Of v. Rooks

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch's homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association's homepage at http://www.cobar.org. ADVANCE SHEET HEADNOTE Divorce—Assisted Reproduction—Embryos.

In this dissolution of marriage proceeding, the supreme court reviews how courts should resolve disagreements over the disposition of a couple's cryogenically preserved pre-embryos when that couple divorces. The supreme court holds that because the underlying interests at stake are the equivalently important, yet competing, right to procreate and right to avoid procreation, courts should strive, where possible, to honor both parties' interests in procreational autonomy. Thus, courts should look first to any existing agreement expressing the spouses' intent regarding disposition of the couple's remaining pre-embryos in the event of divorce. In the absence of such an agreement, courts should seek to balance the parties' respective interests in receipt of the pre-embryos. In balancing those interests, courts should consider the intended use of the party seeking to preserve the pre-embryos; a party's demonstrated ability, or inability, to become a genetic parent through means other than use of the disputed pre-embryos; the parties' reasons for undertaking in vitro fertilization in the first place; the emotional, financial, or logistical hardship for the person seeking to avoid becoming a genetic parent; any demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in the Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 15CA990 Judgment Reversed
en banc
Attorneys for Petitioner:
Azizpour Donnelly, LLC
Katayoun A. Donnelly

Denver
, Colorado Attorneys for Respondent:
James W. Giese, P.C.
James W. Giese
Cheryl J. Lee

Grand Junction
, Colorado Attorneys for Amicus Curiae Academy of Adoption and Assisted Reproduction Attorneys:
Sherman & Howard L.L.C.
Christopher M. Jackson
Rajesh Kukreja

Denver
, Colorado Grob & Eirich, LLC
Seth Grob

Lakewood
, Colorado Attorneys for Amicus Curiae American Association of Pro-Life Obstetricians and Gynecologists:
Thomas More Society
Thomas Olp
Rita Louise Lowery Gitchell

Chicago
, Illinois Messall Law Firm, LLC
Rebecca Messall

Englewood
, Colorado Attorneys for Amicus Curiae Colorado Chapter of the American Academy of Matrimonial Lawyers:
David M. Johnson

Colorado Springs
, Colorado Willoughby & Associates
Kim Willoughby

Denver
, Colorado Attorneys for Amicus Curiae The Colorado Women's Bar Association:
Brownstein Hyatt Farber Schreck, LLP
Carrie E. Johnson
Amanda K. Houseal

Denver
, Colorado JUSTICE MÁRQUEZ delivered the Opinion of the Court.
JUSTICE HOOD
dissents, and CHIEF JUSTICE COATS and JUSTICE SAMOUR join in the dissent. ¶5 Here, the parties' written agreement does not squarely resolve how remaining cryogenically preserved pre-embryos should be allocated in the event of divorce, and thus, for purposes of this dissolution proceeding, the disposition of these remaining pre-embryos must be resolved by balancing the parties' interests. Because the trial court and court of appeals considered certain inappropriate factors in attempting to balance the parties' interests here, we reverse the judgment of the court of appeals and remand the case with directions to return the matter to the trial court to balance the parties' interests under the framework we adopt today.

We granted certiorari to review the following issues:

1. Whether, in the absence of an agreement between the parties, the court of appeals erred in its adoption of the balancing of interests approach to determine the disposition of the parties' cryogenically frozen pre-embryos in a dissolution of marriage.
2. Whether 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 pre-embryos in a dissolution of marriage.

I. Facts and Procedural History

¶6 Petitioner Ms. Mandy Rooks and Respondent Mr. Drake Rooks married in 2002. They separated in August 2014, and Mr. Rooks filed a petition for dissolution of marriage the following month. When the trial court entered its final orders in the dissolution proceedings in 2015, Mr. and Ms. Rooks had three children, and Ms. Rooks was not pregnant. ¶7 Mr. and Ms. Rooks used IVF to have their three children. In 2011, and again in 2013, they entered into agreements with the Colorado Center for Reproductive Medicine ("CCRM") and Fertility Laboratories of Colorado ("FLC") for the IVF services. The agreements identify Ms. Rooks as the "Female Patient" and Mr. Rooks as the "Spouse/Partner." These agreements provide information about the IVF and cryopreservation process. ¶29 Finally, the court of appeals rejected Ms. Rooks's argument that Mr. Rooks relinquished his constitutional right not to procreate by consenting to the use of his sperm to fertilize Ms. Rooks's eggs. It reasoned that the agreement specifically provides for allocation of the pre-embryos to be decided in the dissolution decree and noted that section 19-4-106(7)(b), C.R.S. (2018), expressly allows Mr. Rooks, as a former spouse, to withdraw his consent for placement of the pre-embryos "at any time" before they are placed. Id. at ¶ 60. ¶30 The court of appeals thus affirmed the trial court's judgment awarding the pre-embryos to Mr. Rooks under the balancing of interests approach. ¶31 After this court granted certiorari review of the court of appeals' ruling, Ms. Rooks notified this court that she had become pregnant, but that she still wishes to use the cryogenically frozen pre-embryos to have more children.

