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Syllabus | Opinion
Case No E-14496
JUNIOR L. DAVIS, Plaintiff,
MARY SUE DAVIS, Defendant,
RAY KING, M.D., d/b/a, Fertility Center of East Tennessee,
Third Party Defendant.
THE CASE is one of first impression.
IN ITS OPINION below, the Court has made certain findings of fact and conclusions of law resulting in judgment.
THE SALIENT findings, conclusions and the judgment are summarized as follows, to-wit:
(1) Mr. and Mrs. Davis undertook in vitro procedures for the purpose of producing a human being to be their child.
(2) The seven cryogenically preserved embryos are human embryos.
(3) American Fertility Society Guidelines are for intra-professional use, are not binding upon the Court, but are of probative value for consideration by the Court.
(4) The term "preembryo" is not an accepted term and serves as a false distinction between the developmental stages of a human embryo.
(5) From fertilization, the cells of a human embryo are differentiated, unique and specialized to the highest degree of distinction.
(6) Human embryos are not property.
(7) Human life begins at conception.
(8) Mr. and Mrs. Davis have produced human beings, in vitro, to be known as their child or children.
(9) For domestic relations purposes, no public policy prevents the continuing development of the common law as it applies to the seven human beings existing as embryos, in vitro, in this domestic relations case.
(10) The common law doctrine of parens patriae controls children, in vitro.
(11) it is to the manifest best interests of the child or children, in vitro, that they be available for implantation.
(12) it serves the best interests of the child or children, in vitro, for their Mother, Mrs. Davis, to be permitted the opportunity to bring them to term through implantation.
JUDGMENT OF THE COURT: The temporary custody of the seven cryopreserved human embryos is vested in Mrs. Davis for the purpose of implantation. All issues of support, visitation, final custody and related issues are reserved to the Court for consideration and disposition at such time as one or more of the seven human embryos are the product of live birth.
After some six attempts by the couple to produce a child through the in vitro fertilization process, resulting in no pregnancy, the parties temporarily suspended their participation in the program and sought to obtain a child through adoption. The adoption process did not work, and the parties abandoned adoption attempts and returned to the in vitro fertilization program conducted by Dr. King.
It is further undisputed and the Court finds that Mr. Davis donated sperm for the December, 1988 insemination and resulting fertilization process, that he spent many anxious hours, early in the morning and late at night, waiting at the hospital while Mrs. Davis underwent the aspiration and implant procedures and that he spent many anxious hours, as a prospective Father, awaiting word as to whether he would be a Father.
On December 8, 1988, nine ova were aspirated from Mrs. Davis, nine ova were inseminated with Mr. Davis' sperm by Dr. Shivers in his laboratory and the nine ova were fertilized, producing acceptable zygotes for implantation consideration by Dr. King and Dr. Shivers. The zygotes were permitted to mature under laboratory conditions, variously developing from the four-cell cleavage(9) stage to the eight-cell cleavage stage, all of which were found to be of excellent quality by Dr. Shivers and Dr. King. On December 10, 1988, two of the embryos(10) were implanted in Mrs. Davis, neither of which resulted in pregnancy, and the remaining seven embryos were placed in cryogenic storage for future implantation purposes.
The Court further finds that during the time between December, 1988 and the filing of the original Complaint in this case (February 23, 1989), Mr. and Mrs. Davis discussed the possibility of and had tentatively planned to implant at least one of the cryopreserved embryos in Mrs. Davis' body in March or April, 1989.
To answer this question, several additional questions must first be asked and answered, based on the record in this case: Are the embryos human? Does a difference exist between a preembryo(11) and an embryo? Are the embryos beings? Are the embryos property that may become human beings?
Because of her special training as a Registered Nurse, Mrs. McCarter is an expert witness; Dr. King(13) is a Medical Doctor and is a well qualified specialist in the field of Infertility/ Reproductive Endocrinology; Dr. Shivers(14) is a well qualified Embryologist and is experienced in the laboratory work necessary for in vitro fertilization and cryogenic storage of human embryos; Professor Robertson(15) is an eminently qualified Professor of Law whose scholarly treatises, dealing primarily with non-coital reproduction, have served as the basis for consideration of many medical-legal subjects; and Dr. Jerome Lejeune(16) is an eminently qualified Medical Doctor, Doctor in Science, Professor of Fundamental Genetics and recognized throughout the world in his specialty, Human Genetics.
The expert witnesses (except Mrs. McCarter) offered opinions to assist the court in determining when human life begins. It should be noted that all four witnesses agree that the seven cryopreserved embryos are human; that is, "belonging or relating to man; characteristic of man ..."(17)
The Court finds and concludes that the seven cryopreserved embryos are human.
In the analysis of the testimony offered on the point of whether or not the seven embryos are human beings, the Court believes it is helpful to even further condense the already summarized opinion testimony (Appendix B)(19) of each expert on the subject:
1. Dr. Irving Ray King: There is first a one-cell gamete(20), a zygote (after the first cell divides), a preembryo (up to 14 days after fertilization) and finally an embryo (after 14 days and upon cell differentiation).
2. Dr. Charles Alex Shivers: A preembryo is a zygote up to 11-14 days and consists largely of undifferentiated cells; that after attachment to the uterus wall and the appearance of the primitive streak, the cells then become different; that is organs, organ systems, body parts and the like are formed. At the time of fertilization, genetic controls are "locked in forever" and control who the preembryo will later be, but, "... as far as we know ..., to my knowledge ..., there is no way to distinguish the cells [at the zygote stage] ... [T]hey are the same [undifferentiated] ..."
3. Professor John A. Robertson: A human preembryo is an entity composed of a group of undifferentiated cells which have no organs or nervous system. That at about 10-14 days, the preembryo attaches itself to the uteran wall, develops its primitive streak and life then commences. It is "... not clear ..." that a human preembryo is a unique individual; that simply because fertilization has occurred, the gamete contributors have not procreated(21).
4. Dr. Jerome Lejeune: Each human has a unique beginning which occurs at the moment of conception. Embryo: "... that youngest form of a being.. ." Preembryo: there is no such word. There is no need for a subclass of the embryo to be called a preembryo, because there is nothing before the embryo; before an embryo there is only a sperm and an egg; when the egg is fertilized by the sperm the entity becomes a zygote; and when the zygote divides it is an embryo. When the first cell exists, all the "tricks of the trade" to build itself into an individual already exists. Shortly after fertilization at the three-cell stage, a "... tiny human being ..." exists. When the ovum is fertilized by the sperm, the result is "... the most specialized cell under the sun ..."; specialized from the point of view that no other cell will ever have the same instructions in the life of the individual being created. No scientist has ever offered the opinion that an embryo is property. As soon as he has been conceived, a man is a man. New findings recited [Jeffrey's-DNA](22) (23) definitely prove differentiation and that from the very beginning there exists an embryo.
Dr. King, Dr. Shivers and Professor Robertson rely at least to some degree on the report of the Ethics Committee of The American Fertility Society(24) in forming the basis of their opinions. Each makes a distinction between "embryo" and "preembryo" in conformity to the AFS guidelines.
The ethical considerations by the committee for the AFS were referred to in, cited and relied upon by the Brief(25) filed by Mr. Davis; testimony was given about the Committee and its work. Professor Robertson is a member of the Ethics Committee, Dr. King is a member of the American Fertility Society and various witnesses gave testimony indicating reliance on the pronouncements of the Committee.
The AFS guidelines were published by the Society in September, 1986 after the Committee's last deliberation on April 14, 1986 in Norfolk, Virginia(26). The guidelines were promulgated by the committee pursuant to the charge of the Society's President by letter dated November 7, 1984(27), requesting the committee to address ethical issues regarding reproduction and to disseminate the committee's knowledge of these positions on those matters.
