Davis v. Davis

842 S.W.2d 588 (1992)

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Nature of the Case

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Facts

W and Junior Lewis (H) met while they were both in the Army and stationed in Germany. They came home to the United States and were married. W became pregnant but unfortunately suffered an extremely painful tubal pregnancy. She had surgery to remove her right fallopian tube. After her fifth tubal pregnancy, W chose to have her left fallopian tube ligated, thus leaving her without functional fallopian tubes by which to conceive naturally. In vitro fertilization became the only option for the Davises to pursue in their attempt to become parents. The Davises went through six attempts at IVF, at a total cost of $35,000, but the hoped-for pregnancy never occurred. Cryogenic preservation became part of the continuing process. There is no indication that they ever considered the implications of storage beyond the few months it would take to transfer the remaining 'frozen embryos,' if necessary. There was no discussion, let alone an agreement, concerning disposition in the event of a contingency such as a divorce. They made another attempt but H filed for divorce in February 1989. He testified that he had known that their marriage 'was not very stable' for a year or more, but had hoped that the birth of a child would improve their relationship. W testified that she had no idea that there was a problem with their marriage. The divorce proceedings were complicated only by the issue of the disposition of the 'frozen embryos.' The trial court reasoned that if there is no distinction between embryos and preembryos, as Dr. Lejeune theorized, then Dr. Lejeune must also have been correct when he asserted that 'human life begins at the moment of conception.' The trial judge concluded that the eight-cell entities at issue were not preembryos but were 'children in vitro.' He then invoked the doctrine of parens patriae and held that it was 'in the best interest of the children' to be born rather than destroyed. Finding that W was willing to provide such an opportunity, and H was not, the trial judge awarded her 'custody' of the 'children in vitro.' The Court of Appeals ejected the trial judge's reasoning. The court, without explicitly holding that the preembryos, in this case, were 'property,' awarded 'joint custody' of them to H and W. W appealed.