Future Shock

Given the growing popularity of in-vitro fertilization, it was just a matter of time before a case like this one arose. During nine years of marriage, Junior Davis, 30, and his wife Mary Sue, 28, tried repeatedly and unsuccessfully to have a child. That experience led the couple six years ago to a fertility clinic in Knoxville, where eggs taken from Mrs. Davis were fertilized in a laboratory with her husband's semen.

Several unsuccessful attempts to implant them in her uterus followed. Meanwhile the marriage disintegrated. Last month, when the couple began divorce proceedings, seven of the fertilized eggs remained in cold storage at Knoxville's Fort Sanders Regional Medical Center. Now a custody battle is shaping up that may make the Baby M. case look simple by comparison: a court in Blount County, Tenn., must decide who gets the eggs.

Mrs. Davis says the eggs are "potential life" that she may want to use herself or donate to another woman. Her husband maintains they are "property jointly owned" and asserts that he does not want to be forced into fatherhood. Her lawyer, J.G. Christenberry, says that even when a relationship falls apart after a couple has conceived, the father does not have a right to halt the pregnancy.

Though there is only about a 15% chance that an implanted egg will result in childbirth, in-vitro techniques have been responsible for more than 5,000 births in the U.S. since 1978. The Davis case is the first battle for possession of the eggs. Legal experts have been warning that couples who enter fertility programs should draw up agreements dictating the fate of such eggs should there be a death or divorce. Says Ellen Wright Clayton, assistant professor of law and pediatrics at Vanderbilt University: "Fertilized eggs are going to give rise to a whole new set of legal issues."

Despite his wife's pledge not to seek child support in the event that she gives birth, Davis, a refrigeration-maintenance engineer, would remain legally liable for such support. His lawyer, Charles Clifford, says that Davis "cannot envision ever agreeing to letting Mrs. Davis have the eggs implanted into her, or donated to a third party." Adds Clifford: "He was hoping that it was just going to be a simple no-fault divorce."