy, if possible. Consistent with

Rooks, the court first considered whether the parties had an

enforceable agreement on the disposition of the pre-embryos in the

event their relationship ended. The court noted that the parties

selected an option in the CCRM agreement permitting two possible

outcomes — either one party could use the pre-embryos to achieve

pregnancy or the pre-embryos could be anonymously donated to

8
another couple for reproductive purposes. However, because the

parties could not agree on one of the two options, the court found

that the CCRM agreement was not dispositive and proceeded to

analyze and weigh the Rooks factors.

¶ 16 Factor 1: Intended use by the party who wants to preserve the

pre-embryos. The court considered Elken to be the party who

intended to preserve the pre-embryos and found that she wished to

use them to attempt to become pregnant. The court recognized that

“Elken’s intended use of the embryos to become a genetic parent is

entitled to significant weight under the [Rooks] analysis.”

¶ 17 Factor 2: Demonstrated physical ability or inability to have

biological children through other means. The court noted Elken’s

age — she was thirty-eight years old when she commenced the

action — and relied heavily on her fertility expert’s testimony to

evaluate this factor. The court identified four possible avenues for

Elken to become a genetic parent. First, a natural pregnancy was

“still possible,” though the expert could not estimate “the odds of

this happening.” The court ranked the remaining three possibilities

by likelihood of success: (1) using the four pre-embryos created with

Bain’s genetic material; (2) combining her eggs with anonymously

9
donated sperm to create a pre-embryo; and (3) undergoing donor

sperm insemination. Regarding the second option, the court found

that, after the dispute over the pre-embryos arose, Elken underwent

two additional egg retrieval procedures and harvested twenty eggs

that would likely yield three viable pre-embryos after accounting for

“attrition.” The expert saw no reason why Elken could not harvest

more eggs before the age of forty-five.

¶ 18 Ultimately, the court found that Elken had “not demonstrated

an inability to have biological children” and that she had “other

options for becoming a mother.” But it also found that Elken had

shown “that these [four] [pre-]embryos are her best chance of

becoming a genetic mother and taking them away will reduce her

chances.” The court explained that, “[g]iven the uncertainties

inherent in IVF and pregnancy, this is a very significant factor,” and

it gave “great weight to [Elken’s] interest here too.”

¶ 19 Factor 3: The parties’ original reasons for undertaking IVF. The

court made detailed findings about the parties’ relationship and

their original reasons for pursuing IVF. It found credible and

compelling Elken’s testimony that it had been “her dream to be a

mother since she was a child.” Although Elken testified that her

10
“primary goal was to preserve her ability to be a mother with or

without [Bain] as a partner,” the court found that both parties’

“primary intention at the time the embryos were created[] was to

use them to make a family.”

¶ 20 The court likewise found credible Bain’s testimony that “his

intention was to form a family with [Elken,] not simply to provide

genetic material so that [Elken] could be [a parent] with or without

his involvement.” It found that “Bain provided his sperm because

he wanted to make a family.” Although the court did not specify

how much weight it assigned this third factor, its analysis suggests

that this factor weighed in favor of Bain given that the parties’

primary intent in creating the pre-embryos — to create a family

together — was no longer achievable after their relationship ended.

¶ 21 Factor 4: The hardship for the party seeking to avoid becoming

a genetic parent. In analyzing this factor, the court identified Bain

as the party seeking to avoid becoming a genetic parent, specifically

with Elken. The court disagreed with Elken’s view that Bain would

not be significantly harmed if she had his child because she had

“agreed to absolve [Bain] of all financial and other responsibilities of

parenthood.” Instead, the court found that Bain “was telling the

11
truth” when he testified that “he would not be able to walk away

and not be a part of the child’s life if [Elken] had his baby.”

¶ 22 The court also noted Elken’s argument that, by not choosing

the option in the CCRM agreement to discard the pre-embryos in

the event their relationship ended, Bain had agreed to become a

genetic parent, so he should allow Elken to be the other parent to

that child. But the court credited Bain’s testimony that “he would

suffer extreme emotional hardship if he were forced to become a

parent and then co-parent the child with [Elken].” The court

reasoned, “It is one thing to donate [pre-]embryos anonymously, but

it is a very different thing for your former partner to raise your child

in your community.” The court found that Bain would experience

“significant emotional, financial, and logistical hardship.”

