Hous. J.
240
HEALTH
L. & PoL'Y
impose this duty do so with complete disregard for a legislatively
and professionally established standard of care.416 Relying instead
on unpersuasive and unsuitable theories, courts are effectively denying pharmacists their rightful professional status when upholding the no duty to _w arn rule. Moreover, due to growing
prescription use, increasing drug errors, and mounting health care
costs, public policy dictates that pharmacists use their expanded
roles and knowledge to full potential.417 This requires pharmacists
to be held accountable for failing to warn patients about potential
adverse drug events.41B
Theoretically, the expansion of pharmacists' liability is a step
in the right direction, recognizing the professional status of pharmacists and leading to better patient care and drug therapy outcomes.
Unfortunately, however, current working conditions have forced
pharmacists to take a step back from quality patient care activities,
negating any positive effects expanding liability might bring. As
pharmacists struggle under high dispensing volumes and exhausting work conditions, little time is left to meet even the bare minimum in patient care requirements.419 As a result, pharmacists have
resorted to utilizing unsafe and inadequate methods in order to
meet workplace demands and simultaneously avoid any liability to
fulfill their duties. 420 Thus, although the no duty to warn rule is no
longer compatible with the contemporary pharmacy profession, any
increase in liability without a corresponding decrease in other workplace demands can have dangerous consequences. It remains to be
seen whether the pharmacy profession will be able to find the
proper means to successfully remove itself from such a precariou.&
position.
416
See Omnibus Budget Reconciliation Act of 1990, 42 U.S.C. § 1396r-8 (mandating that the
minimum standard of care for pharmacists requires that pharmacists perform drug utilization reviews and patient counseling).
417
See generally THE PHARMACIST WORKFORCE, supra note 1, at 33 (discussing the increa.Be'll
importance and expanded role of pharmacists as medicine becomes more complex, the
risk for errors increases, and cost constraints intensify).
4 18
See Gonzalez, supra note 49, at 53, 76 (noting that the complexity of current drug therap)l~
combined with the OBRA mandates and various state statutes, creates an enviro~in
which pharmacists must warn patients about the potential risks of drug therapy).
419
See Ukens, New York, supra note 290, at 39 (suggesting that pharmacists' workloads requifl!
that they perform only their basic duties, often omitting higher-level functions such as
patient counseling).
420
See Smith & Arbon, supra note 327, at 67.
2 Hous. J. HEALTH L &
Copyright © 2002 Raeh Po~'y 241-295
Houston Journal
el Polinger-Hyman
ISSN 1534-7907 of Health Law & Policy ,
241
":
1
ERECTING WOMEN:
CONTRACTING
To DrvoRcE
pARENTENHooo
FRoM
.
M
ARRIAGE
Rachel Polinger-H.Yman
The sex impul
turned it to accoun se was dangerous to the Party
parenthood Thefi t: They had played a similar tri , a~d the Party had
were encou~a ed ~mzly could not actually be abo/is:/ wzth ~he instinct of
0
1
':f:e)(· The
t'/;!/hildren in
0 !e
z: parents and taught to s
, were systematically turned
.e
famtly had become in effi py on them and report thei d . . agaznst
device by means of h. ect an extension of the Thou h r ev_zatzons. The
informers who len whz.ch e:veryone could be surroundgd t !'olzce. It was a
ew zm mtzmately.I
e nzght and day by
chil~~en, £~n~%~
alm~~:~%~ ~~{:;[;~o,:'~
-George Orwell, 1984
lNTRooucrioN
The disposition of fr
presents an o o
.
ozen embryos in divor
modates advJ!e::mty ~o explore how our judicial proceedings
m assisted reproducti t hn
ystem accomtractual fr
eedoms 2 R
ve ec olooies 'th
reproducti
.
ecent case law
d
o~
WI
con.
ve technology give rise to ethi an advancements in
F' 1 G
cal and moral dilemmas
C:
EOR.GE ()R,WEL 19
L,
84 at Ill (N
(Writing about an~
ew Am. Library of World L't
human spirit Orw 11
ent future of COITUption .,...,~~: ul ~ erature, Inc. 1961) (1949)
'
e created a 1an
' ~ .....up ation
d th
_guage called "doublethink" in ~ an
e death of the
the power of holding and a
~cepting two contradictory b 1i f: • novel). Doublethink is
ousJy; it requires both
tr 1
conscrous and
e e s m one's . d
ans ates well into th
.
unconscious thought Th
nun simultanee_ reproductive arena where the . h . e concept of doublethink
avoid procreation
is that in th
co-eJast. A significant and chillin
ng t to procreate and the right t
e year 1984 the
g aspect of Orwell• . .
o
Orwell's negative
. '
government would mo .
s VlSion of the future
pens when T..di 'dutolspla Was a profound conunentaryrutortheve.ry aspect of human llie
~· V1 ua no 1
h
on e ramif:i .
·
consensual relationships·
onger ave the ability to create and c~tio~ of what hapbe free from ov
, co~quently, the right to
mamtain intimate and
2 See Judi
g enunental mterference. ld.
many and procreate would no Io er
th F. Daar, Assisted ~.
ng
an Equality Model top
·~r,oducttve Tech1UJ/ogies and t
Plaining that each
rotect Reproductive Liberties, 25 AM Jh~ Pregnancy Process: Developing
SOcial issues).
new development in reproductive t~~1: MED.' 45~, 456 (1999) (exgy will }'Ield complicated
Hous. J. HEALTH L. & PoL'Y
242
POLINGER-HYMAN
.
d finition of fami1Y values, structure, and legal
~~aree
.
243
10
ing in this particular market. In the practice of reproductive
medicine, patients are able to contract with their partners regarding
the disposition and control of their embryos. 11 To date, courts have
adopted a public policy position and are lypically unwilling to enthese reproductive
contracts between in vitro fertilization
force couples.
12
(IVF)
3
respons1'b'liti
1 es.
has served as a maJO
• r contnbTraditionally, the poli~cal are~~al notions of family.4 Political
t
in shaping and reflecting soCied
. g homosexuality to apu or
d from con emrun .
h
ggest ide the home; each of t ese su . h
suggestions
f have range
ou s
· ty
proving o working mothers
an ideological
view of a sOCle
s that e1t er
lions has encompassed
It rnative notion of family.
.
supported or criticized an a ~
.cal family is now a vision that 1S
The
traditional nuclear, bwlogr
lationships, and out-ofn·
same-sex re
h
constantly morplring.' 1~orc~f recent social phenomena that a~e
wedlock births are .e~mp es . structure? These social changes, rn
challenged
the trad1ti~nal famil!ments in reproductive technol~gy,
Om
bination W1th rapid advan
tal meaning of parenthood.
care also transfomung
. the fundamen
. the high-tech field of f erti'lity
Recent developments . m
c o reserve embryos and sk>re
edicine, particularly the ~bdity to ry kxing questions regardrng
:em indefinitely, have tr1ggere.;
practices within
ferpost-divorce rights of ow;ers~pdesires of those actively partic1pattility field reflect the nee s an
~=ent
th~
. 21 J. LEGALos
MED.
latin Reproductive Technologtes,
28
.
