Disposition of Pre-embryos in Divorce

In recent years an interesting and controversial issue has arisen in the area of family law—when parties to a divorce disagree about their pre-embryos, what should be done? [1]

In Colorado, a pre-embryo does not have the same legal status as a person. [2] In the context of a divorce, pre-embryos are considered marital property. [3]

The Colorado courts first addressed this issue in 2018. The Colorado Supreme Court held that trial courts must resolve disputes over pre-embryos by first looking to any agreement between the parties regarding the disposition of pre-embryos upon divorce; and if an agreement exists, it must be enforced. [4]

The parties in the Rooks divorce did not have such an agreement. Accordingly, the Rooks Court applied a balancing test with respect to each parties’ interests and identified a number of factors that trial courts should consider, including, but not limited to: the intended use of the embryos, the ability of the party requesting the embryos to have biological children by other means, the parties’ original reasons for pursuing IVF, and the potential hardship to the party opposed to having more children. Under the circumstances of the Rooks case, the husband’s right “not to be forced to become a genetic parent” outweighed the wife’s right to use the pre-embryos to have more children. [5]

The list of factors identified by the Colorado Supreme Court, however, is not exhaustive and will not conclusively resolve all further disputes. Thus, as is often the case in family law, trial courts will determine the disposition of pre-embryos on a case-by-case basis.

1 A pre-embryo is defined as “A fertilized ovum up to 14 days old, before it becomes implanted in the uterus.” The American Heritage Stedman’s Medical Dictionary.

2 CRS § 18-6-401(1)(a),

3 In re Marriage of Rooks, 2018 CO 85, ¶ 57.

4 Rooks, ¶ 59-63.

5 Rooks, ¶18-22.