¶ 23 Factor 5: A party’s demonstrated bad faith or attempt to use the

pre-embryos as unfair leverage. The court observed that neither

party argued that this factor applied.

¶ 24 Any other considerations relevant to the parties’ specific

situation. The court did not appear to make findings on any

additional considerations beyond those articulated in Rooks.

12
¶ 25 After weighing these factors, the district court concluded that

“Mr. Bain’s interest in procreative autonomy outweighs Ms. Elken’s

interest in the use of these four [pre-]embryos.” It denied Elken’s

request for declaratory relief and ordered that the pre-embryos be

anonymously donated to another couple for reproductive purposes.

IV. Elken’s Contentions

¶ 26 Elken contends that the district court (1) misapplied Rooks

and (2) abused its discretion by weighing the Rooks factors in Bain’s

favor. We are not persuaded.

A. The District Court Correctly Applied the Rooks Factors

¶ 27 Elken contends that the district court misapplied Rooks by

(1) failing to recognize that a person seeking to become a genetic

parent has a weightier interest than one who seeks only to donate

pre-embryos and (2) considering a “self-imposed” hardship to the

party seeking to donate the pre-embryos. Reviewing de novo, see

Fabos II, ¶ 15 (“Whether a district court applied the correct legal

standard is an issue we review de novo.”), we disagree.

13
1. The District Court Correctly Afforded Elken’s Interest in
Becoming a Genetic Parent Greater Weight Than Bain’s
Interest in Donation

¶ 28 Elken’s weightier-interest argument focuses on the court’s

application of the first Rooks factor — “the intended use of the party

seeking to preserve the disputed pre-embryos.” Rooks, ¶ 66. Rooks

made clear that both the right to procreate and the right to avoid

procreation are “equivalently important” constitutionally based

rights. Id. at ¶ 74; see Fabos II, ¶ 33. But it also explained 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.” Rooks, ¶ 66. Relying

on this language, Elken asserts that the district court should have

given her interest in using the pre-embryos greater weight than

Bain’s interest in donating them.

¶ 29 But the district court afforded Elken’s interest greater weight.

In assessing this factor, the court explained that “a party’s interest

in seeking to donate does not have as great [a weight] as if the party

sought to use the pre-embryos herself,” and it reasoned that

“Elken’s intended use of the pre-embryos to become a genetic

parent is entitled to significant weight under the Rooks analysis.”

14
Although the court did not expressly say that Bain’s interest was

inferior to Elken’s under the first Rooks factor, its order clearly

demonstrates that it weighed this factor heavily in Elken’s favor.

Thus, we perceive no error in the district court’s application of the

first Rooks factor.

¶ 30 Despite acknowledging that “this factor may not be dispositive

on its own,” Elken nevertheless contends, relying on Fabos II, that

“it should ‘ordinarily’ be the case that the party pursuing donation

of the pre-embryos loses when pitted against” a party seeking to use

the pre-embryos to become pregnant. Rather than identifying a

misapplication of the law, this argument challenges how the district

court exercised its discretion in balancing this factor against the

other Rooks factors, an issue we take up in Part IV.B. But to the

extent Elken contends that she should have prevailed as a matter of

law, her argument extends Fabos II’s rationale too far.

¶ 31 In Fabos, the wife wanted to donate the frozen pre-embryos to

another couple while the husband sought to have them discarded.

Fabos II, ¶ 3. The division noted that, under Rooks, both the right

to procreate and the right to avoid procreation are “equivalently

important” constitutionally based rights. Id. at ¶ 33 (quoting Rooks,

15
¶¶ 3, 74). From there, it reasoned 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.” Id.

But “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.” Id. As a result, the division concluded

that the trial court erred by weighing the wife’s desire to donate as

equivalent to a desire to implant and thus equivalent to the

husband’s desire to avoid genetic parenthood. Id. at ¶ 29. But

rather than remanding for the trial court to rebalance the Rooks

factors, the division concluded, as a matter of law, that the case

was a “close call” and thus “not one of the rare circumstances in

which a court may compel a party to procreate against their will.”