In its report, the committee defined the term "preembryo", and prefaced its definitions section with the following language:
"In order to avoid confusion, the committee found it necessary to adopt certain definitions for the purposes of this document." [Emphasis supplied](28)
The Committee then defined the word preembryo this way:
"A preembryo is a product of gametic union from fertilization to the appearance of the embryonic axis. The preembryonic stage is considered to last until 14 days after fertilization. This definition is not intended to imply a moral evaluation of the preembryo."(29)
In reviewing the guidelines, it is of interest to call attention to several considerations set-forth in the report. One of those considerations is the recognition by the committee that there are several respected views relative to the moral and legal status of a preembryo. The committee adopted this view:
"A third view -- one that is most widely held -- takes an intermediate position between the other two. It holds that the preembryo deserves respect greater than accorded to human tissue but not the respect accorded to actual persons. The preembryo is due greater respect than any other human tissue because of its potential to become a person and because of its symbolic meaning for many people. Yet, it should not be treated as a person, because it has not yet developed the features of personhood, is not yet established as developmentally individuals and may never realize its biologic potential."(30)
Under the heading "Emerging Consenus on Preembryo Status," the following statement is made:
"The Ethics Advisory Board, for example, unanimously agreed in 1979 that "the human embryo [i.e., preembryo in this report] is entitled to profound respect, but this respect does not necessarily encompass the full legal and moral rights attributed to persons" (Ethics Advisory Board, 1979)." [Emphasis supplied.](31)
In the Committee's summary of points of special interest, the following is found:
"The Committee finds that the human preembryo is not a person but is entitled to respect because it has the potential to become a person. This view limits the circumstances in which a preembryo may be discarded or used in research ..."(32)
The Court finds and concludes that the report of the Ethics Committee of the American Fertility Society constitutes guidelines for those professionals involved in the field of fertility treatment; as Professor Robertson testified, they constitute guidelines for these professionals to be primarily utilized for litigation purposes. In other words, they are the self-imposed standards one professional would testify must be met by another professional, for example, in a medical malpractice suit. The guidelines do not have the force and effect of the law but must be considered by this Court for whatever probative(33) value they may possess.
The Court finds and concludes that the guidelines of the AFS do not serve as authority for this Court in making a determination of whether the seven human embryos in question are human beings, and concludes the term "preembryo" has arisen in this suit primarily because the AFS Committee chose that term to avoid the confusion for the purposes of its own guidelines. The Court has made a thorough search of encyclopedias and dictionaries of which the Court may take judicial notice and the Court can nowhere find the word "preembryo" defined nor can the Court find even a reference to that term.
Careful scrutiny of the testimony and an exhibit at the trial gives the Court even greater assurance that the term "preembryo" serves as a false distinguishing term in this case.
Exhibit 8, at the trial, are the handwritten notes of Dr. King. Dr. King's notes concerning the status of his patient, Mary Davis, covering the period of time from December 8, 1988 at 10:08 a.m. through and including December 10, 1988 at 3:31 p.m., all refer to the ova after fertilization as "embryo"; and the last document in that series of notes makes reference to the "condition of embryo" and variously describes the seven embryos as "... 4-cell embryo -- perfect ..."
The Court finds it curious that Dr. King, who adopts the AFS guideline definition of a "preembryo" to distinguish it from an "embryo" would in his own notes call them embryo(s).
Counsel for Mr. Davis furnished the Court a revised copy of Professor Robertson's paper(34) written recently by him (probably finished in July, 1989), dealing specifically with the case at bar. The solution Professor Robertson set-forth in his paper is the same solution he offered through his testimony. He was asked about that opinion on direct examination by Counsel for Mr. Davis; he was cross-examined by Counsel for Mrs. Davis about his opinion cited therein. The paper is entitled Resolving Disputes Over Disposition of Frozen Embryos; from the title page through 31 additional pages (the entire text), Professor Robertson, speaking about the case at bar, referred time and again to the "embryos."
It is curious that this very scholarly paper does not reflect the very fine distinction between "preembryo" and "embryo" made by Professor Robertson throughout his testimony at the trial.
The Court is persuaded that the debate between these most sincere and knowledgeable witnesses perhaps boils down to much the same debate Sweet Juliet had with herself when she rationalized her strong affection for Romeo, who was not a Montague:
"... Tis but thy name that is my enemy;
Thou art thyself, though not a Montague.
... What's in a name? that which we call a rose
By any other name would smell as sweet ..."(35)
The Court finds and concludes there is no such term as "preembryo"; that to use the term in the context of this case creates a false distinction, one that does not exist. The Court finds and concludes the seven cryopreserved entities are human embryos.
The term "differentiate"(36) means to distinguish by a specific difference. If the cells, therefore, of a four cell zygote are undifferentiated, the cells lack any distinction; a skilled scientist could not distinguish the cells of one zygote from those of another zygote nor could the scientist distinguish between any of four cells within the hypothetical zygote. Dr. Lejeune bases his emphatic opinion to the contrary ("... the most specialized cell under the sun ...") on a complicated scientific process of manipulating and reading the DNA molecule, characterized by him as new findings which definitely prove differentiation, now known through the science of molecular genetics(37) beyond any doubt.
The testimony given by Dr. Lejeune relative to conclusive proof induced through DNA examination is highly technical, incapable of observation by the Court and requires the Court to either accept or reject the scientist's conclusion that it can be done. While this factor requires the Court to proceed with special caution, it does not of itself render testimony or other evidence based on this highly specialized field of molecular genetics unreliable(38).
Quite to the contrary, DNA profiling, through "genetic fingerprint" evidence by which strands of coating found in genetic molecule of deoxyribonucleic acid (DNA), has been accepted as competent and admissable evidence in Courts of law, is considered reliable, is performed by a number of laboratories around the world and is generally accepted in the scientific community(39).
As indicated in footnote 39, the Andrews case was decided by the United States District Court of Appeals of Florida, Fifth District, on October 20, 1988 and review of the case was denied in 1989. It is the only case this Court has been able to find dealing with the reliability of the DNA procedures so forcefully relied on by Dr. Legeune. Andrews approves the reliability of DNA profiling, a process very similar to the one described and relied on by Dr. Lejeune.
Both Dr. Shivers and Professor Robertson cite undifferentiated cells as one basis for their opinions that human embryos are not human beings, but each hedges on the point. Dr. Shivers says "as far as he knows" there is no way to distinguish the cells; that they are undifferentiated; and Professor Robertson says "it is not clear that a unique individual" then exists.
The testimony of Dr. Lejeune stands unrebutted in the record; the Court accepts his testimony that DNA manipulation of molecules of human chromosomes(40) reliably proves cell differentiation. The Court is persuaded that this relatively new technique opens a tiny window to the world to see and be aware of the most intimate and intricate details of man from his very beginning.
The Court finds and concludes that the cells of human embryos are comprised of differentiated cells, unique in character and specialized to the highest degree of distinction.
Dr. Shivers and Professor Robertson testified that the preembryo is not a being because he or she has no (observable) organs or nervous system, no body parts. Dr. Lejeune, on the other hand, says a man is a man; that upon fertilization, the entire constitution of the man is clearly, unequivocally spelled-out, including arms, legs, nervous systems and the like; that upon inspection via DNA manipulation, one can see the life codes for each of these otherwise unobservable elements of the unique individual.
The testimony of Dr. Lejeune stands unrebutted in the record; the Court accepts his testimony founded on the fact that DNA manipulation of the molecules of human chromosomes reliably detect these features of man; that the life codes for each special, unique individual are resident at conception and antimate the new person very soon after fertilization occurs.
The argument that the human embryo may never realize its biologic potential, it appears to the Court, is statistically(41) and speculatively true, but is a hollow argument. A newborn baby may never realize its biologic potential, but no one disputes the fact that the newborn baby is a human being. And if it is a part of the logic that an embryo, only a few hours old and perhaps only four cells in development, is not a being because it cannot sustain itself, then we must also reason that a newborn baby (which no one disputes is a human being) can likewise not sustain itself without the aid and assistance of a mature individual (hopefully its Mother); and we must reason the newborn also lacks a necessary criteria to qualify as a human being. For surely it is good logic that a newborn human being, left naked in a field without the sustenance, aid and assistance of another human being will surely die; it is utterly helpless; it, too, lacks the capacity to sustain itself.
It must be noted that one solution offered for the Court's disposition of the embryos is to allow them to die a passive death. Mrs. Davis reasons that in order to die, one must first live. Her logic is appealing, persuasive and accepted by the Court.
The technical arguments of human genetics aside, Mr. Davis asserts the theory that embryos constitute property jointly owned by the parties(42); that the embryos do not constitute life, but have the potential for life. Professor Robertson also adopts this view and suggests the embryos, at this stage of development, might properly be designated fungible property(43).
In light of all the proof before the Court, it is impossible for the Court to find the assertion well founded in logic and good reason. Perhaps Tennessee's Senator Albert Gore best expressed the Court's apprehension when then Congressman Gore (in 1984), hearing a similar theory asserted during testimony before the U.S. House of Representatives' Subcommittee on Investigations and Oversight of the Committee on Science and Technology, said:
"I disagree that there's just a sliding scale of continuum with property at one point along the spectrum and human beings at another. I think there's a sharp distinction between something that is property and something that is not property ..."(44)
The Court finds and concludes that by whatever name one chooses to call the seven frozen entities -- be it preembryo or embryo -- those entities are human beings; they are not property.
What then is the legal status to be accorded a human being existing as an embryo, in vitro, in a divorce case in the state of Tennessee?
