The Colorado Supreme Court resolved the Rooks divorce by adopting a balancing test for the six disputed frozen embryos, weighing one spouse's interest in using them against the other's interest in avoiding procreation. The 2018 decision in In re Marriage of Rooks (2018 CO 85) made Colorado one of the first states to provide an appellate framework for embryo disputes, generally favoring the party who does not want to become a parent against their will.
Key Facts
| Detail | Summary |
|---|---|
| What happened | Colorado courts addressed who controls six cryopreserved embryos when divorcing spouses disagree — one wanted to use them, the other wanted them discarded |
| When | The Colorado Supreme Court issued In re Marriage of Rooks, 2018 CO 85, on October 29, 2018 |
| Where | State of Colorado (Colorado Supreme Court, Case No. 16SC906) |
| Who's affected | Any Colorado couple with frozen embryos, an IVF clinic agreement, or a divorce involving assisted reproduction |
| Key statute/rule | Property division under Colo. Rev. Stat. § 14-10-113 |
| Impact | Colorado trial courts must apply a multi-factor balancing test when no enforceable embryo-disposition contract controls |
Why this matters legally
The Rooks case forced Colorado to answer a question most states have ducked: when a marriage ends, who decides the fate of embryos created during it? The Colorado Supreme Court held that, absent a binding agreement between the spouses, trial courts must balance the competing interests of each party rather than automatically awarding the embryos to one side. This rejected both a strict contractual approach and a rule that would let one spouse force parenthood on the other.
The constitutional tension is real and unresolved at the national level. One ex-spouse asserts a right to procreate; the other asserts a right not to procreate. Courts across the country, including in Colorado, have generally given significant weight to the interest in avoiding unwanted parenthood, reasoning that forcing someone to become a genetic parent against their will is a profound and permanent imposition. The party seeking to use the embryos typically must show a compelling reason, such as the absence of any other reasonable path to biological parenthood.
What makes this question sharper today is the post-Dobbs legal landscape. After Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), states have broad authority to regulate reproduction, and the legal status of embryos has become contested terrain. Alabama's February 2024 ruling in LePage v. Center for Reproductive Medicine treating frozen embryos as "children" under a wrongful-death statute showed how unsettled this area has become. Colorado has not adopted that approach, but the embryo-disposition question now sits inside a more volatile national debate.
How Colorado law handles this
Colorado treats frozen embryos created during a marriage as a matter for equitable distribution, not as children to be subjected to a best-interests custody analysis. Under Colo. Rev. Stat. § 14-10-113, marital property is divided equitably — meaning fairly, not necessarily 50/50 — and the Rooks framework grafts a specialized balancing test onto that process when embryos are at issue.
The Colorado Supreme Court directed trial courts to follow a three-step analysis. First, the court looks for a prior agreement between the spouses governing what happens to the embryos in the event of divorce; if a valid, enforceable contract exists, it controls. Second, if there is no such agreement, the court seeks to balance the parties' competing interests. Third, the court applies specific, non-exhaustive factors to that balancing inquiry.
The Rooks factors a Colorado court must weigh include: the intended use of the embryos by the spouse who wants to preserve them; the demonstrated physical ability (or inability) of the objecting spouse to have biological children through other means; the parties' original reasons for pursuing IVF, such as preserving fertility before cancer treatment; the hardship to the person seeking to avoid genetic parenthood; either spouse's bad faith or attempt to use the embryos as leverage; and other considerations relevant to the specific couple. Notably, the court instructed that a party's wish to use the embropryos merely to avoid the cost or effort of another IVF cycle, or a desire to donate them to others, should not ordinarily outweigh the other party's interest in avoiding forced procreation.
Colorado courts also give significant weight to the IVF clinic's consent and storage documents. Many fertility agreements specify what happens to embryos upon divorce, death, or disagreement. Where those documents reflect a clear, mutual, contemporaneous choice, Colorado courts will look to them first before reaching the balancing test.
Practical takeaways
-
Read your IVF clinic agreement now. The disposition clause in your fertility contract — covering divorce, separation, death, or non-payment of storage fees — is the first document a Colorado court examines. Confirm what you actually signed and whether it states a clear outcome.
-
Address embryos directly in any divorce, prenuptial, or postnuptial agreement. Colorado honors clear, mutual agreements about embryo disposition. Spelling out the outcome in writing, ideally with independent legal advice for each spouse, is the most reliable way to avoid the uncertainty of a court-applied balancing test.
-
Document your fertility circumstances. If you froze embryos before chemotherapy, due to age-related fertility loss, or because of a medical condition, preserve that record. Under the Rooks factors, whether a spouse has another reasonable route to biological parenthood is central to the analysis.
-
Do not assume embryos are split like a bank account. Embryos are not divided 50/50 or sold and split. A Colorado court awards control to one party or orders the embryos preserved, discarded, or donated based on the balancing test — an all-or-nothing outcome, not a financial division.
-
Consult a Colorado family law attorney early. Embryo disputes turn on narrow facts, the exact wording of your clinic paperwork, and an evolving body of constitutional law. Early advice can shape settlement and prevent the embryos from becoming a contested trial issue.
If you are divorcing in Colorado and frozen embryos are part of your situation, this is one of the most legally and emotionally complex issues you can face. A Colorado family law attorney can review your IVF agreements, explain how the Rooks framework applies to your facts, and help you reach a resolution before it lands in front of a judge. You can find an exclusive Colorado divorce attorney through our directory to discuss your options.
This article discusses recent news and provides general legal commentary. It does not constitute legal advice. Every case is unique. Consult a qualified family law attorney for advice specific to your situation.