Whose Lives Are These?

By Alain L. Sanders

The dilemma might have stumped even King Solomon: what to do with seven fertilized eggs of a divorcing Tennessee couple that are frozen at an in-vitro fertilization clinic in Knoxville. Mary Sue Davis, 29, is unable to conceive by natural means and wants custody of her "pre-born children" for future implantation. Junior Davis, 31, claims he is being "raped of my reproductive rights" by his estranged wife and insists on having a joint say on the future of the embryos. "I do not want a child of mine in a single-parent situation," he argued.

Last week in Maryville, Tennessee Circuit Court Judge W. Dale Young announced his decision in the unprecedented case: the embryos are people, not property, and should go to the mother. In an opinion loaded with some of the coded language that often surrounds abortion controversies, Young ruled that "human life begins at conception." The lawsuit ought to be decided as a question of custody, he concluded, and "it is to the manifest best interests of the child or children, in vitro that they be available for implantation." Questions of final custody, child support and visitation rights will be decided later if there is a birth. Junior Davis immediately announced he would appeal.

Many medical and legal experts fear that the ruling, if upheld, could slow in-vitro research and intensify the national abortion debate. "A bad decision," says Ellen Wright Clayton, a specialist in law and pediatrics at Vanderbilt University. The judge could simply have weighed the respective interests of each spouse, Clayton contends, and decided to award the eggs to Mrs. Davis without going on to say when life begins.

Young based his ruling on the testimony of Dr. Jerome Lejeune, a French specialist in human genetics who testified that the seven embryos each have unique characteristics that distinguish them as human beings. Three other experts argued that the embryos possess only the potential for life. Their views echo those of professional groups like the American Fertility Society, whose ethical committee in 1986 concluded that "the pre-embryo deserves respect greater than that accorded to human tissue but not the respect accorded to actual persons."

Tennessee was not the only site of an embryo dispute. Last week Risa and Steven York of California quietly settled their lawsuit against the Virginia institute holding their frozen embryo. The institute agreed to release the cells to the Yorks for implantation on the West Coast if it would not be held responsible for what happens when it surrenders custody.

Such controversies underscore the lack of clear rules to help resolve many of the ambiguities raised by the decade-old, $1 billion in-vitro baby business -- particularly when the clinics and couples, like the Davises, fail to set out their rights and responsibilities in contracts. "Legislators don't want to touch this hot potato," says Boston University Law School professor Frances Miller, "so the courts have to deal with these issues." With more than 200 conception clinics around the country, and 2 million couples seeking their services, the judges may get a workout.

With reporting by Don Winbush/Maryville