Id. at ¶¶ 43, 46. The division directed entry of judgment for the

husband on remand. Id. at ¶ 58.

¶ 32 In reaching this conclusion, the Fabos II division relied in part

on the Fabos I division’s reasoning that “[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

16
[their] own.” Fabos II, ¶ 46 (quoting Fabos I, ¶ 45). Based on this

language, Elken argues that, because a party seeking to implant the

pre-embryos to achieve genetic parenthood is on equal footing with

a party not wanting to procreate, it should follow that, ordinarily, a

party seeking to implant the pre-embryos should prevail when the

other party wants to donate them. According to Elken, had the

court given her this “strong presumption,” she should have

prevailed.

¶ 33 But Fabos I drew the relevant principle from Rooks’ survey of

how other jurisdictions have resolved disputes over the disposition

of pre-embryos. Fabos II, ¶ 23 n.2. Rooks explained that, although

courts have taken various approaches, they all generally seek to

“avoid results that compel one party to become a genetic parent

against [their] will except in rare circumstances.” Rooks, ¶ 32.

¶ 34 A party seeking to implant pre-embryos — in their own body

or in the body of a partner — has chosen to become a genetic

parent. Requiring that party to donate pre-embryos does not

compel them to become a genetic parent against their will and does

not infringe upon that party’s procreational autonomy to the same

extent as it would infringe on the rights of a party seeking to avoid

17
genetic parenthood altogether. Consequently, we decline Elken’s

invitation to hold that a party seeking to implant pre-embryos to

become a genetic parent should ordinarily prevail over a party

seeking to donate the pre-embryos, except in rare circumstances.1

2. The District Court Was Permitted to Consider Bain’s Hardship

¶ 35 Elken contends that the district court erred by considering the

hardship to Bain as the party seeking to donate the pre-embryos.

She argues that the fourth Rooks factor only permits the court to

consider hardship to the party “seeking to avoid becoming a genetic

parent.” Rooks, ¶ 4. According to Elken, because Bain would

become a genetic parent even if the pre-embryos are donated, the

court erred by considering any hardship to him that might result

from her using the pre-embryos to become pregnant with his child.

1 We do not intend to undermine the general rule 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.” In re Marriage of Rooks,
2018 CO 85, ¶ 66; see In re Marriage of Fabos, 2019 COA 80, ¶ 51
(Fabos I) (“[A] party’s interest in seeking to donate is still entitled to
some weight, but not as great a weight as if the party sought to use
the pre-embryos herself.”).

18
¶ 36 We acknowledge that there is no outcome here by which Bain

necessarily avoids becoming a genetic parent.2 For his part, Bain

acknowledges this too. His stated desire is not to avoid genetic

parenthood entirely, but “to avoid genetic parenthood with

someone . . . with whom he shares an irreparably damaged

relationship.”3 In other words, Bain’s hardship stems not from his

inability to avoid genetic parenthood generally but from his inability

to avoid genetic parenthood with Elken.

¶ 37 We also acknowledge that the supreme court articulated the

fourth Rooks factor as “consideration of hardship for the person

seeking to avoid becoming a genetic parent, including emotional,

financial, or logistical considerations.” Id. at ¶ 69 (emphasis

added). But the supreme court developed its balancing test in a

specific factual context — in which one party sought to procreate

with the pre-embryos and the other sought to discard them — so it

2 Of course, if the donated pre-embryos do not result in the birth of

a child, neither party will become a genetic parent through use of
the disputed pre-embryos.
3 Bain also asserts that he wishes to avoid genetic parenthood with

“someone who has assaulted him.” Although the district court
found that Elken and Bain “had a major argument that escalated
into physical violence,” it did not find that Elken assaulted Bain.

19
is not surprising that it articulated this factor in these binary terms.

We do not read Rooks as prohibiting a court from considering the

extent to which a party may seek to avoid becoming a genetic

parent on terms they find objectionable. See Fabos I, ¶ 43 (The

parties’ rights “in this area include[] not only the right to procreate

or not procreate, but also the right to make decisions about the fate

of the pre-embryos that were created using their genetic material.”).