The agreement with FLC states that "in this consent and agreement, anywhere the word 'embryo' is used the word 'pre-embryo' would also apply." The agreement further states that "[p]atient and partner acknowledge the 'cryopreserved embryos' will have no capacity to produce human life until by proper thawing and ascertainment of survival an embryo has been produced and properly transferred into the patient's uterus."

Ms. Rooks obtained a stay in the trial court to permit the pre-embryos to remain in cryo-storage pending resolution of appellate proceedings.

Ms. Rooks asserted a violation of her rights to equal protection, due process, procreational autonomy, privacy, and of her liberty interest in the care, custody, and management of her children. Marriage of Rooks, ¶ 52.

At oral argument, the parties noted that Ms. Rooks had since given birth.

II. Analysis

¶32 We begin by briefly reviewing the U.S. Supreme Court's and this court's reproductive rights decisions to identify the nature of the rights that underlie this marital property dispute. Because this case presents an issue of first impression in Colorado, we then examine case law from courts in other jurisdictions that have confronted similar disputes. These courts have taken various approaches, but all the approaches generally seek to (1) secure both parties' consent where possible and (2) avoid results that compel judgment of the court of appeals and remand the case with directions to return the matter to the trial court to apply the framework we adopt today.

A. Reproductive Rights and Autonomy

¶35 Although this case concerns the equitable division of marital property in a divorce proceeding, we recognize that the parties' competing interests in the disputed pre-embryos derive from constitutional rights in the realm of reproductive choice. We therefore briefly discuss the governing case law in this area. ¶36 The U.S. Supreme Court has recognized the importance of individual autonomy over decisions involving reproduction. Over seventy-five years ago, the Court recognized that procreation is "one of the basic civil rights" and that marriage and procreation are fundamental to human existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). As the Court considered new questions involving reproductive rights, such as the right to access contraception, it began to articulate those rights as part of a cluster of privacy rights grounded in several fundamental constitutional guarantees. See Griswold v. Connecticut, 381 U.S. 479, 485 (1965). The Court also began to acknowledge an individual's privacy right to control decisions regarding procreation and family relationships: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). In addition to encompassing choices relating to "marriage," "procreation," "contraception," "family relationships," and "child rearing implies a more general right to reproductive autonomy which must include under certain circumstances the opportunity to prevent procreation through a variety of means including non-compulsory sterilization." Matter of A.W., 637 P.2d 366, 369 (Colo. 1981). We have observed that the cases addressing restrictions on abortions "also have as their basis the constitutional right of individual control over procreative decisions." Id. "Reading [the abortion] cases in conjunction with Skinner leads to the conclusion that an individual has the fundamental right not only to bear children, but to decide not to be the source of another life as well." Id. ¶39 We note that the right to procreate or to avoid procreation does not depend on the means by which that right is exercised. An individual may exercise her right to procreate through conventional conception or IVF—or she may exercise her right to avoid procreation through abstinence, contraception, voluntary sterilization, or even abortion—but the nature of the right itself (to procreate or to avoid procreation) remains the same.

B. Other Jurisdictions

¶40 Having acknowledged the rights that underlie the parties' dispute here, we turn to case law from courts in other jurisdictions that have confronted similar disputes. These courts have adhered to or combined aspects of three main approaches: (1) interpreting the parties' contract or agreement regarding disposition of the pre-embryos; (2) balancing the parties' respective interests in receiving the pre-embryos; or (3) requiring the parties' mutual contemporaneous consent regarding disposition of the pre-embryos. (holding that disputes involving the disposition of frozen pre-embryos should be resolved first by looking to an agreement between the parties but that "[i]f no prior agreement exists, then the relative interests of the parties in using or not using the [pre-embryos] must be weighed").

