Judge: Life Begins at Conception

MARYVILLE, Tenn.--In an unprecendented divorce case, a woman seeking control of seven frozen embryos was awarded temporary custody yesterday by a judge who ruled that life begins at conception and that the woman should be allowed to carry them to term.

Blount County Circuit Judge W. Dale Young, ruling in favor of Mary Sue Davis over her estranged husband, Junior Lewis Davis, declared that their embryos were children, not property.

"I'm thrilled. It's definitely what I wanted," Mrs. Davis told a news conference in Titusville, Fla., where she now lives.

The ex-husband said he would appeal in the state court system, and potentially beyond. "They are going to force me to become a father against my wishes," Mr. Davis said.

Mrs. Davis said she would not try to get pregnant before January. "I'm waiting to see about the appeal then hopefully after that try to have a child," she said.

"As far as we are aware, this is the first judicial decision which has declared an embryo a human being," said Charles Clifford, Mr. Davis' attorney, adding that he would ask the court to prevent his client's ex-wife from implanting the embryos until appeals are settled.

Clifford said the ruling could conflict with the Supreme Court's landmark Roe v. Wade decision allowing women to have abortions. Janet Mayfield, the attorney who will handle Mr. Davis' appeal, said the decision might also conflict with state laws on property interests and anatomical gifts.

The case grew out of the decade-old technology of "test-tube babies," or in-vitro fertilization. The Davises became embroiled in the dispute after they were unable to have children and turned to in-vitro fertilization.

The couple produced nine embryos in December. Two were implanted in Mrs. Davis but failed to develop. The others were put in cold storage. But then, Mr. Davis sued for divorce in February.

During testimony in August, Davis, 31, said he would feel "raped of my reproductive rights" if Mrs. Davis were allowed to implant the embryos without his consent.

Mrs. Davis, 29, argued the embryos represent her best chance of becoming a mother. She contended that Mr. Davis was seeking a right not normally given to a man--whether a child should be born after he has fertilized the egg of his mate.

After declaring the embryos to be children, Young in effect treated the case like a custody dispute, in which the overriding concern is the best interest of the child.

"From fertilization, the cells of a human embryo are differentiated, unique and specialized to the highest degree of distinction," the judge said. Thus, he said, "human life begins at conception."

Young said Mrs. Davis could have temporary custody so that she could have the eggs implanted in her womb in hopes of becoming pregnant. Child support, visitation and final custody will be decided if a birth results, he wrote.

"It was the toughest decision of my life as a judge," Young said in an interview. "On a scale of one to 10, it was a 10. I have agonized over it."

In the in-vitro process, eggs are extracted surgically from a woman's body and mixed with sperm in a laboratory dish. Those that are fertilized can be implanted in the womb. Testimony indicated the success rate for the procedure averages about one in five.