A judge ruled Thursday frozen embryos are human life and awarded a divorced couple's seven eggs to the woman in a landmark case, giving her the right to have a "test-tube baby" against her ex-husband's wishes.
Medical ethicists said the ruling by Blount County Circuit Judge W. Dale Young is the first to accord the protection of human life to fertilized eggs created through in vitro fertilization.Young awarded temporary custody of the seven embryos to Mary Sue Davis so that she can implant them into her womb. He said he would rule on final custody, child support and visitation rights for the father, Junior Davis, if the woman has a baby.
"Human embryos are not property," the judge ruled. "Human life begins at conception. Mr. and Mrs. Davis have produced human beings, in vitro, to be known as their child or children."
The Davises made the embryos through the in vitro fertilization program at a Knoxville fertility center last year before deciding to divorce. The eggs now are held at the center in frozen storage.
Mary Davis, 29 and childless, referred to the embroyos as "my babies" during the trial. She argued that eggs are human life, even if formed in a laboratory dish, and may represent her last chance to become pregnant.
Junior Davis, 30, contended the embryos are mere tissue and their use would force him into unwanted fatherhood. He wanted the eggs kept frozen indefinitely unless he and his wife both agreed on their use.
Junior Davis promised to appeal Thursday's ruling to the Tennessee Court of Appeals within 30 days.
"I still do not feel that these embryos are human," he told reporters. "They have the potential for life but they are just genetic material. But if she gets pregnant, I will do everything I can to be the best father I can. I will fight to the highest court to get visitation rights."
Mary Davis was not immediately available, but her lawyer, Kurt Erlenbach, said, "This is a good day and she is quite happy. Mary knows it's not over, but this is the first positive step in a long time."
The unprecendented trial Aug. 7-10 focused the nation's attention on the moral dilemmas posed by in vitro fertilization. The nation's population of frozen embryos exceeds 4,000, but no state has established rules for their handling or disposition.
Young's ruling appeared to go against the prevailing view of medical ethicists in this country.
A UPI survey of the Ethics Committee of the American Fertility Society this week found five members supporting Junior Davis and two favoring Mary Davis, but even those two did not say they believe embryos are developed enough to be legally regarded as human life.
"My reaction is that I'm not sure that the ruling can be justified other than in a strict right to life position," said John Robertson, a University of Texas law professor on the Ethics Committee. "There is no precedent in law or ethics commissions that hold that a fertilized egg is a human being and that we have obligations or duties to allow them to come to term."
"It is bizarre," said George Annas, professor of health law at Boston University School of Medicine. "It was more of a political decision than a judicial decision. He ruled what the people in Tennessee would like him to do."
In his decision, the judge repeatedly referred to the embryos as children and said he followed Tennessee's "tender years doctrine," which places young children with their mother in most custody cases.
"It is to the manifest interest to the child or children that they be available for implantation. It serves the best interests of the child or children for their mother, Mrs. Davis, to be permitted the opportunity to bring them to term through implantation."
In rejecting Junior Davis' attempt to keep the eggs frozen indefinitely, Young said trial testimony showed the embryos are not likely to survive in storage longer than two years.
"To allow the seven human embryos to remain so preserved for a period exceeding two years is tantamount to the destruction of these human beings," Young said.
Young also noted that Mary Davis had five tubal pregnancies during her nine-year marriage before she and her husband entered the in vitro fertilization program at Fort Sanders Medical Center last October.
Two embryos were implanted but failed to produce a pregnancy. Then in February, the couple filed for divorce. Experts testified Mary Davis has a 10 percent chance of becoming pregnant with each of the seven embryos still frozen.
"The court finds that Mrs. Davis suffered significant trauma and pain resulting from the parties' attempts to procure their family by natural child birth," the judge said.
At the trial, Junior Davis testified he would feel "raped of my reproductive rights" if his wife was allowed to use the eggs to become pregnant.