Some courts have concluded that such agreements are unenforceable for public policy reasons. See, e.g., A.Z. v. B.Z., 725 N.E.2d 1051, 1056-57 (Mass. 2000) (concluding it was "dubious at best that [the clinic consent form] represents the intent of the husband and the wife regarding disposition of the [pre-embryos] in the case of a dispute between them," and that, in any event, the court "would not enforce an agreement that would compel one donor to become a parent against his or her will"); see also J.B. v. M.B., 783 A.2d 707, 719 (N.J. 2001) (adopting rule that, for public policy reasons, courts should "enforce agreements entered into at the time in vitro fertilization is begun, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored [pre-embryos]").

C. Colorado Statutes

¶49 Keeping in mind the approaches taken in other jurisdictions, we now turn to Colorado statutes for direction in resolving the case before us. ¶50 The Colorado Probate Code addresses legal parenthood in the context of assisted reproduction. Relevant here, section 15-11-120(4), C.R.S. (2018), provides that "a parent-child relationship exists between a child of assisted reproduction and the husband of the child's birth mother if the husband provided the sperm that the birth mother used during his lifetime for assisted reproduction." However, this provision acknowledges two exceptions to this general rule of legal parenthood. First, section 15-11-120(9) provides, "[i]f a married couple is divorced before placement of eggs, sperm, or embryos, a child resulting from the assisted reproduction is not a child of the birth mother's former spouse, unless the former spouse consented in a record that if assisted reproduction were to occur after divorce, the child would be treated as the former spouse's child." Second, section 15-11-120(10) provides that "[i]f, in a record, an individual withdraws consent to assisted reproduction before placement of eggs, sperm, or embryos, a child resulting from the assisted reproduction is not a child of that individual." In other words, subsections (9) and (10) make clear that a spouse who either divorces or withdraws consent to assisted ¶58 Although Colorado statutes do not address the proper disposition of marital pre-embryos upon divorce, the Uniform Dissolution of Marriage Act ("UMDA") does generally direct a court presiding over dissolution proceedings to "divide the marital property . . . in such proportions as the court deems just." § 14-10-113(1), C.R.S. (2018); see also In re Balanson, 25 P.3d 28, 35 (Colo. 2001) (a court must make an equitable distribution of marital property after considering all relevant factors). That the UMDA requires the court to divide the marital property "in such proportions as the court deems just" directs that some sort of balancing is appropriate here. See § 14-10-113(1).

The 2000 version (amended in 2002) of the Uniform Parentage Act promulgated by the National Conference of Commissioners on Uniform State Laws contains a similar provision addressing the effect of dissolution or withdrawal of consent on legal parenthood of a resulting child:

(a) If a marriage is dissolved before placement of eggs, sperm, or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were to occur after a divorce, the former spouse would be a parent of the child.
(b) The consent of a woman or a man to assisted reproduction may be withdrawn by that individual in a record at any time before placement of eggs, sperm, or embryos. An individual who withdraws consent under this section is not a parent of the resulting child.

Effect of Dissolution of Marriage or Withdrawal of Consent., Unif. Parentage Act (2000) § 706.

D. Resolving Pre-Embryo Disputes in Colorado

¶59 With these legal principles in mind—which derive from the foregoing discussion of case law regarding constitutional rights in the realm of reproductive choice, case law from other jurisdictions resolving similar disputes, and applicable Colorado statutes—we now address how courts in Colorado should resolve disagreements over a couple's cryogenically preserved pre-embryos when that couple divorces. ¶60 First, we reject the mutual contemporaneous consent approach. As discussed above, the repeated references in both the Probate Code and Children's Code to a resulting child, see §§ 15-11-120(9)-(10); § 19-4-106(7), reflect the legislature's implicit rejection of the mutual contemporaneous consent approach. Again, if the parties' mutual contemporaneous consent were required to proceed with implantation, there would be no need to address the legal relationship between a non-consenting party and a resulting child, because that child could not exist. We also agree with those courts that have ¶72 The framework that we adopt today recognizes that both spouses have equally valid, constitutionally based interests in procreational autonomy. It encourages couples to record their mutual consent regarding the disposition of remaining pre-embryos in the event of divorce by an express agreement. Under such an agreement, if one spouse has consented to awarding the pre-embryos to the other spouse or to donating them to another couple for implantation, courts should give effect to that decision. Where the parties' consent to disposition of the pre-embryos in the event of divorce is not memorialized in an enforceable agreement, and the parties therefore must turn to a court to resolve their dispute, the approach we adopt today tasks the dissolution court with weighing the interests at stake and awarding the pre-embryos accordingly. Importantly, the balancing of interests approach we adopt is consistent with Colorado law directing dissolution courts to divide marital property based on a consideration of relevant factors, while taking into account that pre-embryos are marital property of a special character.

