People or Property

Davis v. Davis


Sue Davis met Junior Davis when they were both in the army and stationed in Germany in 1979. They married in April of 1980. Mary Sue became pregnant about six months later, but suffered a tubal pregnancy and underwent surgery to remove a fallopian tube. Over the next few years she had four more tubal pregnancies, eventually making her infertile. In 1984 the Davises tried to adopt, but the birth mother changed her mind at the last moment. Mary Sue and Junior then decided to try in vitro fertilization (IVF).

Doctors at the clinic used hormones to control when Mary Sue ovu-lated and to stimulate her ovaries to produce more than the usual number of eggs. They used a laparoscope to aspirate the eggs, fertilized them with her husband's sperm, and monitored the fertilized eggs (zygotes) as they divided to form a cluster of eight cells. About three days later, they transferred several of these tiny embryos to her uterus. Beginning in 1985, Mary Sue endured six cycles of IVF, at a cost of $36,000 (it would be considerably more today), but she did not become pregnant. Her experience was, at the time, not unusual. Although IVF had produced its first live-born child, a girl named Louise Brown in England, in 1978, progress was slow. Overall, during the mid-1980s success rates in the rapidly proliferating number of IVF clinics were about 15-20% per cycle.

The couple decided to delay a seventh attempt at IVF for a few months until their clinic developed its cryopreservation services. By 1987 many IVF clinics, making use of new techniques that permitted human embryos to be safely frozen and thawed, were routinely creating more embryos than could be used. Research had shown that it was possible to freeze these microscopic clusters of cells for several years, then thaw and implant them with about the same success as freshly created embryos. When aspirating eggs, doctors routinely collected far more than were needed for a single attempt at pregnancy. Cryopreservation provided the option of fertilizing every egg that was aspirated (sometimes as many as 25). One could then implant three or four embryos and freeze the others in case the woman did not become pregnant and wanted to try again.

During Mary Sue's next attempt at IVF, the doctors extracted nine eggs. On December 10, 1988, they transferred two embryos into her womb, and froze seven. She did not become pregnant. In February, 1989, Junior Davis filed for divorce. The only issue that the couple could not work out during the divorce was what to do with their seven frozen embryos. Mary Sue, who had invested so much emotional energy and endured so much discomfort in her fight to conceive and bear a child, steadfastly insisted that she wanted to use them to try to become a mother. Junior vehemently opposed using the frozen embryos in a procedure that would, if successful, confer fatherhood on him as a postscript to a marriage that had ended. They took the matter to court.

At the trial to determine the disposition of the embryos, Junior testified that he did not believe that he would be able to have a healthy parental relationship with a child conceived outside of marriage with a woman from whom he had parted. Junior readily agreed that his views were colored by his own childhood. He was the fifth youngest of six children of a marriage that ended when he was five. Soon thereafter, his mother had a nervous breakdown, and he and three brothers had spent their childhood in an orphanage. He saw his mother only once a month, and he only saw his father three times before he died in 1976.

Junior said that he was terrified of bringing a child into the world who might be destined for a troubled childhood. To his mind, starting out with a set of parents who had divorced before one had started to grow in one's mother's womb was an inauspicious beginning. Junior wanted to destroy the frozen embryos. He was not even willing to donate them anonymously to a woman who could not produce eggs. He felt that no one could guarantee that his genetic child would be born into a marriage that would be nurturing and long-lived.

By the time of the Davis lawsuit there were thousands of embryos in storage, but no court in the world had yet been asked to decide who should get custody of one after a divorce. Only three relevant cases had ever been litigated, two of which involved tangential issues. The first (in 1978) arose when a woman in New York sued Columbia Presbyterian Medical Center after an obstetrician on its faculty intentionally destroyed a petri dish in which IVF was being attempted with her eggs. She recovered $50,000 for emotional distress, and the physician lost his job. The second arose as the Davis case was being tried. A couple sued the Jones Institute for Reproductive Medicine in Norfolk, Virginia, after it refused to send their frozen embryos to a rival IVF clinic in San Diego, California, where the couple had moved. The federal district court treated the matter as a property dispute, and ruled that the Norfolk clinic must release the frozen embryos to their owners.

