Divorces and Reproductive Rights: How the Courts Address Disposition of Pre-Embryos

By: James C. McTurnanThe judge in a divorce case has the unenviable task of disentangling the lives and livelihoods of spouses who are unable to reach agreements on their own. Often, the lives of divorcing spouses are complex, and it is not unusual for any case to have its fair share of challenging issues. However, at times, an issue comes along that tests the boundaries of the norms in a divorce case. One such issue has been put before the Colorado courts not once, but twice in recent years: what happens when the “assets” of the parties to the divorce case are frozen…cryogenically? There have been two recent Colorado cases that delve into the disposition of cryogenically frozen pre-embryos that, if implanted successfully, would lead to new human life. To resolve any dispute, a judge must engage in an analysis that is comprehensive, unbiased, well-reasoned, and ultimately fair to the litigants. Resolving a dispute on the disposition of cryogenically frozen pre-embryos compels the Judge to navigate the outermost crossroads of science, existence, morality, and the ability of the law to adapt to our ever-changing understanding of the world around us. What is most useful for a prospective divorce litigant in examining these cases, aside from an intriguing story, and the insight they give into our court system and the mechanics of legal analysis. To address even the most exotic legal issues, the analysis must begin with established legal principles, and follow a logical pathway to conclusion. The court, in In Re Marriage of Olsen, 2019 COA 80, utilizing the guidance of the recent Colorado Supreme Court decision in In Re Marriage of Rooks, 2018 CO 85, had to follow just such a process to reach its conclusions.In Olsen, the wife wanted to donate the frozen pre-embryos to another couple, and the husband wanted to thaw and discard the pre-embryos. As with all divorce cases, the process began in the district court. The district court made some preliminary determinations to guide its analysis. The initial threshold determination was that, based on current law, a frozen pre-embryo is not a human life; it is treated as property. The topic of determining the moment at which a human life begins is a subject which has been fervently debated for more than a half-century, if not since the dawn of humanity. In the context of abortion, the issue has landed in our nation’s Supreme Court, most notably in Roe v. Wade, and that ruling has endured ongoing scrutiny and subsequent challenges. Nonetheless, our present laws for divorce and child custody cases in Colorado deem human life to begin at birth. The practical result of this determination is more straightforward. Where a human life exists, for a child between birth and age 19, the court in a Colorado divorce case will allocate parental responsibilities (child custody) and enter orders regarding parenting time, parental decision-making, and child support. In this instance, where the court is addressing property, the court must reach a disposition of the property that is “equitable” to the parties. The Colorado Court of Appeals did not disturb the district court’s determination that the pre-embryos are not human life. In general, when dealing with property determinations in a Denver divorce case, the court will first look to the parties for any agreements they may have reached. In some cases, the parties may have entered into a pre-nuptial or other marital agreement, which is a contract between the parties that may address in advance the disposition of assets and other matters in the event of the divorce of the parties. Where valid and appropriate, the court will follow the agreement of the parties. In all divorce cases, the court will give the parties an opportunity to reach their own agreements regarding the disposition of their property and will generally order the parties to mediate any unresolved disputes before holding a hearing. In Olsen, the parties’ dispute reached a hearing before the district court. There was an agreement signed by both of the parties which the court considered. That agreement was entered into with the clinic maintaining the cryogenically frozen pre-embryos, and indicated that in the event of the death of the wife or both parties, the pre-embryos would be donated to another couple. The district court determined that the agreement did not apply in the event of divorce. In divorce, both parties are still alive, and thus each is vested with a present constitutional right to determine whether they wish to procreate or not. In making its decision, the district court determined ultimately that greater weight should be given to the wife’s constitutional right and desire to donate the pre-embryos, given that her personal view was that the property was human life. On appeal, the Colorado Court of Appeals reversed and remanded the case to the district court with the instructions that equal weight must be given to the constitutional rights of both parties, and that added weight cannot be given to wife’s personal views when those views conflict with established law.