Andr s & Nanette Elster, Regu . g
d the Disposition of Frozen Embry .'.
' Lon B.
ut Noto.
'"
>hould give Jom!
35, 46 (2000);
:;
....) (•dvanciDg that N'; Yo:kh':v:': priM mntrru-tual
HoFSTRA
. . L.alREV.
disposition
custody, to divorem·g parties when they o no
agreement).
•w
'~
':;';~~
D~m
'"Munay, "''"' nore 6, •t 52-53 (d""on.tr•ting how """ket ""logi.., n• utilizod m'"'sions regarding reproductive technology and its effect on families).
n
S
NEw WAYS OF MA!<mG BABIES.
art in deciding how women are .
1996) (noting that politics also pla~o::tion, embryo donation, or surrogacy). .
rod
.
.
uctive services such as egg
d'ti' nal nuclear, biological family
. tha t th• tr• 'Tho as H Murray, New Reprora
note 3, at 47 (noting
6 Andrews & Elster, sup
d their children); see also
om
. . HE CAsE OF EcG
consisted of a mother, fathhee~ anz'Zy in NEw WAYS OF MA!<mG BABIES. T
h I ·es and t ram '
'""""" T.x no og>
thi B Colum 00., 1996).
A""'t
DoNATION 52, 54-55 (Cyn
a .
. Sowle Cahill, Moral Concerns
ra note 3, at 48; see also Lisa
BIES' THE CASE OF EGG Do7 Andrews & Elster, sup
. zn
. NEw WAYS OF MAKING
BA
. th
gh family struc.
natzon,
.
ou
Institutionalzzed
DBo C 0 hen ed. 1996) (commenting that. evenhl emains constant).
74
t-child relations P r
'
NATION
' 76 (Cynthia ·
•., f""""
...
b ......
tures are changing due to socr
'
. that parenthood may be defined y
3 t 47-48 (noting
")
& Elster, supra note 'a
b' tion of these factors. ·
• Andrewo
.
.
m """"
ma
, tation genetics, intention, rearmg,
A
Div. 2000) (holding that a o n16 (N J Super. Ct. PP·
'
. ulating' that .:.-11
co
· · contract was unenforceable,
9h
See J.B. v. M. B., 751 A. .2d. 613,f 6rtlization
IVF ('stip
vitro fertiliza...,.,.
usband and wife's m VItro e
uld be relinquished to an
m
hi 0 f embryos wo
trol and owners P .
dissolve).
·
program should therr marnage
rep
Gamet~
p~n
~
S~
[.B., 751 A.2d " 615 (citing • boZOn ombryo Wspooltion contnd, Which "'"" that,
"The control and disposition of the embryos belongs to the Patient and her Partner ...
[who)
be osked toembryos.").
''"'cute "" •H•cbed ''"" ""tement "ll>'dlng mntml '""'
tion
ofwill
cryopreserved
P
Andrews & Elster, su ra note 3, at 46.
.
f "family" will necessarily imply
.
re 'd t 46-47 (noting that each poli.
"
fonnul•twn
o
difi
tion'
m
tic cklin What is Wrong with Commo z ca
.~
'SIT • · a
.
., •)· = ,,., Ruth M•
'
(Cynt!Ua B. Colum .,
diffurent fumily V u• '
. TH>; C... 0' EGG IloNAnoN 106
comp"""'ted fm
4
This Commentary assesses the courts' rejection of contracts in
the frozen embryo setting. Part I of this commentary provides a
background into the IVF and cryopreservation process. Part II
briefly discusses the early days of IVF and the advances in medical
technology that have contributed to this new legal area of dispute.
Part ill introduces the different approaches courts have adopted regarding the disposition of frozen embryos in divorce situations; the
"right to life", "property", and "deserving special respect" views are
analyzed within the semina] cases of Davis v. Davis,u Kass v. Kass,"
J.B. v. M.B.," and A.Z. v. B.Z. 16 Part IV argues that the influentia]
decisions arising from these embryo disposition cases demonstrates
an increasing gap between biological reality and legal dicta. 17 Part V
attempts to harmonize ideas of reproductive freedom with the prac-
n into
fd. •tparenthood).
619-20 (n,.<olviDg
tha~
M •
d~po,;.
nmu.. of public poll')', Individual, •hould not be forrOO
" 842 s. W2d 588 (T<=. 1992) (8'Mting Juruo, O.vls =tody of m.,
'""' m., ox-w;re·, frozen
embryos because she was intent on implanting the embryos outside of Wedlock).
"696 N.E.2d 174 (N.Y. 1988) (upholding "" Ka.. • mntncturu '"'''""'"t which pmvidOO
that their frozen embryos Would be donated to an IVF program upon divorce).
"751 A.2d •t 613 ('"i"""g'" In vitro'""""" which would donate th• """"'
fertilization clinic should the parents divorce).
•w to •
"725 N.E. 2d 1051 (M.,. 2000) (•trlldng • con"""t whicl, WOUld enabk '"OX-wik to Un-
plant
be, Md he.. "'-hu..b,.d'• frozen ombryoo wen when ""ox-hu,b.nd did not wW. to
be
a parent).
a.._,.""'"
"""""In'
"S.,
note 1, •t 10 (conten.pJating writing • diruy,
note;, "How
could you communicate with the future? It was of its nature impossible. Either the future
Would resemble the present, in which case it would not listen to him, or it would be different from it, and his predicament would be meaningless."). This quote adequately reflects
the
=t '"""'of "'P'Oductlv, ""'""logy, whe.., th• l•w OOMtMtly
·-pb
to
OC-
COmtnodate biological advances, only to find itself reassessing precedent in order to ad" -ruov pmbkms. In thi, new ""'ld of "'J>mduction, "" future will nevff re"'mbk the
present. Should the law fail to adjust to this rapid technological pace, legal dicta will become meaningless since it will not be able to accurately guide the changing times. Id.
Hous. J. HEALTH L. & PoL'Y
244
POUNGER-HYMAN
ticality of enforcing written agreements between couples involved
in artificial reproductive technologies. Part VI tests the validity of
dispositional agreements by deconstructing an informed consent
IVF contract. In sum, this comment criticizes how courts have severely departed from their historically protective stance towards
procreative freedom by refusing to enforce IVF reproductive
contracts. 18
I.
BACKGROUND
A. The IVF Process
Before analyzing the legal and political ramifications of contracting for parenthood, it is important to understand the purpose
of IVF and the procedures involved. 19 IVF provides infertile couples
an opportunity to conceive their own children.20 Infertility, however, should not be confused with sterility.21 The medically accepted
definition of infertility is the inability to conceive after one year of
intercourse without contraception.22 Usually, infertility, unlike ste-
245
rility, is merely a result of .
.
conceive.23
Impatience rather than
The lVF procedure requires the s .
