Judge Gives Estranged Wife Custody of Embryos

Declaring that life begins at conception, a judge today awarded custody of seven frozen embryos to the woman who hopes to carry them to term, not the estranged husband who does not want to be a father.

Circuit Judge W. Dale Young ruled in favor of Mary Sue Davis over Junior Davis in the unprecedented divorce case, which grew out of the decade-old technology of “test-tube babies,” or in-vitro fertilization.

The judge declared that the embryos are not property, but children. In effect, he then treated the case like a typical custody dispute, in which the overriding concern is the best interest of the child.

“From fertilization, the cells of a human embryo are differentiated, unique and specialized to the highest degree of distinction,” the judge said. Thus, he said, “human life begins at conception.”

He said Mary Sue Davis could have temporary custody so that she could have the eggs implanted in her womb in hopes of becoming pregnant. Child support, visitation and final custody will be decided if a birth results, he wrote.

The eggs were fertilized last year, before the couple’s marriage broke down.

Junior Davis said he will appeal. “They are going to force me to become a father against my wishes,” he said.

Mary Sue Davis, who now lives in Florida, had no immediate comment.

“It was the toughest decision of my life as a judge,” Young said in an interview. “On a scale of 1 to 10, it was a 10. I have agonized over it.

“The full focus of the court in the case of children is on what’s to their best interests, not what mom wants, not what dad wants and not what the grandparents want.”

Young’s ruling relied on a 1988 federal appeals court decision from Florida affirming the reliability of DNA profiling in determining a person’s individuality--”that the life codes for each special, unique individual are resident at conception and animate the new person very soon after fertilization occurs.”

The Davises became embroiled in the dispute after they were unable to have children and turned to in-vitro fertilization.

The couple produced nine embryos in December under the guidance of Dr. I. Ray King at a Knoxville clinic. Two were implanted in Mary Sue Davis but failed to develop. The others were put in cold storage. Junior Davis sued for divorce in February.

During three days of testimony in August, he said he would feel “raped of my reproductive rights” if his wife were allowed to implant the embryos without his consent.

“I’m not asking that they be destroyed,” he said. “I’m just asking that they not be inserted in Mary or any other donor.”

Mary Sue Davis, 29, argued that the embryos represent her best chance of becoming a mother. She contended that her husband was seeking a right not normally given to a man--whether a child should be born after he has fertilized the egg of his mate.

“He consented to be a father and I’m willing to let him,” Mary Sue Davis testified.