At Law: Parenthood and Frozen Embryos More Than Property and Privacy

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It is time, Lori Andrews once announced in these pages, start acknowledging that people's parts are their personal property.[1] Her suggestion was prompted by the case John Moore brought against the University of California at Los Angeles and others for using his blood to develop a patented (and commercially valuable) cell line without informing him of what was going on. The California Supreme Court eventually rejected Andrews's suggestion, holding that Moore might have a case of fiduciary breach but not of property conversion.[2] Another test for the body-as-property theory came on 1 June 1992, when the Supreme Court of Tennessee handed down its decision in Davis v. Davis. This case began as a dispute between a divorcing couple who--during the course of six failed attempts at reproducing through in fertilization (IVF)--had left seven frozen in a liquid nitrogen tank at a fertility clinic. Mary Sue Davis wanted to have the pre-embryos implanted in her uterus in a further attempt to become pregnant, while Junior Davis wanted them left frozen. In a divorce proceeding, property is typically divided evenly between the parties: from a set of eight Chippendale chairs each would get four, unless one wanted the whole set and the other accepted some other property of equal value. In awarding custody of children, however, a court exercises its parens patriae authority to find an arrangement that would serve the children's interests. Extending Andrew's analysis, the pre-embryos in the Davis case were not my body for either Mr. or Mrs. Davis, but rather our body--seven pieces of property. The trial court declined, however, to treat the pre-embryos like Chippendale chairs. Instead it declared them to be in vitro and concluded that their best interests would be served by awarding their custody to Ms. Davis, since she offered the greatest hope the embryos would be carried to term. In 1990 the Tennessee Court of Appeal reversed, giving the parties joint control and an equal voice over the embryos' disposition.[3] The court based its holding on Mr. Davis's constitutional right of privacy, which protected his choice not to beget a child. The state has no compelling interest, the appellate court found, that would allow it to order implantation against the will of one of the parties. Although largely affirming the appellate decision, the Tennessee Supreme Court focused on what is really at issue: choice about relationships. The need to think in such terms--rather than in terms of property or privacy, to cite two competing paradigms--is underscored by another recent and perhaps even more bizarre case, the fraud and perjury trial of Dr. Cecil Jacobson in the U.S. District Court in Alexandria, Virginia. The Overeager Inseminator In March, Dr. Jacobson was sentenced to five years in prison for using his own semen in artificial insemination (AID) of patients who thought the semen had come from anonymous donors or, in at least one case, from the woman's husband. The evidence presented at trial showed that Dr. Jacobson had fathered fifteen children, but the prosecutors speculated that the true total exceeded seventy. Plainly, these women and their husbands wanted children through AID and presumably cherish the children that Dr. Jacobson helped them to bear. Yet the fact that Dr. Jacobson made himself the father of these children angered the couples and led to his prosecution. Their anger and his conviction were justified because his actions radically altered the relationship his patients had with him without their knowledge or consent. Dr. Jacobson's wrong is not well captured within the rubric of (if anything remains of that concept after the U.S. Supreme Court's recent Casey decision)[4] because Roe v. Wade had defined the unit for privacy analysis as the-physician-and-his-patient. …