For the purposes of the Tennessee Wrongful Death Statute(46), an unborn child is accorded status only if the child is viable at the time of injury; that is: if a child had achieved a stage of development where it could reasonably be expected to be capable of living outside the uterus. For the purposes of the Tennessee Criminal Abortion Statute(47), the child is accorded no recognized status during the first three months of its Mothers pregnancy. But the legislature for the state of Tennessee has not yet, and to the best of the Court's knowledge, information and belief, no state in the union has, established a public policy(48) declaring the rights to be accorded a human embryo, in vitro, in a divorce case.
In order to give effect to this Court's judgment, it is necessary to establish, in the absence of any authority to give the Court guidance, the status of these unborn human beings in this divorce proceeding.
As my learned colleague in the law, Professor Robertson, pointed out during his testimony, the recent Webster(49) case leaves open the door for a state to establish its compelling interest in protecting even potential human life by legislation declaring its public policy. Even as to the abortion issue, the Webster Court opined that it saw no reason why the state's interest in protecting potential human life should come into existence only at the point of viability(50).
The Court understands that both Roe(51) and Webster dealt with questions of the constitutionality of abortion statutes and the court's decisions in those cases have a profound effect on the states' compelling interest in the protection of human life, but only as it deals with the abortion issue.
In its research of Tennessee law, the Court finds only one case that gives it solace. In Smith v. Gore, 728 SW 2nd 738 (1987), a tort action was brought for a wrongful pregnancy resulting from a failed tubal ligation. While the case deals in the main with the tort aspect of the claim, the Court, in its discussion of public policy recognizes that the state places great value on human life. But of greater importance, it appears to the Court, is the Smith Court's consideration of the distinction between judical decisions which infringe on the legislative right to set public policy and a Court's finding that no public policy prevents the continuing development of common law.
The function of the Courts is to declare the law as the Courts find it, and it is for the Legislature to weigh the affect [sic] and the consequences of legislation enacted(52). The Legislature has exclusive and ample power to determine the public policy of the state(53). The law in Tennessee, therefore, restricts this Court's role in declaring public policy. The Court is not free to establish what it believes to be the best policy for the state; rather, the Court must determine where public policy is to be found, what the specific public policy is, and how it applies to the case at hand(54). For the Court to find that no public policy prevents the continuing development of the common law is wholly different from positively declaring the public policy of the state(55).
This Court finds and concludes that for domestic relations purposes in Tennessee no public policy prevents the continuing development of the common law as it may specifically apply to the seven human beings existing as embryos, in vitro, in this domestic relations case. The Court is of the opinion, finds and concludes that the age-old common law doctrine of parens patriae(56) controls these children, in vitro, as it has always supervised and controlled children of a marriage at live birth in domestic relations cases in Tennessee.
The common law doctrine of parens patriae is defined as that power of the sovereign to watch over the interests of those who are incapable of protecting themselves(57). It is well settled that Court's having historic Chancery or equity jurisdiction exercise and control the sovereign power called parens patriae(58). The thrust of the equitable nature of this doctrine is that it turns its full focus on the best interests of the child; its concern is not for those who claim "rights" to the child, nor for those who claim custody of the child, nor for those who may suffer perceived or real inequities resulting from scrupulously guarding the child's best interest(59).
The doctrine of parens patriae is most commonly expressed as the "best interests of the child doctrine" and its sole objective is to achieve justice for the child(60). In the case of very young children, it was a former practice in Tennessee for many years to confuse the so-called "Tender Years Doctrine" (the placing of children of tender years with their Mother, regardless of the circumstances) with the "best interests of the child" rule. In 1987, our legislature amended the custody provisions of our Tennessee divorce statute to create a rebuttable presumption of parental fitness in child custody cases, mandating the long-standing test, however, "... as the welfare and interest of the child or children may demand ..."(61)
In the case at bar, the undisputed, uncontroverted testimony is that to allow the parties' seven cryogenically preserved human embryos to remain so preserved for a period exceeding two years is tantamount to the destruction of these human beings. It was the clear intent of Mr. and Mrs. Davis to create a child or children to be known as their family. No one disputes the fact that unless the human embryos, in vitro, are implanted, their lives will be lost; they will die a passive death.
Mr. Davis strenuously objects to the anonymous donation of the human embryos even for their survival; Mrs. Davis wants to bring these children to term; the human embryos were not caused to come into being by Mr. and Mrs. Davis for any purpose other than the production of their family. Therefore, the Court finds and concludes that it is to the manifest best interest of the children, in vitro, that they be made available for implantation to assure their opportunity for live birth; implantation is their sole and only hope for survival. The Court respectfully finds and concludes that it further serves the best interest of these children for Mrs. Davis to be permitted the opportunity to bring these children to term through implantation.
It is the judgment of the Court that the temporary custody of the parties' seven cryogenically preserved human embryos be vested in Mrs. Davis for the purposes set-forth hereinabove, and that all matters concerning support, visitation, final custody and related issues be reserved to the Court for further consideration and disposition at such time as one or more of the seven cryogenically preserved human embryos are the product of live birth.
Mr. Christenberry, Counsel for Mrs. Davis, will prepare an appropriate Order, pursuant to and in accord with the provisions of the Court's Opinion, submit same to Counsel for Mr. Davis and to Counsel for Dr. King for approval as to form, and the Order will be tendered to the Court for entry on or before October 23, 1989, taxing the costs hereof to the Plaintiff.
This 21st day of September, 1989.
W. DALE YOUNG, Circuit Judge
Fifth Judicial District, Tennessee
THIS 21st day of September, 1989.
W. DALE YOUNG, Circuit Judge
Fifth Judicial District, Tennessee
(Footnotes for Appendix A appear immediately following the Appendix text.)
Where litigation affects or is of interest to a material segment of the public, the Court is persuaded that an additional and important responsibility is imposed on the judiciary: to assist the public in understanding the procedures of the Court.(1) With this in mind, the Court deems it appropriate to briefly outline some of the basic principles of law and rules of evidence which are to be considered by the Court in connection with its decision in this case; and of equal importance, it will also be noted that there exist many theories, ideas and concepts which may not be considered by the Court in connection with its decision in this case.
The duties and responsibilities of a Trial Court are numerous and are largely carried out by the Judge without the assistance of others. The Judge is assisted in his administrative duties by his Secretary, his Court Officer(s), the Clerk of the Court and the Clerk's Deputy Clerks. Trial Judges in Tennessee are not provided law clerks to assist the Court in its research of the law; it is the duty of Counsel for litigants to call to the Court's attention applicable legal precedents and, through arguments given, either orally or through written briefs, to persuade the Court to apply the referenced law to the facts in the record of the case.
Occasionally, learned members of the bar, on their own initiative or at the request of the Court with the knowledge of the parties, file amicus curiae briefs ("friend of the court" briefs) to aid and assist the Court in resolving issues of precedental or unusual nature.(2) The Honorable Richard Hash, a member of the Blount County, Tennessee Bar has filed amicus briefs in this case, for which the Court is most grateful.
As the finder of fact in a nonjury case, the Court is bound to determine the facts by what the law perceives to be the "preponderance of the evidence," which means that amount of factual information presented to the Court during the course of the trial which is sufficient to cause it to believe that the matter being asserted is probably true. In order to preponderate, the evidence must have the greater convincing effect in the formation of the belief about the facts; and if the evidence on a particular issue appears to be equally balanced as between the contending parties, the party having the burden of proving that particular issue must fail. The term "preponderance of the evidence" is sometimes expressed as the greater weight of the evidence."(5) (6)
The evidence considered by the Court in connection with its findings of fact may be either direct or circumstantial evidence. It is direct evidence if it proves a fact without any inference, and which in itself, if it is true, conclusively establishes that fact. It's circumstantial evidence if it proves a fact from which the inference of the existence of another fact may be drawn.(7) The law makes no distinction between direct and circumstantial evidence as to the degree of proof required.
The finder of fact is correct in considering any evidence of probative value, that is, evidence which has a tendency to prove or actually proves a fact.(8)
An issue is not to be decided by the simple process of counting the number of witnesses who have testified on the opposing sides; the final test is not in the relative number of witnesses, but in the relative convincing force of the evidence.(10)
In reaching its decision, the Court must consider only the evidence in the case; however, the Court is not required to set aside its common knowledge -- "horse sense" -- as it has the right to weigh the evidence in light of its own observations and experiences of life.(11)
In determining the weight to be given such an opinion or in resolving conflicts in the testimony of different expert witnesses, the trier of fact should consider the qualifications and credibility of the expert, the relative qualifications and credibility of the other experts, as well as the reasons, the facts and any other matters upon which any opinion is based.
The Court is not bound by an expert's opinion, but it must give the weight, if any, to which the Court thinks it is entitled.(14)
It must be emphasized that expert testimony is adduced only to aid the trier of fact to understand the evidence, not to dominate or control the court in the decision of the disputed issues.(15)
It is not proper for the Court to consider such extrajudicial communications in making any findings of fact, conclusions of law and the resulting judgment of the case. This case has not been decided by the Court based upon or influenced by any such extrajudicial communications.