.
produce multiple eggs whi h
th timulation of the ovaries to
' b
'
c are en fertiliz d
mans ody in a petri dish.24 While .
e outside of the woare successfully fertilized nl thr runety percent of removed eggs
placed in the uterus.25 E~ ~s thee or four embryos can safely be
may be stored for later use~ aht are not transferred right away
oug cryopreservation.26
B.
Cryopreservation
Cryopreservation consists of fr .
gen at subzero temperatures 27Th eezmg embryos in liquid nitroage for later use of the extra e. b e process of freezing allows storputting the embryos on ice f: 1?;~: retrieved from the female.2s By
use, cryopreservation relieves
23
See RAYMo
ND,
24
18
Specifically, the Supreme Court has repeatedly sustained a woman's qualified right to
terminate a pregnancy. See Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992); see also Roe v. Wade, 410 U.S. 113 (1973). Moreover, more than half a
century ago, the Supreme Court also protected the right to procreate, invalidating a state's
provision for involuntary sterilization of habitual criminals. See Skinner v. Oklahoma, 316
u.s. 535 (1942).
translated, IVF means "fertilization in a glass". Artificial Reproductive Techrwlogy,
at http:/ /www.lvcm.com/whavins/artrepro.htm (last visited Sept. 16, 2001).
19 Literally
Marigliano Dehmel, Note, To Have or Not to Have: Whose Procreative Rights Prevail
in Disputes Over Dispositions ofFrozen Embryos?,27 Co NN. L. REv. 1377,1380 (1995); see also
American Society for Reproductive Medicine, Patient's Fact Sheet: Infertility, at http:/ I
2o Jennifer
www.asrm.org/fact/patients/FactSheets/infertility-Faclpdf (last visited Sept. 28, 2001)
(reporting that over six million American women and their partners suffer from
infertility).
21
See JANicE RAYMoND, The Production of Fertility and Infertility, in WoMEN AS WoMBS (1993)
(explaining that infertility is temporary, while the connotation associated with sterility is
permanent), available at http://www.hsph.harvard.edu/rt21/globalism/RAYM~
html. See generally Kass v. Kass, 663 N.Y.S.2d 581, 593 (1997) (exemplifying the signifkaill
in the slight difference between infertility and sterility). This distinction becomes impor~
tant in embryo disposition cases where courts inquire into whether there are any reasona~
ble alternatives to achieve parenthood by other means for the party desiring embryos. If
the court finds a gamete provider to be sterile, then future reproductive opportunitid are
limited. This limitation may have some weight in the court's determination regarding the
disposition of the embryos in a divorce custody battle. Id. See also Davis v. Davis, 84.2
S.W.2d 588, 604 (Tenn. 1992).
22 U.S. Co NGRESS, OFFICE oF TECHNOLOGY AssESSMENT, lNFER'TILITY: MEorc AL AND SoctAl>
CHOICFS
35 (1988).
inability to
supra note 21, at ch.1.
See Dehmel, supra note 20 a 13
Enter Spotli ht
' t 77; see also Nancy Hill-Holtzman
.
(human chog· , .L.A. TIMEs, Apr. 29, 1990, at AI (discus .
;:rustaczs Preparing toRe-
ing an egg f:~:r~:do~pin) tend to cause multiple bir:~ a w Pergonal and HCG
~:~lic:ed case whlche~:!;~th::~=~r:tuplets in ~e Unit;~~:~:s
0
:::
:~;~;
g the septuplets were not b
thr
ems assocrated With fertility d
ensue when women take fertility
o~h ~, their births evidenced prob:gs. : ~onths after their birth in 1985 and th gs. . ~ case, four septuplets died wi~s f at
zeal problems, includin ce ,
e rematning three lingered on with
. .
our
oldest fertility center : u:~l ~alsy. The Frustacis sued the Tyler Me~n:~~ med• •
claimed that th .
ge es, and their fertility 5
Ic '-UJ.UC, the
monitonn·g th e high dosage of Pergonal, as well as th peodalist for malpractice. They
e octors' all ed
.
e number oft llicl
the suit for six millio d 11 o
es, caused these tragedies. fn 1990 theegF neg~gence in
n o ars. Id.
,
rustaCIS' settled
25
Marcia Jo w
Y urmbrand, Frozen Emb
REv. 1079, 1083 (1986) (noting thatAryos: ~oral, Social, and Legal Implications 59 S C
three b
ustralian fertility
. .
'
. AL. L.
tion o;;.r:::: Eperbimplan.tation); see also John A. Ro:~=lispts ~ecommend no more than
m ryos, 51 Om0 S L
n, nor Agreements foro ·
.
Agreements].
'I'.
.J. 407, n.3 (1990) fh .
tsposzereinafter Robertson, Prior
o::u
u,SeeJnnife
e
rL.Carow N 0 t D .
Rule Ad
·
'
e, avzs v. Davis· An Inc ·
529
:reedom and
Otherwise Sound
ho·"'"' th
ow, m the absence of cry
'
AUL L. REv 523
~·
e woman that
opreservati
th
·
'
are not implanted will exp· )
on, e extra eggs extracted
21 Wunnb
rre .
rand, supra note 25, at 1083 (e
..
embryos are at th tw ~
xplauung that the best sta
.
e o, mur, or eight cell develo
ges at which to freeze the
28 s id
pment stage)
. ee · at 1083; see also Mina · .
.
·
tng, in ISSUEs IN REPR
Alikani, Preservatzon of Human E
Plainin .~.. . ODUCTIVE TECHNoLOGy 201 (H I B ggs and Embryos Th.rough Freezg uwt the first h
e en equaert Holm ed
1983).
uman pregnancies resulting from
es ., 1992) (excryopreservation occurred in
(199~~'%:~:gea~ional
R~oduc::'~;';~!7:;ti~~ ~:;
Hous. J. HEALTH L. & PoL'Y
246
POLINGER-HYMAN
247
the woman fr om undergoing29furth er egg retrievals that may be
painful, risky, and ~an~erous.ealin for several reasons. First, the
Cryopreservahon lS app . gh ld not be overlooked. 3D Each
.
f
preservation s ou
.
st
cost effioency o cryo
t . val and implantatwn, can co
d .
. h . 1 des ovum re ne
00 31 Extracting more than one egg urmg
IVF cycle, whlc me u
between $10,000 and $20,0 .h
d to repeat the process when a
the IVF procedure red~ces t. e n~:
cy 1s des1red.
subsequent pregnan
.
ent of egg production causes nuSecond, hormonal mducem
ful embryo implanta.
.d
ffects for success
.
merous deletenous Sl e e hi h risk of developing ovarian ~lsease
t . 33 Women who are at a g .
