Embryo and IVF Laws in Colorado: What Intended Parents Need to Know

Colorado does not recognize cryopreserved embryos as legal persons. However, that does not mean embryos created through IVF are treated like ordinary property. Colorado law recognizes their unique reproductive significance, and specific laws and agreements can affect who may make decisions about their use and disposition.

For intended parents, these distinctions can shape important decisions about creating, storing, using, donating or disposing of embryos. They can become especially important if circumstances change or if you plan to use your embryos later through gestational surrogacy.

Understanding Colorado’s embryo and IVF laws before you create embryos can help you make informed choices about who controls them, how they may be used and what should happen if your family-building plans change.

Does Colorado Law Consider an Embryo a Person?

No. Colorado does not recognize a fertilized egg, embryo or fetus as having independent legal rights. Under the state’s Reproductive Health Equity Act, which took effect in April 2022, embryos do not have the separate legal status or rights of a person under Colorado law.

Colorado’s assisted reproduction laws also define an embryo as a fertilized egg with the potential to develop into a fetus if transferred into a uterus. This definition specifically accounts for embryos created through IVF that exist outside the body before implantation or pregnancy.

For intended parents, this means a cryopreserved embryo stored at a fertility clinic is not legally considered a person simply because fertilization has occurred. Laws that apply after embryo transfer or during pregnancy are distinct from the legal framework governing embryos that remain outside the uterus.

How Colorado Embryo Laws Affect IVF

Colorado law protects access to IVF and other assisted reproductive care. In 2025, the state enacted the Reducing Barriers to Building Families Act, which added specific protections for fertility services and assisted reproductive procedures rather than leaving IVF protections to depend solely on how embryos are legally classified.

For intended parents, this framework supports the medical procedures that are part of a typical IVF cycle, including:

Creating Embryos: Fertility providers may fertilize eggs and culture resulting embryos as part of IVF treatment.
Freezing and Storing Embryos: Embryos may be cryopreserved for later reproductive use.
Testing Embryos: Intended parents may use preimplantation genetic testing when appropriate for their treatment.
Transferring Embryos: Embryos may be transferred for an intended pregnancy, including as part of a future gestational surrogacy plan.
Deciding What Happens to Remaining Embryos: Embryos that are not used for reproduction may be subject to continued storage, donation or disposal, depending on the intended parents’ directions, their agreements and applicable clinic requirements.

These protections support access to IVF in Colorado, but questions about who controls stored embryos and what happens if intended parents disagree are governed by separate legal considerations.

Embryo Disposition Laws in Colorado

Unused embryos created through IVF can generally remain in storage, be used for reproduction, be donated or be discarded in Colorado. The options available can depend on the consents and agreements in place, as well as the requirements of the clinic or storage facility.

Continued Cryostorage: Embryos can remain frozen for possible future use, typically as long as storage requirements and fees are met.
Reproductive Use: Embryos can be thawed and transferred in an attempt to achieve pregnancy, including a future transfer to a gestational surrogate when appropriate.
Donation for Family-Building: Embryos can be donated for another person or couple to use in building their family, with the appropriate consent and legal documentation.
Donation to Research: Embryos may be donated to an eligible research program when one is available and its requirements are satisfied.
Thawing and Discarding: Embryos that will not be used or donated may be thawed and discarded according to the applicable consent process and facility procedures.

These decisions do not always need to be made immediately after an IVF cycle. However, documenting your wishes can provide clearer direction for your clinic and help address what should happen to embryos that remain in storage.

Are IVF Consent and Embryo Disposition Agreements Enforceable in Colorado?

Yes, Colorado courts may enforce agreements that clearly state what should happen to frozen embryos if the intended parents later divorce or disagree. Courts first look for an enforceable agreement addressing the specific disposition dispute.

An agreement is most useful when it clearly addresses the circumstances that later arise. A court may need to look beyond the agreement when:

The Agreement Does Not Address the Dispute: A form may cover death, storage or other circumstances without explaining what happens after divorce or separation.
The Terms Are Unclear: Ambiguous provisions may not provide enough direction to resolve the parties’ competing wishes.
There Is No Enforceable Agreement: When no agreement controls, Colorado courts use a balancing framework to weigh the parties’ respective interests.