As a citizen, the Judge of this Trial Court is keenly aware of the various theological positions which may be impacted by the Court's judgment in this case; the Court is aware of the various ethical positions which may be impacted by the Court's decision in this case; the Court is aware that many members of the public consider the questions involved to be of a strict moral nature, not of a legal nature, and that the impact of the Court's decision may offend, give support to or otherwise affect many moral views of a substantial segment of the public; the Court is aware of the so called "pro-life" and "pro-choice" factions of society and the Court's decision in this case may offend, give support to or otherwise impact one side or the other; and finally, the Court knows the positions of the political parties may be impacted by the Court's decision.
Consideration of these matters do not come within the purview of the duty or authority of this Court; the Court's duty is to decide the case based on the evidence before it and the applicable law to be applied to the facts as the Court finds them to be. The matter of public policy is fully dealt with by the Court in its Opinion.(16)
In a divorce case, it is incumbent upon the Trial Court to take full responsibility over all issues involved with and arising from the marriage relationship of the husband and wife. The Court must find the facts and apply the law in order to make an equitable distribution of the parties' property, if any, and provide for the care, custody and support of the parties' minor children, if any.(17) (18)
Because divorce is statutory, the Court must look to the mandates of the legislature of the state of Tennessee relative to the dissolution of the parties' marriage and in considering all the issues involved in connection with the dissolution. These statutory provisions are discussed in the Court's Opinion.
The system of jurisprudence called Equity is best defined by describing its origin. In England, when an injustice was found at law, or perhaps the law had no remedy for a particular circumstance, a plea to the Crown or to its Lord Chancellor led to the creation of a separate system of law -- one where the Chancellor, as "keeper of the King's conscience," sought to do equity and to cure the injustice and inequities often caused by the inflexible forms of the common law. As the system of equity jurisprudence grew, its hallmark became one of flexibility and invention to meet new situations and circumstances.(20) Out of equity jurisprudence has arisen a litany of equity maxims: universal statements of justice. Equity maxims lie at the foundation of universal justice and have been worthily and aptly called "the law of laws."(21) It is a part of our jurisprudence system that in default of the law, the maxim rules;(22) maxims have an inherent probative force and need not be proved(23) and, among many other salient sage pronouncements, one maxim forcefully notes that the welfare of the people is the supreme law and the rights of the individual must be subordinated to public good.(24)
Judicial discretion may be defined as the liberty which a Judge posesses to decide as may seem to him, in the light of his experience, right and just under the circumstances of the particular case, not being governed in such decision by any inflexible rule of law, but being guided by the principles of law and justice.(25)
This flexibility is needed in our jurisprudence system: no compiler of laws and codes has yet been able to devise a system of laws that will embrace all situations and will furnish the means of solving all jural and social difficulties. In the very nature of things, it is impossible to foresee and anticipate all events of life; yet Judges and lawyers must never forget that things unanticipated and unsuspected will surely arise and those matters must be dealt with as difficulties and obstructions which must be solved by the possessors of the power to adjudicate; hence the unquestioned assumption of the Judges of the right and the power to dispose of the unheard and the unpredictable.(26)
In its broadest sense, judicial discretion is a feeling of right and wrong which has arisen or been brought about from the combination of various legal and equitable considerations which have never been reduced to codes or written laws but are nevertheless essential parts of an enlightened system of junsprudence.(27) In its narrower sense it is referred to as the capacity of the trial judge to understand and to apply the law of the land to particular facts or situations arising in a pending lawsuit and which call for some decision which will tend toward a settlement of the rights of the parties and the attainment of justice.(28)
Judicial discretion concerns itself with the election or choice between two or more courses of action. It implies a discriminating examination of alternatives for the purpose of arriving at a conclusion as to which is the better way of solving or obviating a difficulty or attaining a certain end. It is further suggested that judicial discretion has reference to the mental faculty of separating the whole of a set of circumstances into its parts and the balancing of its several elements and when it is considered in connection with judicial power, it can readily be seen that the true meaning of the term is the discrimating consideration of all the contending elements of forces not controlled by well-established rules of law and the adoption of the most feasible, convenient, and efficacious way of proceeding with the administration of justice.(29)
But judicial discretion has its limitations, and a noteable one is that it must be understood that at no time can Judges act arbitrarily or capaciously and in disregard of the spirit of the law and of sound public policy.(30)
Judicial notice is the cognizance by the Court of certain facts which Judges may properly accept and act upon without proof because they already know them. A fact of which a Court takes judicial notice must be universally regarded as established.(31)
Our Tennessee Courts have spoken often about how our Trial Courts hase used and abused their concepts of judicial notice. The appellate Courts have held that a Trial Court cannot take judicial notice of the contents of scientific books and treatises,(32) but has permitted Trial Courts to take judicial notice of facts universally known and found in encyclopedias and dictionaries if the facts are of such universal notoriety and so generally understood that those facts may be regarded as forming a part of the common knowledge of every person.(33)
In addition, Trial Courts are permitted to take judicial notice of facts relating to human life, health and habits and management and conduct of businesses which are common knowledge; and such matters may be properly considered by the finder of fact in its determination of inferences to be drawn from proven circumstantial facts.(34)
It is the Court's intent that by deliniating the foregoing rules and principles some of the judicial mystique surrounding the way our Courts operate will be stripped away and the reader will better understand how and why some results are reached in this complicated legal proceeding.
While this Canon does not direct such action, the Canon does not prohibit Judges from making public statements in the course of their official duties or from explaining for public information on the procedures of the Court.
(2) Rules of the Supreme Court of the State of Tennessee, Rule 10, Canon 3 A. (4)
In the commentary to this Canon the following appears: "An appropriate and often desirable procedure for a court to obtain the advice of a distinguished expert on legal issues is to incite him to file a brief amicus curiae."
(3) Oath of Office of William Dale Young, September 2, 1986.
(4) Hamm v. Hamm, 204 SW 2nd 113 at 127 (1947).
Quoting with approval a statement to the same affect made by United States Supreme Court Chief Justice Holmes.
(5) In outlining many of the fundamental concepts to be applied in this nonjury case the Court has modified some of the concepts set-forth in the Tennessee Pattern Jury Instructions (Civil).
The pattern instructions statements are useful because they are framed in such language as to be understood by the ordinary layman and, while the pattern instructions do not have official status, they represent the collective wisdom of the Committee on Pattern Jury Instructions (Civil) of the Tennessee Judicial Conference and represent the collective understanding of that Committee as to what the law of Tennessee is or would be, should there be lack of specific authority for the particular instruction.
The references to these instructions are hereinafter designated "T.P.I", followed by the charge number.
(6) T.P.I. 2.40
(7) T.P.I. 2.01
(8) Blacks Law Dictionary (3rd Edition)
(9) T.P.I. 1.10
(10) T.P.I. 2.02
(11) T.P.I. 1.15
(12) T.P.I. 2.20
(13) T.P.I. 2.21
(14) T.P.I. 2.30
(15) In re: Baby M, 525 Atlantic Reporter 2nd 1128 (1987)
(16) In re: Baby M, 525 Atlantic Reporter 2nd 1128 at 1138 (1987)
In this recent and much publicized case from New Jersey, the Court said:
"Today, however, this Court can only decide what is before it. [Citations omitted] It will decide on legal principles alone. This court must not manage morality or temper theology. Its charge is to examine what law there is and apply it to the facts proven in this cause.
"This is a nonjury trial. At law, it is the jury that makes the findings of fact. As in all Chancery proceedings, the Court is the fact finder..."
(17) Conn v Conn, 526 NE 2nd 958 at 961 (1988)
(18) Tennessee Code Annotated 36-4-121 (b)(1), 36-4-121 (b)(2) and 36-6-101 (a)
(19) Tennessee Code Annotated 16-10-108 and 16-10-111
(20) In re: Baby M, 525 Atlantic Reporter 2nd 1128 (1987)
(21) Gibson's Suits in Chancery (Inman, Seventh Edition)
(22) Tennessee Procedure in Law Cases (Higgins and Crownover, 1937)
(23) Gibson's Suits in Chancery (Inman, Seventh Edition)
(24) Gibson's Suits in Chancery (Inman, Seventh Edition)
(25) Tennessee Procedure in Law Cases (Higgons and Crownover, 1937)
(26) Tennessee Procedure in Law Cases (Higgons and Crownover, 1937)
(27) Tennessee Procedure in Law Cases (Higgons and Crownover, 1937)
(28) Tennessee Procedure in Law Cases (Higgons and Crownover, 1937)
(29) Tennessee Procedure in Law Cases (Higgons and Crownover, 1937)
(30) Tennessee Procedure in Law Cases (Higgons and Crownover, 1937)
(31) Black's Law Dictionary (5th Edition)
(32) Standard Life Insurance Company of the South v. Strom, 89 SW 2nd 367 (1936)
(33) Standurd Life Insurance Company of the South v. Strom, 89 SW 2nd 367 (1936)
(34) Benson v. H.G. Hill Stores, Inc., 699 SW 2nd 560 (1985)
Mr. and Mrs. Davis met while both were in the United States Army in Germany and were married about nine years ago. Both Mr. and Mrs. Davis very much wanted to have children and after Mrs. Davis suffered some half dozen tubular pregnancies, the couple consulted Dr. Ray King in the Fall, 1985, shortly after which they entered the in vitro fertilization program under Dr. King's guidance.
