[Davis v. Davis, 1990 WL 130807 (Tenn. Ct. App. 1990).]
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 [IVF] 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 48 to 72 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% 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.