¶ 38 We are not persuaded otherwise by Elken’s reliance on Fabos

I, in which the division criticized the trial court for awarding pre-

embryos to the wife for donation after giving conclusive weight to

her moral and religious beliefs that pre-embryos were human lives.

Id. at ¶ 56. In relevant part, the Fabos I division said that “to 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,’” not the spouse

seeking to donate the pre-embryos. Id. (quoting Rooks, ¶ 4).4 The

division in Fabos II similarly recognized the one-sided nature of this

4 The division’s primary critique was that the trial court gave

dispositive weight to a factor that was “seemingly inconsistent” with
Rooks, which noted that pre-embryos are not persons under
Colorado law. Fabos I, ¶¶ 22, 53; see Rooks, ¶ 56.

20
factor, noting that the supreme court did not “identify[] 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.” Fabos II, ¶ 35. But the Fabos II division clarified that it

“was proper — and required — for the court to hear evidence

concerning wife’s religious beliefs about the disposition of the

pre-embryos . . . as an additional factor beyond those articulated in

Rooks.” Id. at ¶ 34. In other words, even if the court should not

have considered wife’s beliefs under the fourth Rooks factor, it

properly considered them as another relevant, case-specific factor.

See Rooks, ¶ 71.

¶ 39 Thus, we conclude that the district court did not err by

considering the hardship to Bain that would result from Elken

becoming pregnant with his child, whether under the fourth Rooks

factor or as another “consideration[] relevant to the parties’ specific

situation.” Id. at ¶ 74.

B. The District Court Did Not Abuse its Discretion in Balancing
the Rooks Factors

¶ 40 Elken contends that the district court abused its discretion in

balancing the relevant Rooks factors because her “weightier interest

21
in using the pre-embryos for procreation should have prevailed over

Bain’s lesser interest in donating them.” We perceive no error.

1. Standard of Review

¶ 41 We review the district court’s balancing of the parties’

respective constitutionally based interests for an abuse of

discretion. Fabos I, ¶ 21; Fabos II, ¶ 16.5 But “we more carefully

scrutinize the district court’s determination because it involves the

parties’ constitutional rights.” Fabos I, ¶ 21. A court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair, or when it misconstrues or misapplies the law. Fabos II,

¶ 16. In assessing whether the district court abused its discretion,

“we do not consider whether we would have reached a different

5 The Fabos I division reasoned that an abuse of discretion standard

was appropriate because (1) a district court has discretion to
equitably divide marital property, and pre-embryos are “marital
property of a special character”; and (2) the supreme court has
previously applied an abuse of discretion standard to review issues
involving competing constitutional rights. Fabos I, ¶¶ 19-20
(quoting Rooks, ¶ 57). Although the district court here did not
divide marital property, we note that courts generally have
discretion to equitably divide property in other contexts. See, e.g.,
Young Props. v. Wolflick, 87 P.3d 235, 237 (Colo. App. 2003)
(applying abuse of discretion standard to court’s partition of
property). Thus, we agree with the parties that abuse of discretion
is the appropriate standard of review.

22
result, but only whether the district court’s decision fell within the

range of reasonable options.” Hudak v. Med. Lien Mgmt., Inc., 2013

COA 83, ¶ 8.

2. The District Court Did Not Abuse its Discretion by Concluding
that Bain’s Interest in Procreational Autonomy Outweighed
Elken’s Interest in Implanting the Pre-Embryos

¶ 42 In arguing that the district court abused its discretion in

balancing the relevant Rooks factors, Elken highlights facts

favorable to her position and asks us to reweigh the factors

consistently with her legal arguments. But we have already

concluded that the court correctly applied the law, and we decline

Elken’s invitation to reweigh the evidence. See In re Estate of

Owens, 2017 COA 53, ¶ 22 (an appellate court may not reweigh

evidence or substitute its judgment for that of the trial court).

¶ 43 Elken premises her argument on “the logic that a party

seeking to use their own genetic material to achieve a pregnancy

ordinarily should prevail over a party seeking donation.” As

discussed in Part IV.A, we decline to begin with that presumption.