After several IVF attempts, Mrs. Davis failed to be pregnant and the parties temporarily abandoned the program and sought to adopt a child. A Kentucky girl, pregnant with child, offered her child for adoption prior to birth. The Davises paid her medical expenses, but upon delivery, the Mother chose to keep the child.
The parties had discussed on many occasions their keen desire to have a family, had decided they wanted at least two children by way of adoption or through IVF and were thwarted in their attempts through either method.
In the Fall, 1988, Mr. Davis noted the parties marriage had been somewhat unstable for about two years. Notwithstanding the status of his marriage in the mind of Mr. Davis, (Mrs. Davis testified she was not aware their marriage had incurred the problems Mr. Davis testified about), the Davises agreed to again enter King's IVF program in an effort to have a child. Mrs. Davis counseled with Dr. King about cryopreservation of embryos for future use, Mrs. Davis explained the technique and procedure to Mr. Davis and the parties agreed to this technique as a part of their resumption of IVF attempts to accomplish a family.
In December, 1988 nine ova were surgically extracted from Mrs. Davis, all of them inseminated in Dr. Shiver's laboratory with Mr. Davis' sperm. The nine ova were fertilized, two were implanted in Mrs. Davis with the hope that one would cause her to become pregnant and the remaining seven were cryopreserved by Dr. Shivers for future implantation purposes. No detailed discussions were undertaken with Mr. Davis by Dr. King or others relative to cryopreservation and no decision was made by Mr. and Mrs. Davis as to the disposition of their cryopreserved embryos in the event of divorce, death or other unforeseen eventuality. No writing was executed by the parties as to the subject embryos.
The night of the implantation (December 10, 1988), Mr. and Mrs. Davis discussed how long the embryos would last in cryopreservation and the possibility of donating embryos not utilized in causing Mrs. Davis to be pregnant. Mr. Davis acknowledged the embryos were frozen with "... the intent they be saved for later use ...", but maintained there was no decision or even any discussion relative to whether they would be used in the marriage or out of the marriage.
Mr. Davis requests the Court to: (1) give Mr. and Mrs. Davis joint custody of their embryos; or (2) prohibit Mrs. Davis or another from using the embryos for implantation until he can decide about their disposition; or (3) if none of the foregoing, then consider only Mrs. Davis as a suitable party for implantation (Mr. Davis opposes destruction of the embryos, but prefers their destruction rather than allow someone other than Mrs. Davis to implant the embryos).
As to his joint custody request, Mr. Davis emphasized that he does not want exclusive control over the embryos; he insisted that he and Mrs. Davis should jointly decide about their disposition; that all decisions prior to the divorce were jointly made by the parties; that only the parties should be involved as to future decisions. Davis insists that until the parties can agree, the embryos should remain in their cryopreserved state.
Mr. Davis opposes Mrs. Davis' use of the embryos because he does not want to be "... raped of my reproductive rights ..."; he maintains her use without his consent forces unwanted parenthood on him, a situation which disturbs him greatly. He doesn't want a child produced to live in a single-parent situation. Mr. Davis detailed how his own life, at age 6, had been shattered by the divorce of his Mother and Father; how he and three brothers were sent to a boys home where he stayed until age 18; he related the problems he experienced being away from his family and he emphasized his despair because there was no natural bond with his parents. Because of his own shattered and disappointing childhood, he became angry, he became distrustful of others and he bears that psychological burden even today. He strongly and sincerely insists that because of his poor relationship with his own parents he strenuously objects to bringing a child into the world who would suffer the same or a similar experience without any opportunity on his part to bond with his child.
Mr. Davis objected to the anonymous donation of the embryos to another infertile couple inasmuch as it would place a great psychological and emotional burden on both him and Mrs. Davis. In addition, he testified that the parents of the potential child might possibly divorce in the future, giving rise to enhanced apprehension for the child's welfare.
As to destruction of the embryos, Mr. Davis speculated that someday he might change his mind about their disposition and would then regret any such action. He opposes their destruction except in lieu of donation to anonymous recipients.
It is Mr. Davis' position that the embryos do not constitute life, but firmly believes the embryos have the "potential for life." (Davis commented that he is very much opposed to abortion.) He maintained that if the only choices are to donate the embryos to anonymous recipients or allow Mrs. Davis to use them, he would prefer Mrs. Davis having them.
If Mrs. Davis is awarded the embryos and a child results, Davis testified that he would visit with the child as much as possible and he would try to develop a parent-child bond; in addition, he would actively seek to support his child and he would actively seek the custody of his child.
Davis readily admits that he and Mrs. Davis began and continued the IVF program with Dr. King with the intent and for the purpose of having a child or children.
Professor Robertson testified that he is a member of the American Fertility Society's Ethics Committee, serving since the Fall, 1985. The AFS's first publication came about in 1984-85 and on the subject of ethical considerations of the human preembryo, the AFS had taken the position that human preembryos are not persons, but deserve special respect because human preembryos have the potential to become persons. AFS guidelines constitute suggested standards of care for physicians involved in fertility practice and are generally utilized for litigation purposes. Robertson did not appear as a spokesperson for the AFS, but as a scholar who researched the issue, formed an opinion and written an article concerning this specific case, as well as many other articles dealing primarily with issues relating to non-coital reproduction.
Professor Robertson described his understanding of a human preembryo as an entity composed of a group of undifferentiated cells which have no organs or nervous system. He testitied that at about 10-14 days, the preembryo attaches itself to the uterine wall, develops its primitive streak and life then commences. Robertson believes it is "not clear" that a human preembryo is a unique individual; that simply because fertilization has occured, the gamete contributors have not procreated.
Robertson asserts the position that both gamete contributors are the only decisional authonties over their preembryos; in the event the gamete contributors cannot agree, it is his position the preembryos should be allowed to die a passive death.
Where there is no [statutory] law, no agreement between the gamete contributors nor any previous Court decision on which to rely, Professor Robertson reasons that the Court, as in this case, should then decide the case by balancing the equities as between the two gamete contributors and, in this case, decide in favor of the party who does not want to go forward with parenthood, Mr. Davis. The precise issue in this case, according to Professor Robertson, is the balancing of the equities; that is, considering the relative burdens of the parties, the Court should make a determination of which party will be injured more if the process goes forward. In this case, Professor Robertson sides with Mr. Davis because of the traumatic psychological burdens of being forced to be a parent against his will, countered by the ability of Mrs. Davis to apparently successfully participate in the IVF program with another partner in the future.
As to the law applicable to in vitro fertilization, Robertson concedes that his research has indicated there is no case precisely in point to give this Court guidance. He recited Great Britain's Wornack Committee consideration of similar issues in 1978, the Rios case in Australia in 1984, the New York Delrio tort case in 1978, the Pennsylvania Statute of 1980 (recordkeeping, mainly), and the Louisiana Statute passed in 1986 which, among other things, limits the authority of parents as to disposition of their preembryos and grants certain as yet unquantified rights to preembryos to sue and be sued.
Robertson opines that the Webster case possibly leaves open the question of whether a state may pass a Constitutionally sound statute regulating IVF transactions derived from the point of view that fertilization/conception is the commencement of human life. The Webster Court declined consideration of the preamble issue, did not decide it and said it had no effect or bearing on the Webster issues, thus leaving unsettled whether the preamble provisions passed relevant Constitutional scrutiny.
Dr. King testified that the natural human pregnancy rate is about 25%; that humans are not the best reproducers of the mammalian species; that there are seven general indicia of infertility; and there is about a 50% success rate in correcting some or all of the general causes of infertility.
As to Mrs. Davis, Dr. King testified that while she could become pregnant she could not follow with a normal birth. After some five miscarriages and surgery in 1983, he recommended in vitro fertilization as an alternative way of accomplishing the strong desire of Mr. and Mrs. Davis to have a family.