The first case to confront the uncertain legal status of human embryos arose in the early 1980s when a wealthy Los Angeles couple, Mario and Elsa Rios, died in a plane crash in Chile. In 1981 they had traveled to the Queen Victoria Medical Center in Melbourne, Australia to undergo IVF. Doctors had implanted one embryo and frozen two. When the couple died a year later, the clinic realized that the Rioses had never indicated their wishes concerning disposition of unused embryos, that it had no policy on the subject, and that the law of Australia could provide little guidance. Mr. and Mrs. Rios had no heirs and had left no will. Thus, their frozen legacy raised a number of perplexing issues. What is the legal status of a frozen embryo? If a now-dead couple made no provision for an embryo, does the state have a right to donate it to another couple or destroy it? Should next of kin control the fate of the embryo? Should the clinic? If the clinic donated the two embryos to an infertile couple, would a resulting child have a claim on the Rios estate? Almost certainly not. English common law has long presumed that a child is the offspring of the mother who gives birth to him or her. The Rios embryos were never transferred to an infertile woman, but the case provoked global discussion among bioethicists and others about the need to resolve such fundamental issues.

Questions raised by the Rios matter took on new urgency in March of 1984 when Australia witnessed the birth of a little girl named Zoe Leyland, the first child ever born from a frozen embryo. Several governmental bodies quickly formed advisory committees to develop guidelines concerning the practice of IVF, a task complicated by a clash of views of two major religious groups. The Anglican Church favored the destruction of unused frozen embryos, while the Catholic Church urged that "under no circum stances should they be discarded or destroyed." The Australia Right to Life Association also weighed in, urging that courts appoint guardians for frozen embryos. Australia became the first country to require clinics to ascertain the wishes of couples in anticipation of death or divorce. Unfortunately, the United States did not follow that lead.

The Davis case was tried in Knoxville, Tennessee, before a judge who had strong pro-life views. Holding that life was preferable to nonlife, he awarded "custody" of the "children in vitro" to Mary Sue Davis, who had testified that she would try to become pregnant with them. The judge issued an opinion that was sharply defiant of Roe v. Wade, the 1973 abortion rights decision which had made clear that a fetus was not a person under the Constitution. It had no chance of being upheld.

I became involved in Davis v. Davis on appeal. Acting as friends of the court, a number of groups, including several national organizations of physicians and scientists, were preparing appellate briefs to challenge the scientific foundation upon which the judge had built his reasoning. As "friends of the court" (parties not directly involved in the case, but which had an interest in the issues), their main goal was to clarify clinical and scientific facts about early human embryology. I was asked by the Board of Directors of the American Society of Human Genetics (ASHG) to review a brief prepared on behalf of the American Medical Association that explained the biological nature of an eight-cell embryo, and asserted that there was no scientific basis to characterize it as a child. To me this seemed straightforward on scientific grounds, however debatable it might be on moral grounds. An eight-cell human embryo has no organs and no nervous system; it feels neither pain nor any other sensation. At this stage of human development the fertilized egg has divided three times. Under the microscope the cells look like a tiny mass of soap bubbles. Each cell is probably totipotential; that is, if separated from the others, it can restart the process of becoming a human, which is how identical twins come into existence.

I approved the brief, and the ASHG added its name to the list of signers. The document was one of several that (hopefully) helped the appeals court to articulate its disagreement with the trial court. Sharply rebuking the trial court judge, it characterized the frozen embryos not as children, but as a special form of property. Deciding that Junior Davis should not be forced to become a parent against his will, it awarded full control over the embryos to him, realizing that he would destroy them. Mary Sue immediately appealed.

It took two years for the case to reach the Supreme Court of Tennessee, and by that time Mary Sue's life had changed substantially. She had remarried, and no longer wished to become pregnant with the frozen embryos created with her former husband. Yet, she still sought custody of them, but now it was to donate them to an infertile couple who could not use their own eggs. Junior still wished to destroy the embryos.

The Supreme Court of Tennessee was unhappy with both the trial court and the appellate court opinions. As the U.S. Supreme Court had (in deciding Roe v. Wade) clearly refused to confer personhood on a fetus, the Tennessee high court held that the trial court had no constitutional basis for conferring personhood on human embryos. It also rejected the decision by the lower appellate court that the frozen embryos were property, however special. It held instead that unimplanted embryos were in an "interim category" that entitled them to special respect because of their "potential human life," but that they did not have full human life. The court's opinion is, of course, in sharp conflict with the view of many Americans, especially Catholics, whose faith holds that human life begins at conception.

