Colorado Supreme Court Opinions

October 29, 2018


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2018 CO 85. No. 16SC906. In re Marriage of Rooks.

In this dissolution of marriage proceeding, the Supreme Court reviewed how courts should resolve disagreements over the disposition of a couple’s cryogenically preserved pre-embryos when that couple divorces. The Court held that because the underlying interests at stake are the equivalently important, yet competing, right to procreate and right to avoid procreation, courts should strive, where possible, to honor both parties’ interests in procreational autonomy. Thus, courts should look first to any existing agreement expressing the spouses’ intent regarding disposition of the couple’s remaining pre-embryos in the event of divorce. In the absence of such an agreement, courts should seek to balance the parties’ respective interests in receipt of the pre-embryos. In balancing those interests, courts should consider the intended use of the party seeking to preserve the pre-embryos; a party’s demonstrated ability, or inability, to become a genetic parent through means other than use of the disputed pre-embryos; the parties’ reasons for undertaking in vitro fertilization in the first place; the emotional, financial, or logistical hardship for the person seeking to avoid becoming a genetic parent; any demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in the divorce process; and other considerations relevant to the parties’ specific situation. However, courts should not consider whether the party seeking to become a genetic parent using the pre-embryos can afford a child. Nor shall the sheer number of a party’s existing children, standing alone, be a reason to preclude preservation or use of the pre-embryos. Finally, courts should not consider whether the party seeking to become a genetic parent using the pre-embryos could instead adopt a child or otherwise parent non-biological children. The Court reversed the judgment of the Court of Appeals and remanded the case with directions to return the matter to the trial court to apply the announced balancing framework.

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2018 CO 86. No. 17SC195. People v. Lozano-Ruiz.

In this case, the Supreme Court reviewed the trial court’s reversal of a sexual assault conviction for failure to provide a jury instruction containing the statutory definition of “sexual penetration.” The Court concluded that because the question of whether sexual penetration had occurred was not a contested issue at trial, the county court did not plainly err by failing to give a corresponding instruction to the jury. Accordingly, the Court reversed the trial court’s order and affirmed Lozano-Ruiz’s conviction.

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