In re Marriage of Olsen

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
May 23, 2019

2019COA80

No. 17CA2318, In re Marriage of Olsen — Family Law —
Dissolution — Parents and Children — Assisted Reproduction —
Embryos

A division of the court of appeals considers the disposition of a

divorced couple’s cryogenically frozen pre-embryos under the

guidance of In re Marriage of Rooks, 2018 CO 85. The division

concludes that wife’s subjective belief that the pre-embryos should

be protected as human life should not be weighted more heavily

than husband’s constitutional interest in not procreating using the

pre-embryos. Consequently, the division remands to the district

court to rebalance the parties’ interests in accord with Rooks.
COLORADO COURT OF APPEALS 2019COA80

Court of Appeals No. 17CA2318
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 VI
Opinion by JUDGE RICHMAN
Navarro and Welling, JJ., concur

Announced May 23, 2019

Theresa Sidebotham, Monument, Colorado; Joan M. Mannix, Chicago, Illinois,
for Appellee

Paige Mackey Murray, LLC, Paige Mackey Murray, Boulder, Colorado, for
Appellant
¶1 In this dissolution of marriage proceeding, we are called upon,

as was the division in In re Marriage of Rooks, 2016 COA 153 (Rooks

I), rev’d, 2018 CO 85 (Rooks II), to review a district court’s

disposition of a divorcing couple’s cryogenically frozen pre-embryos.

I. Background and Procedural History

¶2 Similar to the couple in Rooks, the divorcing couple here,

Jamie R. Fabos, formerly known as Jamie R. Olsen (wife), and

Justin R. Olsen (husband), sought in vitro fertilization (IVF) during

their marriage after they were unable to conceive otherwise. Four of

wife’s eggs were fertilized; two of the resulting pre-embryos were

implanted successfully, leading to the births of the parties’ twins in

2011; and the remaining two pre-embryos were cryogenically frozen

for possible future use.

¶3 Also similar to the situation in Rooks, although the parties had

entered into an agreement with the fertility center where they

underwent IVF — entitled “Informed Consent for Assisted

Reproduction” — that agreement did not specify a disposition of

their remaining pre-embryos if they divorced. Rather, it provided,

as did the agreement in Rooks, that in the event of divorce

1
ownership of the pre-embryos would be “as directed by court decree

and/or settlement agreement.” See Rooks II, ¶¶ 2, 13, 73.

¶4 But the agreement provided an option for the parties to elect a

disposition for their pre-embryos in the event of death or

incapacitation of both of them, as well as when wife reached age

fifty-five. Unlike in Rooks, where the couple agreed that in the

event of the wife’s death, or the death of both partners, the embryos

would be “thawed and discarded,” see id. at ¶ 12, here for both of

these scenarios, wife and husband initialed the option to donate the

pre-embryos to another couple. They did not initial the other

available options: to “thaw and discard” the pre-embryos or “donate

the pre-embryo(s) for research.”

¶5 In 2012, wife petitioned for dissolution of marriage. A decree

was entered in 2013 resolving all dissolution issues except for the

disposition of the pre-embryos, which was reserved for further

proceedings.

¶6 It is at this point where the facts of this case diverge materially

from those in Rooks. Mrs. Rooks asked the divorce court to award

the pre-embryos to her because she wanted to preserve them for

future implantation so that she could have more children, whereas

2
Mr. Rooks wanted to thaw and discard them. Id. at ¶ 14. In this

case, however, wife does not want more children and instead wants

to donate the pre-embryos to another infertile couple, whereas

husband wants to discard them.