The Tennessee high court had to decide which parent would be awarded control of the embryos and provide a rationale for its decision. Its work was made considerably easier by Mary Sue's acknowledgment that she no longer sought to have the embryos implanted in her. In its June 1, 1992 decision, it took the view that, "Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has reasonable possibility of achieving parenthood by means other than use of the pre-embryos in question." It awarded control of the seven Davis embryos to Junior, who promptly directed that they be destroyed. The only woman justice on the Tennessee high court, Martha Craig Doherty, wrote the opinion.

A single state supreme court decision is the beginning, not the end of the effort to craft reasonable legal rules. It was obvious at the time that many similar cases were bound to arise, and so they have. The second was decided in January, 1995, when a New York trial court, faced with facts quite similar to the Davis case, reached a dramatically different conclusion. In 1993, after years of unsuccessful attempts to achieve pregnancy, and just two months after she and her husband had created, frozen, and stored five embryos, Maureen Kent Kass filed for divorce. She wanted, nevertheless, to continue to attempt pregnancy via IVF. Her husband sought to have the embryos donated for medical research. The trial judge, asserting that he was required to do so by the rules laid down in Roe v. Wade, held that Maureen Kass should have control over them. Since Roe held that a woman has the right to end her pregnancy despite her husband's wishes, the judge reasoned that the same logic should apply here. In his words, "From a prepositional standpoint, it matters little whether the ovum/sperm union takes place in the private darkness of the fallopian tube or the public glare of a petri dish. To deny a husband rights while an embryo develops in the womb and grant a right to destroy it in a hospital freezer is to favor procedure over substance."

Maureen Kass promptly announced that she would seek to undergo IVF as soon as possible. Further fanning an emotional conflagration, her lawyer, Vincent F. Stinple, stated that if his client became pregnant through IVF and bore children, she would sue her former husband for child support. The case was appealed to the highest court in New York, which rejected the trial court decision and refused to permit Maureen to have the embryos implanted into her or donated for research.

Similar disputes are now winding their way through the courts of Illinois, Massachusetts, Michigan, Texas, Alabama, and New Jersey. The Massachusetts case, which was decided by the state supreme court in February, 2000, also arose out of a divorce. Despite the divorce, A.Z., the ex-wife, wanted to use two frozen embryos to attempt to become pregnant. At different times she had obtained her husband's written consent to give her control of the stored embryos should they end the marriage. Nevertheless, in the probate court the judge found in favor of the husband who wished to block A.Z. from using the embryos. The judge was impressed that A.Z. was already the mother of twins born after a successful IVF procedure and that the divorce represented a dramatic change in circumstances between the parties to the original agreement that nullified the earlier consents. When A.Z. appealed, the Supreme Judicial Court transferred the case to its own docket. It affirmed the lower court's decision to grant a permanent injunction in favor of the husband that forbids A.Z. from "utilizing" the embryos. According to John Robertson, a University of Texas law professor who is the nation's leading scholar on this issue, the legal rule that is emerging is that "the party wishing to discard wins, unless there is no other way for the party seeking implantation to reproduce."

Given the high frequency of infertility, the use of cryopreservation, and the high divorce rate, we can expect to see more legal battles over embryos, especially since few legislatures seem willing to craft the needed regulations. This reluctance is almost certainly due to their terror of enacting any law that seems to support the holding in Roe v. Wade. Although more than 100 IVF clinics are operating in the United States, more than 20,000 IVF babies have been born, and at least thousands of human embryos are in "cold storage," the industry remains unregulated. In sharp contrast, in Great Britain since 1990 the Human Fertilisation and Embryology Authority has licensed and monitored all IVF clinics, keeping track of stored embryos and enforcing rules on disposition.

Surveys indicate that only about 10% of Americans who have stored embryos will eventually donate any of them to other couples. Based on the growing number of couples choosing IVF, the fact that most couples undergoing IVF do store embryos, and the fact that IVF pregnancy rates are rising, there may already be more than 100,000 human embryos frozen in vials of liquid nitrogen in the United States. The number of stored embryos will continue to grow here and throughout the world, for only a few nations require their destruction. Among those that do regulate storage, Australia limits it to ten years, Great Britain, Canada, and France restrict it to five years, Norway to three, and Sweden and Denmark to just one year. Germany permits destruction of the embryo only with the consent of the couple. On the other hand, Brazil permits indefinite storage and forbids destruction.

