Divorced Pair Share Custody of 7 Embryos

The Tennessee Court of Appeals on Thursday granted joint custody of seven frozen embryos to a divorced couple, overturning a landmark ruling that had granted custody to the ex-wife.

Charles Clifford, attorney for the ex-husband, fell to his knees at the courthouse on seeing the opinion and said: “All right, thank you. Justice is done.”

The court ruled in the divorce case of Junior Lewis Davis, 31, of Maryville and his former wife, Mary Sue Davis Stowe, 29, who has remarried and lives in Titusville, Fla.

“It would be repugnant and offensive to constitutional principles to order Mary Sue to implant these fertilized ova against her will,” Judge Herschel P. Franks wrote for the court. “It would be equally repugnant to order Junior to bear the psychological, if not the legal, consequences of paternity against his will.”

The court ruled that the two should “share an interest in the seven fertilized ova.”

The case was remanded to Blount County Circuit Judge W. Dale Young to enter a judgment giving Stowe and Davis “joint control of the fertilized ova (and) equal voice over their disposition.”

Clifford said it would be Stowe’s decision whether to pursue the case to the Tennessee Supreme Court. Her attorney was not available for comment.

The embryos were created in vitro at a Knoxville fertility clinic in December, 1988, by mixing Davis’ sperm with eggs removed from his wife.

In February, 1989, Davis sued his wife for divorce, asking the court to prevent any use of the embryos without his consent. He said he should not be forced to become a parent against his wishes.