Davis v. DavisThe Tennessee Appeals Court Decision

In this divorce action, the sole issue on appeal is essentially who is entitled to control seven of Mary Sue's ova fertilized by Junior's sperm through the in vitro fertilization process. The fertilized ova are cryopreserved at the Fertility Center of East Tennessee in Knoxville.

The trial judge awarded "custody" of the fertilized ova to Mary Sue and directed that she "be permitted the opportunity to bring these children to term through implantation."

At the outset, it should be emphasized no pregnancy is involved. Both Mary Sue and Junior are now married to other spouses; moreover, neither wants a child with the other as parent.

There are significant scientific distinctions between fertilized ova that have not been implanted and an embryo in the mother's womb. The fertilized ova at issue are between 4 and 8 cells. Genetically each cell is identical. Approximately three days after fertilization the cells begin to differentiate into an outer layer that will become the placenta and an inner layer that will become the embryo. This "blastocyst" can adhere to the uterine wall, the hallmark of pregnancy. Once adherence occurs, the inner embryonic layer reorganizes to form a rudimentary "axis" along which major organs and structures of the body will be differentiated. It is important to remember when these ova were fertilized through mechanical manipulation, their development was limited to the 8 cell stage. At this juncture there is no development of the nervous system, the circulatory system, or the pulmonary system and it is thus possible for embryonic development to be indefinitely arrested at this stage by cryopreservation or "freezing".

Treating infertility by in vitro fertilization results in a low success rate. As one writer has observed:

In IVF programs the embryo will be transferred to a uterus when it reaches the four-, six-, or eight-cell stage, some forty-eight to seventy-two hours after conception. It is also at this stage that the embryo would be cryopreserved for later use. ... In vitro culture until the blastocyst stage may be possible, but beyond that it has not occurred. Finally, only one in ten pre-embryos at this stage goes on to initiate a successful pregnancy.

Moreover, cryopreservation poses risks to the fertilized ova, which have only a 70 per cent rate of viability after having been frozen.

The parties, after concluding a normal pregnancy was unlikely, jointly decided to attempt to have a child by in vitro fertilization and, after several attempts, nine of Mary Sue's ova were successfully fertilized in December of 1988. For the first time, their doctors advised that freezing was an option and would enable them to avoid all but the implantation phase of in vitro fertilization if later attempts were undertaken. The couple agreed to attempt implantation of two of the fertilized ova and to preserve the others. There was no discussion between them or their doctors about the consequences of preservation should the Davises divorce while the fertilized ova were stored. Mary Sue testified she had no idea that a divorce might be imminent and she would not have undergone the in vitro fertilization procedure had she contemplated divorce. Junior testified he believed the marriage was foundering but believed that having a child would improve the marriage and did not anticipate a divorce at the time of the in vitro fertilization procedure.

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