In 1999 Louisiana was the only state in the United States that had a statute on the disposition of unwanted frozen embryos. It forbids their destruction and requires that those that are unwanted be placed for "adoptive implantation." Although it has not yet been constitutionally challenged, the statute, which seems to accord the status of children to the embryos, would almost certainly be overturned as a violation of the privacy rights of the genetic parents. In the rest of the United States, storage policies are set by individual IVF clinics. Few, if any, will donate an unclaimed frozen embryo without having written permission from the couple who provided the gametes. Today, most clinics require couples to specify in advance how they will dispose of unused embryos.

In the summer of 1996, the British Human Fertilisation and Embryology Authority provoked an international debate when it announced that, pursuant to the 1990 law, it would destroy all unclaimed frozen human embryos that had been in storage for more than five years unless the genetic parents requested that they be stored yet longer. Many of the 910 couples known to have embryos in storage could not even be located. Of those who were contacted few responded, presumably because they had completed their families or had given up trying.

For a week the issue dominated the British press. Letters to the editors compared the plan of "mass destruction" to the Nazi death camps. The Vatican newspaper, L'Osservatore Romano, called for thousands of Italian couples to volunteer to have the embryos implanted. A few women did volunteer. A group of Italian physicians offered to pay for shipping the embryos to Italy for implantation into infertile couples. This campaign ended when the British Human Fertilisation and Embryology Authority ruled that it was unethical to donate the embryos without the consent of the genetic parents. On August 1,1996, the staff at 30 infertility clinics destroyed 3300 frozen embryos, in most cases by thawing them and pouring them down the drain. This drama of mass destruction will not recur in Great Britain. As of August 1, 1991, all couples who store embryos must first agree that unimplanted embryos will be destroyed after five years unless they specify another course of action.

The 3300 "unclaimed" embryos constituted only about one-third of the total that had been stored in Britain. About half of the genetic parents of the other 6000 have donated their embryos to research (which is legal in Britain during the first 14 days of development), 30% are retaining them for possible future efforts to bear children, 10% have ordered them to be discarded, and 8% have donated them to other infertile couples. Surveys suggest that the donation rate is low because couples fear that it will bother them to know that a genetic child of theirs exists but has no contact with them. Some also fear that their own children would be upset to learn of the existence of an unknown genetic sibling.


Societal debate over the creation and/or use of human embryos for research is even more contentious than the disagreements over storage and donation. During the 1980s, blue ribbon committees from about a dozen countries issued white papers on embryo research. Britain's 1984 Warnock Report (named after the Chairperson, Mary Warnock) was most influential. Convinced by the arguments that the study of embryos was essential to understanding infertility, normal development, and birth defects, the Warnock Committee proposed a rule that was favorable to researchers. It recommended that "research may be carried out on any embryo resulting from in vitro fertilisation, whatever its provenance up to the end of the fourteenth day of fertilisation ..." but, that it should be a "criminal offense to handle or to use as a research subject any live human embryo derived from in vitro fertilisation beyond that limit." It also strongly recommended that trans-species fertilization involving human gametes, placing a human embryo in the uterus of another species for gestation, and the sale or purchase of human embryos should be criminal offenses.

When it picked 14 days as the upper time limit on performing research on unimplanted human embryos, the Warnock Committee drew a line firmly in the sand. Its reasoning was clear; 14 days is the time at which one can recognize the existence of a primitive body plan—when the embryo begins to look human. At that time the embryo, which is not much bigger than the period ending this sentence, begins to take on attributes of hu-manhood. In their view, this was the right point at which to forbid its further use as an object of research.

During the Reagan era, no federal funds were permitted for use in studying the process of in vitro fertilization, let alone embryo research. When Clinton entered office, he quickly lifted the most onerous ban on embryological research. Soon thereafter, a 19-member panel was convened to advise the National Institutes of Health on embryo research. After a year of deliberations, the panel, chaired by Steven Muller, former president of Johns Hopkins University, concluded that the NIH should fund research on the human embryo for the first 14 days of development so long as the studies were carried out under stringent guidelines that protected the embryo from being subjected to what many would consider highly offensive experiments. Presciently (see Chapter 23), it ruled out research that involved deliberate twinning and cloning. It also voted against the creation of hybrids between humans and other animals, the attempted transfer of human embryos into the wombs of animals, and efforts to develop artificial wombs.

