COUPLE TO SHARE CUSTODY OF 7 EMBRYOS (9/14/90)
Subject: Latest in Frozen Embryo Custody Case
COUPLE TO SHARE CUSTODY OF 7 EMBRYOS (9/14/90)
KNOXVILLE, Tenn. (AP) - The Tennessee Court of Appeals on Thursday granted
joint custody of seven frozen embryos to a divorced couple, overturning a
landmark ruling that had granted custody to the ex-wife.
Charles Clifford, attorney for the ex-husband, fell to his knees at the
courthouse on seeing the opinion and said, "All right, thank you."
"Justice is done," he said.
The intermediate-level appeals court ruled in the divorce case of
Junior Lewis Davis, 31, of Maryville and his 29-year-old former wife, Mary
Sue Davis Stowe, now of Titusville, Fla.
"It would be repugnant and offensive to constitutional principles to
order Mary Sue to implant these fertilized ova against her will," Judge
Herschel P. Franks wrote for the three-member court.
"It would be equally repugnant to order Junior to bear the
psychological, if not the legal, consequences of paternity against his
The court ruled that both Stowe and Davis should "share an interest in
the seven fertilized ova."
The case was sent back to Blount County Circuit Judge W. Dale Young to
enter a judgment giving Stowe and Davis "joint control of the fertilized
ova (and) equal voice over their disposition."
"We regard it as a complete vindication of J.R. Davis' position,"
He said it would be Stowe's decision whether to pursue the case to the
Tennessee Supreme Court. "We hope that she will accept this decision as
just, and that she and Mr. Davis can discuss what to do with the embryos."
Stowe's attorney, Kurt Erlenbach, was not in his Titusville office
Thursday afternoon and could not be reached for comment.
Neither side in the abortion debate took up the case.
The decision grew praise from David Zolensky, an attorney who argued a
friend-of-the-court brief filed by the Tennessee American Civil Liberties
Union and a dozen other groups and individuals.
"It sounds as if the appeals court has taken abortion rights out of
this case and said it doesn't belong there. I think that is an appropriate
outcome," he said.
The embryos were created in vitro at a Knoxville fertility clinic in
December 1988 by mixing Davis's sperm with eggs removed from his wife.
There originally were nine embryos. Two were implanted at the time but
did not develop. The remaining seven were frozen for later use after
developing to between four and eight cells each.
In February 1989, Davis sued his wife for divorce, asking the court to
prevent any use of the embryos without his consent. Davis argued he should
not be forced to become a parent against his wishes.
A four-day trial was held in August 1989 before Young.
Young issued his "life begins at conception" ruling last September,
saying therefore the embryos deserved protection under the law. He called
them "children in vitro" and awarded "custody" to Stowe.
Stowe testified during the trial she wanted control of the embryos so
she could use them in an attempt to bear children. She said they might
represent her last chance at motherhood.
She subsequently remarried and changed her mind.
During oral argument on the appeal heard in June, her attorney said
Stowe wanted to donate the embryos anonymously to an infertile couple.
Davis argued in his appeal that his ex-wife's change of heart about
implanting the embryos weakened her case. He said donating the embryos was
even less acceptable to him than having his ex-wife in control of them.
He also said Young had granted the embryos more legal protection than
fetuses of more advanced age and development have.
"Because Judge Young's decision is inconsistent with the existing laws,
if not reversed it will give rise to future anomalous and absurd legal
quagmires," wrote Janey Mayfield, Davis' appeals attorney. She argued that
Davis has a constitutional right to decide whether he becomes a parent.
Kurt Erlenbach, the appeals attorney for Stowe, urged the appeals court
to take some action if the couple could not agree because "a tie goes to
He said Davis was trying to do something no man has ever been allowed
to do biologically -- change his mind about being a father after
fertilizing an egg.
The three appeals court judges made it clear during oral arguments they
wanted to avoid the ethical and philosophical questions of the case -- such
as whether the embryos are alive and deserving of legal protection -- and
stick to the issue of what to do with them.
