Davis v. Davis

Supreme Court of Tennessee · 1992 · Property

Propertyreproductive technologycryopreserved preembryosprocreational autonomyIVFfrozen embryospreembryosspecial respect

Facts

Mary Sue Davis and Junior Davis underwent multiple IVF attempts during marriage, and in December 1988 several fertilized ova at the four- to eight-cell stage were cryogenically preserved at a Knoxville fertility clinic. The parties never executed a written agreement specifying disposition of unused preembryos in the event of divorce, and no Tennessee statute governed that question. After a failed transfer, Junior filed for divorce, and the only unresolved issue was control of the stored preembryos. By the time of review, Mary Sue no longer sought implantation in herself but wanted to donate the preembryos to another couple, while Junior opposed donation and preferred that they be discarded.

Issue

When divorcing progenitors dispute the disposition of cryopreserved IVF preembryos and there is no controlling statute or prior agreement, how should a court resolve the dispute? More specifically, are the preembryos persons, property, or something else, and whose interests control their disposition?

Rule

Preembryos are neither strictly persons nor property; they occupy an interim category entitled to special respect because of their potential for human life. Disputes over disposition of IVF preembryos should be resolved first by the progenitors' contemporaneous preferences; if those wishes cannot be ascertained or are in dispute, any prior agreement regarding disposition should be enforced; if no prior agreement exists, the court must balance the parties' relative interests in using or not using the preembryos. Ordinarily, the party wishing to avoid procreation should prevail if the other party has a reasonable possibility of achieving parenthood by means other than use of the disputed preembryos; if the party seeking control intends merely to donate them to another couple, the objecting party has the greater interest and should prevail.

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Elena Cruz and Marcus Hale underwent IVF at Riverbend Fertility Group in Nashville and signed a clinic form stating that if they later divorced, any unused cryopreserved preembryos would be thawed and not used for implantation. Three years later, they divorced, and Elena asked a court to award her sole control so she could have the preembryos transferred to her uterus. Marcus objected and demanded enforcement of the form they had signed.

How should the court most likely rule?

Explanation. The governing framework gives decision-making authority to the gamete providers and provides that a prior agreement concerning disposition of untransferred preembryos should be presumed valid and enforced between the progenitors, absent agreed modification. The majority rejected treating preembryos as children and also rejected an automatic-veto approach. It likewise rejected treating them as ordinary property. Because the parties executed a specific divorce-contingency agreement, the court should enforce it rather than permit unilateral implantation.