The Muller report urged the end of a 15-year era in which no human embryo research had been funded by the federal government, but it quickly ignited a controversy. The National Conference of Catholic Bishops and the American Life League both promptly opposed it. The most offensive issue was the panel's advice that scientists should be permitted to use donated eggs and sperm to create human embryos in the lab, study them, and destroy them at will. President Clinton was quick to order Harold Varmus, the director of the NIH, not to release funds for such research.

Clinton knew that many in Congress were angry because in 1993 a scientist at George Washington University (which sits virtually in the congressional backyard) had performed research with human embryos that violated NIH guidelines. Jerry Hall, a researcher in the lab of Dr. Robert Stillman, had disclosed that, working with early embryos that had been rendered incapable of normal development (embryos that he had obtained as discards from an IVF clinic), he had succeeded in creating an army of potential twins. Hall managed to tease apart 17 human embryos at either the two-, four-, or eight-cell stage and coaxed the isolated cells to grow into 48 clones. When the New York Times investigated the research, it came to light that Hall had never obtained approval from a human studies committee (usually called an institutional review board or IRB) to do the experiment. Internal review at George Washington University eventually concluded that the researchers had violated NIH rules. Late in 1994, university officials ordered the two to destroy all the records of their work and to publish no further papers based on the research (a measure that recalls the debate that began just after World War II about whether mankind should try to benefit from knowledge gained through unethical experiments conducted by the Nazis).

The twinning experiment, which applied a technology widely used in animal husbandry to human embryos, generated immense interest in the media. Time, Newsweek, and US News and World Report all covered it, as did virtually every major newspaper and news network. A Time/CNN poll revealed that "three-quarters of Americans opposed human cloning, with about two-thirds believing it is against God's will."

The advice of the NIH advisory panel on human embryological research was lost in a blizzard of conflict. In August 1995, the House of Representatives passed an appropriations bill that forbade using federal dollars for fetal research. As a result, little significant research in early human embryology occurs in the U.S. The major centers are in Britain, where it is routine for researchers to be able to acquire fresh material from recent abortuses and to deliberately create embryos for research. In addition to making sure that the woman is undergoing an abortion without a scintilla of coercion and that her consent to donate the tissue is fully informed, the British also require that the physician performing an abortion not be directly involved in the research. The scientists are using the retrieved embryos to study how organs are formed. They are also studying the earliest embryos to find out which genes are active in which cells at which times.

The 14-day rule first set down by the Warnock Committee in 1984 has been adopted in many other countries. Unfortunately, it forecloses many important areas of research that could improve our woefully inadequate understanding of human development. If, for example, a more lenient rule that allowed researchers to study embryos up to the end of the 28th day was adopted, scientists would be able to study the formation of the neural tube, the tissue that becomes the spinal column (a process that is largely complete at about days 21-22 when the embryo is about three millimeters long). The failure of the tube to round out and close properly leads to spina bifida, one of the most common birth defects. There is now a widely used prenatal test for detecting spina bifida in fetuses at about week 15 of pregnancy, and most women who learn that they are carrying an affected fetus obtain an abortion. Research on neural tube closure might yield new insights into the environmental and genetic factors that interact to cause this problem. In turn this might result in new approaches to prevention that would improve upon the current recommendation that all women planning to get pregnant take 400 micrograms of folate (a B vitamin which cuts the risk of spina bifida in half) every day. This would then sharply reduce the number of abortions for this condition.

Some people who reluctantly accept the importance of conducting research on embryos nevertheless strongly oppose creating them intentionally for that purpose. They argue that research should be performed only with unwanted frozen embryos. Unfortunately, this choice would make it impossible to study fertilization itself, defects in which may be key to a significant fraction of the infertility that burdens 1 in 6 couples. Frozen human embryos have a potential for human life that commands respect. No one, including those who provided the gametes that created them, should have the right to subject them to macabre experiments or misuse them in other ways. However, those who regulate research in this area should not consider the 14-day rule to be set in stone. We need a somewhat larger window in which to do this important research.

Dolly, the first cloned mammal. (Reprinted, with permission, from Nature Feb. 27, 1997 © Macmillan Magazines Ltd.)
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