COLORADO COURT OF APPEALS                                     2016COA153


Court of Appeals No. 15CA0990
Garfield County District Court No. 14DR30080
Honorable John F. Neiley, Judge


In re the Marriage of

Drake F. Rooks,

Appellee,

and

Mandy Rooks,

Appellant.


                           JUDGMENT AFFIRMED

                                 Division IV
                          Opinion by JUDGE TERRY
                        Hawthorne and Fox, JJ., concur

                         Announced October 20, 2016


James W. Giese, P.C., James W. Giese, Grand Junction, Colorado, for Appellee

Azizpour Donnelly LLC, Katayoun A. Donnelly, Denver, Colorado, for Appellant
¶1    This appeal from the permanent orders entered in the

 dissolution of marriage proceedings between Mandy Rooks (wife)

 and Drake F. Rooks (husband) presents an issue of first impression

 in Colorado: how to determine who gets the couple’s cryogenically

 frozen embryos on dissolution of their marriage. (Though the

 accurate medical term for such unimplanted embryos is “pre-

 embryos,” we will refer to them as “embryos” for simplicity.)

¶2    The parties already have three children together. It is

 undisputed that wife used her last eggs to create the embryos.

¶3    Husband and wife agreed in their storage agreement with the

 fertility clinic that the embryos should be discarded if certain events

 (inapplicable here) occurred. But if they dissolved their marriage,

 unless they could agree who would get the embryos, the agreement

 left it up to the trial court to award them. Wife argued at the

 permanent orders hearing that the embryos should remain frozen in

 cryo-storage so that she can have another child in the future,

 because otherwise she would be infertile. Husband argued that the

 embryos should be discarded.

¶4    In its lengthy, detailed, and carefully reasoned permanent

 orders, the trial court awarded the embryos to husband. The court


                                    1
 relied on two alternative theories derived from the case law of our

 sister states:

      (1) Applying the “contract approach,” the court construed the

 parties’ intent as requiring the embryos to be discarded on

 dissolution of their marriage, unless they could agree otherwise.

      (2) Applying the “balancing of interests approach,” the court

 determined that husband’s interest in not having more children

 with wife outweighed wife’s interest in having another child.

¶5    The court determined that both approaches weighed in favor of

 awarding the embryos to husband.

¶6    Wife appeals from the portion of the permanent orders

 awarding the embryos. She obtained a stay in the trial court to

 permit the embryos to remain in cryo-storage pending completion of

 appellate proceedings. We affirm the trial court’s judgment under

 the balancing of interests approach.

                            I. Background

¶7    The parties married in 2002, and husband petitioned for

 dissolution of the marriage in 2014. The major issues decided in

 this dissolution case concerned property division and the wife’s

 plan to relocate with the parties’ children to North Carolina. The


                                   2
  parties spent relatively little time addressing the issues now raised

  on appeal.

¶8     All three of the parties’ children were conceived using in vitro

  fertilization (IVF) techniques, and in that process, six additional

  embryos were created and placed in cryo-storage. Together with the

  fertility clinic, the parties signed two agreements pertaining to the

  embryos: a participation agreement and a storage consent

  agreement.

¶9     The participation agreement advises the parties that they can

  choose to leave the cryopreserved embryos in storage indefinitely for

  future use, or they can donate or discard them. The agreement

  describes the embryos as a “unique form of ‘property,’” about which

  the law is still developing, and alerts the parties that it is important

  to have a disposition plan for the embryos in case of the parties’

  death, separation, or divorce.

¶ 10   The storage agreement addresses disposition of the

  cryopreserved embryos in the event of dissolution of the parties’

  marriage or a party’s death.




                                     3
                             II. Colorado Law

¶ 11   The Colorado General Assembly has determined that embryos

  are not “persons” and therefore are also not “children.” See

  § 13-21-1204, C.R.S. 2016 (construing Civil Remedy for Unlawful

  Termination of Pregnancy Act as not “confer[ring] the status of

  ‘person’ upon a human embryo”); § 18-3.5-110, C.R.S. 2016

  (similarly construing Offenses Against Pregnant Women statutes);

  see also Deborah L. Forman, Embryo Disposition, Divorce & Family

  Law Contracting: A Model for Enforceability, 24 Colum. J. Gender &

  L. 378, 423 (2013) (“All appellate decisions to date have rejected the

  notion that embryos are ‘children’ under the law . . . .”).

