Among the many wonders (and occasional terrors) of modern medicine, few strike more of an emotional chord than advances in reproductive technology. Preserving our genetic material for use after death has passed from science fiction to scientific fact; but the law remains unestablished in Colorado as to what happens if there is a dispute about ownership of frozen sperm, ova, or embryos after the death of one or both of the donors.
While more and more people take advantage of the opportunity to cryogenically preserve their genetic material for future use during their lives, very few think ahead to what may happen if they die before that material is used. Could someone make an unanticipated claim to an embryo? If so, would the law consider that embryo to be a person? Property? Both? Or neither?
The most recent case dealing with cryogenically preserved embryos in Colorado, and the first to deal with ownership of embryos contested in a divorce, is In re the Marriage of Rooks, a 2016 Colorado Court of Appeals case. The divorcing couple in Rooks already had three living children, and the wife chose to harvest her last remaining ova and use them to create embryos. The couple had no written agreement dealing with ownership of the embryos after a divorce, but they did sign a storage agreement with the fertility clinic which held the embryos. That agreement stated that if the couple could not agree on ownership of the embryos in a divorce, a trial court would award ownership (the agreement gave no guidance to the court in making this decision).
Rooks examined three different approaches used by other states in this situation: the “contract” approach, which follows a valid agreement signed by the divorcing couple; the “balancing of interests” approach, used when there is no contract; and the “contemporaneous mutual consent” approach, which leaves embryos in storage indefinitely until the divorcing couple can reach an agreement. The Court of Appeals finally determined that the trial court was required to apply its inherent equitable powers in the absence of contractual guidance and because the parties could not reach agreement, it therefore necessarily had to use the “balancing of interests” approach.
There are no statutes or case law in Colorado, however, which deal directly with post mortem disputes over the ownership of preserved genetic material. C.R.S. § 15-11-120, the Child Conceived by Assisted Reproduction Other than Child Born to Gestational Carrier statute, provides that a parent-child relationship exists both between a child of assisted reproduction and the child’s birth mother (the woman who gestated and delivered the child) and between that child and the “individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child”; that is, the donor/parent of the other half of the child’s genetic material. The statute further provides that a child conceived after the death of a donor/parent is legally that donor’s child if the child is “in utero” no later than 36 months after the donor/parent’s death or is born no later than 45 months after the donor/parent’s death.
A child born after a parent’s death, whether conceived in the old-fashioned way or with reproductive technology, could be considered an “omitted after-born or adopted child” pursuant to C.R.S. § 15-11-302(1)(a). In the absence of a will or a trust, such child would be provided for under the intestate statutes. By logical extension, if a surviving parent unfreezes one or more embryos and gestates them after the other parent’s death, and if this is done within the 36 and 45 month time frames set forth in C.R.S. § 15-11-120, the child born would be considered a child of the deceased parent. But none of these scenarios deals with a dispute over still-frozen, un-gestated embryos.
Based on current statutory and case law, it makes the most sense for putative parents to expressly agree on the disposition of frozen genetic material after death in a written contract, specifying whether sperm, ova, and/or embryos are to be discarded, gestated, maintained until a certain date in the future or a certain occurrence, or given to another person to use as they wish. In the absence of such an agreement, Colorado courts will likely look to decisions in other states, as the Rooks court did. While other jurisdictions have applied the “make the couple figure it out” approach in the absence of an agreement, Colorado seems to have favored the “balancing of the interests” equitable approach, and will likely apply such an approach to posthumous disputes over the ownership of genetic materials. Because the court’s application of its equitable power can have unpredictable outcomes with which no parties are pleased, it is ultimately very important that couples think well in advance and clearly memorialize their agreement on the future of any embryos they create and preserve.