¶7 After a hearing, the district court, in a lengthy, thoughtful,

and detailed order, first determined that the parties did not have an

agreement on the disposition of their remaining pre-embryos in the

event they divorced. Thus, consistent with this court’s decision in

Rooks I, ¶ 24, the district court engaged in a balancing of the

parties’ interests, concluding that the pre-embryos should be

awarded to wife so that she could donate them to another couple.1

¶8 Husband appeals the district court’s judgment, contending

that the court erred in balancing the parties’ interests. 2 The district

1 The district court conditioned the donation on wife’s arranging
that any donee couple “waive any right to seek contact with
[husband], whether for genetic testing or any other purpose.”
2 Husband initially challenged the district court’s use of the

balancing of interests test and argued it should have applied a
different standard — contemporaneous mutual consent. However,
he abandoned that argument after Rooks II was announced and the
supreme court adopted the balancing of interests test as the
appropriate test to use in dissolution of marriage cases when there
is no agreement as to the disposition of pre-embryos on divorce.
See In re Marriage of Rooks, 2018 CO 85, ¶ 33 (Rooks II).

3
court granted husband’s request to stay its decision and ordered

the parties to share equally the cost of maintaining the pre-embryos

in cryogenic storage pending resolution of husband’s appeal.

¶9 Because the supreme court announced Rooks II while this

appeal was pending, we requested supplemental briefs addressing

that decision. Considering the parties’ initial and supplemental

briefs and their oral arguments, we reverse the district court’s

judgment and remand the case for further proceedings. In doing

so, we first address the framework established in Rooks II for

resolving disagreements over the disposition of pre-embryos in the

event of divorce. We then address husband’s contentions under

that framework, thereby resolving several issues not arising in, and

thus not resolved by, Rooks II.

II. Rooks and the Balancing of Interests Approach

¶ 10 In Rooks II, ¶¶ 32, 49-55, the supreme court noted that

Colorado law relevant to assisted reproduction is not helpful in

resolving disputes between divorcing parties concerning the

disposition of their cryogenically frozen pre-embryos. The court

further considered the three methods that have been used in other

jurisdictions for resolving such disputes: the contract approach, the

4
balancing of interests approach, and the contemporaneous mutual

consent approach. Id. at ¶¶ 40-48.

¶ 11 It rejected the contemporaneous mutual consent approach,

which essentially maintains the status quo by leaving the

pre-embryos in storage indefinitely until and unless the parties

agree otherwise.3 The court noted, among other bases for rejecting

this approach, that it gives one party a de facto veto over the issue

and abdicates the court’s responsibility to resolve an issue on which

the parties have proven unable to agree. Id. at ¶¶ 45, 60.

¶ 12 The court held that, instead, a dissolution court must first

look to any existing agreement between the parties as to disposition

of their pre-embryos in the event of divorce. Id. at ¶¶ 61, 74. The

court agreed with other jurisdictions applying a contract approach

that if there is such an agreement the court must enforce it, thereby

allowing the parties, as progenitors, and not the court, to decide the

private, personal matter of what will happen to their pre-embryos.

See id. at ¶¶ 63, 72. When there is no express agreement on the

3Justice Hood, joined by two members of the court, dissented in
Rooks II, arguing for adoption of the contemporaneous mutual
consent approach. See Rooks II, ¶¶ 82-107.

5
disposition of the pre-embryos in the event of a divorce, however,

the court should apply a balancing of interests approach to

determine the issue. Id. at ¶¶ 33, 64, 72, 74.

¶ 13 The Rooks II court provided “a non-exhaustive list” of factors

that the court should consider in balancing the parties’ interests:

• the intended use of the disputed pre-embryos by the party

who seeks to preserve them;

• the demonstrated physical ability or inability of the party

seeking to preserve the pre-embryos to have biological children

through other means;

• the parties’ original reasons for undergoing IVF — for example,

to preserve a party’s future ability to have biological children

in the face of potential fertility loss due to medical treatment;

• the hardship for the party seeking to avoid becoming a genetic

parent, including emotional, financial, or logistical

considerations;

• either party’s demonstrated bad faith or attempt to use the

pre-embryos as leverage in the dissolution proceedings; and

• other relevant factors based on the circumstances of the case.

Id. at ¶¶ 65-71, 74.

