Family Law

Colorado Court Of Appeals Rules For Privacy Rights In Embryo Dispute 

The Court ruled in favor of a party’s constitutionally-based privacy right to reproduce or not reproduce over a sincerely held religious belief that embryos are people. 

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Author’s note: the Olsen and Rooks opinions use the term “pre-embryo.” Here, I use the more colloquial term “embryo” — but mean “pre-embryo” or a fertilized egg not transferred or implanted into a human reproductive tract.

The first baby born from an in vitro fertilization (IVF) procedure is now 44 years old. We’ve had over four decades to decide what embryos are, legally speaking, and how to resolve disputes over their control and use. Unfortunately, that analysis has yet to become simple or easy. As a recent Colorado case demonstrates, the attempt to fairly balance the parties’ interests in a fight over embryos is difficult, to say the least. And the shockwaves of the U.S. Supreme Court’s decision in the Dobbs case — overturning Roe and Casey — is likely to muddy the waters even further.

On June 23, 2022, the Colorado Court of Appeals issued an important ruling in the case of In re Marriage of Olsen. This was not this case’s first visit to the Centennial State’s Court of Appeals.

The Story

As with most embryo cases, this one started with marriage, but no baby, and a couple turning to medical intervention to conceive. Here, Jamie Fabos (formerly Jamie Olsen) and Justin Olsen went through in vitro fertilization to have a child. The procedures were successful, resulting in the couple having twins in 2011. The IVF procedures also resulted in two additional cryopreserved embryos, which  are the subject of the couple’s dispute. Fabos filed for divorce in December 2012. (Checks notes … so this case has been going on and on for nearly  a decade.) Fabos didn’t want the embryos destroyed. Instead, she asked the court that the remaining embryos be donated to another couple for conception purposes; Olsen asked that the embryos be discarded.

At the district court, Fabos won! The court awarded her the embryos for donation to another couple. Olsen, not wanting another couple to raise his biological children, then appealed. The Court of Appeals vacated the original district court holding, and ruled that the case needed to be reconsidered. It offered specific instructions — such as not to weight the “wife’s subjective belief that the pre-embryos should be protected as human life more heavily than husband’s interest in not procreating” — and using the balancing test framework and factors prescribed in the Colorado Supreme Court’s then-new embryo-disposition case, Rooks — which was announced after the initial Olsen district court decision.

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The Factors

In Rooks, the Colorado Supreme Court said that where there is a dispute over embryo disposition, courts should always first look to an agreement between the parties. In Rooks, like in Olsen, the clinic consent form did not have the couple choose a specific disposition option in the case of divorce, but deferred to any dissolution judgment or settlement. #nothelpful. And the couples had not otherwise documented their embryo disposition intentions in the case of divorce.

The Rooks opinion then laid out a balancing-of-interests test and a nonexhaustive list of factors to consider. These included: the intended use of the party seeking to preserve the disputed embryos; the demonstrated physical ability or inability of the party seeking to implant the embryos to have a genetic child through other means; the parties’ original reasons for pursuing IVF; the hardship to the party seeking to avoid becoming a genetic parent, including emotional, financial, or logistical considerations; and either party’s demonstrated bad faith or attempt to use the embryos as unfair leverage.

So the district court did as it was told, and weighed the factors … and found that the embryos should still be awarded to Fabos for donation to others for conception purposes. The court gave significant weight to Fabos’ sincerely held religious belief that the embryos are “human life,” and should be given a chance at conception — despite being specifically instructed by the Court of Appeals not to!

In last week’s ruling, the Court of Appeals announced that the district court analyzed the factors incorrectly, and reached the wrong result. The Court of Appeals re-examined the case with the same Rooks factors, finding that the balance leaned, instead, in favor of Olsen and his right not to reproduce. The Court then directed that the embryos be awarded to Olsen for destruction.

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The Court determined that Fabos’ religious beliefs were incorrectly considered by the district court, as part of the first Rooks factor (looking at the intended use of the party seeking to preserve the disputed embryos). That consideration “erroneously caused the district court to weight the factor substantially in wife’s favor.” Instead, the court should have considered Fabos’ beliefs as merely “an additional factor beyond those articulated in Rooks.” Further, the Court found that the district court failed to follow the Rooks’ mandate 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.”

Judicial Gossip

Interestingly, the judge in the case’s district court rulings, Judge Timothy J. Schutz, was appointed to the Colorado Court of Appeals on January 1, 2022. Which probably explains this gentle line in the opinion concerning the author’s now fellow Court of Appeals judge, “We greatly respect the district court’s careful consideration of these extraordinarily difficult legal questions and its extensive order after remand” … before then tearing the decision apart.

A Familiar Battle

The case pitted some very familiar conceptual threads against each other — religious beliefs versus reproductive autonomy. The Court cited to Rooks, which, in turn, cites to the constitutional precedents of privacy and reproductive rights, like the U.S. Supreme Court’s decision in Eisenstadt (finding a fundamental right to contraception). Of course, with recent SCOTUS rulings, those constitutional rights based in privacy and substantive due process are feeling a lot less certain. Will the shifting ground fundamentally change how embryo disputes are resolved? The reverberations of Dobbs are sure to affect these questions for years to come.

For now, even though we likely won’t see any babies come from the couple in this case, it is at least a present win for reproductive autonomy. Now we wait to see whether to Colorado Supreme Court will weigh in, or if the Dobbs aftermath shifts the landscape.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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