¶ 12   The Uniform Parentage Act (UPA) provides that a former

  spouse will not be a parent of any child born as a result of the

  placement of embryos through assisted reproduction after

  dissolution of marriage unless the former spouse consents to be a

  parent. See § 19-4-106(7)(a), C.R.S. 2016. The Colorado Probate

  Code provides that such a child will not be considered a former

  spouse’s child, unless the former spouse gives consent to that effect

  and the consent is specific to assisted reproduction occurring after

  divorce. See § 15-11-120(9), C.R.S. 2016. Under the UPA, a former


                                     4
  spouse may withdraw consent to placement of embryos “at any

  time” before they are placed. § 19-4-106(7)(b); see also § 15-11-

  120(10).

¶ 13   Because there is no Colorado statute or appellate decision

  addressing the specific issue raised here, namely, the disposition of

  cryopreserved embryos on dissolution of marriage, see Suzanne

  Griffiths & Logan Martin, Assisted Reproduction and Colorado Law:

  Unanswered Questions and Future Challenges, 35 Colo. Law. 39

  (Nov. 2006), we look to other jurisdictions that have addressed the

  issue. See P.W. v. Children’s Hosp. Colo., 2016 CO 6, ¶ 23 (“With no

  Colorado case directly on point, we look to the decisions of other

  jurisdictions for persuasive guidance.”).

                         III. Other Jurisdictions

¶ 14   Courts in other jurisdictions have adopted three different

  approaches for determining the disposition of divorcing spouses’

  cryopreserved embryos: the contract approach, the balancing of

  interests approach, and the contemporaneous mutual consent

  approach. See Szafranski v. Dunston, 993 N.E.2d 502, 506 (Ill.

  App. Ct. 2013) (Szafranski I); see also Michael T. Flannery,

  “Rethinking” Embryo Disposition Upon Divorce, 29 J. Contemp.


                                    5
  Health L. & Pol’y 233, 237-38 (2013); Forman, 24 Colum. J. Gender

  & L. at 383-86.

                       A. The Contract Approach

¶ 15   Under the contract approach, an agreement between spouses

  that was entered into when the embryos were created and cryo-

  stored will be enforced as to the disposition of the embryos on

  dissolution of marriage. See Davis v. Davis, 842 S.W.2d 588, 597

  (Tenn. 1992). In Davis, the divorcing spouses had agreed on all

  terms relating to the dissolution of their marriage except one: who

  was to have “custody” of their seven cryopreserved embryos held in

  storage at a fertility clinic. Id. at 589. The Tennessee court held

  that, “as a starting point” in resolving such a dispute, an agreement

  regarding disposition of the embryos in the event of divorce “should

  be presumed valid and should be enforced as between the

  progenitors.” Id. at 597.

¶ 16   Other states have since followed Tennessee’s lead and have

  ruled, citing Davis, that agreements between spouses that are

  entered into at the time of IVF are enforceable with respect to any

  agreed-upon disposition of cryopreserved embryos on dissolution of

  marriage. See Kass v. Kass, 696 N.E.2d 174, 180 (N.Y. 1998); In re


                                    6
  Marriage of Dahl, 194 P.3d 834, 840 (Or. Ct. App. 2008); Roman v.

  Roman, 193 S.W.3d 40, 50 (Tex. App. 2006); but see A.Z. v. B.Z.,

  725 N.E.2d 1051, 1053-59 (Mass. 2000) (refusing to enforce parties’

  agreement that if they separated, the wife, who had already given

  birth to two children using the parties’ embryos, would receive their

  remaining embryos for implantation).

¶ 17   Advantages of the contract approach, as the New York court

  observed in Kass, are that it “reserv[es] to the progenitors the

  authority to make what is in the first instance a quintessentially

  personal, private decision”; it avoids litigation in “personal matters

  of reproductive choice”; and it “provide[s] the certainty needed for

  effective operation of IVF programs.” 696 N.E.2d at 180; see also

  Szafranski I, 993 N.E.2d at 515; Roman, 193 S.W.3d at 50.