6
¶ 14 The supreme court also listed certain other factors that courts

must not consider in a balancing test: economic considerations

such as whether the party seeking to become a genetic parent can

afford to have another child, whether that party could instead adopt

or otherwise parent nonbiological children, and the sheer number of

a party’s existing children. Id. at ¶¶ 71, 74. Because the division of

our court in Rooks I had upheld a district court’s disposition that

relied in part on these prohibited factors, the supreme court in

Rooks II reversed that decision and remanded the case for the

district court to rebalance the parties’ interests under the

framework it adopted. Id. at ¶¶ 5, 73.

¶ 15 Although the district court in the present case did not have

the benefit of the decision of the supreme court in Rooks II, it did

apply a balancing test using pertinent factors. The district court

identified seven specific factors to be balanced, and, although

phrased differently than the supreme court’s list of factors in Rooks

II, the pertinent factors applied by the district court are sufficiently

similar to the Rooks II factors that we will not reverse the district

court ruling solely because its phraseology differed.

III. Husband’s Appeal

7
¶ 16 Husband contends that the district court erred in applying the

balancing of interests test because it weighted wife’s interest in

donating the pre-embryos more heavily than his interest in avoiding

procreation based on wife’s moral belief that the pre-embryos are

human lives. We agree and thus reverse the judgment and remand

the case for the district court to rebalance the parties’ interests

consistent with this opinion and Rooks II.

A. Standard of Review

¶ 17 The parties disagree regarding the standard of review we

should apply in reviewing the district court’s decision. Husband

argues that a de novo standard applies because the case involves

constitutionally protected interests. Wife argues that application of

a balancing of interests test is necessarily an exercise of the district

court’s equitable discretion and therefore an abuse of discretion

standard applies.

¶ 18 The supreme court in Rooks II granted certiorari in part to

address “[w]hether the court of appeals erred in applying an abuse

of discretion standard of review in reviewing the trial court’s

determination of the disposition of a couple’s cryogenically frozen

8
pre-embryos in a dissolution of marriage.” Id. at ¶ 3 n.1. But, the

court did not resolve this issue.

¶ 19 The court did, however, characterize the pre-embryos as

marital property, albeit “marital property of a special character”

because they “contain the potential for human life.” Id. at ¶ 57.

And it noted the district court’s discretion under section

14-10-113(1), C.R.S. 2018, and In re Marriage of Balanson, 25 P.3d

28, 35 (Colo. 2001), to divide marital property equitably after

considering relevant factors. Rooks II, ¶¶ 58, 72. These statements

imply that an abuse of discretion standard applies as it would in

reviewing any marital property distribution. See Balanson, 25 P.3d

at 35 (recognizing district court’s “great latitude” to equitably

distribute marital property and that an appellate court must not

disturb its decision “unless there has been a clear abuse of

discretion”).

¶ 20 Additionally, the supreme court has previously applied an

abuse of discretion standard of review to an issue involving

competing constitutional rights. See In re Marriage of Ciesluk, 113

P.3d 135, 142, 148 (Colo. 2005). In Ciesluk, the court reviewed a

parental relocation determination under section 14-10-129(2)(c),

9
C.R.S. 2018, for an abuse of discretion, noting that the

determination involved balancing the mother’s constitutional right

to travel between states against the father’s constitutional right to

parent his child. Ciesluk, 113 P.3d at 142, 148.

¶ 21 Thus, we apply an abuse of discretion standard. In doing so,

however, we more carefully scrutinize the district court’s

determination because it involves the parties’ constitutional rights.

See Nikander v. Dist. Court, 711 P.2d 1260, 1262 (Colo. 1986).

B. The District Court’s Balancing of Interests Analysis

¶ 22 The district court began its analysis with three “constructs”

that had informed its balancing analysis: (1) the pre-embryos are

not legally considered human lives; (2) neither party can

persuasively argue that he or she would involuntarily become a

parent, legally or financially, of any child born using the pre-

embryos; and (3) the parties’ competing interests are grounded in

constitutional rights — the right to procreate and the right not to

procreate. These constructs are consistent with Rooks II, ¶¶ 35-39,

50-57.

