An End to the Embryo Imbroglio

February 26, 1993

The Supreme Court put an end this week to a bizarre custody fight when it declined to hear an appeal by a Tennessee woman challenging a state court decision to award custody of seven frozen embryos to her former husband, who wanted them destroyed. It was a fitting resolution, but like many other forays into reproductive frontiers, this one raised a tangle of ethical and legal issues.

It probably didn't help her case that Mary Sue Davis, now Mary Sue Stowe, no longer wants the embryos implanted in her own womb, but wants to make them available for implantation in some other infertile woman in a high-tech, prenatal "adoption." Junior Davis, who is now also remarried, objected on the grounds that he should not be forced to become a father against his will.

Ms. Stowe based her appeal on the notion that embryos are human beings. She cited a proclamation by Ronald Reagan calling for the "unalienable personhood of every American from the moment of conception." She referred to herself as the "mother" of the dot-sized potential people.

A lower court judge agreed with her, but the Tennessee Supreme Court said the legal status of embryos is less pressing than the reproductive autonomy of adults. It said Junior Davis' right not to become a father took precedence over his former wife's desire to have her genetic material available for gestation should a suitable womb be found.

"Ordinarily, the party wishing to avoid procreation should prevail," the state court said, a sensible stance when dealing with frozen embryos or other genetic material. Extending that logic beyond the petri dish is more complicated. "Reproductive autonomy" is far different in the context of viable pregnancies already in process. A court could hardly grant a man reproductive autonomy if it meant, in essence, the power to insist on an abortion.

Whatever heartache the existence of those seven embryos has caused Junior Davis and Mary Sue Stowe, the fact remains that an orphan embryo is a far cry from an orphaned child with real and pressing needs. Whatever else remains at issue, that is one reality technology cannot yet change.

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