In Davis v. Davis, the Tennessee Supreme Court ruled in 1992 that when a divorcing couple fights over their frozen embryos and has no written agreement in place, the party who wants to avoid becoming a genetic parent generally prevails over the party who wants the embryos used or donated. The decision was the first American ruling to squarely address who controls stored embryos after a marriage ends, and it built a three-step framework that courts across the country still rely on when resolving these disputes.1The Climate Change and Public Health Law Site. Davis v. Davis, 842 S.W.2d 588
The Dispute Between Junior and Mary Sue Davis
Junior Davis and Mary Sue Davis went through six rounds of IVF during their nine-year marriage. Those efforts produced seven pre-embryos, which were frozen and stored at a Knoxville fertility clinic. When the couple divorced in 1989, they could not agree on what to do with the stored embryos, and the clinic’s consent form did not address the question.
Mary Sue initially wanted the embryos implanted so she could become pregnant. Junior objected because he did not want to father a child with his former spouse. By the time the case reached the Tennessee Supreme Court, both had remarried and Mary Sue had moved out of state. She no longer wanted implantation for herself; she wanted to donate the embryos to another couple. Junior remained opposed and preferred that the embryos be discarded.1The Climate Change and Public Health Law Site. Davis v. Davis, 842 S.W.2d 588
How the Court Classified Frozen Embryos
Before the court could decide who won, it had to decide what the embryos actually were in the eyes of the law. It rejected both obvious answers. Pre-embryos are not “persons” under Tennessee or federal law because they have not been born. They are not ordinary property either, because their potential to develop into human life sets them apart from household goods or bank accounts.2The Climate Change and Public Health Law Site. Davis v. Davis The Tennessee Supreme Court Decision
The court placed pre-embryos in an “interim category” deserving special respect because of their biological potential. That classification is the foundation for everything else in the opinion. Judges cannot divide embryos like marital assets or award custody of them like children, so standard divorce law does not fit and a different rule was needed.3Embryo Project Encyclopedia. Davis v. Davis 1992
The Three-Step Framework for Resolving Embryo Disputes
The Tennessee Supreme Court laid out a hierarchy for resolving any dispute over stored embryos, designed so that judges use the most direct evidence of the parties’ wishes before making their own judgment call.
- Step one. Look at the current preferences of both parties. If they agree at the time of the dispute on what should happen to the embryos, the court honors that mutual decision.
- Step two. If the parties disagree or their current wishes cannot be determined, enforce any prior written agreement they signed, such as a fertility clinic consent form specifying what happens to embryos in the event of divorce.
- Step three. If no prior agreement exists, apply a balancing test that weighs each person’s interest in using or not using the embryos.
The court’s own summary put it this way: disputes should be resolved “first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the preembryos must be weighed.”2The Climate Change and Public Health Law Site. Davis v. Davis The Tennessee Supreme Court Decision
Why the Balancing Test Tilts Toward the Objecting Party
The balancing test draws on two branches of procreational autonomy the U.S. Constitution protects: the right to have biological children and the right to avoid having them. When one ex-spouse wants the embryos used and the other wants them destroyed or left frozen, those two rights collide.
The right to avoid procreation carries heavy weight because forced genetic parenthood creates a permanent, irreversible connection to a child the person never chose to bring into the world.1The Climate Change and Public Health Law Site. Davis v. Davis, 842 S.W.2d 588 The party who wants to use the embryos can still prevail, but generally only by showing that no other reasonable path to biological parenthood exists. If that person could achieve parenthood through another IVF cycle, a new partner, or other means, their claim to the disputed embryos weakens. The court was clear that this is a case-by-case evaluation, not a rigid formula.3Embryo Project Encyclopedia. Davis v. Davis 1992
Some states have explored arrangements where the non-using party relinquishes all parental rights and financial obligations like child support. Courts scrutinize those arrangements closely, and their enforceability is far from guaranteed. The possibility that an unwilling genetic parent could still face legal responsibilities is exactly the kind of irreversible harm the balancing test is designed to prevent.