10
¶ 23 Against this backdrop, the court then weighted the parties’

interests, applying the factors listed in the division’s decision in

Rooks I, ¶¶ 42-62, to the extent they were pertinent to this case.

¶ 24 Husband contends only two of the supreme court’s Rooks II

balancing factors are relevant to the circumstances here: wife’s

intended use of the embryos and the hardship on him if he were

forced to become a genetic parent. See Rooks II, ¶¶ 66, 69. Wife

did not want to have more children herself using the pre-embryos

so her physical ability to have more children through other means

is not relevant. Also, the parties did not have a reason for

undergoing IVF other than to have children, which they

successfully did. Further, neither party argued in the district court

that the other was acting in bad faith or using the pre-embryos as

unfair leverage in the divorce proceedings, as all other dissolution

issues had been resolved. The district court also did not consider

any of the Rooks II prohibited factors. See id. at ¶ 71.

¶ 25 Applying the first factor (intended use of the pre-embryos by

the party who seeks to preserve them), the court stated that wife’s

interest in donating the pre-embryos was “less important” than her

interest would be if she planned to use the embryos to have another

11
child herself. But it still weighted this factor “slightly” in wife’s

favor because it concluded “she is seeking to utilize the embryos for

a productive purpose rather than simply discard them as [husband]

proposes.”

¶ 26 The court weighted the factor of “hardship for the party

seeking to avoid becoming a genetic parent” “slightly” in husband’s

favor, and it weighted wife’s personal view that the pre-embryos are

human lives “heavily” in her favor.

¶ 27 Separately, the district court ultimately rejected husband’s

position that his desire to avoid procreation should be given

“conclusive weight,” although it characterized this factor as

“substantial.” The court found that husband’s stated concern

about having a child born from the pre-embryos who was

genetically his child but whom he would not raise was inconsistent

with his actions in agreeing to donate the embryos in other

scenarios. And because the parties had agreed to donate the pre-

embryos in other scenarios, the court surmised that they had given

more weight to wife’s “fundamental beliefs” (that the pre-embryos

were human lives and should not be destroyed) than to husband’s

interest in avoiding undesired procreation. Thus, the court

12
weighted husband’s subjective concerns about donating the

pre-embryos in his favor but “at a level significantly less than the

subjective importance of [wife’s] desire to avoid destruction of the

[pre-]embryos.” Balancing all of these factors, the court awarded

the pre-embryos to wife.

C. Analysis

1. Preliminary Issues

¶ 28 Because wife’s argument that husband waived his right to

avoid procreating when he agreed to create the pre-embryos

through IVF is inconsistent with Rooks II, we reject it. See id. at ¶

62 (“We do not interpret a party’s commencement of the IVF

process, on its own, to establish the party’s automatic consent to

become the genetic parent of all possible children that could result

from successful implantation of the pre-embryos.”).

¶ 29 We also reject wife’s argument on appeal that we should

conclude the parties entered into an agreement to preserve the

pre-embryos for donation in the event of divorce. The record

reflects that although wife testified at the hearing that the parties

had orally agreed that any unused pre-embryos would not be

destroyed, she admitted that she had no evidence of such an

13
agreement other than her email correspondence with her friend and

sister, in which husband did not participate. Further, wife

admitted that the parties did not have an agreement for disposition

of the pre-embryos in the event they divorced.

¶ 30 When asked by the district court why, if the parties had

chosen donation of the pre-embryos in other instances, they did not

also provide for that disposition in the event of divorce, wife

responded that they did not discuss what would happen in the

event that they divorce and that she wished that she had included

such a provision but she thought they would be married forever.

