|||SUPREME COURT OF TENNESSEE, AT KNOXVILLE
842 S.W.2d 588
|||June 1, 1992
|||JUNIOR LEWIS DAVIS, PLAINTIFF-APPELLEE,
MARY SUE DAVIS, DEFENDANT-APPELLANT
|||Blount County. The Hon. W. Dale Young, Judge
|||Second Correction July 1, 1992.
|||For the Appellee: Charles M. Clifford, Maryville, Tennessee.
|||For the Appellant: Kurt Erlenbach, 503 South Palm Avenue, Titusville,
|||For the Amici Curiae American Fertility Society, et al.: Barry Friedman,
Nashville, Tennessee, Ellen Wright Clayton, Nashville, Tennessee, Janet
Benshoof, Rachael N. Pine, Lynn M. Paltrow, 132 West 43rd Street, New York,
New York, David L. Goldberg, New York, New York.
|||For the Amicus Curiae American Academy of Medical Ethics: Kevin J. Todd,
Clarke D. Forsythe, 343 S. Dearborn Street, Chicago, Illinois, Richard J.
Ryan, Jr., Memphis, Tennessee.
|||Daughtrey, Reid, Drowota, O'Brien, Anderson
|||The opinion of the court was delivered by: Daughtrey
|||This appeal presents a question of first impression, involving the Disposition
of the cryogenically-preserved product of in vitro fertilization (IVF),
commonly referred to in the popular press and the legal journals as "frozen
embryos." The case began as a divorce action, filed by the appellee,
Junior Lewis Davis, against his then wife, appellant Mary Sue Davis. The
parties were able to agree upon all terms of dissolution, except one: who
was to have "custody" of the seven "frozen embryos"
stored in a Knoxville fertility clinic that had attempted to assist the
Davises in achieving a much-wanted pregnancy during a happier period in
|||Mary Sue Davis originally asked for control of the "frozen embryos"
with the intent to have them transferred to her own uterus, in a post-divorce
effort to become pregnant. Junior Davis objected, saying that he preferred
to leave the embryos in their frozen state until he decided whether or not
he wanted to become a parent outside the bounds of marriage.
|||Based on its determination that the embryos were "human beings"
from the moment of fertilization, the trial court awarded "custody"
to Mary Sue Davis and directed that she "be permitted the opportunity
to bring these children to term through implantation." The Court of
Appeals reversed, finding that Junior Davis has a "constitutionally
protected right not to beget a child where no pregnancy has taken place"
and holding that "there is no compelling state interest to justify
 ordering implantation against the will of either party." The Court
of Appeals further held that "the parties share an interest in the
seven fertilized ova" and remanded the case to the trial court for
entry of an order vesting them with "joint control . . . and equal
voice over their Disposition."
|||Mary Sue Davis then sought review in this Court, contesting the validity
of the constitutional basis for the Court of Appeals decision. We granted
review, not because we disagree with the basic legal analysis utilized by
the intermediate court, but because of the obvious importance of the case
in terms of the development of law regarding the new reproductive technologies,
and because the decision of the Court of Appeals does not give adequate
guidance to the trial court in the event the parties cannot agree.
|||We note, in this latter regard, that their positions have already shifted:
both have remarried and Mary Sue Davis (now Mary Sue Stowe) has moved out
of state. She no longer wishes to utilize the "frozen embryos"
herself, but wants authority to donate them to a childless couple. Junior
Davis is adamantly opposed to such donation and would prefer to see the
"frozen embryos" discarded. The result is, once again, an impasse,
but the parties' current legal position does have an effect on the probable
outcome of the case, as discussed below.
|||At the outset, it is important to note the absence of two critical factors
that might otherwise influence or control the result of this litigation:
When the Davises signed up for the IVF program at the Knoxville clinic,
they did not execute a written agreement specifying what Disposition should
be made of any unused embryos that might result from the cryopreservation
process. Moreover, there was at that time no Tennessee statute governing
such Disposition, nor has one been enacted in the meantime. *fn1
|||In addition, because of the uniqueness of the question before us, we have
no case law to guide us to a decision in this case. Despite the fact that
over 5,000 IVF babies have been born in this country and the fact that some
20,000 or more "frozen embryos" remain in storage, there are apparently
very few other litigated cases involving the disputed Disposition of untransferred
"frozen embryos," and none is on point with the facts in this
|||But, if we have no statutory authority or common law precedents to guide
us, we do have the benefit of extensive comment and analysis in the legal
journals. In those articles, medical-legal scholars and ethicists have proposed
various models for the Disposition of "frozen embryos" when unanticipated
contingencies arise, such as divorce, death of one or both of the parties,
financial reversals, or simple disenchantment with the IVF process. Those
models range from a rule requiring, at one extreme, that all embryos be
used by the gamete-providers or donated for uterine transfer, and, at the
other extreme, that any unused embryos be automatically discarded. *fn3
Other formulations would vest control in the female gamete-provider -- in
every case, because of her greater physical and emotional contribution to
the IVF process, *fn4 or perhaps
only in the event that she wishes to use them herself. *fn5
There are also two "implied contract" models: one would infer
from enrollment in an IVF program that the IVF clinic has authority to decide
in the event of an impasse whether to donate, discard, or use the "frozen
embryos" for research; the other would infer from the parties' participation
in the creation of the embryos that they had made an irrevocable commitment
to reproduction and would require transfer either to the female provider
or to a donee. There are also the so-called "equity models": one
would avoid the conflict altogether by dividing the "frozen embryos"
equally between the parties, to do with as they wish; *fn6
the other would award veto power to the party wishing to avoid parenthood,
whether it be the female or the male progenitor. *fn7
|||Each of these possible models has the virtue of ease of application. Adoption
of any of them would establish a bright-line test that would dispose of
disputes like the one we have before us in a clear and predictable manner.
As appealing as that possibility might seem, we conclude that given the
relevant principles of constitutional law, the existing public policy of
Tennessee with regard to unborn life, the current state of scientific knowledge
giving rise to the emerging reproductive technologies, and the ethical considerations
that have developed in response to that scientific knowledge, there can
be no easy answer to the question we now face. We conclude, instead, that
we must weigh the interests of each party to the dispute, in terms of the
facts and analysis set out below, in order to resolve that dispute in a
fair and responsible manner.
|||II. The Facts
|||Mary Sue Davis and Junior Lewis Davis met while they were both in the
Army and stationed in Germany in the spring of 1979. After a period of courtship,
they came home to the United States and were married on April 26, 1980.
When their leave was up, they then returned to their posts in Germany as
a married couple.
|||Within six months of returning to Germany, Mary Sue became pregnant but
unfortunately suffered an extremely painful tubal pregnancy, as a result
of which she had surgery to remove her right fallopian tube. This tubal
pregnancy was followed by four others during the course of the marriage.
