Davis v. Davis

OPINION

This appeal presents a question of first impression, involving the disposition of the cryogenically-preserved product of in vitro fertilization (IVF), commonly referred to in the popular press and the legal journals as “frozen embryos.” The case began as a divorce action, filed by the appellee, Junior Lewis Davis, against his then wife, appellant Mary Sue Davis. The parties were able to agree upon all terms of dissolution, except one: who was to have “custody” of the seven “frozen embryos” stored in a Knoxville fertility clinic that had attempted to assist the Davises in achieving a much-wanted pregnancy during a happier period in their relationship.

I. Introduction

Mary Sue Davis originally asked for control of the “frozen embryos” with the intent to have them transferred to her own uterus, in a post-divorce effort to become pregnant. Junior Davis objected, saying that he preferred to leave the embryos in their frozen state until he decided whether or not he wanted to become a parent outside the bounds of marriage.

Based on its determination that the embryos were “human beings” from the moment of fertilization, the trial court awarded “custody” to Mary Sue Davis and directed that she “be permitted the opportunity to bring these children to term through implantation.” The Court of Appeals reversed, finding that Junior Davis has a “constitutionally protected right not to beget a child where no pregnancy has taken place” and holding that “there is no compelling state interest to justify [] ordering implantation against the will of either party.” The Court of Appeals further held that “the parties share an interest in the seven fertilized ova" and remanded the case to the trial court for entry of an order vesting them with “joint control ... and equal voice over their disposition.”

*590 Mary Sue Davis then sought review in this Court, contesting the validity of the constitutional basis for the Court of Appeals decision. We granted review, not because we disagree with the basic legal analysis utilized by the intermediate court, but because of the obvious importance of the case in terms of the development of law regarding the new reproductive technologies, and because the decision of the Court of Appeals does not give adequate guidance to the trial court in the event the parties cannot agree.

We note, in this latter regard, that their positions have already shifted: both have remarried and Mary Sue Davis (now Mary Sue Stowe) has moved out of state. She no longer wishes to utilize the “frozen embryos” herself, but wants authority to donate them to a childless couple. Junior Davis is adamantly opposed to such donation and would prefer to see the “frozen embryos” discarded. The result is, once again, an impasse, but the parties’ current legal position does have an effect on the probable outcome of the case, as discussed below.

At the outset, it is important to note the absence of two critical factors that might otherwise influence or control the result of this litigation: When the Davises signed up for the IVF program at the Knoxville clinic, they did not execute a written agreement specifying what disposition should be made of any unused embryos that might result from the cryopreservation process. Moreover, there was at that time no Tennessee statute governing such disposition, nor has one been enacted in the meantime. 1

In addition, because of the uniqueness of the question before us, we have no case law to guide us to a decision in this case. Despite the fact that over 5,000 IVF babies have been born in this country and the fact that some 20,000 or more “frozen embryos” remain in storage, there are apparently very few other litigated cases involving the disputed disposition of untrans-ferred “frozen embryos,” and none is on point with the facts in this case. 2

But, if we have no statutory authority or common law precedents to guide us, we do have the benefit of extensive comment and analysis in the legal journals. In those articles, medical-legal scholars and ethicists have proposed various models for the disposition of “frozen embryos” when unanticipated contingencies arise, such as divorce, death of one or both of the parties, financial reversals, or simple disenchantment with the IVF process. Those models range from a rule requiring, at one extreme, that all embryos be used by the gamete-providers or donated for uterine transfer, and, at the other extreme, that any unused embryos be automatically discarded. 3 Other formulations would vest control in the female gamete-provider — in every case, because of her greater physical and emotional contribution to the IVF process, 4 or perhaps only in the event that she wishes to use them herself. 5 There are also two “implied contract” models: one would infer from enrollment in an IVF program that the IVF clinic has authority to decide in the event of an impasse whether to donate, *591 discard, or use the “frozen embryos” for research; the other would infer from the parties’ participation in the creation of the embryos that they had made an irrevocable commitment to reproduction and would require transfer either to the female provider or to a donee. There are also the so-called “equity models”: one would avoid the conflict altogether by dividing the “frozen embryos” equally between the parties, to do with as they wish; 6 the other would award veto power to the party wishing to avoid parenthood, whether it be the female or the male progenitor. 7