¶ 31 Wife did not argue in her written briefs in the district court

that there was an oral agreement between the parties that must be

enforced. She instead consistently described the fertility center’s

written consent form as the only agreement concerning disposition

of the pre-embryos and argued, as she also did at the hearing, that

the consent form should be interpreted as indicating an intent that

the pre-embryos be donated on divorce. Although the court found

credible wife’s testimony that the parties had “discussed” her pro-

life beliefs in connection with their decision to undergo IVF, it also

found that the IVF agreement did not set forth a standard to be

14
utilized in resolving the dispute in the event of divorce, other than

to submit it to the court. Cf. J.B. v. M.B., 783 A.2d 707, 714 (N.J.

2001) (rejecting party’s assertion that an oral agreement existed for

disposition of the parties’ pre-embryos based on their discussions of

the issue before undergoing IVF). 4

¶ 32 Moreover, Rooks II, ¶ 72, held that an express agreement

between the spouses in the event of divorce would govern and

therefore be enforceable. And we discern no error in the district

court’s conclusion that the parties did not have an agreement on

the disposition of the pre-embryos in the event of divorce — except

to submit the issue to a court in the event they could not agree. We

similarly reject husband’s argument in his reply brief that section

19-4-106(7), C.R.S. 2018, which requires both parties’ consent to

IVF, controls the disposition issue presented here. See Rooks II, ¶¶

51-52 (rejecting similar argument and holding that “consent” in

4 Wife argues for the first time in her answer brief that husband is
equitably estopped from arguing that the pre-embryos should be
destroyed because she only agreed to IVF on the understanding
that any unused pre-embryos would not be destroyed. However, we
will not address an argument raised for the first time on appeal.
Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012
CO 61, ¶ 18.

15
section 19-4-106(7) “logically refers to the former spouse’s consent

to legal parenthood” of a child born as a result of IVF). We also note

that husband’s argument is not preserved because it is raised for

the first time in his reply brief. See In re Marriage of Drexler, 2013

COA 43, ¶ 24.

2. Case Law on Balancing the Interests of a Party Wanting to
Donate Versus Those of Wanting to Avoid Procreating

¶ 33 In weighing the parties’ competing interests, the Rooks II,

court stated 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 II, ¶ 66.

¶ 34 And the court noted that “generally” case law from other

jurisdictions addressing disposition of pre-embryos on divorce

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

against his or her will except in rare circumstances.” Id. at ¶ 32.

Rooks, however, involved a party who wanted to preserve the

pre-embryos to become pregnant, not to donate them as wife wants

to do here. See id. at ¶ 2.

16
¶ 35 On appeal, husband urges us to adopt this intended use factor

as the primary and dispositive factor when one spouse seeks to

donate the pre-embryos, rather than use them to have biological

children. We decline to adopt this proposed bright line test.

¶ 36 First, although the opinion in Rooks II lists this factor first, it

does not state that it has primary or dispositive weight. It states

only that a party wishing to implant and have a child has a

weightier interest than a party wishing to donate. And, in this case,

husband does not wish to become a genetic parent through

implantation (i.e., by using a surrogate), so the first clause is not

dispositive in weighting his interest against wife’s.

¶ 37 Rooks II cited two cases from other jurisdictions in which a

spouse’s interest in discarding pre-embryos so as to avoid becoming

a genetic parent was pitted against a spouse’s interest in preserving

pre-embryos to donate to another couple. Id. at ¶ 66 (citing J.B.,

783 A.2d at 716-17; Davis v. Davis, 842 S.W.2d 588, 603-04 (Tenn.

1992)).

¶ 38 Davis stated that in this circumstance, “[o]rdinarily, the party

wishing to avoid procreation should prevail.” 842 S.W.2d at 604;

see also J.B., 783 A.2d at 716. The Davis court upheld the lower

17
court’s disposition under the balancing of interests test in favor of

the party who did not want to procreate. 842 S.W.2d at 604. That

party — the husband — asserted that he was “vehemently opposed

to fathering a child that would not live with both parents” because,

as a child, he had been sent to a home for boys after his parents

divorced and had “severe problems” as a result. Id. at 603-04. The

court credited the husband’s testimony, and also found that the

wife’s interest in donating, which it described as her having to know

“that the lengthy IVF procedures she underwent were futile, and

that the pre[-]embryos to which she contributed genetic material

would never become children,” was not as significant as the

husband’s interest. Id. at 604.