After her fifth tubal pregnancy, Mary Sue chose to have her left fallopian
tube ligated, thus leaving her without functional fallopian tubes by which
to conceive naturally. The Davises attempted to adopt a child but, at the
last minute, the child's birth-mother changed her mind about putting the
child up for adoption. Other paths to adoption turned out to be prohibitively
expensive. In vitro fertilization became essentially the only option for
the Davises to pursue in their attempt to become parents.
|||As explained at trial, IVF involves the aspiration of ova from the follicles
of a woman's ovaries, fertilization of these ova in a petri dish using the
sperm provided by a man, and the transfer of the product of this procedure
into the uterus of the woman from whom the ova were taken. *fn8
Implantation may then occur, resulting in a pregnancy and, it is hoped,
the birth of a child.
|||Beginning in 1985, the Davises went through six attempts at IVF, at a
total cost of $35,000, but the hoped-for pregnancy never occurred. Despite
her fear of needles, at each IVF attempt Mary Sue underwent the month of
subcutaneous injections necessary to shut down her pituitary gland and the
eight days of intermuscular injections necessary to stimulate her ovaries
to produce ova. She was anesthetized five times for the aspiration procedure
to be performed. Forty-eight to 72 hours after each aspiration, she returned
for transfer back to her uterus, only to receive a negative pregnancy test
result each time.
|||The Davises then opted to postpone another round of IVF until after the
clinic with which they were working was prepared to offer them cryogenic
preservation, scheduled for November 1988. Using this process, if more ova
are aspirated and fertilized than needed, the conceptive product may be
cryogenically preserved (frozen in nitrogen and stored at sub-zero temperatures)
for later transfer if the transfer performed immediately does not result
in a pregnancy. The unavailability of this procedure had not been a hinderance
to previous IVF attempts by the Davises because Mary Sue had produced at
most only three or four ova, despite hormonal stimulation. However, on their
last attempt, on December 8, 1988, the gynecologist who performed the procedure
was able to retrieve nine ova for fertilization. The resulting one-celled
entities, referred to before division as zygotes, were then allowed to develop
in petri dishes in the laboratory until they reached the four- to eight-cell
|||Needless to say, the Davises were pleased at the initial success of the
procedure. At the time, they had no thoughts of divorce and the abundance
of ova for fertilization offered them a better chance at parenthood, because
Mary Sue Davis could attempt to achieve a pregnancy without additional rounds
of hormonal stimulation and aspiration. They both testified that although
the process of cryogenic preservation was described to them, no one explained
the ways in which it would change the nature of IVF for them. *fn9
There is, for example, no indication that they ever considered the implications
of storage beyond the few months it would take to transfer the remaining
"frozen embryos," if necessary. There was no Discussion, let alone
an agreement, concerning Disposition in the event of a contingency such
|||After fertilization was completed, a transfer was performed as usual on
December 10, 1988; the rest of the four-to eight-cell entities were cryogenically
preserved. Unfortunately, a pregnancy did not result from the December 1988
transfer, and before another transfer could be attempted, Junior Davis filed
for divorce -- in February 1989. He testified that he had known that their
marriage "was not very stable" for a year or more, but had hoped
that the birth of a child would improve their relationship. Mary Sue Davis
testified that she had no idea that there was a problem with their marriage.
*fn10 As noted earlier, the divorce
proceedings were complicated only by the issue of the Disposition of the
|||III. The Scientific Testimony
|||In the record, and especially in the trial court's opinion, there is a
great deal of Discussion about the proper descriptive terminology to be
used in this case. Although this Discussion appears at first glance to be
a matter simply of semantics, semantical distinctions are significant in
this context, because language defines legal status and can limit legal
rights. *fn11 Obviously, an "adult"
has a different legal status than does a "child." Likewise, "child"
means something other than "fetus." A "fetus" differs
from an "embryo." There was much dispute at trial about whether
the four- to eight-cell entities in this case should properly be referred
to as "embryos" or as "preembryos," with resulting differences
in legal analysis.
|||One expert, a French geneticist named Dr. Jerome Lejeune, insisted that
there was no recognized scientific distinction between the two terms. He
referred to the four- to eight-cell entities at issue here as "early
human beings," as "tiny persons," and as his "kin."
Although he is an internationally recognized geneticist, Dr. Lejeune's background
fails to reflect any degree of expertise in obstetrics or gynecology (specifically
in the field of infertility) or in medical ethics. His testimony revealed
a profound confusion between science and religion. For example, he was deeply
moved that "Madame [Mary Sue], the mother, wants to rescue babies from
this concentration can," and he concluded that Junior Davis has a moral
duty to try to bring these "tiny human beings" to term. *fn12
|||Dr. LeJeune's opinion was disputed by Dr. Irving Ray King, the gynecologist
who performed the IVF procedures in this case. Dr. King is a medical doctor
who had practiced as a sub-speciality in the areas of infertility and reproductive
endocrinology for 12 years. He established the Fertility Center of East
Tennessee in Knoxville in 1984 and had worked extensively with IVF and cryopreservation.
He testified that the currently accepted term for the zygote immediately
after division is "preembryo" and that this term applies up until
14 days after fertilization. He testified that this 14-day period defines
the accepted period for preembryo research. At about 14 days, he testified,
the group of cells begins to differentiate in a process that permits the
eventual development of the different body parts which will become an individual.
|||Dr. King's testimony was corroborated by the other experts who testified
at trial, with the exception of Dr. Lejeune. It is further supported by
the American Fertility Society, an organization of 10,000 physicians and
scientists who specialize in problems of human infertility. The Society's
June 1990 report on Ethical Considerations of the New Reproductive Technologies
indicates that from the point of fertilization, the resulting one-cell zygote
contains "a new hereditary constitution (genome) contributed to by
both parents through the union of sperm and egg." Id. at 31S. Continuing,
the report notes:
|||The stage subsequent to the zygote is cleavage, during which the single
initial cell undergoes successive equal divisions with little or no intervening
growth. As a result, the product cells (blastomeres) become successively
smaller, while the size of the total aggregate of cells remains the same.
After three such divisions, the aggregate contains eight cells in relatively
loose association . . . Each blastomere, if separated from the others, has
the potential to develop into a complete adult . . . Stated another way,
at the 8-cell stage, the developmental singleness of one person has not
|||Beyond the 8-cell stage, individual blastomeres begin to lose their zygote-like
properties. Two divisions after the 8-cell stage, the 32 blastomeres are
increasingly adherent, closely packed, and no longer of equal developmental
potential. The impression now conveyed is of a multicellular entity, rather
than of a loose packet of identical cells.
|||As the number of cells continues to increase, some are formed into a surface
layer, surrounding others within. The outer layers have changed in properties
toward trophoblast . . . , which is destined [to become part of the placenta].