. d to freeze their emwn.
f
la tion are a d vise
following IVF ovarian s lmu 34 Cr o reservation also maximizes
bryos for subsequent transfer. b y ping doctors and parents the
the potential of future pre~anc::e!~~ere is a reasonable possibilopportunity to choose.t~e hmeswin the woman's cycle an opportu1'ty of success.3s In addlhon, allo
g 1
fter the IVF procedure
natural ba ance a
36
nity to acclimate to a m?re
. the success rate for pregnancy.
benefits the woman by mcreasmg
Third, cryopreservation provides optimum family planning by
enabling a couple to delay having children for years without the
worry of future infertility problems. 37 Because fertility capabilities
decrease
38 with age, technological reproduction affords older couples
hope. IVF is not just a treatment for the forever infertile, it is also
an option for couples who have already had children, but who cannot conceive
again due to either male or female physiological
39
factors.
Fourth, cryopreservation offers couples a choice in deciding
the disposition of the embryos produced in the IVF process. 4° For
example, frozen embryos have become available for donation to infertile couples as a result of successful cryopreservation programs. 41
Cryopreservation also allows couples additional time to decide
whether to implant, donate, or destroy the unused embryos. 42
Despite its touted benefits, cryopreservation also has some disadvantages. For example, one downside associated with cryopreservation is that not all embryos survive the freezing or thawing
process related to an assisted reproductive technology procedure. 43
In fact, the Centers for Disease Control has discovered that the live
. te d Wl"th the IVF treatment such
. . diff 1ties assoc1a
(dedscrthlbmgteru~c~ctopic pregnancies, and miscarriages).
.
· g outs1 e e u
'
.
man to undergo as few egg
as pregnancies occurrm
f
30 See Carow, supra note 26 ' a t 529 (noting that it is better or a wo
29
See RAYMOND, supra note 21
7
3
. fp ·ce htrn (last visited Sept. 28,
df flity com 11v n ·
..
de:t~r~g
may entail further costs in addltlOn to
. th a t embryo freezmg an
2001) (reporting
retreivals as possible).
31
See IVF Costs, at http://www.adnnce
38
the IVF cycle procedures).
H 1m To Freeze or Not to Freeze:
H I Bequaert o es,
32 See Carow, supra no t e 26 ' at 529; see also
.
e enIVE TECHNOLOGY 193' 196 (Helen Bequaert
Is That an Option? in Issues IN :~Pt~~~:;::dical reasons" to utilize cryopreservation are
Holmes ed., 1994) (commentmg t a
REPRODUCTIVE TECHNOLOGIES 50 (InLABORATORIES: WOMEN AND
Tty h rmone used to
33 Robyn
(finding that clomiphene, a
diana Uruversl
.
similar chemical structure o
men as a
stimulate egg production, has a 1970 DES was administered to pregnant w~ fr m the
This drug was eventually remove
o
f
(DES)). Between the 1940s and . s, .
prophylactic measure to avoid rruscarna;;he vagina, cervix, and breast, increased ra:e~.
market, as it was found to cause c:~~r :ctopic pregnancies in daughters of these wo
infertility, spontaneous abortions,
d
. their eggs for
I
34 Id.. at 35 (finding that pre-menopaus al womens h ould also consider freezmg
numerous).
Rowla~tyd, ~~:~992)
implantation success).
39
.
·s more likely to get pregnan
6 at 529-530 (noting that a woman '
36 See Carow, supra note 2 '
. f
from fertility drugs) .
through IVF when her body lS ree
LEON SPEROFF ET AL., CLINICAL GYNECOLOGIC ENDOcRINOLOGY AND INFERTILITY 932 (5th ed.
1994) ("In successful IVF programs, where take-home baby rates can be in the 35% range
for women 36 and younger, for women over 39 the figure is in the 10% range.").
See John A. Robertson, Embryos, Families, and Procreative Liberty: The Legal Structure of the
New Reproduction, 59 S. CAL. L. REv. 939, 947 (1986) [hereinafter Robertson, Legal Structure]
40
currten~:r:~g d~ethylstilbestrol
o 32 LoY. L. REv. 317, 333 (indicating
·se
future use).
· that
3S Richard P. Dickey, The Medical Status of ::h!7:.~th~r, or a natural disaster can comproffil
high fever, bleeding, accidental ID)Ury t
t
See John A. Robertson, Ethical and Legal Issues in Cryopreservation of Human Embryos, 47
FERTILITY & STERILITY 371 (1987) (comparing cryopreservation with insurance coverage because couples can safeguard against future infertility by freezing their eggs now for later
use).
(commenting that male infertility is another common reason that couples resort to IVF).
Interview with Dr. Robert G. Brzyski, Assistant Professor at the Univ. of Tex. Health Sci.
Ctr. at San Antonio, in San Antonio, Tex. (Oct. 22, 1996) (transcript on file with St. Mary 's
L.].).
41
See Robertson, Legal Structure, supra note 39, at 376-77 (suggesting that embryo donation
may foster a stronger relationship for adoptive parents because the rearing mother will
have carried the child to term herself).
42
Brzyski, supra note 40; see also Virginia Groark, Divorce Settlement Keeps Frozen Embryos in
Limbo, CHI. TRIB., Mar. 25, 2000, at N5 (reporting that a divorcing couple in Illinois agreed
to preserve their two frozen embryos for fifty years until they come to a mutually satisfactory custody agreement).
43
CENTERS FOR DISEASE CONTROL AND PREVENTION, U.S. DEP'T OF HEALTH AND HUMAN SERVICES, 1997 Assisted Reproductive Technology Success Rates: National Summary and Fertility
Clinic Reports, available at http:/ /www.cdc.gov /nccdphp/drh/archive/art97/ index.htrn
(last visited Oct. 3, 2001) (comparing frozen embryos per thaw, frozen embryos per transfer, and fresh embryos per transfer) .
248
Hous.
J.
HEALTH
L. &
PoL'Y
POUNGER-HYMAN
249
zen embryos is usually lower than the l:e
birth per thaw rate for fro
b
that were never frozen.
f
t for fresh em ryos
birth per trans er ra e
.
with cryopreservation invo ves
1
Another problem associat~ the embryos.45 To illustrate, a
the time limit imposed on s.t or g B 't in in 1996 when frozen
ued m Great n a
d
"
"prenatal massacre ens
ned b their parents, were remo~e
embryos, essentially abando
d Y_
ersed in a warm solutiOn
from liquid nitrogen freezers. ~n Immt46 This event occurred purll ed to dismtegra e.
b
s
where they were a ow
h. h insisted that frozen em ryo
U .t d Kingdom law w IC
47
suant to a ru e
ll
d to die after five years.
must be thawed and a owe
f cryopreservation, which
t
One of the grea es t disadvantages
. . h o bT ty to contract for the
ent hes m t e a 1 1
.
.
is the focus of this comm '
b
s 48 Many programs reqmre
future disposition of the froze~ em ry~~cts delineating the terms
opreservahon con
. lly 49
.
couples to sign crY_ .
reserve the embryos cryogeruca ..
under which the clmic ~~ p.
hi h frozen embryos are considClinics outline the time hmi~s m wh c f ons of the clinic in such
ered abandone d an d highlight t e ac 1
circumstances.
These contracts create situations that can potentially cause conflicts between clinics and patients, and the couples themselves.