¶ 39 The New Jersey court approved of the Davis rule that

ordinarily a party wishing to avoid procreation should prevail, and it

also ruled in favor of destroying the pre-embryos. J.B., 783 A.2d at

716-17.

¶ 40 Although the Davis court noted that “[t]he case would be

closer if [the wife] were seeking to use the pre[-]embryos herself,”

842 S.W.2d at 604, it did not hold that an objecting party must

always prevail when the other party wants to donate rather than

18
have a child using the pre-embryos. To the contrary, it clarified

that the rule it was announcing “does not contemplate the creation

of an automatic veto” for an objecting party. Id. Neither of these

cases adopted the bright line test urged by husband.

3. The Parties’ Competing Constitutional Rights

¶ 41 Husband argues that wife’s “right to procreate is less

impacted, if impacted at all,” if she is not permitted to donate the

pre-embryos and that her right only “manifests at the moment of

implantation [of the pre-embryos] in her uterus.” See J.B., 783

A.2d at 717 (preventing donation or use of the pre-embryos would

not impair the husband’s right to procreate). Accordingly, he

further argues, the district court erred in treating the parties’

constitutional rights as equivalent.

¶ 42 The court did not treat the parties’ rights as equivalent,

however. Rather, it noted that “there is a constitutional dimension”

to wife’s interest in preserving the pre-embryos for donation to

another couple and thus both parties’ “competing interests . . . are

grounded in constitutional rights.” The court did not err in making

this statement.

19
¶ 43 The supreme court similarly noted in Rooks II, ¶ 35, that the

parties’ competing interests in this situation “derive from

constitutional rights in the realm of reproductive choice.” Further,

wife’s right, as well as husband’s, in this area includes 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. See Davis, 842 S.W.2d at 601-03 (describing

the parties — the wife, who wanted to donate the pre-embryos, and

the husband, who wanted to discard them — as “entirely equivalent

gamete-providers,” both with “decisional authority” over whether to

continue gestating the pre-embryos); see also Rooks II, ¶¶ 35-38

(discussing case law around reproductive rights and noting the

importance of individual choice and autonomy in decision-making).

4. Husband’s Interest in Avoiding Procreation

¶ 44 Although husband claimed a similar interest to that asserted

by the husband in Davis — that he never knew his own father and

did not want to have a genetic child whom he would not raise and

who also might not have a father in his or her life — the district

court found his assertion not credible. It noted that if his concern

“was so compelling that he could not accommodate the prospect of

20
his biological child being raised by someone else other than himself,

how could he have agreed the [pre-]embryos should be donated to

another couple in the event [wife] attained the age of fifty-five or in

the event of his and [wife’s] mutual death?” According to the court,

this inconsistency “dissipate[d] [husband’s] argument that this

factor should weigh heavily in his favor.”

¶ 45 We conclude that the district court did not abuse its discretion

in weighting husband’s interest in this manner. We agree with

Davis’s ruling 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. See 842 S.W.2d at 604; see also Rooks II, ¶ 32. But, we also

agree with the district court and with Davis that an objecting

party’s interest is not a veto power and therefore is not conclusive

in a balancing analysis. See 842 S.W.2d at 604.

¶ 46 Moreover, determining credibility is the district court’s

prerogative. In re Marriage of Farr, 228 P.3d 267, 270 (Colo. App.

2010). And the court’s observations relative to its credibility

determination here are supported by the record. Whereas in Davis

the parties had not entered into any agreement for disposition of

21
their pre-embryos, 842 S.W.2d at 590, here husband twice agreed

that in scenarios other than divorce the pre-embryos would be

donated to another couple. As the district court noted, his decision

to elect donation in these other scenarios unavoidably conflicts with

his claimed “core belief” that he did not want his biological child

being raised by someone else and potentially without a father, as he

had been raised.