The less-altered inner cells will be the source of the later embryo. The
developing entity is now referred to as a blastocyst, characterized by a
continuous peripheral layer of cells and a small cellular population within
a central cavity . . . It is at about this stage that the developing entity
usually completes its transit through the oviduct to enter the uterus.
|||Cell division continues and the blastocyst enlarges through increase of
both cell number and . The populations of inner and outer cells become increasingly
different, not only in position and shape but in synthetic activities as
well. The change is primarily in the outer population, which is altering
rapidly as the blastocyst interacts with and implants into the uterine wall
. . . Thus, the first cellular differentiation of the new generation relates
to physiologic interaction with the mother, rather than to the establishment
of the embryo itself. It is for this reason that it is appropriate to refer
to the developing entity up to this point as a preembryo, rather than an
|||Id. at 31S-32S (emphasis added). For a similar description of the biologic
difference between a preembryo and an embryo, see Robertson, In the Beginning:
The Legal Status of Early Embryos, 76 Va. L. Rev. 437 (1990), in which the
author summarizes the findings of Clifford Grobstein in The Early Development
of Human Embryos, 10 J. Med. & Phil. 213 (1984).
|||Admittedly, this distinction is not dispositive in the case before us.
*fn13 It deserves emphasis only
because inaccuracy can lead to misanalysis such as occurred at the trial
level in this case. The trial court reasoned that if there is no distinction
between embryos and preembryos, as Dr. Lejeune theorized, then Dr. Lejeune
must also have been correct when he asserted that "human life begins
at the moment of conception." From this proposition, the trial Judge
concluded that the eight-cell entities at issue were not preembryos but
were "children in vitro." He then invoked the doctrine of parens
patriae and held that it was "in the best interest of the children"
to be born rather than destroyed. Finding that Mary Sue Davis was willing
to provide such an opportunity, but that Junior Davis was not, the trial
Judge awarded her "custody" of the "children in vitro."
|||The Court of Appeals explicitly rejected the trial Judge's reasoning,
as well as the result. Indeed, the argument that "human life begins
at the moment of conception" and that these four- to eight-cell entities
therefore have a legal right to be born has apparently been abandoned by
the appellant, despite her success with it in the trial court. *fn14
We have nevertheless been asked by the American Fertility Society, joined
by 19 other national organizations allied in this case as amici curiae,
to respond to this issue because of its far-reaching implications in other
cases of this kind. We find the request meritorious.
|||IV. The "Person" vs. "Property" Dichotomy
|||One of the fundamental issues the inquiry poses is whether the preembryos
in this case should be considered "persons" or "property"
in the contemplation of the law. The Court of Appeals held, correctly, that
they cannot be considered "persons" under Tennessee law:
|||The policy of the state on the subject matter before us may be gleaned
from the state's treatment of fetuses in the womb. . . . The state's Wrongful
Death Statute, Tenn. Code Ann. § 20-5-106 does not allow a wrongful death
for a viable fetus that is not first born alive. Without live birth, the
Supreme Court has said, a fetus is not a "person" within the meaning
of the statute. See e.g., Hamby v. McDaniel, 559 S.W.2d 774 (Tenn. 1977);
Durrett v. Owens, 212 Tenn. 614, 371 S.W.2d 433 (1963); Shousha v. Matthews
Drivurself Service, 210 Tenn. 384, 358 S.W.2d 471 (1962); Hogan v. McDaniel,
204 Tenn. 235, 319 S.W.2d 221 (1958). Other enactments by the legislature
demonstrate even more explicitly that viable fetuses in the womb are not
entitled to the same protection as "persons". Tenn. Code Ann.
§ 39-15-201 incorporates the trimester approach to abortion outlined in
Roe v. Wade, 410 U.S. 113 (1973). A woman and her doctor may decide on abortion
within the first three months of pregnancy but after three months, and before
viability, abortion may occur at a properly regulated facility. Moreover,
after viability, abortion may be chosen to save the life of the mother.
This statutory scheme indicates that as embryos develop, they are accorded
more respect than mere human cells because of their burgeoning potential
for life. But, even after viability, they are not given legal status equivalent
to that of a person already born. This concept is echoed in Tennessee's
murder and assault statutes, which provide that an attack or homicide of
a viable fetus may be a crime but abortion is not. See Tenn. Code Ann. §§
39-13-107 and 39-13-210.
|||Junior Lewis Davis v. Mary Sue Davis, Tennessee Court of Appeals at Knoxville,
No. 190, slip op. at 5-6 (Sept. 13, 1990).
|||Nor do preembryos enjoy protection as "persons" under federal
law. In Roe v. Wade, 410 U.S. 113 (1973), the United States Supreme Court
explicitly refused to hold that the fetus possesses independent rights under
law, based upon a thorough examination of the federal constitution, *fn15
relevant common law principles, and the lack of scientific consensus as
to when life begins. The Supreme Court concluded that "the unborn have
never been recognized in the law as persons in the whole sense." Id.
at 162. As a matter of constitutional law, this Conclusion has never been
seriously challenged. *fn16 Hence,
even as the Supreme Court in Webster v. Reproductive Health Services, 492
U.S. 490 (1989), permitted the states some additional leeway in regulating
the right to abortion established in Roe v. Wade, the Webster decision did
no more than recognize a compelling state interest in potential life at
the point when viability is possible. Thus, as Justice O'Connor noted, "viability
remains the 'critical point.'" Id. at 529 (O'Connor, J., Concurring).
That stage of fetal developmental is far removed, both qualitatively and
quantitatively, from that of the four- to eight-cell preembryos in this
|||Left undisturbed, the trial court's ruling would have afforded preembryos
the legal status of "persons" and vested them with legally cognizable
interests separate from those of their progenitors. Such a decision would
doubtless have had the effect of outlawing IVF programs in the state of
Tennessee. But in setting aside the trial court's judgment, the Court of
Appeals, at least by implication, may have swung too far in the opposite
|||The intermediate court, without explicitly holding that the preembryos
in this case were "property," nevertheless awarded "joint
custody" of them to Mary Sue Davis and Junior Davis, citing T.C.A.
§§ 68-30-101 and 39-15-208, and York v. Jones, 717 F.Supp. 421 (E.D. Va.
1989), for the proposition that "the parties share an interest in the
seven fertilized ova." The intermediate court did not otherwise define
|||The provisions of T.C.A. §§ 68-30-101 et seq., on which the intermediate
appellate court relied, codify the Uniform Anatomical Gift Act. T.C.A. §
39-15-208 prohibits experimentation or research using an aborted fetus in
the absence of the woman's consent. These statutes address the question
of who controls Disposition of human organs and tissue with no further potential
for autonomous human life; they are not precisely controlling on the question
before us, because the "tissue" involved here does have the potential
for developing into independent human life, even if it is not yet legally
recognizable as human life itself.
|||The intermediate court's reliance on York v. Jones, is even more troublesome.
