## Facts

- Mandy and Drake Rooks, a married couple, used IVF and cryogenically preserved several pre-embryos.
- They signed clinic consent documents governing disposition upon death (surviving spouse controls) but not disposition upon divorce.
- During dissolution proceedings, Mandy sought to preserve the pre-embryos for possible future use, asserting she was unlikely to have additional children without them.
- Drake sought to have the pre-embryos thawed and discarded, objecting to being compelled into additional genetic parenthood.
- Colorado statutes addressed aspects of assisted reproduction but did not prescribe how to resolve pre-embryo disposition disputes in divorce.

## Issues

1. When divorcing spouses dispute disposition of cryopreserved pre-embryos and no agreement addresses divorce, what framework should a court apply?
2. Did the lower courts use proper considerations in balancing one spouse’s interest in procreation against the other’s interest in avoiding procreation?

## Decision

- The Colorado Supreme Court reversed the judgment affirming the discard order and remanded.
- The court held that courts must first look to any agreement expressing the spouses’ intent regarding disposition upon divorce.
- If no controlling agreement exists, courts must apply a structured balancing-of-interests framework focused on procreational autonomy.
- The lower courts erred by relying on improper considerations and by failing to apply the newly articulated factor-based balancing analysis.

## Legal Principles

- Disputes over pre-embryo disposition in divorce implicate co-equal interests: the right to procreate and the right to avoid procreation; courts should seek, where possible, to respect both.
- Agreement-first approach: if the parties have a valid, applicable agreement allocating control or disposition upon divorce, the agreement generally governs.
- Absent a controlling agreement, courts must balance the parties’ interests using non-exclusive factors, including:
  - The intended use of the pre-embryos by the party seeking preservation or control.
  - The party’s demonstrated ability or inability to achieve genetic parenthood by other means.
  - The parties’ reasons for undertaking IVF.
  - Emotional, financial, or logistical hardship to the party seeking to avoid genetic parenthood.
  - Any bad faith or attempt to use the pre-embryos as leverage in the dissolution.
  - Other case-specific considerations relevant to the dispute.
- Courts may not consider:
  - A party’s financial status or ability to afford a child.
  - The number of existing children, standing alone.
  - The possibility of adoption or other non-biological parenting as a substitute for genetic parenthood.

## Conclusion

The court required an agreement-first rule for pre-embryo disposition disputes in divorce and, when no controlling agreement exists, mandated a defined balancing test centered on the parties’ competing procreational autonomy interests, while excluding certain socio-economic and family-composition considerations from the analysis.


In re Marriage of Rooks, 429 P.3d 579 (Colo. 2018)