Parents may assume that their embryos will be destroyed by the50
clinic under the clinic's reservation of rights in the contract.5 1 This is
important because, ultimately; many parents may be emotionally
unable to make the decision to destroy their embryos. 52
A second disadvantage is that the lapse of time between the
NF procedme, freezing, and implantation gives the married couple
an opportunity to change their minds about the process as well as
their marriage." When the couple decides to get divorced, they may
disagree on the disposition of the frozen embryos. 54 The options
available to the couple are implantation, donation, or allowing the
embryos to thaw and expire on their own.55 The usual scenario involves the wife's wish to implant the eggs while the husband seeks
56
to have them destroyed. Unfortunately, for couples who disagree
and ultimately litigate, the courts' position leaves much to be de-
so Id. at 74 (commenting that medical facilities and gamete providers may disagree about the
removal and transfer of embryos to another facility, and that gamete providers may argue
among themselves about implantation, division, and donation of the embryos); see also
Alise R. Panitch, Note, The Davis Dilemma: How to Prevent Battles Over Frozen Preembryos,
41 CAsE W. REs. L. REv. 543 (1991) ("IVF has generated legal problems sterrunmg from
disputes over control and ownership of preembryos. These disputes fall into two ca tegories: disputes between NF participants and their clinic, and disputes between the NF
participants themselves.").
Id
44
45
.
at 375 (discussing the prob!ems that can
. . arise
See Robertson, Legal Structure, su;:: note ~~~er the ramifications of storage time hrruts on
when gamete providers do not
y con
cryopreserved embryos).
d in Britain, at http:/ /www.cnn.
if Human
Embryos Destroye
.
CNN Interactive, Thousands o
b
(last visited Sept. 10, 2001).
com/WORLD/9608/01/frozen.em ryos
h. n beyond five years).
.
. d for cryopreserva o
47 Id (noting that parental consent ts reqmre
& STERILITY 780, 780
·
.
. Problems, 53 FERTILITY
.
J
Jr Cryopreservatwn
andected
zts circumstances w hich should be included m
48 Howard J. ones,
.,
(1990). The following instances are unexp
46
a reproductive contract:
d th or disability of one of the
ea
Death or disability of the prospective parents;
f the prospective
parents; divorce of the
prospective parents; legal separation o d material remains in storage beyond the
prospective parents; if the cryopres;::t or beyond some other agreed upon time
.
arents including their failure to pay
rospective mother' s reproductive
:;,.,,,
of oon@ct wifu fue P=P"'""f:! =d
ll ony; I= of
current or delinquent cryopreservaho~ a regnancy; a wish of one [or both
by the prospective parents m attemp g ~rved pre-zygote/pre-embryo from
prospective parent's to remov~ th; cry~;::oluntary discontinuation of a cryothe original program; [and] vo unary
lo~
b an lVF program.
preservation program Y
49
inw=;
dm,.,,
.
8
DICK L. REv. 67, 7
Vitro Fertilization: Problems and Solutwns, 98 uch .as "transfer or
John Dwight Ingram, In
f ·l·t· should clearly elucidate terms s .
d
time
" I actttes
(1993) (stating that med tca
d tion use for research, or des tru chon, an · · ·
withdrawal of embryos, sale or a op
,
limits.").
5J
5
2
See Ingram, supra note 49, at 75 (finding that parties will not typically enter into an NF
contract unless they are certain that the contract's provisions will be honored).
Id. at 75 (asserting that couples will have strong emotions regarding issues such as disposal, implantation, death, and divorce).
53
54
See Samuel A Gunsburg, Note, Frozen Life's Dominion: Extending Reproductive Autonomy
Rights to In Vitro Fertilization, 65 FoRDHAM L. REv. 2205, 2211-12 (1997) (commenting that
such life-changing decisions have created legal courtroom battles).
See, e.g., Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) (demonstrating Junior and Mary Sue
Davis' disagreement about the disposition of their embryos after their marriage
dissolved).
55
See Robyn Shapiro, Who Owns Your Frozen Embryos? Promises and Pitfalls of Emerging Reproductive Options, 25 SPG. HUM. RTS. 12, 13 (1998) (noting that dispositional options may
include or
thestorage).
embryo's destruction, donation for scientific purposes, donation to an infertile
couple,
56
See Davis, 842 S.W.2d at 589 (chronicling Mary Sue Davis ' desire to implant her and her
ex-husband 's frozen embryos after they divorced); Kass v. Kass, 696 N .E.2d 174, 175 (N.Y.
1988) (reciting Maureen Kass 's wish to be impregnated with her and her former husband 's
frozen embryos); but cf ].B. v. M.B., 751 A2d 613, 615-16 (N.J. Super. Ct. App. Div. 2000)
(involving a situation where the wife wanted the embryos destroyed and the husband
Wanted to preserve them for later use).
250
Hous.
J.
HEALTH
L. &
PoL'Y
sired because courts tend to disregard contracts concerning embryo
disposition. 57
II.
THE EARLy DAYS
A.
Maidenhead Revisited: The First Time
The first IVF procedure in the United States occurred in 1973.58
Doris and John Del Zio were the first couple in the United States
participating in the radical new fertility procedure. 59 After three
failed attempts to repair Mrs. Del Zio's fallopian tubes, New York
fertility specialists, Dr. William Sweeney and Dr. Landrum Shettles,
performed this procedure by surgically removing an egg from Mrs.
Del Zio's ovary and placing it in a sterile package. 60 The egg was
then fertilized with Mr. Del Zio's sperm and placed in an incubator
to develop for three days at Columbia Presbyterian Hospital. 61
Dr. Raymond Vande Wiele, Chairman of Obstetrics and Gynecology at Columbia, became enraged when he discovered that Dr.
Shettle had not sought the institution's permission before performing the experiment. 62 Dr. Vande Wiele objected to the procedure on
ethical and moral grounds. 63 Punctuating his argument, Dr. Vande
Wiele removed the container from the incubator and opened it, destroying the Del Zios' chances of ever giving birth to a child. 64 Ironi57
See Shapiro, supra note 55, at 13 (advancing that courts should enforce IVF directives as
other contracts are enforced).
58
LORI B. ANDREWS, THE CLONE AGE: ADVENTURES IN THE NEW WORLP OF REPRODUCTIVE
TECHNOLOGY 16 (Henry Hold & Co. 1999); see also Patricia A. Marin & Martin L. Lagod,
The Human Preembn;o, the Progenitors, and the State: Toward a Dynamic Theory of Status,
Rights, and Research Policy, 5 HIGH TECH. L.J. 257, 259 (1990) (recognizing that the birth of
the first infant ever conceived by IVF occurred in England in 1978).
59
ANDREWS, supra note 58, at 16.
60
Id. (identifying Dr. Landrum Shettles as a fertility specialist based at Manhattan's Columbia Presbyterian Medical Center).
61
Id. (stating that the zygote was incubated in a culture medium for this period of time to
maximize the probability of a successful implantation in Mrs. Del Zio 's uterus).
