Colorado court balances religious and secular beliefs in frozen embryo divorce dispute
Jan 30, 2023
By: Susan L. Crockin, JD
Origin: Legally Speaking Column
The divorce settlement between former spouses Jamie Fabos and Justin Olsen had left only one remaining issue: disposition of their two remaining cryopreserved embryos (the couple had successfully had IVF twins in 2011). Ms. Fabos wanted to donate them to another couple, arguing they represented human life to her, while Mr. Olsen wanted to thaw and discard them. Their signed clinic agreement only addressed disposition in the event of their mutual death, incapacity or reaching age 55 years and they had chosen donation to another couple in those circumstances. The document, however, was silent as to disposition in the event of divorce, providing instead that “ownership” of embryos upon dissolution of marriage will be “as directed by court decree and/or settlement agreement.” (SART model consents and cryopreservation agreements include dispositional instructions at divorce to attempt to avoid or reduce that uncertainty and potential litigation)
After the initial trial decision, the Colorado Supreme Court decided a frozen embryo dispute without a prior dispositional agreement in In Re Marriage of Rooks (LS, ___), so the Court of Appeals “remanded” this case back to the district court with instructions to consider new factors established by the Rooks decision. In Rooks, the state supreme court held that without an agit was required to undertake a ‘balancing of interests’ framework, including weighing a non-exhaustive list of factors, including: the intended use by each party post-divorce- with more weight given to a party who wants to procreate themselves as opposed to donate for procreation, the possibility of having a genetic child through other means, the original reasons the couple pursued IVF (including fertility preservation), any emotional, financial or logistical hardships caused to the party seeking to avoid becoming a genetic parent, any acts of bad faith by the parties, as well as any other factors relevant on a case-by-case basis.
The Court of Appeals specifically instructed the trial court not to weigh the “wife’s subjective belief that the pre-embryos should be protected as human life more heavily than the husband’s interest in not procreating” as, “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.” Ignoring those instructions, the trial court again awarded the embryos to Ms. Fabos for donation based on her claims of a First Amendment Constitutional right to freedom of religion, finding that her desire to donate them for a “productive purpose” was “innately and unavoidably superior” to her ex-husband’s desire to destroy them.
The Appeals Court ruled this was error, noting procreative use by the party themselves- but not procreative donation- was entitled to greater weight, and that the trial court “misapplied the Rooks factors,” and failed to follow its prior instructions. While it found the free exercise of religion claim was relevant as an “additional factor beyond those articulated in Rooks,” it had been weighted too heavily. The court awarded the embryos to Mr. Olsen, so Ms. Fabos would not be directly involved in their destruction, contrary to her beliefs.
The Colorado court’s distinction over the relative weight to be given religious beliefs depending on patient or donor procreative use is an interesting one, and whether other states faced with these types of question will reach similar outcomes remains to be seen. Especially in this post-Dobbs era, with states enacting a wide variety of abortion laws, many of which include definitions of when life begins that may easily include IVF embryos (see next entry), more and more complex and contentious litigation over IVF embryos and practices may be anticipated.
In re Marriage of Fabos and Olsen, 2022 COA 66 (Colo. App. 2022)
State Anti-Abortion Laws’ potential impact on IVF Embryos unclear:Concerns continue to be raised about the extent to which state anti-abortion laws may apply to, or exempt, IVF embryos and various IVF practices. Only four states as of press time (Alabama, Indiana (judicially blocked), South Carolina (failed) and West Virginia) have anti-abortion bills or laws that expressly attempt to exempt IVF embryo dispositions or IVF. Legitimate concerns remain, however, even as to state laws with an express “carve out” from their penalty provisions: first, if statutes define life as beginning at fertilization—as many currently do- embryos may be legally recognized entities or persons and other laws in the state may apply, such as malpractice, negligence, or even involuntary manslaughter if embryos are mishandled or inadvertently destroyed. Secondly, if exceptions are limited to embryo dispositions, as the Tennessee’s attorney general seems to suggest (see below), other IVF related practices may not be considered exempted and protected.
State attorneys general in Alabama, Arkansas and Oklahoma have reportedly said their anti-abortion laws have no implications for IVF treatment while Tennessee’s attorney general has issued a legal opinion that the state’s abortion law, “does not apply to a human embryo before it has been transferred to a woman’s uterus and, therefore, disposing of a human embryo that has not been transferred to a woman’s uterus is not punishable as a “criminal abortion.” Although the legal opinion states that “if there is no pregnancy to terminate, there can be no abortion,” it also acknowledges that an IVF embryo may fit the definition of an “unborn child.” Given that definition, and the opinion being limited to disposal of embryos, other state laws might well be applied to a variety of actions involving IVF embryos other than disposal.
In Georgia, there is both uncertainty and concern over the impact on IVF of current or future anti-abortion laws, after the governor was caught on a “hot mic” suggesting he was open to a statewide ban on IVF embryo discard, which he later refuted in response to a reporter’s question.
Fertility Fraud cases filed against retired Kentucky MD for using own sperm in the 1970’sTwo families have filed lawsuits in Kentucky against a retired physician for unauthorized use of his sperm for artificial insemination in the 1970’s. The discoveries occurred through direct-to-consumer testing, in one case by the grandchild of one of his former patients. The physician, Dr. Marvin Yussman, has been accused of misrepresenting that he was using medical students’ sperm, and reportedly admitted to the medical licensure board to using his own sperm as a donor a half-dozen times when anticipated donors did not show up and no frozen sperm was available, and to being in contact with three of the resulting offspring. Both lawsuits were filed in July 2022, following the passage in April of the Kentucky Fraudulent Assisted Reproduction Law, and are pending.
The new Kentucky law makes use of a physician’s own sperm a Class D felony and was passed in April 2022 after a former patient and plaintiff in the first lawsuit, Susan Crowder, uncovered the misconduct and worked to enact the law before filing her lawsuit in July for fraud, negligence and malpractice. The other lawsuit, filed under the names of “Jane Doe 1, 2 and 3” to protect the identities of the patient and her two daughters, seeks damages for breach of contract, fertility fraud and malpractice.