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The Tennessee Embryos - Part Two

JUST when it seemed that reproductive technology could not get more complicated than the Baby M custody case, a divorcing couple in Knoxville, Tenn., made headlines with another kind of custody battle, this one asking: Who is entitled to seven frozen embryos? The wife, Mary Sue Davis, sought the right to use the embryos to try to become pregnant. Her estranged husband, Junior Lewis Davis, sued for veto power, arguing that he did not want to become a father.

Last September, after a judge awarded temporary custody of the embryos - which he called ``preborn children'' - to Mrs. Davis, Mr. Davis appealed. The case disappeared from the front page, but not from court dockets. Next Wednesday, the Tennessee Court of Appeals will hear oral arguments in that appeal.

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But in another bizarre twist, Mary Sue Davis Stowe - who recently remarried and lives in Florida - now wants to donate the embryos to a fertility clinic so another childless couple can use them.

Her former husband objects. ``There is just no way I am going to donate them,'' Mr. Davis told the Associated Press. ``If there was a child from them, then I would be a parent to it. And I don't want a child out there to be mine if I can't be a parent to it.''

This court battle is reminiscent of a case in 1983, when two embryos were ``orphaned'' in an Australian clinic after the parents, a wealthy Los Angeles couple, were killed in a plane crash. And last year another California couple sought to have their embryo shipped from a fertility clinic in Norfolk, Va., to Los Angeles, where they now live. The clinic's refusal led the couple to accuse it of ``kidnapping'' the embryo.

Twelve years ago next month, when the world heralded the birth in England of the world's first test-tube baby, Louise Brown, dilemmas like these were unimaginable. So euphoric were reproductive specialists, in fact, that one professor in California compared this in vitro fertilization to man's landing on the moon in 1969. Now, he said, man had conquered ``inner space'' as well.

Not quite. Success rates for in vitro fertilization - an expensive, time-consuming procedure - still average only 10 percent, dashing the hopes of many couples who long desperately for children. And the legal, ethical, and moral limbo exemplified by highly publicized custody cases makes uneasy witnesses of all of us. Who could a remain detached spectator three years ago when the Whiteheads and Sterns argued in a New Jersey court for the ``best interests'' of a baby girl born under a surrogate contract. And what parent did not share in the confusion and distress last fall as the Davises fought in a Tennessee courtroom for the ``best interests'' of seven embryos?

If, as Mr. Davis hopes, those embryos are destroyed, what term is most appropriate to describe the act? Murder? An abortion of sorts? Or merely the disposal of property?

If, on the other hand, the embryos are donated to a fertility clinic, what then? If they are successfully implanted and brought to term, will Mrs. Stowe and Mr. Davis be notified? Will they be identified in birth records as the genetic parents? Might Mary Davis Stowe, who during the trial called herself ``the mother of these embryos,'' change her mind and want her baby (or babies), as Mary Beth Whitehead did? Or will the embryos' future be shrouded in secrecy, leaving the donors forever wondering about their status as parents?

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A law professor at the trial described embryos as ``a group of undifferentiated cells.'' The judge ruled that they were ``human beings from conception.'' At a time when abortion remains one of the most divisive issues on the nation's legal and moral agenda, the debate over these definitions is likely to be prolonged.

What is just for the father and the mother? What is right for the child? The questions are old. Unfortunately, the answers - amid the sci-fi contingencies that connect to parents' hearts at one end and biotechnology at the other - appear less clear, if anything, than before the Baby M trial. Those embryos stored in liquid nitrogen at the Fertility Center of Eastern Tennessee only serve as reminders that the issues they represent cannot and should not be put into a deep freeze until the next court case heats up another headline.

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