Life and the Law

The battle being waged in a Tennessee courtroom over the fate of seven frozen and fertilized ova could gear up to be a national sensation along the lines of the “Baby M” surrogate mother case two years ago. Like the Baby M case, this dispute raises controversial questions concerning reproductive rights. And like the Baby M case, this dispute is unlikely to solve any of them.

Mary Sue Davis and her former husband, Junior Lewis Davis, wanted to have a child. Because Mrs. Davis could not conceive normally, the couple opted for in vitro fertilization--so-called test-tube fertilization--where egg and sperm are united in a laboratory and surgically implanted in the woman’s uterus. Part of the way through this process, after fertilization and before implantation of seven of the fertilized eggs, the marriage fell apart and the couple decided to divorce. Mrs. Davis now wants to gain possession of the embryos, hoping to use them to have a child in the future. Mr. Davis doesn’t want her to bear his children without his consent.

The case raises many larger questions: Does Mr. Davis have the same rights over the embryos as Mrs. Davis because their genetic contribution was equal? Or does Mrs. Davis have greater rights because she can put the embryos to use and Mr. Davis cannot? Or do the rights of the parents shrink in comparison to the rights of the embryos who, as potential human beings, have been accorded full legal status in some states?

The judge, who has said repeatedly that this case has no direct legal precedents, has several avenues of response. One is to consider the case as a standard divorce case and the embryos as any other piece of marital property. Another would be to follow the reasoning of a California appellate court that ruled last year that persons who give biological material to medical institutions retain rights over that material. In that case, Mr. Davis would retain at least equal right over the embryos. Finally, the judge could turn to law concerning custody of children in divorce cases, determining what decision would be in the “best interests” of the Davises’ potential children.

The answers to such questions have enormous implications for reproductive ethics. Should the judge decide that the well-being of the embryos supersedes the claims of both adults, that would raise questions about the morality of abortion. If the father is granted some say in the fate of the embryos, then that would raise larger issues about paternal consent for abortion and the rights of sperm donors. If the mother is accorded full powers over the embryos, the ruling would raise questions about fathers’ parental rights.

But although this case raises such sweeping questions, it is unlikely to resolve them. In the Baby M case, the judge resorted to straight contract law to make his ruling. Similarly, the Davises are likely to reach a satisfactory legal solution that sidesteps the moral issues--Mr. Davis could relinquish all future rights or responsibilities over any children born from the embryos, for instance, and Mrs. Davis would gain control over the embryos in return for giving up the right to ask her former husband for child support.

As long as the judge does not grant the embryos legal status--which would go far beyond existing law--this case will be just one more dispute that spurs public debate and reveals how deep are society’s uncertainties about reproduction in this technologically confused era. The answers to the larger questions will come about only after long deliberation--not by one nervous judge in one Tennessee courtroom but by society as a whole.