Dr. King outlined the history of in vitro fertilization, beginning with the first success in the United States in 1978 and how he came to establish his clinic in the Fall, 1984. Statistics as to success rate and the methodology and procedures of in vitro fertilization were outlined.
In October, 1988 Dr. King employed a new program whereby excess preembryos could be cryogenically preserved for later implantation, thereby avoiding the necessity of aspiration and insemination on the occasion of each implantation. Dr. King delineated the December, 1988 procedures resulting in the extraction from Mrs. Davis of nine ovum, the laboratory insemination of the ovum, all of which were fertilized, two of which were implanted and seven of which were cryogenically frozen. Dr. King is of the opinion that Mrs. Davis has a 52% chance of becoming pregnant utilizing the seven preserved preembryos and there is no medical reason Mrs. Davis cannot use the preembryos.
King testified that in the development of a human child from the first cell division after fertilization to the embryo stage, there is first a one cell gamete, a zygote (after the first cell divides), a preembryo (up to fourteen days after fertilization) and finally an embryo (after fourteen days and upon cell differentiation).
As to the Davis' IVF attempts, Dr. King testified that the normal cost was from $4,000 to $6,000, each attempt. No forms were signed by the Davises and Dr. King has no recollection of whether Mr. Davis was present when he spoke with Mrs. Davis about whether unused preembryos would be cryogenically preserved.
Dr. King testified that cryopreserved human preembryos can be kept in good condition for at least two years, but King had no further data on the length of cryopreservation. Dr. King acknowledged that freezing and thawing is the hazardous part of cryopreservation. An annual storage fee is charged for cryopreservation.
Normally, a woman can produce eggs until about 52 or 53; after 35, there is a concern because of Down's Syndrome and other genetic malfunction, and it is possible to implant eggs relatively late in life, as long as the eggs have been extracted early in life.
When the seven preembryos were cryopreserved, five were of the four-cell stage and two were in cleavage between four and eight cells. As to all seven, there is no cell differentation and twinning is still possible.
Dr. King knows of no physical reason why Mrs. Davis cannot undergo future ovum aspirations with a similar success rate, recognizing that her health varies from cycle to cycle. Dr. King has treated Mrs. Davis for six years, has performed 21 aspirations and has transferred 14 preembryos, none of which have resulted in pregnancy. Dr. King characterizes Mrs. Davis as "a committed person in an effort to have a child."
Considering Mrs. Davis' infertility, IVF is the only method available to Mrs. Davis for having a child.
Dr. King testified there are no guarantees Mrs. Davis could ever produce another usable egg and notwithstanding his clinic's current policy to not allow single persons to participate in the IVF program, if the Court awarded her the preembryos, he would implant the preembryos at her request.
Dr. King's theory of balancing the equities between the parties is that there is no more psychological burden on one party than the other; that both parties are very much emotionally involved; that the seven preembryos are of excellent quality; that a 52% chance of pregnancy exists for Mrs. Davis if all seven preembryos were thawed and implanted; and that the greater benefit would be bestowed if Mrs. Davis were allowed to use them.
Under all circumstances, Dr. King opposes destruction or unlimited cryopreservation, suggesting the embryos be anonymously donated if not used by Mrs. Davis.
Dr. Shivers explained to the Court the various steps and procedures from aspiration (extraction of ovum) to implantation and gave detailed testimony regarding his laboratory work.
In explaining the normal process of his laboratory work for IVF patients after aspiration, Dr. Shivers defined "insemination" as the laboratory worker's placing of the male sperm and the female ovum together in a laboratory petre dish and that "fertilization" was the actual joinder of an ovum and a sperm (a union, fusion), which process was entirely completed by the sperm and ovum without the intervention of lab workers or mechanical devices. Under ordinary circumstances, Dr. Shivers said, fertilization takes place sometime after insemination and usually within four-six-eight hours of insemination. Ordinarily, inseminated eggs are left in a secure laboratory environment overnight for examination by him the following morning. Under ordinary circumstances, and upon inspection the following morning, fertilization can be determined by using a powerful microscope; the fertilized ovum continues in the laboratory environment until from two to eight cell development has taken place at which time implantation is usually perfected through an out-patient type procedure.
Dr. Shivers stated that cryopreservation of animal cells had been conducted since the 1970's and that he had participated in the cryopreservation of human cells in connection with the IVF program since 1988.
As to his contact with Mr. and Mrs. Davis, Dr. Shivers indicated that he had worked with the couple since July 30, 1985; that thereafter he had completed only one cryopreservation of human embryos for the Davises when nine ova were extracted from Mrs. Davis, all nine were inseminated in his laboratory, two were transferred by Dr. King to Mrs. Davis and the remaining seven were committed to cryopreservation pursuant to considerable discussion with Mr. and Mrs. Davis as to how many preembryos to transfer and how many preembryos to cryopreserve.
Dr. Shivers stated that all seven frozen embryos were from the four to eight cell development stage when frozen and all of them appeared to be of first-rate quality.
Dr. Shivers expressed the opinion that the chances of a pregnancy resulting from frozen then thawed preembryos are better than the implantation of freshly fertilized preembryos, the risk to cryopreserved preembryos being mainly in the freezing process.
Dr. Shivers testified that the longest human preembryos have been stored and remain viable has been for an approximate two-year penod; that embryos of mice have been successfully preserved for as long as ten years; and that it was impossible for him to offer an opinion about the condition of human preembryos past two years.
In the opinion of Dr. Shivers, a human preembrvo is a zygote up to eleven-fourteen days and consists largely of undifferentiated cells, that after attachment to the uterus wall and the appearance of the pnmitive streak, the cells then become different: that is organs, organ systems, body parts and the like are formed. At the time of fertilization, Dr. Shivers testified, genetic controls are "locked in forever" and control who the preembryo will later be, but, Shivers stated, "... as far as we know ..., to my knowledge ..., there is no way to distinguish the cells [at the zygote state] ... they are the same [i.e., undifferentiated] ..."
Dunng the course of his testimony, Dr. Shivers greatly assisted the Court by using photographic slides to visually demonstrate many areas of his testimony, for all of which the Court is deeply grateful.
Normally, Ms. McCarter is responsible for obtaining informed consent-type forms to be executed by participants, but, through oversight no forms were executed by the Davises. (The December, 1988 document utilized by Dr. King contained no covenant or understanding which would be, had it been executed, dispositive of the issues in this case.)
In December, 1988, Ms. McCarter recalls an approximate ten minute discussion with Mr. and Mrs. Davis relative to the cryopreservation process, at which time both Mr. and Mrs. Davis acknowledged themselves to be willing participants in cryopreservation of embryos not utilized for implantation on December 10, 1988.
On the morning of Mrs. Davis' last implantation (December 10, 1988), Ms. McCarter distinctly recalls a statement made to her by Mrs. Davis (she is not certain at all that Mr. Davis was present when the statement was made) to the effect that if she became pregnant as a result of the December, 1988 implantation, she would consider donating the cryopreserved embryos to another infertile couple for implantation.
Mrs. Davis testified at some length about the trauma and pain she suffered resulting from five tubal pregnancies during the course of the parties' marriage. At the fifth tubal pregnancy, the marriage had lasted four years; she concluded she could no longer endure further natural attempts to bear a child even though she and Mr. Davis remained desirous of having children.
The couple turned to Dr. King's IVF program in 1985 and six IVF attempts were made for her to become pregnant. She gave considerable testimony relative to the many injections she received or administered to herself to prepare her body reproductive system for the removal of her eggs in preparation for the IVF procedures; and she emphasized the painful, physically trying, emotionally and mentally taxing ordeals she endured to participate in the program. During six IVF attempts, no cryopreservation procedures were employed; each implantation was the culmination of weeks of preparation -- drugs to stimulate her reproductive system, surgical extraction of ova, insemination in vitro, anxious hours of waiting to confirm fertilization, implantation -- then additional weeks of waiting to determine if an in utero pregnancy had occured. The six IVF attempts were futile; each attempt cost from $4,000.00 to $6,000.00.
At the last aspiration and implant (December, 1988) and at the time the embryos were cryopreserved, Mrs. Davis testified she didn't realize the parties' marriage was so "rocky", else she wouldn't have participated in the attempt; that there was an understanding between herself and Mr. Davis relative to the cryopreservation process and she testified that "... we [Mr. and Mrs. Davis] made decisions together as to when to reenter [the IVF program] ..."
Mrs. Davis testified the embryos are "... the beginning of life ... I'm the Mother of the embryos ..."; she feels an attachment to the embryos, views them as children, testified she would like to have her own children through their implantation and requested the Court to award the embryos to her for that purpose. In the event she is not allowed to utilize the embryos, she testified, she would not foreclose the possibility of donating them for use by another infertile couple.