62
Id.
63
ANDREWS, supra note 58 (revealing that Dr. Vande Wiele was also concerned that the petri
dish may have been infected and could have harmed Mrs. Del Zio 's health if implanted).
64
Id. at 16-17 (revelaing that Mrs. Del Zio's reproductive organs were damaged beyond repair after the surgical procedure, making another egg retrival impossible); see generally Del
Zio v . Presbyterian Hosp. of N.Y., No. 74 Civ. 3588 (S.D.N.Y. 1978) (recognizing a cause of
action for emotional distress for the mishandling or destruction of embryos). For unilaterally destroying the embryo of his own initiative and without notice or consultation with
the couple involved, the couple sued Dr. Vande Wiele for intentional infliction of emotional distress. The jury awarded the couple $500,000 in damages. Id. at 2, 11. This case
POLINGER-HYMAN
251
cally, although Dr. Vande w· 1
Kro~edure, he evidently was ~::;as ethically opposed to the IVF
avmg a ten to twenty percent ch::c~se1 to des~roying ~n embryo
As reproductive technolo
o becommg a child. 65
out the 1970s and 1980 . b gy procedures progressed thr
h
th
s, It ecame cl
th
oug e exception to IVF emb ryo man ear at the Del Zios w ere not
ru1e.66 The Del z·
agement; rather the
resolved ethical a:d case dle~onstrated that there ~er/mwere the
mora Issues
d.
any unA
round the world, NF clinics wereregar. mg embryo disposition. 67
~:~ly l'from right-to-life organizati~~~~~ under attack, predomira I~ staged a hunger strike in
.
or example, priests in
and patients had to walk ast
the lobby of. an infertility clinic
wanted to get in.69
p
a human barner whenever they
B.
Bipolar Nation· Red f' .
.
e mmg Family Values
Married couples h
wh th
·
ave a funda
1
b
menta right to deter .
e er and when they
cou 1 h
can ear a child 7o D
mme
p es c oosing the means by h . h .
oes this right extend to
ture and religion in the world h: r~co th~y bear a child? Every culgruzed procreation as a natutriggers important legal issues The
.
Hous.
252
J.
HEALTH
L. &
PoL'Y
POLINGER-HYMAN
253
. · a lso protects
d
U 't d States Conshtuhon
·
n The me
l'ty and ethics reconCI·1ed WI'th the eral right of marnage.
.
72 B t how are mora I
this nght.
u
· d couples?
.
·
sire to procre ate for non-marne h oet advance dan apt discussiOn
Charles Baudelaire, a F~en~ p . 'ty 73 He wrote, in My Heart
t
ab ou the function of. mora1I ty m soCie ·
Societal morals are currently in flux due to the interplay between assisted reproductive technology and traditional conceptions
77
of family structure. Therefore, before answering whether marriage
is or should be a condition precedent to undergoing IVF procedures,
or especially embryo disposition during divorce proceedings, it is ·
to define and understand modern conceptions of
first important
78
parenthood.
Laid Bare' the followmg:
..
h interminably use the
" d other such
.
f the Bourgemsle w o
All the imbecile~, ?,.
lity" "morality in art. an
fi -franc
words: "immoral , lm~ora me 'of Louise Villedleu, a ver been
e~r~~~~n!e~~r:,~~
Currently, one of the ways in which men and women are distinguishable is by a woman's ability to bear and beget children.
79
Yet, in the evolving world of the new millennium, even this idea is
80
being challenged. In 1997, Japanese researchers announced that
they were close to developing "ectogenesis," an artificial womb with
the ability to circumvent the need for human gestation. 81 The advent
of artificial wombs would compel the parenthood model to evolve
and challenge a history
of Supreme Court cases based on traditional
82
notions of family. A man could become a single parent by purchasing an embryo,
and utilizing the machine to nurture and support
83
the fetus. 84A woman could utilize an artificial womb to circumvent
pregnancy. In an epoch of environmentally engineered embryos
Lou~ee~ ?a~: ~~~h~~~ehands,
stupid
me to the
whore w
d be an to blush and cover .
me as we stood
there before,
kin: at my sleeve and askint . decencies could
repeatedly p uc t tues and pictures, how sue m
before deathless s a_ 74
r
the subjective lens of high and
Baudelaire illus~rate_s, thro_u~ar disease, capable of two ex~
low art, how morahty IS a_ bipone doctor would destroy an em
ethics,
tremes. 75 In the name .of the
name of ethi cs, another doctor would
from destruction.76
bryo, and conversely, ~
strive to protect the em ryo
be flaunted in pubhc.
· d co uples [having
. . that' "For many marne
opmmg
n ANDREWS, supra no te 58' at 25 .(further
")
rochildren] is the essence of family. .
.
'th the fundamental right to make rep
US 113 (1973) (dealmg Wl
.
olved forcing a woman tore72 See Roe v.
410 . the means chosen by the sta_te mv
of rocreation is not an
her wishes). Although this nght tituJon to protect this right.
ductive deCISIOns
main pregnant agam; reme Court has interpreted the
Fertilization Produces Adjuenumerated right, the up Imb t Note The Golden Egg; In Vz rod'
. g the long-estab.
Vinet
er ,
'
(1991) ( 1scussm
Id.; see also Moruque
& TECH. L.J. 495, 505-0 6 . .
without unjustified
.
l7 R TGERS CoMPUTER
h t " ind1v1dua1 may,
. .
dicatzon,
u
Court precedent t a an
·
tion contraception,
lished United States Supremeke decisions relating to
U.S. 535,541
government mterference,himpas and child rearing"); Skinner v. b . I'vii
of man); see
.
f 'ly relations
'
ong the as1c c
U
and procreation are am
Equitable Solution, 46 ·
abortion, arru
.
hen the enforcement
(1942) (holding that marnagCe0 mment Frozen Embryos: Towards an
· J T espalac10s,
nfli t that anses w
. th t
'
also Mano . r
823-24 (1992) (discussing the co c
Th argument advanced IS a
MIAMI L. REv. 803,
. th ights of the other party). e
d go the IVF proce' rights derues e r
h decided to un er
of one person s . d th ir rights to procreate when t ey . . if that decision would deny
the parties exerc1se
e
d to change that dec1s10n
th should not be a11 owe
dure. Thus, ey
. t to the preembryos. Id .
Norman Cam203-04 (Peter Quennell ed. &
the other party the ngh
73 CHARLES BAUDELAIRE, MY HEART LAID BARE
eron trans., 1951).
74 Id at 203-04.
W~de,
w~ent
Co~
77
Janet L. Dolgin, The "Intent" of Reproduction: Reproductive Technologies and the Parent-Child
Bond, 26 CoNN. L. REv. 1261, 1261-62 (1994) (commenting that the "complex system of
assumptions and principles" endemic to our society are challenged by scientific
innovation).
~arriageJ;:::a 3~6
~ights
75
76
78
Andrews & Elster, supra note 3, at 47 (supporting that reproductive technology encourages
a reconsideration of the meaning of "parent").