How the Court Ruled on the Facts
Applying its own framework, the court ruled for Junior Davis. No prior agreement existed because the Knoxville clinic’s consent form did not address embryo disposition upon divorce, which sent the case to the balancing test. Mary Sue no longer wanted the embryos for herself; she wanted to donate them. The court found that Junior’s interest in avoiding parenthood outweighed Mary Sue’s interest in donating the embryos to strangers, particularly because donation was not her only path to helping others build a family.1The Climate Change and Public Health Law Site. Davis v. Davis, 842 S.W.2d 588
The court noted that if Mary Sue had been seeking to use the embryos herself and had no other way to achieve biological parenthood, the outcome might have been different. The rule is not that the objecting party always wins. In this case, Mary Sue’s changed circumstances weakened her claim.
How Other States Have Applied Davis
Davis became the blueprint courts across the country follow when couples fight over frozen embryos. The balancing test and three-step hierarchy have been adopted or adapted in numerous states, with some variation in how strictly each step is applied.
In Illinois, the appellate court in Szafranski v. Dunston followed the Davis approach but reached the opposite result on the facts. That court held that disputes should be resolved first by honoring any advance agreement, and second by weighing the parties’ relative interests if no agreement exists. On the merits, the court awarded the pre-embryos to Karla Dunston because they represented her last and only opportunity to have a biological child with her own eggs, and the parties had formed an oral agreement that she could use them.4Illinois Courts. Szafranski v. Dunston, 2015 IL App (1st) 122975-B
Other states have taken a harder line toward enforcing clinic consent forms as contracts, treating the prior agreement as essentially dispositive and rarely reaching the balancing test at all. The same facts can produce different outcomes depending on where the case is heard.
Embryo Personhood Rulings and the Threat to the Davis Framework
The entire Davis framework rests on the premise that frozen embryos are not legal persons. That premise is now under direct challenge. In February 2024, the Alabama Supreme Court ruled in LePage v. Center for Reproductive Medicine that frozen embryos qualify as “children” under the state’s wrongful death statute. The majority relied on Alabama’s broad statutory definition of “unborn child” as a human being “at any stage of development, regardless of viability.”5Justia Law. LePage v. Center for Reproductive Medicine, P.C., 2024
The practical fallout was immediate. Multiple Alabama fertility clinics temporarily stopped offering IVF out of fear that the routine creation, freezing, and occasional disposal of embryos could expose them to wrongful death lawsuits. The Alabama legislature responded within weeks by passing a law granting civil and criminal immunity for damage to embryos during IVF treatment, but that fix did not change the underlying personhood classification.
At the federal level, the Protect IVF Act was introduced in the 119th Congress (2025–2026), though its passage remains uncertain.6Congress.gov. S.2035 – Protect IVF Act As of mid-2025, at least 17 states have established some form of fetal rights through legislation or court decisions, and roughly two dozen more include language in existing statutes that could be read to cover embryos. If more states classify embryos as persons, the Davis “interim category” would be overridden by law in those jurisdictions, potentially making embryo disposal illegal and embryo disputes indistinguishable from child custody battles.
What This Means if You Are Storing Embryos
The single most important thing couples can do before starting IVF is sign a detailed written agreement covering what happens to any stored embryos if they divorce, separate, or disagree. Under the Davis framework, that agreement is the strongest protection either party has. Without one, a judge decides at step three, and the outcome depends on facts that may shift over years of storage.
Clinic consent forms are a starting point, but they vary widely in how thoroughly they address disposition. Some forms include specific provisions for divorce; others leave that question blank or buried in boilerplate. Couples who want real protection should review these forms carefully and consider whether a separate agreement drafted with legal counsel makes sense. The Davises reached the Tennessee Supreme Court because their clinic’s form was silent on divorce. Signing something that answers the question in advance keeps you out of step three entirely.