Courts in other jurisdictions have resolved the factual question regarding one party's ability reasonably to achieve genetic parenthood without the preserved pre-embryos by looking to testimony from the parties regarding their medical history and consultations with medical professionals. See Reber, 42 A.3d at 1138; Szafranski, 34 N.E. 3d at 1162.

E. Application

¶73 Here, Mr. and Ms. Rooks reached agreement regarding the disposition of pre-embryos in the event of certain contingencies (such as the death of one or both of the spouses). However, they failed to agree in advance how remaining cryogenically preserved pre-embryos should be allocated in the event of divorce. Instead, as the court of appeals correctly concluded, their written agreement left it to the dissolution court to determine how to allocate the pre-embryos. Marriage of Rooks, ¶ 31. Thus, awarding the pre-embryos in accordance with law governing the distribution of marital property also satisfies the expectations of the parties, who specified that in the event of divorce, the dissolution decree would address the disposition of any remaining cryogenically preserved pre-embryos. Because we announce a new framework for resolving disputes regarding the disposition of pre-embryos frozen during marriage in the event of divorce, and because the trial court and court of appeals considered certain inappropriate factors in attempting to balance the parties' interests here, we reverse the judgment of the court of appeals and remand the case with instructions to return the matter to the trial court to balance the parties' interests under the approach we adopt today.

III. Conclusion

¶74 In the absence of more specific legislative guidance in these circumstances, we adopt a balancing framework for courts to apply in allocating disputed pre-embryos in divorce proceedings. Because the underlying interests at stake are the equivalently important, yet competing, right to procreate and right to avoid procreation, courts should strive, where possible, to honor both parties' interests in procreational autonomy. Thus, we hold that courts should award pre-embryos first by looking to an existing enforceable agreement addressing the parties' wishes regarding disposition of remaining pre-embryos in the event of divorce. In the absence of such an agreement, a dissolution court tasked with resolving such a dispute should weigh the parties' respective interests in receipt of the pre-embryos. In balancing those interests, courts should consider the intended use of the party seeking to preserve the pre-embryos; a party's demonstrated ability, or inability, to become a genetic parent through means other than use of the JUSTICE HOOD, dissenting. ¶76 This case requires us to consider the proper role of courts when parties disagree during a divorce about whether to use their cryogenically frozen pre-embryos to procreate through in vitro fertilization ("IVF"). Because I believe a court should never infringe on a person's constitutional right to avoid procreation through IVF, I disagree with the majority's decision to entangle our courts in such deeply personal disputes by employing a multi-factor balancing test. Instead, I would embrace the contemporaneous mutual consent approach outlined by the majority. Maj. op. ¶ 45. Doing so would not only avoid invading citizens' constitutional rights but also comport with relevant Colorado statutes and advance sound public policy. Therefore, I respectfully dissent.

I. Freedom from Government Infringement on a Person's Decision to Not Procreate

¶77 The majority has provided a comprehensive overview of the relevant case law. Maj. op. ¶¶ 36-48. Therefore, I will refrain from simply echoing it now. Instead, I focus on how the tenets of constitutional law outlined by the majority should apply to IVF cases. ¶78 As the majority discusses, there are two fundamental rights implicated when considering this type of IVF dispute: (1) the right to procreate of the party who wants to implant the pre-embryo and (2) the right to avoid procreation of the party who does not want to implant the pre-embryo. Id. at ¶ 3. When there is such disagreement, only one party can prevail. Here, as to these pre-embryos, either Mr. Rooks will exercise his right exercise her right to procreate, not because of any state action but, instead, because Mr. Rooks is exercising his right to avoid procreation. ¶81 Under the majority's test, the courts are forced to mediate a fundamentally personal decision and, in the process, infringe on a litigant's constitutional rights. In some contexts, this judicial choice may be unavoidable. Not so here. The contemporaneous mutual consent approach appropriately minimizes the government's role in resolving this constitutional dilemma.