79
80
81
Id. (describing the artificial womb as a d ear plastic box of warm amniotic fluid in which a
fetus is attached to a dialysis machine that replaces oxygen and deans the fetus's blood).
Currently, the Japanese researchers have only attempted to utilize the device with goats,
removing the fetuses from their mothers three weeks before their due date and placing
them in the artificial womb. Id.
82
The Connecticut Supreme Court has recognized that the traditional notions of nuclear
family have been replaced and extended family now play a larger role. The court refuses
to accept that a child 's best interests and welfare should be determined only by individu-
. Britam
regarding
laws
Id.
at 71-72 (discussing the controversy men
in storage
for more
See ANDREWS, supra note 58,
f abandoned embryos that had be d 'ed a last-minute
.
th d structzon o
. .
J hn MaJOr eru
which requrred e e
1 1996) Then Prime Mmlster o
After the embryos
than five years as of August '
t . delay the disposal of the embryos t to preserve the
th
tic paren s
·
.
ti ·st groups o
appeal by anti-abor om linics received requests
e gene he would be destroyzng
had been destroyed, the c d bl distressed never rmagmed t y
embryos. Doctors, understan : y erate to c;nserve them. Id .
embryos of women that were esp
fro~
ANDREWs, supra note 58, at 73-74.
Id.
als who fit a very narrow definition of "family". Doe v. Doe, 710 A.2d 1297, 1317 (Conn.
1998).
83
ANDREws, supra note 58, at 74 (theorizing the social and familia] implications of the Japanese artificial womb technology).
84
ld. (highlighting that women can also benefit from the Japanese womb machine, despite
the fact that they are biologically equipped to support a fetus on their own).
Hous.
J. H
EALTH
L. &
PoL'Y
POUNGER-HYMAN
·
the
. t Y truly personifies
a bipolar nahan:
.f. · 1 wombs soCle
·
and arh ICla
. ' 85
.
. 1
best and worst of hmes.
.t.
of reproductive biOlogica
d.
the disposi
Disputes regar m~
.
ofIon
circumstances an d con.texts .86
material can arise in a nchf var~~~tional protection are the ng~t to
T o fundamental rights o con
ation 87 Recently, courts ave
w
. ht to avoid procre
.
.
. hts can
procreate and the ng
h
tract these procreative ng
.
considered whether, througl co:dica~es that waiving reprod~chve
be waived.88 Although case ~w olic courts should recognize a
b~ding the gamete providers to
rights is contrary to ~ubhc
1 's procreational hberty y
coup
e
. a greements.
their reproductive
254
255
equivalent to the destruction of a living human being. 90 Applying
the Right-to-Life analysis, the husband's right to avoid procreation
ceases to exist after participation in the IVF program. 91
1.
In 1980, Mary Sue and Junior Davis married and Mary Sue became pregnant six months later. 92 Unfortunately, a tubal pregnancy
forced her93to undergo surgery, resulting in a loss of her right fallopian tube. After her fifth tubal pregnancy, Mary Sue decided to
have her remaining
fallopian tube ligated, leaving her unable to nat4
urally conceive.9 The Davises then decided to pursue IVF in order
to have a child.9S
J
THE fROZEN EMBRYO AS LIFE,
ARGUMENTS FOR
SPECIAL RESPECT
PROPERTY, OR DESERVING
III.
The Davis' unsuccessfully attempted IVF six times, incurring a
total expense of $35,000. 96 Each pregnancy attempt required Mary
Sue to endure hormone injections, invasive surgery, and psychological toll as she wondered each time if the procedure would work.
97
On December 8, 1988, their last attempt at IVF, nine eggs were retrieved from Mary Sue, fertilized, and allowed to develop in the lab-
Embryo as Life
A
.
.
b ehind viewing the
emThe pro-life movemer:t is .the Impetus
destruction
of a preemb ry o is
bryo as a lI.fe. 89 Under this view,
85
CHARLES DICKENS, A TALE
OF
· Books 2000)
Two CmEs (Richard Maxwell ed., p e n gum
.
::n:.
(n~t~fe t~ea ·~'::~;ental
BB
89
91
See Ruth Calker, Pregnant Men Revisited or Sperm is Cheap, Eggs Are Not, 47 HAsTINGs L.J.
1063, 1069
(1996)
nancy
to term)
. (contending that a man cannot veto a woman's right to carry a preg92
See Davis v. Davis, 842 S.W.2d 588, 591 (Tenn. 1992) (stating that after being married, the
couple returned
to Germany for army assignments, where they learned that Mary Sue was
pregnant).
·
93
Id.
94
Id.
95
Id. (explaining that the couple attempted adoption but for various reasons decided on IVF
to become pregnant). IVF involves the aspiration of ova from the follicles of a woman's
ovaries, fertilization of these ova in a petri dish using the sperm provided by a man, and
the transfer
of theId.product of .this procedure into the uterus of the woman from whom the
ova
were taken.
intere9st25pr~~=c~J.
455aU.S. 745, 753 (198f2)
liberty
i982)
. ·
atters of arm Y
B
450· A.2d
'
t
also Right to Choose v. yme,
child" is "one of the mos
personal chmce m m
'')'
Fourteenth Amendment : seet tenninate a pregnancy or bear a
. . that "the chmce o
(recogruzmg .
. human experience").
intimate decisiOns m
1056-59
auld accord a
A.Z., 725 N.E.2d at
.
. th t "the Right-to-Life approach w they believe
2
(stating ofa persons under the 1a w because
See Oehme!, supra no.te o' a t d1382otections
the full nghts an pr
. ..
preembryo
,
ent' of conception. ).
life begins at the mom
See Natalie K. Young, Frozen Embryos: New TechnolOf51J Meets Family Law, 21 GoLDEN GATE
U. L. REv. 559, 565 (1991) (stating that various entities and religions, such as the Catholic
Church, consider embryos to be persons); see also Christopher G. Jesudason, Maximum
Consultation in the use of Frozen Embryo, NEw STRAITs TIMEs, May 26, 1997, at 15 (arguing
that Western cultures, including Catholic and Christian religions, have historically emphasized the importance and sanctity of life), available at 1997 WL 2962717.
90
1t
(1859).
.
the worst of times, it was th e age of wisdom,
increduIt was the best of times, It .was
och of belief, it was the epoch of . of
was the age of foolishness, It was the ethpe season of Darkness, it was thedspnnthin~g
l'ty it was the season of Light '.1t.was h d everything be fore us, we ha hno th
1 ' . was the winter of despair, we a
we were all going direct t e o er
hope, 1t
ll oing direct to Heaven,
. d that some of 1ts
before us, we were a g. d was so far like the present peno f' evil in the su. rece1v
· ed ' for good or or
'
. short: .the . peno
way
. ted on its bemg
. . - tmauthonties
msis
n01s1es
rison only.
perlative degree of compa
A
Div. 2000) (relating that a
616 (N.J._ Super.
process,
86 See, e.g., J.B. v. M ·B., 751 A.2d
· 613,
t participating
m anC~F~~d cryopreservation
d)
.