Each of these possible models has the virtue of ease of application. Adoption of any of them would establish a bright-line test that would dispose of disputes like the one we have before us in a clear and predictable manner. As appealing as that possibility might seem, we conclude that given the relevant principles of constitutional law, the existing public policy of Tennessee with regard to unborn life, the current state of scientific knowledge giving rise to the emerging reproductive technologies, and the ethical considerations that have developed in response to that scientific knowledge, there can be no easy answer to the question we now face. We conclude, instead, that we must weigh the interests of each party to the dispute, in terms of the facts and analysis set out below, in order to resolve that dispute in a fair and responsible manner.

II. The Facts

Mary Sue Davis and Junior Lewis Davis met while they were both in the Army and stationed in Germany in the spring of 1979. After a period of courtship, they came home to the United States and were married on April 26, 1980. When their leave was up, they then returned to their posts in Germany as a married couple.

Within six months of returning to Germany, Mary Sue became pregnant but unfortunately suffered an extremely painful tubal pregnancy, as a result of which she had surgery to remove her right fallopian tube. This tubal pregnancy was followed by four others during the course of the marriage. After her fifth tubal pregnancy, Mary Sue chose to have her left fallopian tube ligated, thus leaving her without functional fallopian tubes by which to conceive naturally. The Davises attempted to adopt a child but, at the last minute, the child’s birth-mother changed her mind about putting the child up for adoption. Other paths to adoption turned out to be prohibitively expensive. In vitro fertilization became essentially the only option for the Davises to pursue in their attempt to become parents.

As explained at trial, IVF involves the aspiration of ova from the follicles of a woman’s ovaries, fertilization of these ova in a petri dish using the sperm provided by a man, and the transfer of the product of this procedure into the uterus of the woman from whom the ova were taken. 8 Implantation may then occur, resulting in a pregnancy and, it is hoped, the birth of a child.

Beginning in 1985, the Davises went through six attempts at IVF, at a total cost of $35,000, but the hoped-for pregnancy' never occurred. Despite her fear of needles, at each IVF attempt Mary Sue underwent the month of subcutaneous injections necessary to shut down her pituitary gland and the eight days of intermuscular injections necessary to stimulate her ovaries to produce ova. She was anesthetized five times for the aspiration procedure to be performed. Forty-eight to 72 hours after *592 each aspiration, she returned for transfer back to her uterus, only to receive a negative pregnancy test result each time.

The Davises then opted to postpone another round of IVF until after the clinic with which they were working was prepared to offer them cryogenic preservation, scheduled for November 1988. Using this process, if more ova are aspirated and fertilized than needed, the conceptive product may be cryogenically preserved (frozen in nitrogen and stored at sub-zero temperatures) for later transfer if the transfer performed immediately does not result in a pregnancy. The unavailability of this procedure had not been a hinderance to previous IVF attempts by the Davises because Mary Sue had produced at most only three or four ova, despite hormonal stimulation. However, on their last attempt, on December 8, 1988, the gynecologist who performed the procedure was able to retrieve nine ova for fertilization. The resulting one-celled entities, referred to before division as zygotes, were then allowed to develop in petri dishes in the laboratory until they reached the four- to eight-cell stage.

Needless to say, the Davises were pleased at the initial success of the procedure. At the time, they had no thoughts of divorce and the abundance of ova for fertilization offered them a better chance at parenthood, because Mary Sue Davis could attempt to achieve a pregnancy without additional rounds of hormonal stimulation and aspiration. They both testified that although the process of cryogenic preservation was described to them, no one explained the ways in which it would change the nature of IVF for them. 9 There is, for example, no indication that they ever considered the implications of storage beyond the few months it would take to transfer the remaining “frozen embryos,” if necessary. There was no discussion, let alone an agreement, concerning disposition in the event of a contingency such as divorce.