¶ 47 At the hearing, after husband stated his concerns about

donating the pre-embryos, the district court asked him directly

about the inconsistency in his position relative to his previous

agreement to donate in other scenarios:

But let me push back and don’t take this in an
offensive way, but just try to explain to me the
difference. So if that’s true, why would it be
acceptable to donate in the event of your death
or the other category that was set forth in the
contract, to donate in the event that you
reached 56 and didn’t otherwise address this
position? So why aren’t those sort of
overriding concerns that you have about the
absence of a father equally applicable in those
cases?

In response, husband did not say that he had changed his mind

but rather attempted to distinguish the two situations:

22
I think there would be a guarantee. There
would be a definite definition. If I was dead,
my child, if it was out there and planted in
somebody else, would know. There’s the
possibility they would know I’m not around. I
don’t know. It’s just something that’s there
that I’m thinking about constantly. It’s like
the most logical thing that you think about. If
you’re 55 or 56 and we were still together, me
and [wife], even though there’s a document
there, it’s still something that you would talk
about. Obviously we can’t talk about things
and make decisions together. That’s why we’re
here all the time unfortunately. You have to
be — I can’t really say being what I would do
with putting myself out there 14 years from
now. So it’s — I don’t know. It’s hard for me
to say.

¶ 48 Husband did not argue in the district court that he was

entitled to and in fact had changed his mind about his previous

agreement to donate the pre-embryos. Thus, because it was not

shown to be clearly erroneous, we must accept the district court’s

finding that husband either overstated his “core belief” about the

prospect of his biological child being raised by someone other than

himself, or recognized that the wife’s “competing value is entitled to

greater weight.”

¶ 49 Additionally, the district court noted that fewer than two years

had elapsed from when the parties signed the agreement, in which

23
they agreed to donate the pre-embryos in other scenarios, and the

dissolution proceedings began. Therefore, it found unlikely that

“the parties’ core beliefs and values” had evolved significantly in this

short time.

¶ 50 The district court appropriately weighted the husband’s

testimony under the factor of husband’s personal view of the moral

responsibility to have a meaningful presence in the life of a child he

aided in conceiving.

5. Wife’s Interest in Donating the Pre-Embryos

¶ 51 By stating initially that wife’s interest in donating the pre-

embryos was “less important” than if she had planned to use the

pre-embryos to have another child herself, the district court

appeared to accord appropriate weight to wife’s interest. See Rooks

II, ¶ 66 (“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.”); see also J.B., 783 A.2d at 716; Davis, 842 S.W.2d at 604.

We read this statement from Rooks II to mean that 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.

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¶ 52 However, 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 I or Rooks II

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. Moreover, Rooks II did not recognize, as it

could have, that certain uses of the pre-embryos — such as

implantation or donation — were for a “productive purpose” and

thus entitled to greater weight in the balancing calculus. To the

contrary, attributing such weight in this case appears to be

inconsistent with the supreme court’s conclusion that pre-embryos

are not persons under Colorado law. See Rooks II, ¶ 56.

¶ 53 Although the district court had clarified at the beginning of its

balancing analysis, consistent with Colorado law, see id., that “the

legal system does not view an embryo as a human life” and that the

parties’ dispute “cannot be resolved based upon a perception that

the [pre-]embryos must be protected as human life,” it then did just

the opposite by weighting “heavily” wife’s personal beliefs that the

pre-embryos were human lives and describing her interest in

25
donating them as a “productive purpose” as compared with

husband’s intent to discard them. By applying this new factor of

personal moral views, the district court effectively restored

conclusive weight to wife’s side of the balancing equation because

“she is seeking to utilize the embryos for a productive purpose

rather than simply discard them as [husband] proposes.” In

characterizing wife’s purpose to donate as “productive” and

husband’s purpose as “simply discard[ing],” the court credited

wife’s personal beliefs that the pre-embryos were human lives and

treated donation as an innately and unavoidably superior purpose

to discarding. By relying on this factor, the district court tilted the

scale in favor of the party seeking to donate and thus abused its

discretion by inserting a factor not recognized in Rooks II and that

is seemingly inconsistent with that decision. See id. at ¶¶ 32, 66;

J.B., 783 A.2d at 716; Davis, 842 S.W.2d at 604.