                B. The Balancing of Interests Approach

¶ 18   Though the Tennessee Supreme Court in Davis endorsed a

  contract approach, it was unable to use that approach to guide its

  decision because the spouses had not entered into an agreement

  regarding disposition of their embryos. This led the court to use a

  balancing of interests approach, and it ultimately weighed the

  husband’s interest in avoiding procreation more heavily than the


                                     7
  wife’s interest in wanting to donate the embryos to another couple.

  Davis, 842 S.W.2d at 598, 603-04.

¶ 19   Other courts have also held that, when the parties have not

  agreed as to who should receive cryopreserved embryos on

  dissolution of marriage, the trial court must balance the parties’

  interests to resolve the issue. See J.B. v. M.B., 783 A.2d 707, 713-

  14, 719-20 (N.J. 2001); Reber v. Reiss, 42 A.3d 1131, 1136 (Pa.

  Super. Ct. 2012).

¶ 20   In applying this approach, the Davis court said, “[o]rdinarily,

  the party wishing to avoid procreation should prevail, assuming

  that the other party has a reasonable possibility of achieving

  parenthood by means other than use of the []embryos in question.”
842 S.W.2d at 604; accord Szafranski I, 993 N.E.2d at 514-15; see

  also Szafranski v. Dunston, 34 N.E.3d 1132, 1161-64 (Ill. App. Ct.

  2015) (Szafranski II) (upholding lower court’s ruling that the

  interests of a woman, who had embryos created with a male friend

  before undergoing chemotherapy, were paramount because she had

  no other option for having a biological child); J.B., 783 A.2d at 719-

  20 (ruling in favor of the wife’s interest to avoid procreation after

  considering that the husband was already a father and was capable


                                     8
  of fathering other children); Reber, 42 A.3d at 1132-43 (upholding

  ruling in favor of forty-four-year-old wife, who had no children and

  had undergone IVF before cancer treatment in order to preserve her

  ability to conceive a child).

          C. The Contemporaneous Mutual Consent Approach

¶ 21   Iowa employs a contemporaneous mutual consent approach.

  There, if the parties have not previously agreed how to allocate their

  cryopreserved embryos on dissolution of marriage, the dissolution

  court will not allocate them. Instead, the embryos are left in

  storage indefinitely until the parties can agree as to their

  disposition. In re Marriage of Witten, 672 N.W.2d 768, 783 (Iowa

  2003); see Szafranski I, 993 N.E.2d at 510-11.

¶ 22   The Iowa court rejected the contract approach, reasoning that

  judicial enforcement of an embryo disposition agreement “in this

  highly personal area of reproductive choice” would be against public

  policy. Witten, 672 N.W.2d at 781. The court also noted its “grave

  public policy concerns” with the balancing test, which “substitute[s]

  the courts as decision makers in this highly emotional and personal

  area.” Id. at 779, 783.




                                     9
¶ 23   The Iowa court’s approach has been criticized as being “totally

  unrealistic,” because if the parties had any ability to reach an

  agreement on disposition of their embryos, they would not need a

  court’s ruling. Reber, 42 A.3d at 1135 n.5; see Szafranski I, 993
N.E.2d at 511. As the trial court aptly noted in rejecting the Iowa

  approach in this case, it “essentially gives one party a de facto veto

  over the other party” because the issue will inevitably be

  determined by the passage of time. See Szafranski I, 993 N.E.2d at

  512 (noting that Iowa’s approach may provide a bargaining chip for

  an ex-spouse to effectively hold embryos hostage to punish the

  other ex-spouse or to gain other advantages). We join the Reber

  and Szafranski courts in rejecting the contemporaneous mutual

  consent approach.

       IV. Application of the Contract and Balancing Approaches

¶ 24   We concur with those courts that have adopted the contract

  approach and have enforced a valid agreement entered into between

  the spouses as to disposition of the embryos on dissolution of

  marriage. We are also in accord that, where there is no such

  agreement between the parties, a balancing of interests approach

  should be taken.


                                    10
       A. The Trial Court’s Application of the Contract Approach

¶ 25   As argued by wife on appeal, the contract approach has two

  components: an oral agreement between her and husband, and the

  written storage agreement.

¶ 26   Wife’s appellate briefs argue that the trial court erred by failing

  to enforce an alleged oral agreement between the parties that she

  could have a total of four children using the embryos. Because wife

  did not raise this issue in the district court and did not obtain a

  ruling on it, we do not address it. See Estate of Stevenson v.

  Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992)

  (“Arguments never presented to, considered [by,] or ruled upon by a

  trial court may not be raised for the first time on appeal.”). And

  because the record does not show that she preserved her related

  promissory estoppel argument, we will not address that argument,

  either. See id.

¶ 27   We agree, however, with wife’s contention that the trial court

  erred in interpreting the written storage agreement.

¶ 28   We review de novo the trial court’s interpretation of the parties’

  written storage agreement, including the court’s determination that

  the agreement is ambiguous. See Ad Two, Inc. v. City & Cty. of


                                    11
  Denver ex rel. Manager of Aviation, 9 P.3d 373, 376-77 (Colo. 2000);

  In re Marriage of Crowder, 77 P.3d 858, 860 (Colo. App. 2003).

¶ 29   The goal in interpreting the agreement is to give effect to the

  parties’ intent as discerned from the contract language. Ad Two, 9
P.3d at 376; Crowder, 77 P.3d at 860-61. Extraneous evidence of

  such intent may be considered only if the written agreement is

  ambiguous, meaning that it is fairly susceptible of more than one

  reasonable interpretation. Ad Two, 9 P.3d at 376-77; Crowder, 77
P.3d at 861.

¶ 30   A court may not rewrite an agreement under the guise of

  interpreting it. See Bledsoe Land Co. v. Forest Oil Corp., 277 P.3d
838, 842 (Colo. App. 2011); see also In re Marriage of Stokes, 43
Colo. App. 461, 466, 608 P.2d 824, 829 (1979) (“Courts cannot

  rewrite contracts or add terms thereto.”).

¶ 31   We conclude that the storage agreement leaves it to the

  dissolution court to decide which party should receive the embryos

  in the event of dissolution of their marriage.

¶ 32   The pertinent language is as follows:

             In the event of divorce or dissolution of our
             marriage, we acknowledge that the disposition



                                    12
              of our embryos will be part of the
              divorce/dissolution decree paperwork.

              . . . [I]f any court of competent jurisdiction
              award[s] to either Husband or Wife all rights
              with respect to the Cryopreserved embryos to
              the exclusion of the other spouse, by an order
              or decree which is final and binding to them,
              the [laboratory] shall have the right to deal
              exclusively with him or her to whom such
              rights were awarded (the prevailing party) . . . .

              In the event that the divorce/dissolution
              decree paperwork does not address the
              disposition of the embryo(s), we elect the
              following disposition of our embryo(s):

              ....

              [Parties’ initials] Thawed and discarded
              without undergoing any further development
              for any purpose.

¶ 33     Both husband and wife initialed the above-quoted “thawed

  and discarded” option, and one of them apparently underlined the

  word “discarded.”

¶ 34     We construe this contract provision to mean:

       1. The parties elected a default option of discarding the embryos

         if they did not make any other provision for the embryos in a

         stipulation in their dissolution proceeding and if the

         dissolution court did not rule on the issue.



                                      13
       2. In their dissolution proceeding, the parties could stipulate to a

         disposition other than discarding the embryos.

       3. If the parties disagreed about the disposition of the embryos in

         their dissolution proceeding and sought a ruling from the

         dissolution court on the issue, that court would decide which

         party would be awarded the embryos.

¶ 35     The trial court found that the contract was ambiguous as to

  how the court should award the embryos in the event of dissolution.

  It resolved the ambiguity by construing the agreement to require

  both parties’ mutual agreement before any of the embryos could be

  thawed and implanted, and it therefore ruled that absent such an

  agreement, the embryos would be thawed and discarded on

  dissolution of the parties’ marriage. According to the court, “[t]he

  fact that the parties agreed to mutually approve any reproductive

  transfer or use of the embryos is a strong indication of their intent

  that [wife] should not now be awarded that exclusive right in the

  event of divorce.”

¶ 36     We conclude that the court erred in attempting to infer

  contract terms that did not exist. The contract gives no guidance as

  to how the court is to make the decision regarding who will be


                                      14
  awarded control over the embryos in the event of divorce if the

  parties disagree on the issue. The contract approach employed by

  other courts could not be used because there was no agreement

  that could be enforced as to who should receive the embryos.