That case involved a dispute between a married couple undergoing IVF procedures
at the Jones Institute for Reproductive Medicine in Virginia. When the Yorks
decided to move to California, they asked the Institute to transfer the
one remaining "frozen embryo" that they had produced to a fertility
clinic in San Diego for later implantation. The Institute refused and the
Yorks sued. The federal district court assumed without deciding that the
subject matter of the dispute was "property." The York court held
that the "cryopreservation agreement" between the Yorks and the
Institute created a bailment relationship, obligating the Institute to return
the subject of the bailment to the Yorks once the purpose of the bailment
had terminated. 717 F. Supp. at 424-425.
|||In this case, by citing to York v. Jones but failing to define precisely
the "interest" that Mary Sue Davis and Junior Davis have in the
preembryos, the Court of Appeals has left the implication that it is in
the nature of a property interest. For purposes of clarity in future cases,
we conclude that this point must be further addressed.
|||To our way of thinking, the most helpful Discussion on this point is found
not in the minuscule number of legal opinions that have involved "frozen
embryos," but in the ethical standards set by The American Fertility
Society, as follows:
|||Three major ethical positions have been articulated in the debate over
preembryo status. At one extreme is the view of the preembryo as a human
subject after fertilization, which requires that it be accorded the rights
of a person. This position entails an obligation to provide an opportunity
for implantation to occur and tends to ban any action before transfer that
might harm the preembryo or that is not immediately therapeutic, such as
freezing and some preembryo research.
|||At the opposite extreme is the view that the preembryo has a status no
different from any other human tissue. With the consent of those who have
decision-making authority over the preembryo, no limits should be imposed
on actions taken with preembryos.
|||A third view -- one that is most widely held -- takes an intermediate
position between the other two. It holds that the preembryo deserves respect
greater than that accorded to human tissue but not the respect accorded
to actual persons. The preembryo is due greater respect than other human
tissue because of its potential to become a person and because of its symbolic
meaning for many people. Yet, it should not be treated as a person, because
it has not yet developed the features of personhood, is not yet established
as developmentally individual, and may never realize its biologic potential.
|||53 Fertility and Sterility, no. 6, (supra) , at 34S-35S (citation omitted).
|||Although the report alludes to the role of "special respect"
in the context of research on preembryos not intended for transfer, it is
clear that the Ethics Committee's principal concern was with the treatment
accorded the transferred embryo. Thus, the Ethics Committee concludes that
"special respect is necessary to protect the welfare of potential offspring
. . . creates obligations not to hurt or injure the offspring who might
be born after transfer [by research or intervention with a preembryo]."
Id. at 35S.
|||In its report, the Ethics Committee then calls upon those in charge of
IVF programs to establish policies in keeping with the "special respect"
due preembryos and suggests:
|||Within the limits set by institutional policies, decision-making authority
regarding preembryos should reside with the persons who have provided the
gametes. . . . As a matter of law, it is reasonable to assume that the gamete
providers have primary decision-making authority regarding preembryos in
the absence of specific legislation on the subject. A person's liberty to
procreate or to avoid procreation is directly involved in most decisions
|||Id. at 36S.
|||We conclude that preembryos are not, strictly speaking, either "persons"
or "property," but occupy an interim category that entitles them
to special respect because of their potential for human life. It follows
that any interest that Mary Sue Davis and Junior Davis have in the preembryos
in this case is not a true property interest. However, they do have an interest
in the nature of ownership, to the extent that they have decision-making
authority concerning Disposition of the preembryos, within the scope of
policy set by law.
|||V. The Enforceability of Contract
|||Establishing the locus of the decision-making authority in this context
is crucial to deciding whether the parties could have made a valid contingency
agreement prior to undergoing the IVF procedures and whether such an agreement
would now be enforceable on the question of Disposition. Under the trial
court's analysis, obviously, an agreement of this kind would be unenforceable
in the event of a later disagreement, because the trial court would have
to make an ad hoc "best interest of the child" determination in
every case. In its opinion, the Court of Appeals did not address the question
of the enforceability of prior agreements, undoubtedly because that issue
was not directly raised on appeal. Despite our reluctance to treat a question
not strictly necessary to the result in the case, we conclude that Discussion
is warranted in order to provide the necessary guidance to all those involved
with IVF procedures in Tennessee in the future -- the health care professionals
who administer IVF programs and the scientists who engage in infertility
research, as well as prospective parents seeking to achieve pregnancy by
means of IVF, their physicians, and their counselors.
|||We believe, as a starting point, that an agreement regarding Disposition
of any untransferred preembryos in the event of contingencies (such as the
death of one or more of the parties, divorce, financial reversals, or abandonment
of the program) should be presumed valid and should be enforced as between
the progenitors. This Conclusion is in keeping with the proposition that
the progenitors, having provided the gametic material giving rise to the
preembryos, retain decision-making authority as to their Disposition. *fn18
|||At the same time, we recognize that life is not static, and that human
emotions run particularly high when a married couple is attempting to overcome
infertility problems. It follows that the parties' initial "informed
consent" to IVF procedures will often not be truly informed because
of the near impossibility of anticipating, emotionally and psychologically,
all the turns that events may take as the IVF process unfolds. Providing
that the initial agreements may later be modified by agreement will, we
think, protect the parties against some of the risks they face in this regard.
But, in the absence of such agreed modification, we conclude that their
prior agreements should be considered binding.
|||It might be argued in this case that the parties had an implied contract
to reproduce using in vitro fertilization, that Mary Sue Davis relied on
that agreement in undergoing IVF procedures, and that the court should enforce
an implied contract against Junior Davis, allowing Mary Sue to dispose of
the preembryos in a manner calculated to result in reproduction. The problem
with such an analysis is that there is no indication in the record that
Disposition in the event of contingencies other than Mary Sue Davis's pregnancy
was ever considered by the parties, or that Junior Davis intended to pursue
reproduction outside the confines of a continuing marital relationship with
Mary Sue. We therefore decline to decide this case on the basis of implied
contract or the reliance doctrine. *fn19
|||We are therefore left with this situation: there was initially no agreement
between the parties concerning Disposition of the preembryos under the circumstances
of this case; there has been no agreement since; and there is no formula
in the Court of Appeals opinion for determining the outcome if the parties
cannot reach an agreement in the future.
|||In granting joint custody to the parties, the Court of Appeals must have
anticipated that, in the absence of agreement, the preembryos would continue
to be stored, as they now are, in the Knoxville fertility clinic. One problem
with maintaining the status quo is that the viability of the preembryos
cannot be guaranteed indefinitely. Experts in cryopreservation who testified
in this case estimated the maximum length of preembryonic viability at two
years. *fn20 Thus, the true effect
of the intermediate court's opinion is to confer on Junior Davis the inherent
power to veto any transfer of the preembryos in this case and thus to insure
their eventual discard or self-destruction.
