Frozen Embryos in a Colorado Divorce – Again

Fetus floating in clouds with scales of justice

Frozen Embryos at Divorce – a Balancing Test

It was inevitable that litigation would follow. In 2018, the Colorado Supreme Court issued a ruling on the disposition of frozen embryos in a Colorado divorce when the parties’ agreement with the fertility clinic does not address divorce. Rooks.1In re: Marriage of Rooks, 2018 CO 85.

Rather than adopting a bright-line rule, the Court held that trial judges should apply a balancing test which considers::

  • The intended use of the pre-embryos by the spouse who wants to preserve them, and a spouse seeking to use them through implantation has “weightier interest” than one seeking to donate them. ¶ 66.
  • Whether the spouse seeking them can have biological children through other means, so a spouse who could not conceive any other way had a greater interest than a spouse who still could conceive. ¶ 67.
  • The original reasons for IVF treatment (e.g. to preserve one spouse’s ability to have children later) – a factor the court acknowledged favors preservation over destruction. ¶ 68.
  • Any hardship on the spouse seeking to avoid becoming a parent. ¶ 69.
  • Any bad faith by a spouse, e.g. using the embryos as leverage in the dissolution. ¶ 70.
  • Any other relevant considerations. ¶ 71.

For a more comprehensive discussion of the Rooks case and legal issues surrounding frozen embryos in a Colorado divorce, see the Disposition of Frozen Embryos article in the Colorado Family Law Guide.

What Happens to Frozen Embryos in Colorado after Rooks?

The Colorado Court of Appeals just issued a ruling in Fabos,2In re: Marriage of Fabos, 2019 COA 80. the first such case since Rooks. The parties were divorced pre-Rooks, and the trial court issued balanced various factors which were similar to the ones ultimately set forth in Rooks, holding that the wife could donate the couple’s two frozen embryos rather than letting them be destroyed, as the husband wanted.

The couple had two frozen embryos that the wife wanted to donate, rather than using herself (she had already had two children using different frozen embryos). The fertility agreement signed by the couple provided for donation in case of death, incapacitation, or turning 55, but did not address disposition in case of divorce.

The trial court sided with the wife, finding that her desire to donate the embryos, thereby using them for a productive purpose, outweighed the husband’s interest in avoiding procreation. The trial court also “heavily” weighed the wife’s moral belief that the embryos were human lives.

The Court of Appeals reversed, holding that no greater weight should be given to the wife’s strong moral wishes. Rather, since the wife was planning on donating them rather them using them, she had a weaker interest:

“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.”

Fabos.3In re: Marriage of Fabos, 2019 COA 80, ¶ 45.

Moreover, “although wife is constitutionally entitled to her sincerely held personal moral beliefs, such beliefs cannot be accorded dispositive weight.” Fabos.4In re: Marriage of Fabos, 2019 COA 80, ¶ 56.

What does the Fabos case settle? Not much, and if couples don’t address divorce in their fertility agreements, they are simply setting themselves up for prolonged litigation.

Award-Winning Family Law Attorney In Colorado Springs

U.S. News & World Report calls Graham.Law one of the Best Law Firms in America, and our managing partner is a Colorado Super Lawyer. Our family law attorneys have years of experience helping clients navigate the Colorado legal system. We know Colorado divorce & family law inside and out, from complex multi-million dollar property or child custody cases to basic child support modifications.

For more information about our top-rated El Paso County family law firm, contact us by filling out the form on the right or calling us at (719) 630-1123 to set up a free consult, or click on:

Colorado Family Law. Period.


  • Excellent discussion; fully answered all my questions with examples I could clearly understand

    Jane Rohr Avatar
    Jane Rohr
  • Carl Graham is by far the best divorce attorney I have used and would highly recommend him to anyone who is looking for an ethical, knowledgable, fair attorney. My case was not your normal circumstanc... read more

    Gary Oldguy Avatar
    Gary Oldguy
  • As a former military spouse trying to collect my share of my ex's military retirement from California when the divorce decree and all the supporting documents were filed in Colorado i was apprehensive... read more

    Janine Pandher Avatar
    Janine Pandher
  • Where do I begin? Well AFTER have a consultation with another attorney ( who made me feel as though i was undeserving of his expertise) I was extremely apprehensive when coming to Graham Law. This was... read more

    Chris Whitfield Avatar
    Chris Whitfield
  • Mr. Carl Graham, Cindi (his paralegal), and the rest of his office staff helped us with a military divorce. Mr. Graham is very knowledgeable about military ways and processes. I appreciated the fact... read more

    Shelle Dier Avatar
    Shelle Dier
  • If you are searching for a divorce lawyer, first I would like to say I’m sorry you are going through this. It isn’t and easy road. I know sometimes things just don’t work out to save your marriage. Ho... read more

    Trevor Lisby Avatar
    Trevor Lisby
  • If you are searching for a divorce lawyer, first I would like to say I’m sorry you are going through this. It isn’t and easy road. I know sometimes things just don’t work out to save your marriage. Ho... read more

    Trevor Lisby Avatar
    Trevor Lisby
  • I called Graham law firm to schedule a consultation and spoke with Corinna. When beginning your search for information with any family matters there are many questions and a sense of anxiety of the u... read more

    Kathlena Williams Avatar
    Kathlena Williams
  • I was divorced in CO but moved to TX & had issues with my divorce decree from a previous attorney- after referrals from several other firms in CO regarding the best military law firm I went with Graha... read more

    Sarah DeLorean Avatar
    Sarah DeLorean
  • Very helpful initial meeting.

    Steven Babbitt Avatar
    Steven Babbitt
  • Carl and his team are awesome and super easy to work with. His knowledge is tremendous and he quickly handled my case despite me being across the country. I would do business with his team again and... read more

    Michael Brooks Avatar
    Michael Brooks
  • I was impressed by Graham Law in general but most impressed with Brian Boney. Brian is an excellent family law attorney. Attentive, detail-oriented, and hard-working, Brian surpassed my expectations f... read more

    Robert Weeks Avatar
    Robert Weeks
  • Mr. Grahm was professional, knowledgable and very prepared. He was also kind and understanding. He knew his military in's and outs. Because of this is got exactly what I was asking for... a swift a... read more

    MAMCO STAFF Avatar
  • I had the unpleasant task of taking my ex back to court. Carl was the person for the job. His attention to detail and professionalism got me the result I needed. Sincere thanks to Carl and his great s... read more

    Lisa Bruinsma Avatar
    Lisa Bruinsma
  • This firm is quite wonderful....very family and military oriented. Compassionate and patient, very understanding and will go to bat for you!!!!! Give them a call!!!!!

    Teresa Wilkie Avatar
    Teresa Wilkie
  • Brian did an amazing job helping me with a personal matter! Its not the first time I ask Brian for help, and every time he exceeds my expectations! Thank you for your kindness, understanding and suppo... read more

    Iryna Volynets Avatar
    Iryna Volynets
  • Divorce is never easy, but Carl and his warm team helped me navigate this very difficult time. This was a military divorce, so Carl's expertise helped me understand exactly what my options were as a f... read more

    Kara Longmire Avatar
    Kara Longmire
  • I have had two occasions that I have needed Carl Graham's assistance with child support issues and both times Mr. Graham and his team were amazing. Mr. Graham is straight forward and honest. I highly ... read more

    Jason Ragland Avatar
    Jason Ragland
  • Can't thank the team enough.

    Kevin Czarnecki Avatar
    Kevin Czarnecki
  • Very professional and extremely supportive throughout my needs.

    Doyle McNeil Avatar
    Doyle McNeil