Master Seminal Tennessee Supreme Court decision establishing how courts resolve disputes over frozen preembryos between genetic progenitors. with this comprehensive case brief.
Davis v. Davis is the foundational American case addressing who controls frozen embryos (more precisely, preembryos) when the genetic progenitors disagree after their relationship ends. Confronting an issue at the intersection of family law, constitutional privacy, and property concepts, the Tennessee Supreme Court crafted a now-influential framework: honor any prior agreement the parties made; if none exists, balance the parties’ competing interests, with a thumb on the scale for the party seeking to avoid procreation.
The opinion reconceptualizes how the law should classify preimplantation embryos—rejecting both the "child" and ordinary "property" categories—and recognizes a distinctive, ethically freighted status that commands “special respect.” For law students, Davis is a model of principled common-law development in a novel field, and it remains a touchstone in assisted reproductive technology (ART) disputes nationwide.
842 S.W.2d 588 (Tenn. 1992)
Junior Lewis Davis and Mary Sue Davis struggled with infertility during their marriage and underwent in vitro fertilization (IVF) at a Knoxville clinic. In December 1988, clinicians created seven preembryos (fertilized ova at an early, preimplantation stage) and cryopreserved them for later use. The couple had signed clinic consent forms governing aspects of IVF and storage but had not executed a clear, comprehensive agreement dictating disposition in the event of divorce or disagreement. The marriage deteriorated and the parties divorced; they then disputed the fate of the stored preembryos. Mary Sue initially sought to use them to attempt a pregnancy; later, after circumstances changed, she asked to donate them to another infertile couple. Junior objected to any use that could result in his genetic child being brought to term, preferring that they not be used for reproduction. The trial court characterized the preembryos as human beings at an early stage, applied a “best interests of the child” framework, and awarded them to Mary Sue for potential implantation (while barring donation). The court of appeals rejected the trial court’s child-based approach and reversed. On further review, the Tennessee Supreme Court addressed, for the first time, the legal status of preimplantation embryos and how to resolve progenitor disputes over their disposition.
How should courts resolve a dispute between genetic progenitors over the disposition of cryopreserved preembryos created during IVF when there is no controlling prior agreement—specifically, are preembryos to be treated as persons or property, and whose interests prevail when one party wishes to avoid procreation?
Preembryos are neither legal “persons” nor ordinary “property,” but occupy an interim category entitled to special respect due to their potential for human life. Disputes over their disposition should be resolved by: (1) first honoring any prior agreement between the progenitors, so long as it is not contrary to public policy; and (2) in the absence of an enforceable agreement, balancing the parties’ competing interests in procreation and avoidance of procreation—ordinarily allowing the party wishing to avoid procreation to prevail, particularly where the other party has a reasonable possibility of achieving parenthood by means other than use of the disputed preembryos.
There was no enforceable prior agreement controlling disposition. Balancing the parties’ interests, Junior Davis’s interest in avoiding procreation outweighed Mary Sue Davis’s interest in using or donating the preembryos. The preembryos could not be used for implantation or donation to achieve pregnancy without Junior’s consent.