|||As noted in Section I of this opinion, the recognition of such a veto
power, as long as it applies equally to both parties, is theoretically one
of the routes available to resolution of the dispute in this case. Moreover,
because of the current state of law regarding the right of procreation,
such a rule would probably be upheld as constitutional. Nevertheless, for
the reasons set out in Section VI of this opinion, we conclude that it is
not the best route to take, under all the circumstances.
|||VI. The Right of Procreational Autonomy
|||Although an understanding of the legal status of preembryos is necessary
in order to determine the enforceability of agreements about their Disposition,
asking whether or not they constitute "property" is not an altogether
helpful question. As the appellee points out in his brief, " two or
eight cell tiny lumps of complex protein, the embryos have no value to either
party." Their value lies in the "potential to become, after implantation,
growth and birth, children." Thus, the essential dispute here is not
where or how or how long to store the preembryos, but whether the parties
will become parents. The Court of Appeals held in effect that they will
become parents if they both agree to become parents. The Court did not say
what will happen if they fail to agree. We conclude that the answer to this
dilemma turns on the parties' exercise of their constitutional right to
|||The right to privacy is not specifically mentioned in either the federal
or the Tennessee state constitution, and yet there can be little doubt about
its grounding in the concept of liberty reflected in those two documents.
In particular, the Fourteenth Amendment to the United States Constitution
provides that "no state shall . . . deprive any person of life, liberty,
or property, without due process of law." Referring to the Fourteenth
Amendment, the United States Supreme Court in Meyer v. Nebraska observed:
|||While this court has not attempted to define with exactness the liberty
thus guaranteed, the term has received much consideration and some of the
included things have been definitely stated. Without doubt, it denotes not
merely freedom from bodily restraint but also the right of the individual
to contract, to engage in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up children, to worship
God according to the dictates of his own conscience, and generally to enjoy
those privileges long recognized at common law as essential to the orderly
pursuit of happiness by free men.
|||262 U.S. 390, 399 (1923).
|||The right of privacy inherent in the constitutional concept of liberty
has been further identified "as against the [power of] government,
the right to be let alone -- the most comprehensive of rights and the right
most valued by civilized men." Olmstead v. United States, 277 U.S.
438, 478 (1928) (Brandeis, J., Dissenting). As to scope, "the concept
of liberty protects those personal rights that are fundamental, and it is
not confined to the specific terms of the Bill of Rights." Griswold
v. Connecticut, 381 U.S. 479, 486 (1965) (Goldberg, J., Concurring).
|||Moreover, the protection of fundamental rights is not confined to federal
constitutional law. As the Minnesota Supreme Court noted in Thiede v. Town
of Scandia Valley, 217 Minn. 218, 14 N.W.2d 400, 405 (1944) (citations omitted):
|||The entire social and political structure of America rests upon the cornerstone
that all men have certain rights which are inherent and inalienable. Among
these are the right to be protected in life, liberty, and the pursuit of
happiness; the right to acquire, possess, and enjoy property; and the right
to establish a home and family relations -- all under equal and impartial
laws which govern the whole community and each member thereof. The rights,
privileges, and immunities of citizens exist notwithstanding there is no
specific enumeration thereof in State Constitutions. 'These instruments
measure the powers of rulers, but they do not measure the rights of the
governed.' 'The fundamental maxims of a free government seem to require,
that the rights of personal liberty and private property should be held
sacred.' Government would not be free if they were not so held.
|||Hence, it is not surprising that in the Tennessee Constitution, the concept
of liberty plays a central role. Article I, Section 8 provides:
|||That no man shall be taken or imprisoned, or disseized of his freehold,
liberties or privileges, or outlawed, or exiled, or in any manner destroyed
or deprived of his life, liberty or property, but by the judgment of his
peers or the law of the land.
|||Indeed, the notion of individual liberty is so deeply embedded in the
Tennessee Constitution that it, alone among American constitutions, gives
the people, in the face of governmental oppression and interference with
liberty, the right to resist that oppression even to the extent of overthrowing
the government. The relevant provisions establishing this distinctive political
autonomy appear in the first two sections of Article I of the Tennessee
Constitution, its Declaration of Rights:
|||Section 1. All power inherent in the people -- Government under their
|||That all power is inherent in the people, and all free governments are
founded on their authority, and instituted for their peace, safety, and
happiness; for the advancement of those ends they have at all times, an
inalienable and indefeasible right to alter, reform, or abolish the government
in such manner as they may think proper.
|||Section 2. Doctrine of nonresistance condemned.
|||That government being instituted for the common benefit, the doctrine
of non-resistance against arbitrary power and oppression is absurd, slavish,
and destructive of the good and happiness of mankind.
|||The right to privacy, or personal autonomy ("the right to be let
alone"), while not mentioned explicitly in our state constitution,
is nevertheless reflected in several sections of the Tennessee Declaration
of Rights, including provisions in Section 3 guaranteeing freedom of worship
("no human authority can, in any case whatever, control or interfere
with the rights of conscience"); those in Section 7 prohibiting unreasonable
searches and seizures ("the people shall be secure in their persons,
houses, papers and possessions, from unreasonable searches and seizures");
those in Section 19 guaranteeing freedom of speech and press ("free
communication of thoughts and opinions, is one of the invaluable rights
of man, and every citizen may freely speak, write, and print on any subject,
being responsible for the abuse of that liberty"); and the provisions
in Section 27 regulating the quartering of soldiers ("no soldier shall,
in time of peace, be quartered in any house without the consent of the owner").
|||Obviously, the drafters of the Tennessee Constitution of 1796 could not
have anticipated the need to construe the liberty clauses of that document
in terms of the choices flowing from in vitro fertilization procedures.
But there can be little doubt that they foresaw the need to protect individuals
from unwarranted governmental intrusion into matters such as the one now
before us, involving intimate questions of personal and family concern.
Based on both the language and the development of our state constitution,
we have no hesitation in drawing the Conclusion that there is a right of
individual privacy guaranteed under and protected by the liberty clauses
of the Tennessee Declaration of Rights.
|||Undoubtedly, that right to privacy incorporates some of the attributes
of the federal constitutional right to privacy and, in any given fact situation,
may also share some of its contours. As with other state constitutional
rights having counterparts in the federal bill of rights, however, there
is no reason to assume that there is a complete congruency. Compare and
contrast, e.g., State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989), with Gates
v. Illinois, 462 U.S. 213 (1983).
|||Here, the specific individual freedom in dispute is the right to procreate.
In terms of the Tennessee state constitution, we hold that the right of
procreation is a vital part of an individual's right to privacy. Federal
law is to the same effect.
|||In construing the reach of the federal constitution, the United States
Supreme Court has addressed the affirmative right to procreate in only two
cases. In Buck v. Bell, 274 U.S. 200, 207 (1927), the Court upheld the sterilization
of a "feebleminded white woman." However, in Skinner v. Oklahoma,
316 U.S. 535 (1942), the Supreme Court struck down a statute that authorized
the sterilization of certain categories of criminals. The Court described
the right to procreate as "one of the basic civil rights of man ,"
316 U.S. at 541, and stated that "marriage and procreation are fundamental
to the very existence and survival of the race." Id.
|||In the same vein, the United States Supreme Court has said:
|||If the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision whether to bear
or beget a child.
|||Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (emphasis in original).
