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. 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
particular preembryos.
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 setting.
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 be prohibited.
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 forgo genetic
parenthood and would have been satisfied by the child-rearing aspects of
parenthood alone.