A fertility clinic consent form may document important decisions about your embryos, but it may not address every circumstance that could arise years later. Individualized legal guidance can help you understand those provisions and document your intentions for future use, disposition, separation or other changes before a dispute arises.

What Happens to Frozen Embryos in a Divorce in Colorado?

When former spouses disagree about frozen embryos in Colorado, courts first look for an enforceable agreement addressing what should happen upon divorce. If the agreement resolves the dispute, the court generally follows the intentions the couple previously documented.

If no agreement controls, Colorado courts use a balancing test rather than automatically giving the embryos to either person. The court considers both parties’ interests, including one person’s desire to use the embryos and the other person’s desire to avoid genetic parenthood.

Key Colorado Embryo Divorce Cases

Colorado appellate courts have addressed several disputes involving embryos after divorce. Together, these decisions establish how courts should approach competing wishes about using, donating or discarding frozen embryos.

In re Marriage of Rooks

In 2018, the Colorado Supreme Court established how courts should resolve embryo disputes in In re Marriage of Rooks. The court ruled that an existing agreement should generally control, but if the agreement does not resolve the dispute, the court must weigh each person’s interests. That analysis may consider:

Intended Use: Whether the embryos would be used to pursue pregnancy or for another purpose, such as donation.
Other Paths to Genetic Parenthood: Whether the person seeking to use the embryos has another reasonable opportunity to become a genetic parent.
Reasons for Creating the Embryos: The circumstances that originally led the couple to pursue IVF.
Impact of Genetic Parenthood: The effects on the person who does not want to become a genetic parent.
Bad Faith: Whether either person is using the embryos as leverage in the divorce.

In re Marriage of Fabos and In re Marriage of Olsen

Colorado’s Court of Appeals later applied the Rooks framework to a different conflict: one former spouse wanted to donate the embryos to another couple, while the other wanted them discarded.

The court concluded that a person seeking to avoid genetic parenthood will ordinarily have the stronger interest when the other person wants to donate the embryos rather than use them to become a genetic parent. The decisions show why the intended use of frozen embryos can make a meaningful difference when a court applies the Rooks balancing test.

What Happens to Embryos if an Intended Parent Dies in Colorado?

A surviving spouse or partner may be able to use stored embryos after an intended parent dies. Existing embryo agreements and prior written consent can affect both the use of those embryos and future parentage.

Under Colorado law, if a spouse or civil union partner dies before embryo transfer, the deceased person is not recognized as a parent unless they previously consented to parentage after death. This makes documenting intentions about posthumous reproduction especially important.

Posthumous conception can also affect inheritance. A qualifying child may be treated as if they were in gestation at the time of the parent’s death if the child is in utero within 36 months or born within 45 months after the death.

What if You and Your Partner Disagree About Using Your Embryos?

Disagreements about stored embryos can arise outside divorce, including between unmarried partners or when one person changes their mind about plans made during IVF. Colorado law may address those disagreements differently depending on the circumstances:

One Person Changes Their Mind: A change in intentions can create a dispute if the partners previously agreed on how their embryos would be used or disposed of.
One Person Wants to Use the Embryos: If the other person objects to a future transfer, courts may need to consider any existing agreement and the competing interests of both parties.
The Partners Disagree About Disposition: Conflicts can also arise when one person wants embryos stored, donated or discarded while the other wants a different outcome.
There Is No Controlling Agreement: A 2025 Colorado Court of Appeals decision confirmed that a Rooks-like framework can apply to unmarried partners, allowing courts to weigh the parties’ interests when an agreement does not resolve the dispute.

An embryo disposition agreement can document decisions about future use, donation or destruction before intentions change. This gives intended parents a clearer record of what they agreed to if a disagreement later develops.

Does Colorado Protect IVF and Fertility Treatment?

Yes. Colorado law expressly protects access to IVF and other fertility care, and those protections have expanded in recent years. However, these laws address different parts of fertility treatment, from reproductive decision-making to IVF procedures and insurance coverage. Key protections include:

Reproductive Health Equity Act: Effective April 4, 2022, RHEA protects an individual’s right to make reproductive healthcare decisions and expressly includes fertility care within reproductive healthcare. It also establishes that embryos do not have independent rights under Colorado law.
Reducing Barriers to Building Families Act: Enacted in 2025, this law added specific protections for IVF and other assisted reproductive procedures. It protects access to fertility care while also addressing requirements affecting fertility clinics and gamete donation.
Colorado Building Families Act: Colorado also requires certain health benefit plans to cover infertility diagnosis, treatment and standard fertility preservation services. Coverage depends on the type of health plan and applicable requirements, so the law does not mean every Colorado insurance plan must cover IVF.