After fertilization was completed, a transfer was performed as usual on December 10; 1988; the rest of the four- to eight-cell entities were cryogenically preserved. Unfortunately, a pregnancy did not result from the December 1988 transfer, and before another transfer could be attempted, Junior Davis filed for divorce— in February 1989. He testified that he had known that their marriage “was not very stable” for a year or more, but had hoped that the birth of a child would improve their relationship. Mary Sue Davis testified that she had no idea that there was a problem with their marriage. 10 As noted earlier, the divorce proceedings were complicated only by the issue of the disposition of the “frozen embryos.”

III. The Scientific Testimony

In the record, and especially in the trial court’s opinion, there is a great deal of discussion about the proper descriptive terminology to be used in this case. Although this discussion appears at first glance to be a matter simply of semantics, semantical distinctions are significant in this context, because language defines legal status and can limit legal rights. 11 Obviously, an “adult” has a different legal status than does a “child.” Likewise, “child” means something other than “fetus.” 12 A “fe *593 tus” differs from an “embryo.” There was much dispute at trial about whether the four- to eight-cell entities in this case should properly be referred to as “embryos” or as “preembryos,” with resulting differences in legal analysis.

One expert, a French geneticist named Dr. Jerome Lejeune, insisted that there was no recognized scientific distinction between the two terms. He referred to the four- to eight-cell entities at issue here as “early human beings,” as “tiny persons,” and as his “kin.” Although he is an internationally recognized geneticist, Dr. Le-jeune’s background fails to reflect any degree of expertise in obstetrics or gynecology (specifically in the field of infertility) or in medical ethics. His testimony revealed a profound confusion between science and religion. For example, he was deeply moved that “Madame [Mary Sue], the mother, wants to rescue babies from this concentration can,” and he concluded that Junior Davis has a moral duty to try to bring these “tiny human beings” to term. 13

Dr. LeJeune’s opinion was disputed by Dr. Irving Ray King, the gynecologist who performed the IVF procedures in this case. Dr. King is a medical doctor who had practiced as a sub-speciality in the areas of infertility and reproductive endocrinology for 12 years. He established the Fertility Center of East Tennessee in Knoxville in 1984 and had worked extensively with IVF and cryopreservation. He testified that the currently accepted term for the zygote immediately after division is “preembryo” and that this term applies up until 14 days after fertilization. He testified that this 14-day period defines the accepted period for preembryo research. At about 14 days, he testified, the group of cells begins to differentiate in a process that permits the eventual development of the different body parts which will become an individual.

Dr. King’s testimony was corroborated by the other experts who testified at trial, with the exception of Dr. Lejeune. It is further supported by the American Fertility Society, an organization of 10,000 physicians and scientists who specialize in problems of human infertility. The Society’s June 1990 report on Ethical Considerations of the New Reproductive Technologies 14 indicates that from the point of fertilization, the resulting one-cell zygote contains “a new hereditary constitution (genome) contributed to by both parents through the union of sperm and egg.” Id. at 31S. Continuing, the report notes:

The stage subsequent to the zygote is cleavage, during which the single initial cell undergoes successive equal divisions with little or no intervening growth. As a result, the product cells (blastomeres) become successively smaller, while the > size of the total aggregate of cells remains the same. After three such divisions, the aggregate contains eight cells in relatively loose association ... [E]ach blastomere, if separated from the others, has the potential to develop into a complete adult.... Stated another way, at the 8-cell stage, the developmental singleness of one person has not been established.

Beyond the 8-cell stage, individual blas-tomeres begin to lose their zygote-like properties. Two divisions after the 8-cell stage, the 32 blastomeres are increasingly adherent, closely packed, and no longer of equal developmental potential. The impression now conveyed is of a multicellular entity, rather than of a loose packet of identical cells.

