Future Meets the Past in an Unusual Custody Battle

In a case where the new world of reproductive technology comes up against the old world of law and human frailty, a Tennessee couple who are getting a divorce are at odds over who should have control of their frozen embryos.

Junior Lewis Davis, who initiated the divorce action, says the embryos are potential children and that he should have the right to decide whether he wants to become a father. His wife, Mary Sue Davis, says the embryos represent her best chance to become a mother and that the case should be seen as a custody battle over children.

Their attorneys and the courts are in a quandary because there is virtually no legal precedent regarding divorce and the disposition of so-called cryopreserved human embryos.

The case is being closely watched by legal, medical and religious groups across the nation for the guidelines it may establish in a field of science that has given new hope to thousands of childless couples but is creating ever more unorthodox and controversial concepts of birth and parenthood.

“The law just does not address this,” Joseph Gitlin, chairman of the American Bar Assn.’s committee on genetic engineering, said of the Tennessee case. “It’s not like developing a new criminal statute or amending a divorce law. You’re starting from scratch--from basic ethic and moral concepts.”

In the divorce suit filed Feb. 23, Junior Davis contends that the seven fertilized eggs he and his wife have in frozen storage constitute joint marital property and that she should not be allowed to dispose of them in any way that would make him a father without his express consent.

“If the court was to order these eggs into her possession . . . that would be the same as a court order to rape me of my reproductive system and force parenthood upon me,” Davis, 30, a refrigeration technician for the local housing authority, said in an interview. “I feel that it’s my right to decide if I want to become a parent.”

His wife, a 28-year-old service representative for a boat company in nearby Knoxville, says that she has endured nine years of mental and physical ordeal in efforts to have a baby, including five tubal pregnancies that had to be surgically terminated.

The couple’s attempts to adopt a child also proved fruitless, she says, and the embryos that she and her husband produced as part of an in-vitro fertilization program now represent her best--and perhaps only--chance to fulfill her dream of motherhood.

“He can go out and have as many children as he wants,” she said in a telephone interview. “This really is my only option. If I was ever to have my own child, I would have to start through this whole process again, and chances are it wouldn’t work.”

She added that she considers this case equivalent to a battle over custody of children and that she would not seek child support if she prevails in court. But her husband said that the question of child support is not at issue in the dispute.

“The basic question is whether I want to be a father,” he said. “I’m very sympathetic with Mary, but there are other avenues (open to her) if she wants to have a child--other than mine.”

Unlikely Battleground

The Davises and their middle-American community appear to be an unlikely battleground for an issue on the cutting edge of jurisprudence and medical science.

They were married in 1980 after meeting while they were both in the Army and serving at an American base in West Germany. Junior Davis--whom his wife calls “J. R.”--is amiable and soft-spoken with a boyish face. She is spunky and considered attractive.

After the army and several subsequent moves, they settled in Maryville, a tidy, bustling town of 17,480 residents nestled in the scenic foothills of the Great Smokies about 20 miles south of Knoxville. They built a house three years ago in the surrounding countryside. They both have since moved out of the house into separate apartments.

The couple said that they tried to conceive a child normally but were unsuccessful. They decided against adoption after private agencies proved too expensive and state agencies offered only foster children that might be taken away from them.

J. G. Christenberry, Mary Davis’ attorney, says that the terminated tubal pregnancies and the series of medical procedures she has endured as part of the in-vitro fertilization process have left her emotionally and physically scarred.

During one of her tubal pregnancies, he said, doctors “did not know what was wrong with her and it ruptured and she about bled to death.”

Emotional Pressures

The couple declined to discuss any of the personal reasons for their divorce. The legal complaint gives as grounds “irreconcilable differences.” But Mary Davis said that the emotional pressures the couple has endured in trying to become parents are “enough to strain any marriage.”

Junior Davis says his wife hopes to make the mental strain she has endured part of her defense to obtain custody of the frozen embryos. But, he said: “I’ve been right there with her. It’s been a mental strain on myself. But I don’t feel that outweighs my right to decide if I want to be a parent and have no control over a child out there that I cannot have.”

