In a previous blog post, we shared the story of a Colorado couple, now divorced, and their legal battle to gain custody of six remaining frozen embryos they had stored in happier days, intending to someday grow their family. In that case, the couple’s agreement with the fertility clinic provided that, in the event of divorce, custody determinations would be made by Colorado courts.

A Colorado district court’s determination gave the frozen embryos to the former husband, agreeing with his argument that he shouldn’t be forced to become a parent against his will. The former wife appealed the decision to the Colorado Court of Appeals, who agreed with the district court’s decision, so she appealed that decision by taking the matter to the Colorado Supreme Court.

The dispute continues, because the Colorado Supreme Court recently reversed the appellate court’s decision and sent the case back to the lower court for re-evaluation. The state’s highest court gave the lower court some guidelines for deciding the case, including:

1. The intended use of the party who wants to preserve the embryos
2. Whether the party who wants to use the embryos to become a genetic parent could do so without using the frozen embryos
3. Why the parties underwent in vitro fertilization (IVF) originally
4. The potential hardship (emotional, financial, or logistical) on the party who doesn’t want to become a parent, if the court ruled in favor of the other party
5. Whether one party was trying to use the frozen embryos as unfair leverage in the divorce proceedings
6. Any other considerations relevant to the situation

The court also provided guidelines on things the lower court should not consider when making its ruling, including whether the party who wants to use the embryos can adopt, has children already, or could afford another child.

While we can’t predict if the district court’s new ruling will be different from its original decision, the former wife is optimistic that she will prevail in this matter.

This case reinforces the importance of ensuring contracts and agreements protect your legal rights. To learn more about how we help you on your assisted reproductive journey, contact us today.