As the number of cells continues to increase, some are formed into a surface layer, surrounding others within. The outer layers have changed in properties toward trophoblast ..., which is destined [to become part of the placenta]. The less-altered inner cells will be the source of the later embryo. The developing entity is now referred to as a blastocyst, characterized by a continuous peripheral layer of cells and a small cellular popula *594 tion within a central cavity ... It is at about this stage that the [normally] developing entity usually completes its transit through the oviduct to enter the uterus.

Cell division continues and the blastocyst enlarges through increase of both cell number and [volume]. The populations of inner and outer cells become increasingly different, not only in position and shape but in synthetic activities as well. The change is primarily in the outer population, which is altering rapidly as the blastocyst interacts with and implants into the uterine wall ... Thus, the first cellular differentiation of the new generation relates to physiologic interaction with the mother, rather than to the establishment of the embryo itself. It is for this reason that it is appropriate to refer to the developing entity up to this point as a preembryo, rather than an embryo.

Id. at 31S-32S (emphasis added). For a similar description of the biologic difference between a preembryo and an embryo, see Robertson, In the Beginning: The Legal Status of Early Embryos, 76 Va. L.Rev. 437 (1990), in which the author summarizes the findings of Clifford Grobstein in The Early Development of Human Embryos, 10 J.Med. & Phil. 213 (1984).

Admittedly, this distinction is not disposi-tive in the case before us. 15 It deserves emphasis only because inaccuracy can lead to misanalysis such as occurred at the trial level in this case. The trial court reasoned that if there is no distinction between embryos and preembryos, as Dr. Lejeune theorized, then Dr. Lejeune must also have been correct when he asserted that “human life begins at the moment of conception.” From this proposition, the trial judge concluded that the eight-cell entities at issue were not preembryos but were “children in vitro.” He then invoked the doctrine of parens patriae and held that it was “in the best interest of the children” to be born rather than destroyed. Finding that Mary Sue Davis was willing to provide such an opportunity, but that Junior Davis was not, the trial judge awarded her “custody” of the “children in vitro.”

The Court of Appeals explicitly rejected the trial judge’s reasoning, as well as the result. Indeed, the argument that “human life begins at the moment of conception” and that these four- to eight-cell entities therefore have a legal right to be born has apparently been abandoned by the appellant, despite her success with it in the trial court. 16 We have nevertheless been asked by the American Fertility Society, joined by 19 other national organizations allied in this case as amici curiae, to respond to this issue because of its far-reaching implications in other cases of this kind. We find the request meritorious.

IV. The “Person” vs. “Property” Dichotomy

One of the fundamental issues the inquiry poses is whether the preembryos in this case should be considered “persons” or “property” in the contemplation of the law. The Court of Appeals held, correctly, that they cannot be considered “persons” under Tennessee law:

The policy of the state on the subject matter before us may be gleaned from the state’s treatment of fetuses in the womb.... The state’s Wrongful Death Statute, Tenn.Code Ann. § 20-5-106 does not allow a wrongful death for a viable fetus that is not first born alive. Without live birth, the Supreme Court has said, a fetus is not a “person” within the meaning of the statute. See e.g., Hamby v. McDaniel, 559 S.W.2d 774 (Tenn.1977); Durrett v. Owens, 212 Tenn. 614, 371 S.W.2d 433 (1963); Shousha v. Matthews *595 Drivurself Service, 210 Tenn. 384, 358 S.W.2d 471 (1962); Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221 (1958). Other enactments by the legislature demonstrate even more explicitly that viable fetuses in the womb are not entitled to the same protection as “persons”. Tenn. Code Ann. § 39-15-201 incorporates the trimester approach to abortion outlined in Roe v. Wade, 410 U.S. 113 [93 S.Ct. 705, 35 L.Ed.2d 147] (1973). A woman and her doctor may decide on abortion within the first three months of pregnancy but after three months, and before viability, abortion may occur at a properly regulated facility. Moreover, after viability, abortion may be chosen to save the life of the mother. This statutory scheme indicates that as embryos develop, they are accorded more respect than mere human cells because of their burgeoning potential for life. But, even after viability, they are not given legal status equivalent to that of a person already born. This concept is echoed in Tennessee’s murder and assault statutes, which provide that an attack or homicide of a viable fetus may be a crime but abortion is not. See Tenn.Code Ann.

