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Tennessee Judge Reverses Lower Court;
Finds Fertilized Eggs Not Persons
For IMMEDIATE RELEASE
October 1, 1990
In a ruling that will protect important medical interests and
the future of scientific research, the Tennessee Court of Appeals
has declared that four-celled human embryos do not have the same
legal status as persons born alive.
The decision, in the landmark appeal of Davis v. Davis,
involved a divorced couple who were unable to agree on how to
dispose of seven four- and eight-celled frozen embryos that they
had jointly created. A lower court judge had ruled that "life
begins at conception" and, because the embryos were persons, that
they must be awarded to the woman, who could further develop
The Tennessee Court of Appeals reversed the lower court's
finding, holding that embryos were not "persons" under either the
United States Constitution or Tennessee law.
"The opinion has reversed, at least for now, a dangerous
precedent that had threatened constitutional, religious and
medical interests important to us all," said Janet Benshoof,
Director of the American Civil Liberties Union's Reproductive
Freedom Project, which filed a friend-of-the-court brief in the
"As the Davis case demonstrates," said David L. Goldberg, an
ACLU cooperating attorney who wrote the brief, "it is essential
that we retain a voice in cases, large and small, in which our
constitutional freedoms, including the freedom to pursue
scientific and medical advances, are implicated."
The lower court's opinion made clear that it was primarily
concerned with the rights of the seven embryos, not of the couple
that had produced them. The judge, for example, concluded that
"human life begins at the moment of conception" and that "the
best interests of the children, existing in vitro," would be
served best by awarding them to the woman.
In its brief, in which the ACLU represented thirteen medical
and religious organizations and individuals, the ACLU argued that
the court's finding that the embryos were "children" with
separate legal interests violated both the U.S. Constitution and
Tennessee law. The organizations represented by the ACLU included
the American Society of Human Genetics, the National Society of
Genetics Counselors, the American Public Health Association, the
Association of Reproductive Health Professionals, the American
Fertility Society, Catholics for Free Choice, the Religious
Coalition for Abortion Rights, Americans United for Separation of
Church and State and Americans for Religious Liberty.
The brief also said that the notion of so-called "embryonic
rights" or "fetal rights" threatened all reproductive rights,
especially access to developing medical technologies such as in
vitro fertilization, and access to post-implantation
The Court of Appeals agreed, writing: "Even after viability,
human embryos are not given legal status equivalent to that of a
person already born."
"In recent years," Benshoof said, "a deliberate collateral
attack on abortion rights has come in the form of efforts to gain
legal rights for the fetus in non-abortion contexts -- such as
forced surgery on pregnant women to help fetuses, criminal
prosecutions of pregnant women who may be drug abusing, and bans
on fetal tissue research and fetal experimentation.
"The Tennessee decision decisively states that frozen embryos
are not people subject to the normal custody and visitation
rulings in a divorce court," she added. "This decision has, at
least for the moment, dispelled the chilling effect of the lower
court's ruling on genetic and fertility research. It should
serve as a sterling precedent to guard against any similar
attacks on women's rights and scientific endeavor in the future."