Document Type

Article

Disciplines

International Law

Abstract

In the dozen years since in vitro fertilization (IVF) led to the world's first "test-tube" baby1 and painted a suddenly brilliant horizon for millions of infertile couples, the legal and ethical dilemmas accompanying biotech developments have remained largely overshadowed by the abortion debate that has transfixed the American consciousness since Roe v. Wade.2 When these dilemmas have surfaced, they have illustrated how immensely difficult it is to find principled, policy-oriented solutions to problems that implicate fundamental concerns such as when life begins and, more basically, what constitutes life itself. More importantly, they have served to illustrate the need to re-examine how society shapes law and public policy as they are affected by the advances of science.

In the 1989 case of Davis v. Davis,' a Tennessee circuit court judge deciding a divorce action issued an unprecedented ruling that IVF-created human embryos are children and awarded them to the former wife in a custody dispute for purposes of implantation and pregnancy.

This Note considers the problems posed by the court's decision relative to what status and rights, if any, the law should afford an embryo, and how public policy ought to be shaped when society has not reached a consensus on complex issues involving law and medicine. This Note first examines the legal treatment of IVF and the status accorded the embryo in the past decade by various international bodies. It then outlines the factual history of Davis and the court's opinion in light of the status of the embryo and IVF in the United States.

This Note contends that the court's finding was improper, unnecessary and analytically lacking, and that public policy in the United States concerning IVF embryos and the parties responsible for their creation should not be left to state courts and state legislatures. Instead, a federally appointed body of medical and legal experts should recommend to Congress uniform national legislation modeled on the carefully considered findings of major international bodies over the past decade. Such laws should preserve privacy rights relative to procreation, while delineating the rights and obligations of IVF participants.

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