II. Contemporaneous Mutual Consent Approach

¶82 Of the approaches outlined by the majority, only the contemporaneous mutual consent approach adequately shields citizens from unwarranted governmental intrusion. See In re Marriage of Witten, 672 N.W.2d 768, 783 (Iowa 2003); A.Z. v. B.Z., 725 N.E.2d 1051, 1057-59 (Mass. 2000); McQueen v. Gadberry, 507 S.W.3d 127, 157 (Mo. Ct. App. 2016). Under this test:

no transfer, release, disposition, or use of the embryos can occur without the signed authorization of both donors. If a stalemate results, the status quo would be maintained. The practical effect will be that the embryos are stored indefinitely unless both parties can agree to destroy the fertilized eggs. Thus, any expense associated with maintaining the status quo should logically be borne by the person opposing destruction.

Witten
, 672 N.W.2d at 783. By emphasizing that consent is always essential, the mutual contemporaneous consent approach leaves this highly personal choice in the hands of donors. Id. at 783 (reasoning that balancing tests in this context merely "substitute[] the court as decision maker"); A.Z., 725 N.E.2d at 1058 ("[F]orced procreation is not an area amenable to judicial enforcement."); McQueen, 507 S.W.3d at 157 (finding that mutual bears the consequences of these decisions in the way that gamete-providers do." Id. Adopting the contemporaneous mutual consent approach would ensure that "gamete-providers alone" make the "decision to continue or terminate the IVF process." Id.

A. Protection Against Constitutional Harm

¶85 Yet what exactly is it that the contemporaneous mutual consent test guards against? True, it keeps the courts from intruding on a donor's constitutional right to not procreate. But to properly understand this right, we must see what types of harms a violation of it would engender. This is vital given that, even if a court were to award the pre-embryos to Ms. Rooks, Mr. Rooks will not become the legal parent of Ms. Rooks's eventual children. See 19-4-106(7)(a), C.R.S. (2018) (allowing an ex-spouse to withdraw consent to legal parentage); see also infra Section II.B. So, how will Mr. Rooks be harmed by a decision granting Ms. Rooks the pre-embryos given that he will have no legal responsibilities to his genetic children? ¶86 For the non-consenting donor, there are several harms that may be inflicted, each of which derives "from the unwanted existence of a child to whom one stands in relationship of parent." See I. Glenn Cohen, The Right Not to Be a Genetic Parent?, 81 S. Cal. L. Rev. 1115, 1135 (2008). While Mr. Rooks will not be the legal or (obviously) the gestational parent, he will still have some residual, societal parenthood attached to him by both the nature of his previous relationship with Ms. Rooks and his genetic tie to the child. Early Embryos, 76 Va. L. Rev. 437, 479 (1990). It seems reasonable to infer that, if Mr. Rooks didn't fear such reverberations, we probably wouldn't be here today. ¶90 As each of these examples demonstrates, the majority's test permits the state to use its power to inflict constitutional harm. Citizens are meant to be "free from unwarranted governmental intrusion" when deciding "whether to bear or beget a child." Eisenstadt, 405 U.S. at 453. But instead of unfettering citizens, the majority's test places the state directly between two people in a decision that "fundamentally affect[s]" their lives. Id. It is true that some harm is suffered by the parent wanting to procreate under the contemporaneous mutual consent approach. ¶91 The crucial difference is that the state has no role in perpetrating it. Ms. Rooks has the right to be free from "unwarranted governmental intrusion" in exercising her right to procreate. Eisenstadt, 405 U.S. at 453. She does not have the right to compel genetic procreation against another person's will.

Indeed, the donor wishing to implant would be required to "try again," with all its attendant monetary costs and physical invasions. In some cases, a donor may lose the ability to have more children or any children at all. These harms are real. But under the contemporaneous mutual consent approach, they are not inflicted by the state.

B. Colorado Statutory Scheme

¶92 That the state should avoid inflicting constitutional harms on its citizens should be enough to caution this court away from adopting any sort of test that forces it to choose sides. If that concern is insufficient, a portion of the Colorado Uniform Parentage Act, specifically section 19-4-106(7)(b), arguably codifies the contemporaneous mutual consent approach. At the very least, this statutory provision sheds light on the policy preference of the Colorado General Assembly. Subsection (7) reads, in whole, as follows:

(7)(a) If a marriage is dissolved before placement of eggs, sperm, or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were to occur after a dissolution of marriage, the former spouse would be a parent of the child.
(b) The consent of a former spouse to assisted reproduction may be withdrawn by that individual in a record at any time before placement of eggs, sperm, or embryos.