¶ 37   Given the absence of enforceable contract terms on the issue,

  we construe the contract as requiring the dissolution court to

  exercise its inherent equitable power to determine whom to award

  the embryos to if the parties cannot agree on that point. See In re

  Marriage of Balanson, 25 P.3d 28, 35 (Colo. 2001) (noting trial

  court’s role in ordering equitable distribution of marital property

  based upon facts and circumstances of an individual case); see also

  Szafranski II, 34 N.E.3d at 1161; J.B., 783 A.2d at 713-19 (where a

  contract did not manifest a clear intent by the parties regarding

  disposition of their embryos on dissolution of their marriage, but

  instead permitted them to obtain a court order directing such

  disposition, “the interests of both parties must be evaluated” by the

  court); Reber, 42 A.3d at 1136; Davis, 842 S.W.2d at 604; but cf.

  Roman, 193 S.W.3d at 52-54 (the parties were well aware of other

  options when they chose the option to have embryos destroyed in

  the event of divorce).


                                    15
¶ 38   Because the court had to rely on its equitable discretion to

  determine how to award the embryos, it necessarily had to employ

  the balancing approach. See Davis, 842 S.W.2d at 598, 603-04

  (using balancing approach where spouses had not agreed on

  disposition of embryos in event of divorce).

       B. The Trial Court’s Application of the Balancing Approach

¶ 39   Given that there was no enforceable agreement between the

  parties as to disposition of the embryos on dissolution, the court

  was required to balance the parties’ interests. We reject wife’s

  contention that the trial court erred in doing so.

¶ 40   Application of the balancing test is an exercise of the trial

  court’s equitable discretion, and we therefore review its decision for

  an abuse of discretion. See Balanson, 25 P.3d at 35 (trial court has

  great latitude to effect an equitable distribution of marital property

  based on facts and circumstances of each case, and an appellate

  court will not disturb a trial court’s decision absent a clear abuse of

  discretion); Szafranski II, 34 N.E.3d at 1161-62 (balancing of

  interests approach involves “a fact-intensive inquiry into each

  party’s interest in using or preventing the use of the []embryos”); cf.

  In re Marriage of Ciesluk, 113 P.3d 135, 142, 147-48 (Colo. 2005) (in


                                    16
  parental relocation case, conducting abuse of discretion review of

  trial court’s balancing of child’s best interests with relocating

  parent’s constitutional right to travel and other parent’s

  constitutional right to parent).

¶ 41   Wife argues that some of the factors the trial court applied in

  its balancing approach are legally erroneous and that others violate

  her constitutional rights. We conclude that the trial court properly

  exercised its discretion in balancing the parties’ competing interests

  in the embryos and in deciding to award them to husband.

               1. Wife’s Interest in Having a Fourth Child

¶ 42   As previously discussed, we do not address wife’s contention

  that she had a binding agreement with husband to have four

  children because she failed to preserve that issue for appeal.

¶ 43   Nevertheless, she argues that the court was required to

  balance her desire to have another child with husband’s desire not

  to father additional children with her. We conclude that the court

  appropriately balanced the parties’ competing interests.

¶ 44   Given that wife has already borne three children, this is not a

  situation like Davis, 842 S.W.2d at 591-92, Szafranski I, 993
N.E.2d at 503-05, or Reber, 42 A.3d at 1132-33, where the woman’s


                                     17
  only opportunity to bear children would be foreclosed if the court

  did not award the embryos to her. See J.B., 783 A.2d at 717

  (considering, when balancing parties’ interests, that the husband

  was already a father); cf. A.Z., 725 N.E.2d at 1053-55, 1057-59

  (upholding lower court’s refusal to enforce contract allowing the

  wife, who had already conceived and given birth to twins during the

  marriage, to implant the parties’ four remaining cryopreserved

  embryos on the parties’ separation).

¶ 45   Accordingly, under the balancing of interests approach, the

  court could reasonably conclude that husband’s interest in not

  producing additional offspring prevails over wife’s interest in having

  a fourth child. See Davis, 842 S.W.2d at 603-04; see also

  Szafranski I, 993 N.E.2d at 515; J.B., 783 A.2d at 719-20; but cf.