Along with the divorce petition, he also requested a temporary restraining order preventing his wife from having any of the embryos implanted in her womb or from donating them to another couple until a legal judgment on their disposition is handed down.

The restraining order was promptly granted by Judge W. Dale Young of the Blount County Circuit Court in Maryville.

Young’s office said that the judge is barred by court rules from commenting on pending lawsuits, but his secretary acknowledged that he is aware of the precedent-setting potential of the decision he may have to render in the non-jury case. No court date has been set.

No Clear Legal Ground

Attorneys for both sides in the dispute have been scouring the legal literature for any point of law that might aid their arguments.

Charles Clifford, who represents Junior Davis, says the only clear legal ground he has found is that the embryos, while deserving special respect, are not considered human beings with all the rights such a status might ordinarily accord them.

“There’s never been a case that says they were, even in the dissents to the court decisions,” he said.

Legal specialists in the field of reproductive technology say the only case even resembling this one is that of a wealthy Los Angeles couple who died in a plane crash in 1983, leaving behind no instructions for the disposition of the two fertilized eggs they placed in frozen storage in Australia.

Although Australia law granted no rights to the embryos, a fierce debate erupted over whether they should be destroyed, donated to another couple or left in storage. The Roman Catholic Church of Australia, for example, disapproved of the freezing of human embryos but said under no circumstances should they be discarded or destroyed.

The embryos reportedly remain in storage at the Melbourne medical facility where the California couple, Mario and Elsa Rios, participated in an in-vitro fertilization program.

‘Morally Criminal Act’

The Roman Catholic church’s view of the Davis’ embryos is the same as the Rios embryos, said Father Russell E. Smith, director of Education at the Pope John XXIII Medical-Moral Research and Education Center in Boston. Once the technology, which he described as a “cruel slave driver,” is employed, the embryos must be sustained in some way. “To ‘discard’ this human being, in the euphemism of the day, would be a morally criminal act,” he said. But he took no position on the question of which of the Davises should have custody.

A Creative Approach

Gitlin, a suburban Chicago attorney who is involved in drawing up a model legal code for reproductive technology as head of the American Bar Assn.’s newly created panel on genetic engineering, says that the Davis divorce case calls for a creative judicial approach because traditional law regarding joint marital assets and child custody have little applicability.

“These are not pots and pans we’re talking about,” he said. “The judge has got to view this case creatively. You can’t treat these embryos as ordinary assets that can be awarded to either party to do with as they want. They are genetic material, with a piece of the father in them.”

John A. Robertson, a University of Texas law professor who has been involved in drawing up ethical guidelines on in-vitro fertilization, contends that--in the absence of laws to the contrary--the interest of the parent who does not want to have the embryos come to term should prevail.

“Loss of these embryos would not prevent her from having children later by going through in-vitro fertilization again with someone else’s sperm,” he said. “So when you compare the interest of the husband here to avoid unwanted reproduction that could saddle him with financial and psychological burdens for life, that is an important interest that deserves some protection.”

Successful Procedure

In in-vitro fertilization, a procedure first used successfully in England in 1978 with the birth of test-tube baby Louise Joy Brown, eggs are surgically removed from the ovaries of a woman and fertilized in a laboratory dish with a man’s sperm. The fertilized eggs then may be implanted in a woman’s womb or frozen for implantation later.

Between 3,000 and 5,000 test-tube babies have been born in the United States through this procedure, according to estimates by the American Fertility Society, a 10,000-member organization composed mainly of health care professionals and based in Birmingham, Ala.

Joyce Zeitz, a spokeswoman for the society, says that no one knows exactly how long embryos can remain viable in frozen storage. But an ethical statement on in-vitro fertilization adopted by the society in 1984 says that frozen embryos should not be preserved for longer than the reproductive life of the female donor.

The statement also says that any couple entering an in-vitro fertility program should sign a consent form covering various steps in the procedure, including the future disposition of preserved embryos. But the guidelines offer no specific recommendations on disposition in event of death or divorce.

Although these consent forms are relatively common in cases of test-tube babies, the Davises apparently signed no such agreement beforehand. “You just don’t think about dying or getting a divorce,” when trying to conceive a baby, Mary Davis said.