§ 19-4-106(7). ¶93 Subsection (7)(b) seems to embrace the contemporaneous mutual consent approach, stating that a former spouse maintains the power to veto assisted reproduction at any point before placement of the pre-embryo. ¶94 The majority argues that (7)(b) should be read to modify (7)(a), referring to the same "consent" as in (7)(a), or consent to be a legal parent, not consent to placement. Maj. op. ¶¶ 51-52. Under the majority's reading, (7)(a) permits a former spouse to consent to be a legal parent, and (7)(b) empowers a former spouse who has previously given that consent to withdraw it. Id. ¶95 I am not persuaded by the majority's limited reading. As I see it, the two subsections describe precisely the type of consent at issue for each subsection. And the two types of consent are different. Subsection (7)(a) frames the consent in more narrow language, "that if the assisted reproduction were to occur after the dissolution of is no resulting child. It would make little sense to place such language in a provision that prohibits a former spouse from implanting pre-embryos in the first place. ¶101 Even if one might question whether the General Assembly intended to create a contemporaneous mutual consent rule in subsection (7)(b), that does not give us license to craft a test that inflicts constitutional harm. If the General Assembly has not embraced the contemporaneous mutual consent rule, as the majority contends, courts should still steer away from decisions that compel procreation. See Maj. op. ¶ 55. ¶102 So, mutual consent is essential. This begs the question of when the mutual consent must occur for it to be binding.

The full text reads: "If a spouse dies before placement of eggs, sperm, or embryos, the deceased spouse is not a parent of the resulting child unless the deceased spouse consented in a record that if assisted reproduction were to occur after death, the deceased spouse would be a parent of the child." § 19-4-106(8).

It is worth noting that the comment to the subsection (7) equivalent of the Uniform Parentage Act ("UPA") states that the UPA does not attempt to resolve issues regarding disputed pre-embryos, but leaves such decisions to the states. Unif. Parentage Act § 706 cmt. (Nat'l Conference of Comm'rs on Unif. State Laws 2002). However, the comment to section 707, the subsection (8) equivalent, does state that section 707 seeks to avoid posthumous effects on intestate succession. Id. § 707 cmt. Thus, even though the framers of the UPA did not attempt to explicitly resolve pre-embryo disputes, they did insert language for deceased spouses that does allow for the withdrawal of consent, and subsequently used that same language for former spouses. This, at a minimum, demonstrates that the UPA framers knew that the section 706 language was capable of an interpretation that pertained to pre-embryo disputes. And, given that our General Assembly wanted to ensure that IVF consent laws are "balanced and fair," and sought to address "all . . . contingencies" regarding withdrawal of consent, the UPA comment to section 706 is inapposite to a proper interpretation of the Colorado statute. See Hearings on S.B.03-79 before H. Comm. on Info. & Tech., 64th General Assembly (Mar. 17, 2003).

C. When Must Both Parties Consent?

¶103 Some proponents of other approaches argue that the parties consent when they allow the sperm and eggs to be harvested and united. This strikes me as simplistic, as it suggests that a party supplying an egg or sperm for IVF forever consents to becoming a genetic parent. Instead, parties should be allowed to withdraw consent until the last point at which an additional affirmative step must be taken in the IVF process in order to produce a child. Before placement, both parties should retain veto power. From a practical point, to hold otherwise would suggest that a person who provides sperm or eggs during IVF consents to procreate as to each and every sperm or egg harvested at any point in the future. As the amicus brief for the American Academy of Matrimonial Lawyers states, eight to twenty-five eggs are often harvested at a time. Amicus Br. Colorado Chapter of the American Academy of Matrimonial Lawyers 4-5. Imagine twenty-five eggs are successfully fertilized. Do we really want to say that partners who agree to IVF thereby forever consent to genetically parent all children resulting from successful implantation of any of those pre-embryos? My answer is no.