81
former husband and wife, pnor o an IVF program if they divorce .
d nate their embryos to
.
ld v Connecticut, 3
agreed to o
316 US 535 541 (1942); see also Gnswof
.traceptive devices
Oklahoma
· ·
'
· the use o con
87 See Skinner v.
' . that a statute outlawmg
.
e also Santosky v.
US 479 485-86 (1965) (holdmg
.
of marital relationships); se th t freedom of
. .
'unl wful invasion of the pnvacy '
• historical recogrutwn a
b the
Davis v. Davis
96
97
ld. at 591-92 (noting Mary's failed attempts at pregnancy even though she subjected herself to both subcutaneous injections, which were necessary to shut down her pituitary
gland, and intramuscular injections, to produce ova).
See Davis, 842 S.W.2d at 591-92; see also Davis v. Davis, No. E-14496, 1989 WL 140495, at *2
(Tenn.
Ct. 1989) (outlining the difficulties Mary Sue underwent in her attempts to
becomeCir.
a mother).
Hous. J. HEALTH L. & PoL'Y
POLINGER-HYMAN
d. Mary Sue's uterus,
tory 98 Two of the embryos w ere implante
reservedmfor future use. 99
ora
·
. .
ven were cryop
eservad th cientific process of cryopr
while the remmrung se
The couple understoo f e s 'ble ethical issues and how cry~­
tion but were still unawareiVoFpos~~ess 1oo Furthermore, the coup de
'
h
ed the
pr
·
h
bryos beyon
preservation
ramifications of storing t ;i:'::ot initially redid not
d to transfer them if pregnancy the clinic and the
the time nee e
nt existed between
sult.101 No written agreeme
d her husbandJOZ
.
cou le or between Mary Sue an
e last IVF attempt, and m Febtransfer could be considered,
p No pregnancy resulted from
f
1989
before
another
emb
y
ruary o
'
.
103 There a ft er, a dispute arose regardd
.
D
·
filed
for
drvorce.
. .ng cryopreserve
seven
remamr
Juruor
avrs
.
.
f
the
the disposrhon o
.
256
257
alive."" The trial court made an astounding assertion, slating that
"human life begins at the moment of conception, . . . [and] Mr. and
Mrs. Davis have accomplished their original intent to produce a
human being to be known as their child." 108 The court further determined that its role was to establish public policy determining the
status of embryos in a divorce proceeding.109 Employing the above
reasoning, the court found that awarding the frozen embryos to
Mary Sue recognized the "best interests of [the] children." Un110
moved by Junior's contention that he had a right to avoid procreation, the court postponed a ruling regarding the issues of child
support, custody, and visitation rights until "such time as one or
more of of
thelive
seven
cryogenically preserved human embryos are the
product
birth."llr
·~e:n&e
cons~
:"o
mg
'"'
. order to later
embryos.
t dy of the embryos m
d ""
Mary Sue requested cu~ .o
ortunities at motherhoo .
implant them and have addd:o:~~~ to keep the embryos froze~
Junior opposed Mary's reques' t he wanted to become a paren
until he deer'd ed "whether .or no
"106
outsr'd e the bounds of marnage.
b.
The Court of Appeals of Tennessee placed significant emphasis
on the fact that the frozen embryos were a result of mechanical manipulation.112 Unlike the trial court, the appellate court considered
whether Junior Davis' right to avoid procreation had been violated
and concluded that his constitutional rights were violated in a situation where pregnancy had not yet occurred."' After reviewing perti-
h T . 1 Court's Decision
na
and as
d that embryos are humans,
court
such,The
theytrial
should
be concl~d~
affor e the same protections as people born
a.
The Court of Appeals Decision
T e
1
Davis v. Davis, No. E-14496, 1989 WL 140495, at *3-*4; see also Trespalacios, supra note 72,
at 812-13 (arguing that the court's conclusion in Davis could lead to a paradoxical situation
where a court might find a woman has a duty to implant the fertlized eggs, but could not
order her to implant them as a result of the Roe v. Wade decision). The Right-to-Life
approach argues that Roe v. Wade is not implicated by the divorce and fertilized egg
cases. These propoents distinguish Roe from preembryos by arguing that Roe dealt with a
woman's right to terminate her pregnancy during the first trimester, but when issues of
bodily integrity are not involved, the state may protect preembryos as life. See id. at 812.
The Davis trial court embraced this Right-to-Life approach by framing the issue on the
inquiry of whether an embryo is a human being. See Davis at *4.
07
os Davzs, 842 S.W.2d at 592·
99 Id
. that although they were p 1ease d with the increased number of ova, they did not
100 Id. (noting
'bl
ative consequences).
.
d did not have
d I with uncertamties, an
onsider the poss1 e neg
c
.
were unprepared to ea .
101 Id. (stating that the Davzs:e event of separation or dzvorce).
torage of the
'bility of long-term s
disposition plans m
any
D ·ses had not discussed the poss1
during the last IVF proce102 Id. (stating that the
avz .
unable to locate consent forms
f the last procedure,
d th t the clmzc was
nt forms or
d
embryos, an
a
th Davis's did not sign any conse
dure was forever lost. I .
dure). Consequently, e .
th ramifications of the proce
. e had
·t · to dzscuss e
his marnag
and the opportunz y
J ·or filed for divorce because
uld prove
· d zca
' ting
unzhad hoped the birth of a child wo
103 Davis 842 S.W.2d at 592 (m
b t that
that he
u
""""'
beffi :U,,.ble fm
108
Davis, 1989 WL 140495 at *9 (noting that the court addressed the issue of when human life
beings).
begins and concluded that the embryos could not be property because the were human
109 Id.
un·
'"'~'' y~,
the relationship
. ).
D ·s· testimony is contra d'zc tory as tow
unstable).
· ge was
M ry Sue avz
104 Id . at 592 & n.lO (revealing thhat 'tha the IVF if she had known her marna
th embryOS
e throug wz
anted e
she would have gon
h
I in the divorce Mary Sue w hildless couple).
d
t d to a c
· that althoug ear Y
lOS Id. at 589-90 (suggestmg
d that she wanted them to be ona e
th than alloW
for herself, she later asserte
h
the embryos destroyed ra er
1
.
t Junior preferred to ave
06 Id. at 590 (stating tha
them to another couple).
Mary Sue the right to donate
no ld. at *11 (stating that temporary custody of the party 's seven cryogenically preserved
human embryos should be vested in Mary Sue, giving the embryos the chance to be
implanted).
111
ld. at *11 .
112
Davis v. Davis, No. 180, 1990 WL 130807, at *1 (Tenn. Ct. App. 1990), ajfd by Davis v.
Davis, 842 S.W.2d 588 (Tenn. 1992) (stating that the development of the ova were limited
to the eight
cell stage,
which time they were frozen, preventing even the slightest develof major
bodyatsystems).
opment
l!s ld. at *3.