The court began by rejecting the trial court’s treatment of the preembryos as children and its resort to a “best interests of the child” standard. Preimplantation embryos do not fit existing legal categories as either full legal persons or ordinary chattels. Instead, they merit special respect because of their unique potential for human life. That status counsels careful handling but does not justify imposing child-custody doctrines. The court next surveyed constitutional privacy jurisprudence (e.g., Griswold, Eisenstadt, Carey) to frame a right of procreational autonomy that includes both the right to procreate and the right to avoid procreation. Recognizing that these rights can conflict when two progenitors disagree, the court fashioned a default framework: enforce clear, advance directives governing disposition; otherwise, balance the parties’ interests. Applying that framework, the court found no enforceable agreement. The clinic forms contemplated joint decisionmaking and did not address divorce; thus, they did not provide dispositive direction. On the balance, Mary Sue’s then-articulated interest had shifted from personally bearing a child using the preembryos to donating them to another couple. The court reasoned that donation would force Junior into genetic parenthood against his will, with potential moral, emotional, and legal consequences, whereas Mary Sue could still pursue parenthood through other avenues (e.g., additional IVF with other gametes or adoption). Because using the preembryos would irrevocably destroy Junior’s interest in avoiding procreation, while denying use would not comparably foreclose Mary Sue’s ability to become a parent, Junior’s interest prevailed. The court emphasized that this default is not absolute; in a different case—such as where the requesting party had no realistic means to achieve genetic parenthood—balancing might shift. Finally, the court declined to order destruction and instead prohibited use to achieve pregnancy absent mutual consent, leaving disposition consistent with the parties’ rights and applicable policies—underscoring that preembryos warrant special respect but are not legal “children.”
Davis established the dominant U.S. framework for embryo-disposition disputes: contract first, balancing second, with a presumption favoring the party who seeks to avoid procreation absent a clear prior agreement. It also articulated the influential “interim category” for preembryos—neither persons nor mere property—guiding courts to use, by analogy, property and contract principles without collapsing the inquiry into custody or chattel law. Subsequent cases and statutes frequently start from Davis, with many jurisdictions enforcing detailed IVF consent forms and, failing that, weighing interests consistent with Davis’s procreational-autonomy analysis. For law students, Davis illustrates constitutional values operating in private-law disputes, careful categorization in novel contexts, and the power of advance agreements in ART.
Neither. The court held that preembryos are not legal “persons” (so child-custody doctrines do not apply) and not ordinary property (so they cannot be disposed of like chattels). They occupy an interim category warranting special respect because of their potential for human life. Courts may use contract and property analogies to manage possession and disposition, but must account for the parties’ procreational rights.
Yes—if the parties executed a clear, enforceable agreement addressing disposition upon contingencies like divorce, courts should honor it unless contrary to public policy. In Davis, the clinic forms did not address divorce and contemplated joint decisionmaking; therefore, they were not controlling. The case underscores the importance of detailed, advance directives in ART.
The court balanced competing procreational interests and concluded that using or donating the preembryos would irrevocably impose genetic parenthood on Junior, while denying use did not comparably extinguish Mary Sue’s ability to become a parent by other means. As a general matter, Davis instructs that the interest in avoiding procreation ordinarily outweighs the competing interest in procreation when no prior agreement governs.
No. The court prohibited use of the preembryos to achieve a pregnancy without the objecting party’s consent but did not mandate destruction. Disposition was left consistent with the parties’ rights and applicable clinic policies or future agreement, reflecting the “special respect” due to preembryos.
Possibly. Davis states the balancing approach is not absolute. If one progenitor has no realistic alternative for genetic parenthood and sought to use the preembryos personally (not merely to donate), a court might weigh that interest more heavily. Different jurisdictions applying Davis’s framework have sometimes reached different outcomes on such facts.
Davis exemplifies constitutional procreational autonomy in private disputes, the centrality of contract in structuring intimate decisions, and careful categorization of novel entities in law. It also shows judicial use of balancing tests where competing fundamental interests collide and sets a template for ART governance in the absence of comprehensive legislation.
Davis v. Davis crafted a durable common-law framework for resolving disputes over cryopreserved preembryos. By recognizing preembryos as neither persons nor ordinary property and foregrounding the parties’ procreational autonomy, the decision avoids both the pitfalls of custody law and the reductiveness of chattel rules, while giving dispositive weight to clear prior agreements.
For students and practitioners, Davis is a reminder to prioritize detailed consent and disposition agreements in ART arrangements and to analyze disputes through a two-step lens: contract first, balancing second. Its influence pervades later case law and legislation and continues to guide courts confronting the rapidly evolving terrain of reproductive technology.