See also Carey v. Population Services International, 431 U.S. 678, 685 (1977)
(decision whether or not to beget or bear a child fundamental to individual
|||That a right to procreational autonomy is inherent in our most basic concepts
of liberty is also indicated by the reproductive freedom cases, see, e.g.,
Griswold v. Connecticut, 381 U.S. 479 (1965); and Roe v. Wade, 410 U.S.
113 (1973), and by cases concerning parental rights and responsibilities
with respect to children. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972);
Prince v. Massachusetts, 321 U.S. 158 (1944); Cleveland Board of Education
v. LaFleur, 414 U.S. 632 (1974); Pierce v. Society of the Sisters of the
Holy Names of Jesus and Mary, 268 U.S. 510 (1925); and Bellotti v. Baird,
443 U.S. 622 (1979). In fact, in Bellotti v. Baird the Supreme Court noted
that parental autonomy is basic to the structure of our society because
the family is "the institution by which we inculcate and pass down
many of our most cherished values, morals and cultural." Bellotti,
443 U.S. at 634 (citation omitted).
|||The United States Supreme Court has never addressed the issue of procreation
in the context of in vitro fertilization. Moreover, the extent to which
procreational autonomy is protected by the United States Constitution is
no longer entirely clear. Justice Blackmun noted, in his Dissent, that the
plurality opinion in Webster v. Reproductive Health Services, 492 U.S. 490
(1989), "turns a stone face to anyone in search of what the plurality
conceives as the scope of a woman's right under the Due Process Clause to
terminate a pregnancy free from the coercive and brooding influence of the
State." Id. at 538. The Webster opinion lends even less guidance to
those seeking the bounds of constitutional protection of other aspects of
procreational autonomy. *fn21
|||For the purposes of this litigation it is sufficient to note that, whatever
its ultimate constitutional boundaries, the right of procreational autonomy
is composed of two rights of equal significance -- the right to procreate
and the right to avoid procreation. Undoubtedly, both are subject to protections
and limitations. See e.g., Prince v. Massachusetts, 321 U.S. 158 (1944)
(parental control over the education or health care of their children subject
to some limits); Roe v. Wade, 410 U.S. 113 (1973) (states' interests in
potential life overcomes right to avoid procreation by abortion in later
states of pregnancy).
|||The equivalence of and inherent tension between these two interests are
nowhere more evident than in the context of in vitro fertilization. None
of the concerns about a woman's bodily integrity that have previously precluded
men from controlling abortion decisions is applicable here. *fn22
We are not unmindful of the fact that the trauma (including both emotional
stress and physical discomfort) to which women are subjected in the IVF
process is more severe than is the impact of the procedure on men. In this
sense, it is fair to say that women contribute more to the IVF process than
men. Their experience, however, must be viewed in light of the joys of parenthood
that is desired or the relative anguish of a lifetime of unwanted parenthood.
As they stand on the brink of potential parenthood, Mary Sue Davis and Junior
Lewis Davis must be seen as entirely equivalent gamete-providers.
|||It is further evident that, however far the protection of procreational
autonomy extends, the existence of the right itself dictates that decisional
authority rests in the gamete-providers alone, at least to the extent that
their decisions have an impact upon their individual reproductive status.
As discussed in Section V above, no other person or entity has an interest
sufficient to permit interference with the gamete-providers' decision to
continue or terminate the IVF process, because no one else bears the consequences
of these decisions in the way that the gamete-providers do. *fn23
|||Further, at least with respect to Tennessee's public policy and its constitutional
right of privacy, the state's interest in potential human life is insufficient
to justify an infringement on the gamete-providers' procreational autonomy.
The United States Supreme Court has indicated in Webster, and even in Roe,
that the state's interest in potential human life may justify statutes or
regulations that have an impact upon a person's exercise of procreational
autonomy. This potential for sufficiently weighty state's interests is not,
however, at issue here, because Tennessee's statutes contain no statement
of public policy which reveals an interest that could justify infringing
on gamete-providers' decisional authority over the preembryos to which they
have contributed. As discussed in the Court of Appeals opinion, set out
in Section IV, above, those statutes reveal instead a policy decision to
recognize that persons born alive or capable of sustaining life ex utero
have a higher status than do fetuses in utero. *fn24
|||Certainly, if the state's interests do not become sufficiently compelling
in the abortion context until the end of the first trimester, *fn25
after very significant developmental stages have passed, then surely there
is no state interest in these preembryos which could suffice to overcome
the interests of the gamete-providers. The abortion statute reveals that
the increase in the state's interest is marked by each successive developmental
stage such that, toward the end of a pregnancy, this interest is so compelling
that abortion is almost strictly forbidden. This scheme supports the Conclusion
that the state's interest in the potential life embodied by these four-
to eight-cell preembryos (which may or may not be able to achieve implantation
in a uterine wall and which, if implanted, may or may not begin to develop
into fetuses, subject to possible miscarriage) is at best slight. When weighed
against the interests of the individuals and the burdens inherent in parenthood,
the state's interest in the potential life of these preembryos is not sufficient
to justify any infringement upon the freedom of these individuals to make
their own decisions as to whether to allow a process to continue that may
result in such a dramatic change in their lives as becoming parents.
|||The unique nature of this case requires us to note that the interests
of these parties in parenthood are different in scope than the parental
interest considered in other cases. Previously, courts have dealt with the
childbearing and child-rearing aspects of parenthood. Abortion cases have
dealt with gestational parenthood. In this case, the Court must deal with
the question of genetic parenthood. We conclude, moreover, that an interest
in avoiding genetic parenthood can be significant enough to trigger the
protections afforded to all other aspects of parenthood. The technological
fact that someone unknown to these parties could gestate these preembryos
does not alter the fact that these parties, the gamete-providers, would
become parents in that event, at least in the genetic sense. The profound
impact this would have on them *fn26
supports their right to sole decisional authority as to whether the process
of attempting to gestate these preembryos should continue. This brings us
directly to the question of how to resolve the dispute that arises when
one party wishes to continue the IVF process and the other does not.
|||VII. Balancing the Parties' Interests
|||Resolving disputes over conflicting interests of constitutional import
is a task familiar to the courts. One way of resolving these disputes is
to consider the positions of the parties, the significance of their interests,
and the relative burdens that will be imposed by differing resolutions.