Mrs. Davis testified that her husband consented to being a Father; that their efforst constituted a partnership to become parents; and that she and Mr. Davis had tentatively planned to implant one cryopreserved embryo in March or April, 1989. She says it is difficult for her to understand her husband's somewhat sudden change in position.
Mrs. Davis assured the court that she would have no problem raising a child as a single parent, especially in light of Mr. Davis' expressed willingness to be a Father to and support such a child even after dissolution of their marriage; that allowing the embryos to remain frozen is equivalent to killing them inasmuch as she understands that two years is the maximum life of cryopreserved human embryos.
Mrs. Davis responded to Professor Robertson's testimony that the court should allow the embryos to die a passive death by remaining frozen: she maintains that if the embryos can suffer a "passive death, then they must constitute life."
Mrs. Easterly testified that she is the Mother of six children and she would very much like to be a Grandmother as the result of her daughter's having a child.
Dr. Lejeune testified that artificial fertilization is not new to biology, having been applied to animals long before it was applied to man; and that in vitro fertilization is an area with which he is familiar, having first written an article on the subject some fifteen years ago, before the modern practice of IVF came into being.
In considering the IVF process, Dr. Lejeune stated it is important to understand the meaning of fertilization at the beginning of a human being: that each human has a unique beginning which occurs at the moment of conception. Dr. Lejeune testified that when the 23 chromosomes carried by a sperm encounter the 23 chromosomes carried by the ovum, all information necessary and sufficient to spell out all the characteristics of a new human being is then gathered in one place; that upon fertilization of the ovum by the sperm, a unique personal constitution is spelled out for the specific human being then created, which personal constitution has never occurred before and will never occur again.
Dr. Lejeune testified that the novelty of the unique creation has been known by scientific induction for more than 50 years, but because of the minuteness of the information wntten on the DNA molecule of the chromosome, such supposition was a mere scientific hypothesis until about two years ago when it became a demonstrable scientific fact.
Dr. Lejeune gave detailed information to the Court relative to the composition of the DNA molecule of a human chromosome, generally defining it as a long thread of about one meter in length, cut in 23 pieces, each piece being coiled on itself very tightly to make a spiral so that under the microscope, it appears as a very tiny rod.
In comparing the difference between IVF fertilization and natural fertilization, Dr. Lejeune stated that the only difference is that the sperm and the egg are meeting inside a tube of glass because the egg has been removed from the body of the woman and the sperm has just been added to the tube of glass, pointing out that it is not at all the inseminator who makes fertilization but it is the sperm that makes the fertilization. Fertilization, Lejeune stated, can not be implemented by man; fertilization requires that it come about directly by the cells. What is reproduced and transmitted as a result of fertilization is information by way of the DNA molecules; the information then antimates matter.
Turning to cryopreservation (sometimes called "freezing") of human embryos, Dr. Lejeune offered the opinion that temperature is merely a measure of the speed at which molecules move in a given medium; that if one progressively diminished temperature, the speed and the number of collisions between the molecules are progressively slowed down and, therefore, time is frozen, not embryos. Life is not arrested at freezing and life is not started again when thawed: time for the embryo has been arrested and in the human species, a human embryo cannot successfully withstand an arrest of time greater than two years.
As to the term "preembryo," Dr. Lejeune is of the opinion that there is no such word. In support of his position, Dr. Lejeune cited to the Court the definition of embryo, found in his dictionary printed some fifty years ago: "... that youngest form of a being ..." There is no need, he testified, for a subclass of the embryo to be called a preembryo, because there is nothing before the embryo; before an embryo there is only a sperm and an egg when the egg is fertilized by the sperm, the entity becomes a zygote; and when the zygote divides it is an embryo. When the first cell exists, all the "tricks of the trade" (or "tricks of Mother Nature" as he later called it) to build itself into an individual already exists. This fact has been known for many years, Dr. Lejeune testified, by induction but is now scientifically demonstrated in the laboratory. Lejeune stated the term "preembryo" is misleading and was invented by the British to lead one to believe there is a difference between a preembryo and an embryo when there is no such entity as a preembryo.
In describing the cell division which takes place shortly after fertilization, Dr. Lejeune stated that at the three-cell stage, "... tiny human being ..." exists and that less than two years ago through a discovery of [Dr. Alec] Jeffreys in England ("... the remarkable manipulator of DNA ..."), it is now an experimentally-demonstrated fact that at the three-cell stage, every individual is uniquely different from any other individual and the probability that the genetic information found in one cell would be identical to another person is less than one in one billion. Through further research and discovery not more than two years ago, Dr. Lejeune testified, Jeffreys developed a technique whereby one molecule could be taken from one cell and in the nucleus of that cell the uniqueness of the individual could be scientifically demonstrated.
But the most remarkable discovery of all, said Dr. Lejeune, came about only four years ago through the work of Sanai [sic], whereby it became demonstrated that some of the basis of DNA were carrying an extra piece of material called methyl (CH3). Dr. Lejeune testified the import of this discovery is that the DNA carried by the sperm is not underlined or crossed by methylation on the same place that the equivalent molecule, chromosomes carried by the ovum; the sperm contains the ability to underline certain information from step to step in the process resulting in the fact that at the moment the two sets of chromosomes coming from the sperm and egg are joined, they are not identical, as had been thought for years. When the ovum is fertilized by the sperm, the result is "... the most specialized cell under the sun ..."; specialized from the point of view that no other cell will ever again have the same instructions in the life of the individual being created.
The special underlining instructions tell the cells when it splits in three, all the information it needs to form the unique individual under construction. Dr. Lejeune stated that during the process, as the cell develops, nothing new is learned by the developing cells, but progressively a lot of things are forgotten: the first cell knew more than the three cell stage, and the three cell stage knew more than any of those to follow. In other words, Lejeune explained, the information is written in the first cell and it is not written progressively in the other cells. This information is not theoretical, Dr. Lejeune said, it is information which the science of genetics now knows beyond any doubt.
Lejeune described the cell resulting immediately after fertilization in this way: "... at the very beginning of life the genetic information and the molecular structure of the egg, the spirit and the matter, the soul and the body must be that tightly intricated because it is a beginning of the new marvel that we call a human ..."
Assuming the embryos are early human beings, Dr. Lejeune offered the opinion that those early human beings constituted Mrs. Davis' own flesh (and are also Mr. Davis' flesh) and that the hospitality of her body is the best place in the world for them to be. He asserted that "... the early human beings in the concentration can ... are not spare parts in which we could take at random, they are not expenmental material that we could freeze and defreeze at our own will, they are not property that we could exchange against anything ... An early human being inside the suspended time which is the can cannot be the property of anybody because it's the only one in the world to have the property of building himself ... As soon as he has been conceived, a man is a man."
Because of Jeffreys' relatively recent discoveries and the development of scientifically provable procedures to verify through DNA that all of life's messages are written in the very first cell, Dr. Lejeune stated the conclusion that the mystery of cell differentation has been solved because we now know where the information is written. He testified the observation or conclusion that the one cell of the fertilized zygote is an apparently undifferentiated cell mass is wrong; that the new findings recited definitively prove differentiation and that from the very beginning there exists an embryo.
On cross-examination, Dr. Lejeune explained the meaning of the Hippocratic Oath: that it does not matter what the size of the patient, a patient is a patient.
In explaining the difference between the rights an early human being should have compared to a later human being (such as an adult), Dr. Lejeune explained: "as far as your nature is concerned, I cannot see any difference between the early human being you were and the late human being you are because in both cases, you were and you are a member of our species ..."
On the subject of whether or not the embryos constitute property, Dr. Lejeune testified that no scientist has ever offered the opinion that an embryo is property; that he had never heard one of his colleagues say to him or to anyone else that a frozen embryo is the property of somebody, that it could be sold, that it could be destroyed like property.
Dr. Lejeune offered the opinion that the person to have custody of the embryos is the person who "... would preserve the life of the embryos ... the Solomon decision. The Mother is the one who prefers the baby be given to another than the baby being killed. Then I would suppose that the justice would be on the side of Solomon ..."
(1) Pursuant to an in-chambers conference between the Court and Counsel of record on September 7, 1989, Counsel for Mr. and Mrs. Davis agreed that it would be stipulated that subsequent to August 10, 1989, Mrs. Davis became domiciled in the state of Florida. As of September 19, 1989, no Order memorializing this stipulation has been tendered to the Court for entry.
(2) As used in the context of the Court's Findings of Fact and Conclusions of Law, in vitro fertilization means the fertilization of a human ovum by a human sperm in a laboratory container. Testimony at the trial described the entire process, about which there is no dispute. The term is used by the Court interchangeably as "in vitro," "IVF" or "in vitro fertilization."
(3) Cryopreservation is a procedure whereby the cells of plants or animals are subjected to freezing in a laboratory and unthawed through a step by step procedure for later use. Liquid nitrogen is generally utilized as the freezing agent.
