Law School Case Brief
Davis v. Davis - 842 S.W.2d 588 (Tenn. 1992)
Disputes involving the disposition of pre-embryos 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 pre-embryos 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 pre-embryos in question. If no other reasonable alternatives exist, then the argument in favor of using the pre-embryos to achieve pregnancy should be considered. However, if the party seeking control of the pre-embryos intends merely to donate them to another couple, the objecting party obviously has the greater interest and should prevail. The rule does not contemplate the creation of an automatic veto.
During their marriage, Junior Lewis Davis and Mary Sue Davis attempted in vitro fertilization but failed. They divorced. Mary initially wanted the frozen pre-embryos implanted in her but later asked that they be donated to childless couples. Junior initially asked for them to remain frozen and later asked that they be discarded. The court of appeals concluded that pre-embryos were not "persons," but did not specifically hold they were "property," and nevertheless, awarded "joint custody" based on an undefined shared interest.
In a case where there was no prior agreement between the parties regarding the disposition of pre-embryos produced by in vitro fertilization, should the interest of an ex-husband in not becoming a parent outweigh the interest of an ex-wife who wished to donate the embryos to other persons and not use them to attempt to achieve parenthood for herself?
The Supreme Court of Tennessee agreed that the pre-embryos were not persons and held that the progenitors had equal rights of privacy under the state and federal constitutions that included the right to be free of state interference in procreational choices. The court held that in disputes as to embryos, any prior agreement would be honored, but if there was no prior agreement, the relative interests of the parties in using or not using the embryos must be weighed. The court held that ordinarily, the party wishing to avoid procreation should prevail if the other party could achieve parenthood without the embryos. If not, using the embryos for one progenitor should be considered. Thus, the interest of Junior in not becoming a parent outweighed the interest of Mary who wished to donate the embryos to other persons and not use them to attempt to achieve parenthood for herself.
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