D. The Contemporaneous Mutual Consent Approach Advances Public Policy

¶104 While the constitutional right of a person to not procreate should drive this discussion, I note that the contemporaneous mutual consent approach advances sound public policy. First, I address the two critiques of this model that the majority highlights. Maj. op. ¶ 46. Then I address the inevitable difficulty that courts will have in applying the majority's test to the numerous situations in which these disputes could arise. ¶105 The majority describes how some find the contemporaneous mutual consent approach unrealistic. After all, they say, if the parties could reach an agreement, they would not be in court. Id. But this pragmatic observation ignores another: After the dissolution of a marriage, rancor typically subsides. However unlikely it might seem that these parties will eventually reach agreement about these pre-embryos, common ground might not prove so elusive in other cases, particularly with the passage of time after dissolution. Moreover, by adopting the contemporaneous mutual consent model, the parties do leave the divorce process with some resolution. If there is no agreement, there is no change. The status quo is simply preserved. And that is a resolution that will engender far less contentiousness and potentially wrenching litigation. Cf. § 14-10-102(2)(b), C.R.S. (2018) (noting that one of the underlying purposes of the logistical considerations." Id. Which "emotional" factors are relevant? And in which direction should such factors cut? The majority cites favorably Davis, which considered the ex-husband's childhood experiences involving divorce. Id. at ¶ 68 (citing Davis, 842 S.W.2d at 603-04). Is the court now to probe the intimate early childhood experiences of non-consenting donors just so they can avoid being compelled to produce genetic offspring? These factors leave too much undecided—particularly because the majority expressly makes the list of factors in the balancing test "non-exhaustive." Maj. op. ¶ 65. Rather than limiting litigation, the majority invites predictable appeals. Inevitably, the losing party will appeal and claim that the lower court misapplied the relevant factors, further enmeshing the government.

Colorado's Uniform Dissolution of Marriage Act (UDMA), §§ 14-10-101 to -133, C.R.S. (2018), provides trial courts the power to make certain "inextricably intertwined" determinations related to a dissolution of marriage, including property distribution, maintenance, and attorney fees. See In Re Marriage of de Koning, 2016 CO 2, ¶ 26, 364 P.3d 494, 498 (describing how "awards of spousal maintenance and attorney's fees flow from the property distribution"). In making the required determinations after a contested hearing, trial courts have latitude to ensure a just resolution. See, e.g., § 14-10-114(3)(c)(XIII) (stating that courts should determine an amount of spousal maintenance that is fair and equitable after considering relevant factors, including "[a]ny other factor that the court deems relevant"); In re Marriage of Aldrich, 945 P.2d 1370, 1378 (Colo. 1997) ("The district court then apportions [attorney] fees and costs in light of the statute's equitable purpose . . . ."). And for some decisions, the legislature has expressly directed the trial court to consider a parent's behavior as related to children and the other party. See § 14-10-124(1.5)(a)(VI) (listing one factor for the court to consider when determining the best interest of the child as "[t]he ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party"). In the event that parties are able to reach an out-of-court settlement and present a separation agreement to the court, the court still has the ability to review the agreement for unconscionability. See § 14-10-112(2). "If the court finds the separation agreement unconscionable, the court may request the parties to submit a revised separation agreement, or the court may make orders for the disposition of property, support, and maintenance." § 14-10-112(3); see also In re Marriage of Manzo, 659 P.2d 669, 674 (Colo. 1983) (describing that before the court incorporates the property division provisions of a separate agreement into a dissolution decree, the court should review the agreement for "sharp dealing not consistent with the obligation of marital partners to deal fairly with each other" and determine "whether under the totality of the circumstances the property disposition is fair, just and reasonable"). It follows, then, that when one party tries to use pre-embryos as an unfair negotiating tool, the trial court would be able to intervene through the various provisions of the UDMA to ensure a just result. --------

III. Conclusion

¶109 The decision to have children is one of the most consequential choices people make in life. The considerations that go into it are numerous and personal; it is not a decision that most would leave to their dearest friends, let alone the state. It is difficult, if not impossible, for a court to properly determine whose constitutional rights should prevail in cases like the one before us. Sometimes courts are left with no choice but to balance and choose competing constitutional rights. But here, where the decision is ultimately a private one between two people, the court need not get involved. Only once the court involves itself is there any constitutional violation. Up to and until that point, it is an intimate, personal decision. 60 ¶110 Because the contemporaneous mutual consent approach better protects the constitutional rights at stake, aligns with Colorado law, and is more sound as a matter of policy, I respectfully dissent. I am authorized to state that CHIEF JUSTICE COATS and JUSTICE SAMOUR join in this dissent.