*fn27 In this case, the issue
centers on the two aspects of procreational autonomy -- the right to procreate
and the right to avoid procreation. We start by considering the burdens
imposed on the parties by solutions that would have the effect of disallowing
the exercise of individual procreational autonomy with respect to these
|||Beginning with the burden imposed on Junior Davis, we note that the consequences
are obvious. Any Disposition which results in the gestation of the preembryos
would impose unwanted parenthood on him, with all of its possible financial
and psychological consequences. The impact that this unwanted parenthood
would have on Junior Davis can only be understood by considering his particular
circumstances, as revealed in the record.
|||Junior Davis testified that he was the fifth youngest of six children.
When he was five years old, his parents divorced, his mother had a nervous
break-down, and he and three of his brothers went to live at a home for
boys run by the Lutheran Church. Another brother was taken in by an aunt,
and his sister stayed with their mother. From that day forward, he had monthly
visits with his mother but saw his father only three more times before he
died in 1976. Junior Davis testified that, as a boy, he had severe problems
caused by separation from his parents. He said that it was especially hard
to leave his mother after each monthly visit. He clearly feels that he has
suffered because of his lack of opportunity to establish a relationship
with his parents and particularly because of the absence of his father.
|||In light of his boyhood experiences, Junior Davis is vehemently opposed
to fathering a child that would not live with both parents. Regardless of
whether he or Mary Sue had custody, he feels that the child's bond with
the non-custodial parent would not be satisfactory. He testified very clearly
that his concern was for the psychological obstacles a child in such a situation
would face, as well as the burdens it would impose on him. Likewise, he
is opposed to donation because the recipient couple might divorce, leaving
the child (which he definitely would consider his own) in a single-parent
|||Balanced against Junior Davis's interest in avoiding parenthood is Mary
Sue Davis's interest in donating the preembryos to another couple for implantation.
Refusal to permit donation of the preembryos would impose on her the burden
of knowing that the lengthy IVF procedures she underwent were futile, and
that the preembryos to which she contributed genetic material would never
become children. While this is not an insubstantial emotional burden, we
can only conclude that Mary Sue Davis's interest in donation is not as significant
as the interest Junior Davis has in avoiding parenthood. If she were allowed
to donate these preembryos, he would face a lifetime of either wondering
about his parental status or knowing about his parental status but having
no control over it. He testified quite clearly that if these preembryos
were brought to term he would fight for custody of his child or children.
Donation, if a child came of it, would rob him twice -- his procreational
autonomy would be defeated and his relationship with his offspring would
|||The case would be closer if Mary Sue Davis were seeking to use the preembryos
herself, but only if she could not achieve parenthood by any other reasonable
means. We recognize the trauma that Mary Sue has already experienced and
the additional discomfort to which she would be subjected if she opts to
attempt IVF again. Still, she would have a reasonable opportunity, through
IVF, to try once again to achieve parenthood in all its aspects -- genetic,
gestational, bearing, and rearing.
|||Further, we note that if Mary Sue Davis were unable to undergo another
round of IVF, or opted not to try, she could still achieve the child-rearing
aspects of parenthood through adoption. The fact that she and Junior Davis
pursued adoption indicates that, at least at one time, she was willing to
forego genetic parenthood and would have been satisfied by the child-rearing
aspects of parenthood alone.
|||In summary, we hold that disputes involving the Disposition of preembryos
produced by in vitro fertilization should be resolved, first, by looking
to the preferences of the progenitors. If their wishes cannot be ascertained,
or if there is dispute, then their prior agreement concerning Disposition
should be carried out. If no prior agreement exists, then the relative interests
of the parties in using or not using the preembryos must be weighed. Ordinarily,
the party wishing to avoid procreation should prevail, assuming that the
other party has a reasonable possibility of achieving parenthood by means
other than use of the preembryos in question. If no other reasonable alternatives
exist, then the argument in favor of using the preembryos to achieve pregnancy
should be considered. However, if the party seeking control of the preembryos
intends merely to donate them to another couple, the objecting party obviously
has the greater interest and should prevail.
|||But the rule does not contemplate the creation of an automatic veto, and
in affirming the judgment of the Court of Appeals, we would not wish to
be interpreted as so holding.
|||For the reasons set out above, the judgment of the Court of Appeals is
affirmed, in the appellee's favor. This ruling means that the Knoxville
Fertility Clinic is free to follow its normal procedure in dealing with
unused preembryos, as long as that procedure is not in conflict with this
opinion. Costs on appeal will be taxed to the appellant.
|||Martha Craig Daughtrey, Justice
|||Drowota, O'Brien, Anderson, JJ.
|||*fn1 At the time of trial, only
one state had enacted pertinent legislation. A Louisiana statute entitled
"Human Embryos," among other things, forbids the intentional destruction
of a cryopreserved IVF embryo and declares that disputes between parties
should be resolved in the "best interest" of the embryo. 1986
La. Acts R.S. 9:121 et seq. Under the Louisiana statute, unwanted embryos
must be made available for "adoptive implantation."
|||*fn2 The only reported decision
is York v. Jones, 717 F.Supp. 421 (E.D. Va. 1989), discussed at length in
Section IV, below. The unreported case of Del Zio v. Columbia Presbyterian
Medical Center is summarized in footnote 21, below. A third case, involving
a California couple who underwent IVF in Australia and later died in an
airplane crash, is noted in Smith, Australia's Frozen "Orphan"
Embryos, 24 J. Fam. L. 27 (1985-86). Because the couple died intestate,
their estates were distributed under California law without regard to the
"frozen embryos" left in storage in Australia.
|||*fn3 Note, The Legal Status of
Frozen Embryos: Analysis and Proposed Guidelines for a Uniform Law, 17 J.
Legis. 97 (1990).
|||*fn4 This is the so-called "sweat-equity"
model. Robertson, Resolving Disputes over Frozen Embryos," 19 Hastings
Ctr. Rep. 7 (1989).
|||*fn5 Andrews, The Legal Status
of the Embryo, 32 Loyola L. Rev. 357 (1986).
|||*fn6 Assuming that the parties
do not change their current positions, in this case the result would be
"the worst of both worlds": some of the frozen embryos would likely
be destroyed, contrary to Mary Sue Davis's devout wish that they be implanted
and given the opportunity to come to term; at the same time, the others
would likely he implanted and might come to term, thus forcing Junior Davis
into unwanted parenthood.
|||*fn7 Poole, Allocation of Decision-Making
Rights to Frozen Embryos, 4 Am. J. Fam. L. 67 (1990).
|||*fn8 Alternatively, the fertilized
ova may also be transferred to the uterus of a "surrogate mother,"
who carries through with the pregnancy for the gamete-providers, or they
may be donated to a genetically unrelated couple.
|||*fn9 They also were not asked
to sign any consent forms. Apparently the clinic was in the process of moving
its location when the Davises underwent this last round and, because timing
of each step of IVF is crucial, it was impossible to postpone the procedure
until the appropriate forms were located.
|||*fn10 Mary Sue Davis's testimony
is contradictory as to whether she would have gone ahead with IVF if she
had been worried about her marriage. At one point she said if she had known
they were getting divorced, she would not have gone ahead with it, but at
another point she indicated that she was so committed to the idea of being
a mother that she could not say that she would not have gone ahead with
|||*fn11 For a thorough consideration
of the implications of status, see Clifford Grobstein, Science and the Unborn,
|||*fn12 For further rather uncomplimentary
characterization of Lejeune's testimony, see Annas, A French Homunculus
in a Tennessee Court, 19 Hastings Ctr. Rep.(1989).
|||*fn13 It would be relevant,
however, to the question of whether embryonic research is permissible, under
regulations that limit such research to "preembryonic" stages.
