Embryos and Preembryos

The definitions of “embryo” and “preembyro” vary, but the term “preembryo” often refers to a fertilized ovum in the first fourteen days after conception before the cells begin to differentiate, at which point the preembryo becomes an embryo. A preembryo also has been defined as a fertilized ovum from the time of conception until it becomes implanted in the uterus, at which point it becomes an embryo.

A Tennessee Case Involving Frozen Embryos

Mary Sue Davis and Junior Lewis Davis met while they were both in the Army, stationed in Germany. They married and tried to have children. Mary Sue had five tubal pregnancies, at which point she decided to have her left fallopian tube ligated, thus leaving her without functional fallopian tubes by which she could conceive naturally. Mary Sue and Junior decided to try in vitro fertilization (IVF), by which ova were extracted from Mary Sue’s ovaries, sperm was provided by Junior, the sperm and ova were mixed together in a petri dish, and the product of this procedure was transferred to Mary Sue’s uterus. Pregnancy, however did not result despite multiple attempts for more than three years. On their last attempt at IVF, the Davis’s decided to use cryogenic preservation for some of the products of conception (keeping the products of conception at sub-zero temperatures). 

Within three months after the last attempt at IVF, Junior filed for divorce. The couple agreed on all issues in the divorce except “custody” of the seven “frozen embryos.” Mary Sue initially sought custody of the embryos, stating that she intended to have them implanted in her own uterus in an attempt to become pregnant after the divorce. Junior said he would like the embryos kept in their frozen state until he decided if he wanted to become a parent without being married to Mary Sue. While the case was still pending, Mary Sue and Junior each remarried (other persons) and their positions changed. Mary Sue no longer wanted the frozen embryos for her own use, but wanted the authority to donate them to a childless couple. Junior strongly opposed such a donation and said he would prefer to have the frozen embryos discarded.

The Tennessee Supreme Court ruled that the right to privacy under the Constitution includes the right to procreate and the right to avoid procreation. When a couple differs about what should be done with frozen embryos, the court said the prior agreement of the parties generally should be carried out. In this case, Mary Sue and Junior did not have an advance agreement about what to do with frozen embryos. Thus, the court said it was necessary to balance their interests. “Ordinarily,” said the court, “the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than the use of the preembryos in question.” The court said that imposing unwanted parenthood on Junior would result in “financial and psychological consequences” that outweighed Mary Sue’s desire to donate the preembryos to someone else. Thus in this case, the wife was not able to give the preembryos to another couple over her former husband’s objection.

Source: Davis v. Davis, Tennessee Supreme Court (1992)