¶ 44 Elken then argues that the district court should have weighed

the first and second Rooks factors more heavily in her favor. But

the court gave “significant weight” and “great weight” to these

23
factors, respectively. Even so, with respect to the second factor, the

court found that Elken had “not demonstrated an inability to have

biological children” and that she had “other options for becoming a

mother.” Although Elken argues on appeal that the court based

these findings on “possibilities . . . and not probabilities,” the court

“relied heavily” on the testimony of Elken’s fertility expert. Elken

did not object at trial to the admission of the expert’s testimony

about Elken’s reproductive options, so we cannot fault the court for

relying on that evidence. Moreover, determinations about the

credibility of witnesses and the weight to be given to the evidence

are matters within the sole province of the district court when

acting as the fact finder. In re Estate of Romero, 126 P.3d 228, 231

(Colo. App. 2005).

¶ 45 Elken next argues that the court should have weighed the

third Rooks factor heavily in her favor. In doing so, she recounts

her testimony about her original reasons for pursuing IVF,

emphasizing that she wanted to “preserv[e] her ability to have a

genetic child.” But the court did not fully credit Elken’s testimony

on this point, instead concluding that the parties’ mutual, primary

intent at the time the pre-embryos were created was to use them to

24
make a family together, an intent that could not be realized after

their relationship ended. Because the record supports the court’s

findings and does not refute its credibility determinations, we defer

to them. See Lawry v. Palm, 192 P.3d 550, 558 (Colo. App. 2008)

(reviewing courts generally defer to the district court’s credibility

determinations); Johnson v. Indus. Claim Appeals Off., 973 P.2d

624, 626 (Colo. App. 1997) (appellate courts are bound by a district

court’s credibility determination unless it would be error as a

matter of law to believe the credited testimony). And we see no

error by the court in weighing this factor in Bain’s favor.

¶ 46 Finally, Elken argues that the court gave too much weight to

the emotional, financial, and logistical hardship Bain would

experience, characterizing his concern as “somewhat overstated”

based on the evidence. Again, Elken essentially asks us to reweigh

the evidence, which we will not do. See Owens, ¶ 22. The district

court found Bain’s testimony about this factor compelling,

including that he could not walk away if Elken had his child. And it

was not persuaded by Elken’s arguments that any hardship was

“self-imposed” because she had offered to absolve Bain of his

25
parental responsibilities. That Elken disagrees with the court’s

assessment does not demonstrate an abuse of discretion.

¶ 47 In the end, the district court faced an incredibly difficult

task — balancing Elken’s desire to hold onto her best chance at

becoming a genetic parent against Bain’s right to avoid becoming a

genetic parent with Elken. Given that “the fundamental liberty and

privacy interests at stake are deeply personal and emotionally

charged,” Rooks, ¶ 3, we understand why Elken would like us to

reweigh the evidence to reach a different result. But whether we

would have come to a different conclusion is immaterial because

the court’s decision fell within the range of reasonable options. See

Hudak, ¶ 8. The court did not misunderstand or misapply the law,

and there is nothing manifestly arbitrary, unreasonable, or unfair

about its decision. See Fabos II, ¶ 16. In light of the court’s

26
detailed findings and careful application of the Rooks factors, we

will not disturb its judgment.6

V. Disposition

¶ 48 We affirm the district court’s judgment.

JUDGE J. JONES and JUDGE YUN concur.

6 We reject Elken’s attempt to equate the district court’s decision

with a termination of her parental rights to a genetic child that may
result from the use of the pre-embryos, see Troxel v. Granville, 530
U.S. 57, 66 (2000) (“[T]he Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their
children.”), and her argument that the court’s balancing of the
Rooks factors failed to consider the best interest of the child, see
§ 14-10-124, C.R.S. 2025. It does not appear that Elken preserved
these arguments by raising them with the district court. See
O’Connell v. Biomet, Inc., 250 P.3d 1278, 1282 (Colo. App. 2010)
(“Arguments never presented to, considered by, or ruled upon by a
trial court may not be raised for the first time on appeal.”). In any
event, the pre-embryos are not children under Colorado law, see
Rooks, ¶ 55, so Elken has no parent-child relationship with them.

27