¶ 54 We recognize that the factors identified in Rooks II are not

exhaustive. Rooks II, ¶ 71 (“Factors other than the ones described

above may be relevant on a case-by-case basis.”). But the factors

that a court adds — like the five expressly identified in Rooks II —

must be in service of balancing the competing constitutional

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interests at stake, namely, “the parties’ individual interests in either

achieving or avoiding genetic parenthood through use of the

disputed pre-embryos.” Id. at ¶ 64. And the relative strength or

sincerity of the parties’ respective personal or moral convictions, as

a separate additional factor, does not advance the court’s charge of

giving primacy to one of “the equivalently important, yet competing,

right to procreate and right to avoid procreation.” Id. at ¶ 74.

¶ 55 The district court found that wife’s subjective beliefs were

“bona fide, passionate, and antedate this dispute.” While this

finding is certainly supported by the record, wife’s beliefs are also

contrary to established law regarding pre-embryos and, as such,

were ultimately weighted too heavily by the district court vis-a-vis

husband’s constitutional right to avoid procreating using the

pre-embryos. Cf. J.B., 783 A.2d at 712, 716-17 (resolving issue in

favor of party seeking to destroy pre-embryos to avoid procreating

despite the other party’s desire to donate the pre-embryos

consistent with his religious convictions that the pre-embryos must

be protected as human life).

¶ 56 To be sure, although wife is constitutionally entitled to her

sincerely held personal moral beliefs, such beliefs cannot be

27
accorded dispositive weight. 5 See id.; Davis, 842 S.W.2d at 604; see

also Rooks II, ¶¶ 32, 66. Moreover, to the extent the supreme court

in Rooks II identified hardship or emotional toll as a consideration,

it was only with respect to “the spouse seeking to avoid becoming a

genetic parent.” Rooks II, ¶¶ 4, 69, 74.

¶ 57 For all of these reasons, we remand the case for the district

court to rebalance the parties’ interests in accord with Rooks II. As

set forth in this opinion, the court should 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. Further, because the court and the parties

did not have the guidance of Rooks II during the earlier hearing,

both parties should be afforded the opportunity to present the

district court with additional evidence and argument if either party

wishes to do so.

5 On appeal, wife appears to argue that her right to donate the
pre-embryos implicates her right to free exercise of her religious
beliefs. If this argument was raised below, it was not addressed by
the district court. Moreover, wife cites no authority for the
proposition that free exercise of religious beliefs is implicated in a
case involving the allocation of pre-embryos as marital property of a
special character.

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IV. Wife’s Request for Appellate Attorney Fees

¶ 58 Wife requests appellate attorney fees under C.A.R. 38(b) and

section 13-17-102, C.R.S. 2018. We deny the request.

¶ 59 Wife requests fees based on husband’s first issue, in which he

argues that the contemporaneous mutual consent approach applies

instead of the balancing of interests approach — a position

supported by the dissent in Rooks II, ¶¶ 76-109. Husband

abandoned this issue, however, in his supplemental brief after the

Rooks II court adopted the balancing of interests approach.

Accordingly, attorney fees are not appropriate. See Mission Denver

Co. v. Pierson, 674 P.2d 363, 365 (Colo. 1984) (“Standards for

determining whether an appeal is frivolous should be directed

toward penalizing egregious conduct without deterring a lawyer

from vigorously asserting his client’s rights.”); cf. § 13-17-102(5)

(attorney fees shall not be assessed if a claim is dismissed within a

reasonable time after the party knew or reasonably should have

known that he or she would not prevail on the claim).

V. Conclusion

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¶ 60 The judgment is reversed, and the case is remanded for the

district court to rebalance the parties’ interests consistent with this

opinion.

JUDGE NAVARRO and JUDGE WELLING concur.

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