(4) Ova are unfertilized human eggs.
(5) Aspiration is the process by which ova are surgically withdrawn from the ovary.
(6) Insemination is the placing together of the sperm and the ova.
(7) Zygote: "unfertilized ovum." (Dictionary of Medical Terms for the Nonmedical Person, Second Edition, 1989, Rothenberg & Chapman)
(8) Implantation is the process whereby the physician deposits a zygote in the human uterus.
(9) Cleavage: "Process of dividing, as of the fertilized egg into successive multiples of cells, from the single cell; line formed by a groove between two parts." (Dictionary of Medical Terms for the Nonmedical Person, Second Edition, 1989, Rothenberg & Chapman)
(10) Embryo: "... a beginning or undeveloped stage of anything ..." (Webster's New Collegiate Dictionary, 1951, G. & C. Merriam Co.)
(11) Preembryo: The human entity existing before the passage of fourteen days of development, prior to attachment to the uterine wall and the development of the primitive streak. The term is used by some to distinguish a difference between a zygote in its early stages and an embryo in its later stages. The Court deals specifically with this terminology and makes a specific finding of fact about the term.
(12) Expert Witness: Reference is made to Appendix A relative to the way the opinion testimony of expert witnesses is to be treated under applicable Tennessee law.
(13) Dr. Irving Ray King is a Medical Doctor, licensed by the state of Tennessee and has been involved in the subspecialty of Gynecology, Infertility/Reproductive Endocrinology, for some twelve years. He operates the Fertility Center of East Tennessee, Knoxville, Tennessee.
(14) See Exhibit 6 for the personal data sheet outlining Dr. Shivers' educational and professional involvement in biology, chemistry and embryology.
(15) See Exhibit 5 for Professor Robertson's cirriculum vita.
(16) Dr. Jerome Lejeune is a Medical Doctor, Doctor in Science, Professor of Fundamental Genetics on the Faculty of Medicine of Paris, France, a Practioner at l'H Hospital des Enfants Malades, Paris, France, former Professor of Human Genetics at the California Institute of Technology, the discoverer of Down's Syndrome, recipient of the Kennedy Prize for the discovery of Down's Syndrome, Recipient of the Memorial Allen Award Medal, for the discovery of Down's Syndrome, a member of the American Academy of Arts of Science, the Royal Science of Medicine in London, England, Royal Society of Science in Stockholm, Sweden, the Science Academy in Italy, the Science Academy in Argentina, the Pontifical Academy of Science, the Vatican, the Institute of France of the Academie de Science Morale et Politique, Paris, France and the Academy of Medicine, Paris, France.
(17) Websters New Collegiate Dictionary, (Second Edition).
(18) Webster's New Collegiate Dictionary, (Second Edition).
(19) Appendix B to the Court's Opinion constitutes a summarized version of the testimony given by each witness at the trial; it does not purport to be transcript of the testimony.
(20) Gamete: "A matured sex cell or germ cell, usually haploid in chromosome number, capable of uniting with another of like origin to form a new plant or animal." (Webster's New Collegiate Dictionary, Second Edition)
(21) Procreate: "To generate and produce; to begat." (Webster's New Collegiate Dictionary, Second Edition)
(22) Dr. Alec Jeffreys: A British Genetist.
(23) DNA: (Deoxyndonucleic Acid) "Large molecule, shaped like a double helix and found primanly in the chomosomes of the cell nucleus, that contains the genetic information of the cell. The genetic information is coded in the sequence of subunits (nucleotides) making up the DNA molecule." (Dictionary of Medical Terms for the Nonmedical Person, Second Edition, 1989, Rothenberg & Chapman).
(24) The Report is entitled "Ethical Considerations of the New Reproductive Technologies" and appears in the September, 1986 (Vol. 46, No. 3) publication of Fertility and Sterility, Supplement 1, the official journal of the American Fertility Society. The American Fertility Society is sometimes referred to in the Opinion as "AFS".
(25) See Plaintiff's Brief in Support of Plaintiffs Statement of Issues, filed July 14, 1989.
(26) AFS Publication, Vol. 46, No. 3, Page v.
(27) AFS Publication, Vol. 46, No. 3, Page iii.
(28) AFS Publication, Vol. 46, No. 3, Page v, vi, vii.
(29) AFS Publication, Vol. 46, No. 3, Page v, vi, vii.
(30) AFS Publication, Vol. 46, No. 3, Page 29S.
(31) AFS Publication, Vol. 46, No. 3, Page 30S.
(32) AFS Publication, Vol. 46, No. 3, Page 77S.
(33) Probative Evidence: "In the law of evidence, the effect of proof; tending to prove, or actually proving. Testimony carrying quality of proof and having fitness to induce conviction of truth, consisting of fact and reason co-operating as a co-ordinate factors." (Black's Law Dictionary, 5th Edition)
(34) See Plaintiff's Brief in Support of Plaintiff's Statement of Issues, filed July 14, 1989, Page 5.
(35) Romeo and Juliet (Act 11, Scene 11).
(36) Differentiate: "1. to distinguish by a specific difference; develop differential characteristics or forms in. 2. to ascertain or express the specific difference of; discriminate ... to acquire a distinct character; to become differentiated." (Webster's New Collegiate Dictionary, Second Edition)
(37) Molecular Genetics: "that branch of genetics concerned with the chemical structure, functions, and replications of the molecules dioxynbonucleic acid (DNA) ribonucleic acid (RNA) -- involved in the transmission of hereditary information." (Dictionary of Medical Terms for the Nonmedical Person, Second Edition, 1989)
(38) Andrews v. State of Florida, 533 So. 2nd 841 (1988) (Review denied 1989)
(39) Andrews v. State of Florida, 533 So. 2nd 841 (1988) (Review denied 1989)
(40) Chromosome: "Threadlike structure in every cell nucleus that carries the inheritance factors (genes); composed of DNA ... and a protein (usually histone). A human cell normally contains 46 chromosomes, or 22 homologus pairs and one pair of sex chromosomes; one member of each pair of chromosomes is derived from each parent." (Dictionary of Medical Terms for the Nonmedical Person, Second Edition, 1989)
(41) Dr. King and Dr. Shivers gave testimony to the effect that with normal coital sex, a pregnancy resulted in only about 25% of the cases; that in noncoital reproduction, such as in vitro, the chances of a pregnancy resulting were somewhat increased and that Mrs. Davis probably had about a 52% of becoming pregnant utilizing all seven cryogenically preserved embryos.
(42) See Plaintiffrs Original Complaint, Page 2, Paragraph 8.: "Plaintiff alleges that said fertilized eggs at present constitute property jointly owned by the parties ..."
(43) Fungible Things: "Moveable goods which may be estimated and replaced according to weight, measure and number. Things belonging to a class, which do not have to be dealt with in specie ..." (Black's Law Dictionary, Second Edition)
(44) See Defendant's Brief filed July 17, 1989.
(45) Conception: "... beginning ..." (Webster's New Collegiate Dictionary, Second Edition)
(46) Tennessee Code Annotated Sec 20-5-106(b).
(47) Tennessee Code Annotated Sec 39-15-201(c)(1)(2)(3). [The effective date of this statute is November 1, 1989]
(48) In Smith v. Gore, 728 SW 2nd 738, the Court said: "... nevertheless, 'public policy is the present concept of public welfare or general good.'" [citations omitted]
(49) Webster v. Reproductive Health Services, Et Al, 109 Supreme Court Reporter 3040 (1989)
(50) The term "viability" has the generally accepted meaning as set-forth in the Tennessee Wrongful Death Statute, which definition is set-forth in the text of the Court's Opinion.
(51) Roe v. Wade, 93 Supreme Court 705 (1973)
(52) Royal Jewelers Co. of Knoxville v. Hake, 205 SW 2nd 963 (1947)
(53) Cavender v. Hewitt, 239 SW 767 (1922)
(54) Smith v. Gore, 728 SW 2nd 738 (1987)
(55) Smith v. Gore, 728 SW 2nd 738 (1987)
(56) Parens Patriae: "Father of his country; parent of the country. In England, the King. In the United States, the State, as a sovereign-referring to the sovereign power of guardianship over persons under disability ..." (Black's Law Dictionary, 3rd Edition)
(57) In Re: Baby M, 525 Atlantic Reporter 2nd 1128 (1987)
(58) In Re: Baby M, 525 Atlantic Reporter 2nd 1128 (1987)
(59) In Re: Baby M, 525 Atlantic Reporter 2nd 1128 (1987)
(60) In Re: Baby M, 525 Atlantic Reporter 2nd 1128 (1987)
(61) Tenessee Code Annotated Sec 36-6-101(a)
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