Subject: Re: Latest in Frozen Embryo Custody Case
When this case first hit the headlines, I suggested that Junior and Mary
Sue each take FULL responsibility and rights over three embryos, with a
coin toss deciding what happened to the 7th one. He could do as he pleased
with his; she could do as she pleased with hers; neither one would have any
responsibility (nor could exercise any rights) toward the other's embryos.
I got very few responses from my idea on the echos. They were:
. One male said "right on" -- split it evenly
. One female commented that technology had far outstripped our ethics
. One male argued with me over whether there were 6 or 7 embryos left,
told me I was "cold" for deciding "a child's life" on a coin toss,
and argued with me about the likelihood of any of these embryos
ever becoming children, even if they were implanted (he spoke as
though HE had been the one hanging out at an infertility center
that whole year, instead of ME) (FYI: this guy is well-
known here; he often comes across very authoritatively. I won't
name him, but have often found out his "sources" are air.)
. One male told me I was "heartless" for reducing Junior to the status
of sperm donor
As the article stated, the embryos were originally given, kit and kaboodle,
to Mary Sue, to do with as she pleased. That didn't make me happy -- it
wasn't very equitable, and the judge used "life begins at conception" as
part of his decision. This appeal now says they have equal control. That
doesn't make me happy, either. As long as they disagree, *nothing* will
happen to those embryos.
Frankly, it doesn't look very likely that Mary Sue could ever successfully
gestate those embryos. The couple had been going through some pretty tough
infertility treatment before the divorce, and each surgery lowers a woman's
chance of successfully taking an IVF pregnancy to term. (Healthy women,
who have not undergone the kinds of surgeries Mary Sue has, have only ~23%
chance of finishing an IVF process with childbirth.) While it is true that
she's changed her mind (and one could argue that such a mind-change
demonstrates unsuitability toward parenthood), we don't know if her change
of heart is really because she doesn't want to be a parent any more, or if
she's just so upset with Junior that she doesn't want to use his sperm.
Shoot, for all we know, the only reason she wanted those embryos in the
first place was to get back at Junior for filing for divorce.
All of this is neither here nor there. My main question is: WHAT WOULD BE
SO DEITY-AWFUL ABOUT LETTING HER HAVE HALF OF THEM, AND *IF* ANY OF THEM
TURN INTO CHILDREN, GIVING HER *NO* CHANCE TO COME BACK TO JUNIOR FOR
PARENTAL RESPONSIBILITIES? Why is he so insistent that his sperm not be
used to even try to make a baby for Mary Sue? Is it because of his right
to not be saddled with the responsibility? (I agree he should have that
right.) Is it because his sperm is too good for her? Is it because he's
so upset with Mary Sue that he doesn't want her to have the benefit?
Nearly every state in the U.S. addresses the issue of sperm donation --
sperm donors relinquish their rights and responsibilities as fathers the
minute they hand over the glass. Any woman who uses donated sperm does so
with the understanding that the donor is *not* 'daddy' in any legal sense
of the word. (Even those states which do not specifically address this
issue tend to agree with other states' sentiments.) (Yes, egg donations
are handled in the same fashion, legally.)
So, if Junior doesn't want to be a father, why can't Tennessee just
classify him as "sperm donor" for Mary Sue's half? Mary Sue could be
classified as "egg donor" for Junior's half. That way, both of them could
do as they pleased, with the other having nothing to do with the decisions.
Ergo, no stalemate.
It's been over a year since I first heard about this case and first started
getting people's impressions on my idea, and so far nobody has pointed out
any negative implications of my suggestion. But if it's such a good idea,
how come none of the judges thought of it? In fact, one of the judges (as
quoted in the article) thinks that the pyschological aspect of Junior's
sperm being used to make a child is horrendous -- why? As lots and lots of
PARENTS know, neither sperm nor ovum does a loving parent make. Would it
like, be some kind of hardship to know that a spermatozoa he'd ejected
nearly two years ago had created a child? If so, why?
Come on, people, help me out here!