  Szafranski II, 34 N.E.3d at 1162-63 (upholding ruling that childless

  woman’s interest in using embryos she created with friend before

  she underwent fertility-destroying chemotherapy was paramount

  over friend’s interest in not procreating); Reber, 42 A.3d at 1140-42

  (holding that balancing of interests tipped in favor of the wife

  because the embryos were “likely her only chance at genetic

  parenthood”).


                                    18
¶ 46     The court appropriately considered husband’s emotional and

  psychological well-being, in that he would likely feel a moral and

  social obligation for a fourth biological child, even though he may

  have no legal obligation to the child. This finding further supports

  the court’s allocation of the embryos to husband under the

  balancing of interests approach. See J.B., 783 A.2d at 717 (noting

  “life-long emotional and psychological repercussions” for the wife if

  her biological child is born in the future to the husband and a

  surrogate mother).

       2. Financial Responsibility for Additional Children Born of the
                                  Embryos

¶ 47     Wife next argues that the trial court erred as a matter of law

  by considering the potential risk that husband could face financial

  obligations for a child born in the future using the embryos. We are

  not persuaded.

¶ 48     The court noted that wife declared her intention to relocate to

  North Carolina, and that the court allocated parental

  responsibilities to allow the parties’ three children to move there

  with her. According to the court, North Carolina does not have

  statutory provisions, such as Colorado’s sections 19-4-106(7) and



                                     19
  15-11-120(10), that would relieve husband of financial

  responsibility for a future child born using the embryos without his

  consent.

¶ 49   To the extent wife further argues that the trial court erred by

  considering the potential increase in husband’s child support

  obligation for the parties’ existing children if wife chooses to have a

  fourth child, we discern no abuse of discretion by the court in

  considering this factor. We disagree that, in doing so, the court

  impermissibly implied that wife should not have another child.

  Rather, the court merely noted an inevitable financial consequence

  for husband if wife chooses to have another child using the embryos

  — an appropriate consideration when balancing the parties’

  interests.

                   3. Wife’s Constitutional Arguments

¶ 50   Wife relies on various provisions of the constitutions of the

  United States and Colorado to raise numerous challenges to the

  trial court’s balancing of interests. She contends that she was not

  required to take specific action to preserve those arguments in the

  trial court because they arose from the trial court’s various

  comments in its permanent orders. We agree that her arguments


                                     20
  are sufficiently preserved, but we disagree that her constitutional

  rights were violated by the permanent orders.

¶ 51   To the extent that the Colorado Constitution may have

  provisions different from those of the United States Constitution,

  wife has not identified any different analysis that would be required

  under the state constitution. We therefore confine our analysis to

  the United States Constitution’s provisions. See Holliday v. Reg’l

  Transp. Dist., 43 P.3d 676, 681 (Colo. App. 2001).

¶ 52   Wife asserts that the following rights were violated, and that

  these rights derive from the United States Constitution:

           the right to equal protection of the law;

           the right to due process;

           the right to “procreational autonomy”;

           the right of privacy;

           the “freedom of choice in procreation”; and

           the “fundamental liberty interest in the care, custody,

            and management of her children.”

¶ 53   We begin by recognizing that for every one of the rights

  identified by wife, husband has corresponding and equal rights,

  including the right to determine that he does not want to have

                                    21
  additional children who are joint genetic offspring of husband and

  wife. See Davis, 842 S.W.2d at 601 (noting that “right of

  procreational autonomy is composed of two rights of equal

  significance — the right to procreate and the right to avoid

  procreation”); Forman, 24 Colum. J. Gender & L. at 425 (“[B]oth

  parties have constitutional procreation rights at stake.”).

¶ 54   Wife argues that husband would have no future financial

  responsibility for any additional children born from the embryos.

  Even if she were correct about that — and it is not entirely clear

  under the law of North Carolina where she now lives whether that is

  so — it is nevertheless true that father would in fact (though not in

  law) be the father of any such children. And any such children

  would be the siblings of father’s three existing children, and would

  be part of their lives.

¶ 55   The trial court’s task, then, was to balance all of those

  competing rights of wife and husband and come to a difficult,

  discretionary decision. We conclude that, in reaching that decision,

  it did not violate wife’s constitutional rights.