Such research is carried out principally in order to perfect in vitro fertilization
techniques and to increase the success rates of pregnancies achieved through
IVF and, as of 1986, was regulated by statute in some 25 states. See L.
B. Andrews, The Legal Status of the Embryo, 32 Loyola L. Rev. 357, 396-397
|||*fn14 In her brief, the appellant
now characterizes the preembryos as "potential life" rather than
as "human beings."
|||*fn15 The Fourteenth Amendment,
for example, limits the equal protection and due process of law to "persons
born or naturalized in the United States."
|||*fn16 As Justice Stevens noted
in Thornburg v. American College of Obstetricians and Gynecologists, 476
U.S. 747, 779 n. 8 (1986) (Stevens, J., Concurring), "No member of
this Court has ever suggested that a fetus of a 'person' within the meaning
of the Fourteenth Amendment."
|||*fn17 Left undisturbed in the
mother's uterus, a viable fetus has an excellent chance of being brought
to term and born live. In contrast, a preembryo in a petri dish, if later
transferred, has only a 13-21 percent chance of achieving actual implantation.
Of these pregnancies, between 56 percent and 75 percent result in live births.
Jones and Rogers, Clinical In Vitro Fertilization, 51-62, cited in Poole,
Allocation of Decision-Making Rights to Frozen Embryos, 4 Am J. Fam. L.
|||*fn18 This situation is thus
distinguishable from that in which a couple makes an agreement concerning
abortion in the event of a future pregnancy. Such agreements are unenforceable
because of the woman's right to privacy and autonomy. See Planned Parenthood
v. Danforth, 428 U.S. 52 (1976) (invalidating written consent of spouse
as a pre-requisite to abortion).
|||*fn19 We also point out that
if the roles were reversed in this case, it is highly unlikely that Junior
Davis could force transfer of the preembryos to Mary Sue over her objection.
Because she has an absolute right to seek termination of any resulting pregnancy,
at least within the first trimester, ordering her to undergo a uterine transfer
would be a futility. Ordering donation over objection would raise the other
constitutional problems discussed in Section VI.
|||*fn20 This two-year limit is
apparently an estimate based on technological feasibility as of the time
of trial. Our survey of law journal articles indicates other estimates of
viability ranging from two to ten years.
|||*fn21 Justice 0'Connor did
note in her Concurring opinion in Webster that the plurality's position
might threaten the development of IVF programs. Despite her concern, she
voted to uphold the Missouri statute at issue, because she found the possibility
"too hypothetical to support the use of declaratory judgment procedures
and injunctive remedies" since there was no indication that Missouri
might seek to prohibit IVF programs. Webster, 492 U.S. at 523 (O'Connor
|||*fn22 Planned Parenthood v.
Danforth, 428 U.S. 52, 71 (1976) ("Inasmuch as it is the woman who
physically bears the child and who is the more directly and immediately
affected by the pregnancy, as between the two, the balance weighs in her
favor."). See Discussion in Developments in the Law -- Medical Technology
and the Law, 103 Harv. L. Rev. 1519, 1544-45 (1990).
|||*fn23 See Del Zio v. Columbia
Presbyterian Medical Center, No. 74-3558 (S.D.N.Y. filed April 12, 1978),
in which a woman who was an IVF patient was awarded $50,000 for emotional
distress when a doctor deliberately destroyed the contents of the petri
dish in which in vitro fertilization was being attempted with the woman's
egg and her husband's sperm.
|||*fn24 T.C.A. § 20-5-106 (b)
(1980) allows a civil action for wrongful death only where the decedent
has either been born alive or was viable and could reasonably have been
expected to be capable of living outside the uterus. Likewise, a criminal
conviction for an offense against a person, including a homicide conviction,
may not be had if the victim was not viable at the time of the offense.
T.C.A. § 39-13-107 and 39-13-214 (1991); see also State v. Evans, 745 S.W.2d
880 (Tenn. Crim. App. 1987) (viable fetus not "person" or "human
life" within meaning of vehicular homicide statute).
|||Tennessee's abortion statute reveals a public policy decision weighing
the interests of living persons against the state's interest in potential
life. T.C.A. § 39-15-201 (1991). At least during certain stages of a pregnancy,
the personal interests of the pregnant women outweigh the state's interests
and the pregnancy may be terminated.
|||Taken collectively, our statutes reflect the policy decision that, at
least in some circumstances, the interest of living individuals in avoiding
procreation is sufficient to justify taking steps to terminate the procreational
process, despite the state's interest in potential life.
|||*fn25 The trimester scheme
is set forth at T.C.A. § 39-15-201 (c)(1)-(3).
|||*fn26 Sperm donors may regret
not having contact with their biological children, according to psychotherapist
Annette Baron and psychologist Aphrodite Clamar, mentioned in Lori Andrews,
Feminist Perspectives on Reproductive Technologist, American Bar Foundation
Working Paper # 8701 (1987) footnote 29, also published as Andrews, Alternative
Modes of Reproduction, in Reproductive Laws for the 1990s, A Briefing Handbook,
edited by Nadine Taub and Sherrill Cohen, Women's Rights Litigation Clinic,
School of Law, Newark (1988). Even more so, women who have surrendered children
for adoption may be haunted by concern about the child. Poole, Allocating
of Decision-Making rights to Frozen Embryos, 4 Am. J. Fam. L. 67, 74 (1990),
citing Beeker, The Rights of Unwed Parents, 63 Soc. Ser. Rev. 496, 508 (1989).
|||*fn27 For instance, in Frisby
v. Schultz, 487 U.S. 474 (1988), the United States Supreme Court addressed
the conflicting interests of a city in protecting a doctor who performed
abortions and those of the persons who picketed in front of his home. A
municipal ordinance prohibited picketing before or about the residence or
dwelling of any individual. The Supreme Court had to consider whether the
ordinance was narrowly tailored to serve a significant government interest
and whether it left open ample alternative channels of communication. Id.
at 481. The Court noted that this ordinance banned only focused picketing
before a residence, not all picketing in residential areas. Because it was
narrowly tailored to meet a significant government interest of protecting
residential privacy, leaving open other methods of protest and expression,
the Court held that the statute did not violate the First Amendment. Id.
at 488. Likewise, in this case, we must find some balance between the exercise
of the two conflicting interests.
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