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It wasn't a simple divorce case. The Davises, Junior and Mary Sue, were asking the court to make a judgment in a kind of case no other court had looked at before. Earlier in their marriage, because of infertility problems, the couple had visited a clinic and undergone a procedure called in vitro fertilization. In this procedure, her eggs and his sperm were fertilized in the laboratory and nine embryos were produced. Two were placed in Mary Sue's uterus, and seven were frozen. The two embryos placed in her body did not grow to a pregnancy. Although the Davises had planned to return and use the other seven, they found the situation of the marriage unbearable-perhaps partly because of the procedure itself, which is expensive and stressful. They decided to divorce, and now each was asking for the embryos.

Junior wanted the embryos to destroy them, whereas Mary Sue wanted to implant the embryos. Mary Sue's attorney argued for Mary Sue's right to proceed with the implantation on the basis that the embryos were potential human life, not typical property. She argued further that even if the embryos were ruled to be property, Mary Sue should have a say in their disposition, under the divorce laws of Tennessee. She also entered a counterclaim that Junior be ordered to pay child support in the event that Mary Sue bore a child.

For his part, Junior's attorney argued that an "embryo" is not a person and, therefore, should not be considered a child. He also said that it was Junior's right under the Constitution to not be "forced" to become a parent.

The court needed to decide if the embryos were property or children, or neither. If ruled to be property, the embryos would be divided between the Davises. If ruled to be children, custody would have to be awarded.

The trial court, the first court, decided the embryos were "children in embryo," awarding custody of them to Mary Sue and directing that she be allowed to implant them. Junior appealed the ruling to the Tennessee Court of Appeals. The court of appeals reversed the trial court and gave the embryos to Junior. Again, it was appealed, now to the state supreme court.

1. To whom should the court award the embryos? Why?
2. If neither Junior nor Mary Sue is awarded the embryos, what should happen to them? Explain.
3. Which attorney's argument do you agree with? Give three reasons.
4. In the United Kingdom, the first country where in vitro fertilization was performed, there are a large number of "abandoned" embryos. When some laboratories decided to destroy the extra embryos, there was a public outcry. Give two reasons why the public might have been upset. Give two arguments against those reasons.
5. In Australia, two frozen embryos were left when the couple from which they were produced died in a plane crash. The couple had millions of dollars. Many women wanted to be implanted with these embryos, believing that the embryos, as children, would inherit the money. The Australian court decided that no one would get the embryos. Do you agree with this decision? Why or why not?