¶ 56   Specifically, it was not a violation of her constitutional rights

  for the trial court to discuss the following matters in its final orders:


                                      22
 The fact that wife already has three children. As other

  courts applying the balancing approach have recognized,

  it may weigh in a party’s favor if preserving the embryos

  would provide a party’s only chance to create genetic

  offspring. See Szafranski II, 34 N.E.3d at 1161-64

  (considering woman’s infertility in weighing competing

  interest of male friend who no longer wanted to

  procreate); Reber, 42 A.3d at 1132-43 (ruling that

  interests of divorcing wife, who was forty-four, had no

  children, and had undergone IVF before cancer treatment

  in order to preserve her ability to conceive a child,

  prevailed over those of the husband); cf. J.B., 783 A.2d at

  719-20 (ruling that divorcing wife’s interest in avoiding

  procreation outweighed the husband’s where he was

  already a father and was capable of fathering other

  children).

 What would happen if wife had another child (or children)

  from the embryos. The court noted that if she were to

  have more children, she would get a credit on any child

  support worksheet, which would indirectly increase the

                         23
  amount of child support owed by husband to wife. Given

  that husband’s constitutional rights in not having

  additional children were implicated by the court’s

  decision, we see no abuse of discretion in the court’s

  consideration of the potential economic impact on the

  parties.

 How the addition of another child (or children) might

  affect the parties’ existing children, and whether such an

  addition might challenge wife’s ability to “manage such a

  large family alone as a single parent,” given her lack of

  employment and financial resources, and the significant

  health issues faced by one of the children. The court

  remarked on those circumstances as part of its

  ruminations on how the parties might fare in the future.

  We see no constitutional impediment to the court’s

  discussion of the practicalities of wife’s situation.

  Contrary to her assertions on appeal, there is no

  indication that the court ruled in favor of husband based

  on improper considerations, i.e., because wife is poor. It

  is clear to us that the court did not base its decision on


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             wife’s economic or social circumstances. Rather, it

             carefully balanced the parties’ competing interests.

¶ 57   Though wife argues that the trial court improperly injected a

  “best interest of the child” test in the final orders, we find no

  instance where the court applied such a test. The court merely

  mentioned the potential impacts of various factual circumstances

  on the parties’ existing children, and we discern no constitutional

  violation or abuse of its discretion in doing so.

¶ 58   Wife cites Skinner v. Oklahoma ex rel. Williamson, 316 U.S.
535 (1942), which dealt with involuntary sterilization of persons

  convicted of certain felonies, and argues that “the court may not

  dictate to American citizens the number of children they may have.”

  To the extent that the permanent orders may result in a limitation

  on the number of children wife may ultimately wind up bearing

  through biological means, that is simply a consequence of the

  parties’ having left it up to the court to decide who gets the

  remaining embryos. Wife could have contracted to receive the

  embryos on dissolution of the marriage, but did not do so, and

  instead requested in her supplemental trial brief that the court

  decide the issue based on a balancing of the parties’ interests.


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¶ 59   By leaving such an important decision up to the court, the

  parties should have expected the court to thoroughly examine the

  parties’ desires, life circumstances, and financial state, as it does in

  balancing the interests in every permanent orders case. See

  Balanson, 25 P.3d at 35.

¶ 60   We reject wife’s unsupported argument that husband

  relinquished his constitutional right not to procreate by consenting

  to the use of his sperm to fertilize wife’s “last eggs.” The storage

  agreement contradicts this theory by specifically providing for

  allocation of the embryos on dissolution to be decided in the

  “divorce/dissolution decree paperwork.” Moreover, the UPA

  expressly allows husband, as a former spouse, to withdraw his

  consent for placement of the embryos “at any time” before they are

  placed. § 19-4-106(7)(b).

¶ 61   Wife and husband have equal claim to constitutional and

  other rights. The decision allocating the embryos required the court

  to balance those competing interests, and the court did so

  appropriately.

¶ 62   Accordingly, we perceive no constitutional violation. See

  Szafranski I, 993 N.E.2d at 516 (finding no constitutional obstacle


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  to contract or balancing of interests approach because friend who

  participated in creating embryos did not have unilateral

  constitutional right to prohibit their use without regard to the

  woman’s equal rights); see also Szafranski II, 34 N.E.3d at 1163-64.

                             V. Conclusion

¶ 63   The trial court’s judgment awarding the parties’ embryos to

  husband under the balancing of interests approach is affirmed.

       JUDGE HAWTHORNE and JUDGE FOX concur.




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