Together, these laws protect access to fertility treatment and provide important safeguards for assisted reproduction in Colorado. They do not, however, eliminate the need for agreements addressing embryo control, disposition, parentage or future use.

How Colorado Embryo Laws Can Affect a Future Surrogacy Plan

If you create embryos with the possibility of using a gestational surrogate later, decisions made during IVF can affect that future plan. Embryo control, consent and donor documentation should be clear before an embryo is transferred. Important considerations include:

Embryo Control and Consent: Your agreements should clearly establish who may authorize the embryos’ future reproductive use, including transfer to a gestational surrogate.
Donor Documentation: If donor eggs, sperm or embryos were used, the appropriate records and agreements should confirm the donation and any terms affecting future reproductive use.
Permitted Future Use: Embryo disposition documents should account for surrogacy if that may become part of your family-building plans.
Surrogacy Agreement: Under Colorado’s Surrogacy Agreement Act, the required agreement must be signed before medical procedures related to the surrogacy begin, with limited exceptions for medical evaluations and mental-health consultations.

Planning for these issues when embryos are created can make it easier to move from IVF to surrogacy without having to resolve questions about consent, donor documentation or permitted embryo use later.

Decisions to Make Before Creating Embryos in Colorado

Before creating embryos, it is worth thinking beyond the immediate IVF cycle. Decisions made now can affect who may use your embryos and what happens to them if your family-building plans or circumstances change. Important decisions to address include:

Future Reproductive Use: Who may authorize an embryo transfer, and can the embryos be used for future attempts at pregnancy?
Separation or Divorce: What should happen to the embryos if your relationship ends, and may either person use them to pursue parenthood?
Death or Incapacity: May a surviving partner use the embryos, and what should happen if one or both intended parents die or become unable to make decisions?
Other Disposition Options: Under what circumstances may embryos remain in storage, be donated to another family or research, or be thawed and discarded?
Future Surrogacy: May the embryos be transferred to a gestational surrogate, and do any donor-gamete documents support that planned use?

Fertility clinic consent forms often address some of these decisions, but they may not account for every future circumstance. Foster + Bloom can help you understand your options and create an embryo disposition plan that clearly reflects your intentions.

How Foster + Bloom Helps Intended Parents Plan for the Future of Their Embryos

Embryo planning can affect your family long after an IVF cycle ends. At Foster + Bloom, our attorneys help intended parents make decisions with those future possibilities in mind, from another pregnancy to donor conception or gestational surrogacy. Our ART-focused guidance can help you:

Plan for Embryo Control and Disposition: We help you document who may make decisions about your embryos and what should happen if they are no longer used for your own reproductive plans.
Prepare for Changes in Circumstances: We help you consider how separation, divorce, death or other major changes could affect decisions about stored embryos.
Connect IVF With Future Surrogacy: If gestational surrogacy may be part of your plans, we can help make sure decisions about embryo use and donor documentation support that next step.
Understand What You Are Signing: We review the legal implications of embryo-related documents so you can make informed decisions before agreeing to terms that may matter years later.

Foster + Bloom focuses exclusively on family-building law. That experience allows us to look beyond the decisions in front of you today and help you plan for how your embryos may fit into the family you hope to build.

Talk to a Fertility Law Attorney in Colorado Before You Create Embryos

Before signing your fertility clinic’s standard paperwork or beginning your IVF cycle in Colorado, make sure your parental rights and long-term intentions are fully protected. Our experienced Colorado reproductive law attorneys are here to guide you through every milestone.

Meet Your Colorado Attorney

Tifany Markee,
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Why I Practice in Family Law: "I truly enjoy guiding families through some of the most complex of immigration and international matters, and I ensure they always feel heard and valued. Reassuring clients that I am there, as their team member, is so rewarding, and knowing that families can live together, wherever they choose, is the best part."

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