In In re Marriage of Olsen,(CO App., June 23, 2022), a Colorado state appellate court was called on to settle a dispute between a husband and wife over the disposition of their cryogenically frozen pre-embryos after their divorce. The wife wanted to donate the pre-embryos, now held by a fertility clinic, for implantation to another couple because of her religious belief that they are human lives. The husband wanted to destroy the pre-embryos to avoid procreation. A 2018 Colorado Supreme Court (In re Marriage of Rooks) in a somewhat similar case called for the balancing of various factors. Applying this precedent, the Court of Appeals awarded the pre-embryos to the husband, saying in part:
The district court erred by considering wife’s religious belief that the pre-embryos are human lives when weighting the first Rooks factor — the intended use of the party seeking to preserve the disputed pre-embryos....
The first Rooks factor simply asks what the party seeking to preserve the pre-embryos intends to do with them.... Does that party seek to implant the pre-embryos to achieve genetic parenthood or does that party seek to donate them? The first factor is not concerned with why the party prefers to preserve the pre-embryos over discarding them....
Although we are sensitive to wife’s concern that awarding the pre-embryos to husband will force her to participate in their destruction against her religious beliefs, the district court can enter orders to mitigate this concern. The district court can award husband the pre-embryos and authorize him to direct their disposal. Wife need not be involved in the process.... Because the decision will belong to husband, wife will not be compelled to do anything in violation of her religious beliefs, and therefore there is no Free Exercise violation.