§§ 39-13-107 and 39-13-210.

Junior Lewis Davis v. Mary Sue Davis, Tennessee Court of Appeals at Knoxville, No. 190, slip op. at 5-6, 1990 WL 130807 (Sept. 13, 1990).

Nor do preembryos enjoy protection as “persons” under federal law. In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the United States Supreme Court explicitly refused to hold that the fetus possesses independent rights under law, based upon a thorough examination of the federal constitution, 17 relevant common law principles, and the lack of scientific consensus as to when life begins. The Supreme Court concluded that “the unborn have never been recognized in the law as persons in the whole sense.” Id. at 162, 93 S.Ct. at 731. As a matter of constitutional law, this conclusion has never been seriously challenged. 18 Hence, even as the Supreme Court in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), permitted the states some additional leeway in regulating the right to abortion established in Roe v. Wade, the Webster decision did no more than recognize a compelling state interest in potential life at the point when viability is possible. Thus, as Justice O’Connor noted, “[viability remains the ‘critical point.’ ” Id. at 529, 109 S.Ct. at 3062 (O’Connor, J., concurring). That stage of fetal development is far removed, both qualitatively and quantitatively, from that of the four- to eight-cell preembryos in this case. 19

Left undisturbed, the trial court’s ruling would have afforded preembryos the legal status of “persons” and vested them with legally cognizable interests separate from those of their progenitors. Such a decision would doubtless have had the effect of outlawing IVF programs in the state of Tennessee. But in setting aside the trial court’s judgment, the Court of Appeals, at least by implication, may have swung too far in the opposite direction.

The intermediate court, without explicitly holding that the preembryos in this case were “property,” nevertheless awarded “joint custody” of them to Mary Sue Davis and Junior Davis, citing T.C.A. §§ 68-30-101 and 39-15-208, and York v. Jones, 717 F.Supp. 421 (E.D.Va.1989), for the proposition that “the parties share an interest in *596 the seven fertilized ova.” The intermediate court did not otherwise define this interest.

The provisions of T.C.A. §§ 68-30-101 et seq., on which the intermediate appellate court relied, codify the Uniform Anatomical Gift Act. T.C.A. § 39-15-208 prohibits experimentation or research using an aborted fetus in the absence of the woman’s consent. These statutes address the question of who controls disposition of human organs and tissue with no further potential for autonomous human life; they are not precisely controlling on the question before us, because the “tissue” involved here does have the potential for developing into independent human life, even if it is not yet legally recognizable as human life itself.

The intermediate court’s reliance on York v. Jones, is even more troublesome. That case involved a dispute between a married couple undergoing IVF procedures at the Jones Institute for Reproductive Medicine in Virginia. When the Yorks decided to move to California, they asked the Institute to transfer the one remaining “frozen embryo” that they had produced to a fertility clinic in San Diego for later implantation. The Institute refused and the Yorks sued. The federal district court assumed without deciding that the subject matter of the dispute was “property.” The York court held that the “cryopreservation agreement” between the Yorks and the Institute created a bailment relationship, obligating the Institute to return the subject of the bailment to the Yorks once the purpose of the bailment had terminated. 717 F.Supp. at 424-425.

In this case, by citing to York v. Jones but failing to define precisely the “interest” that Mary Sue Davis and Junior Davis have in the preembryos, the Court of Appeals has left the implication that it is in the nature of a property interest. For purposes of clarity in future cases, we conclude that this point must be further addressed.

To our way of thinking, the most helpful discussion on this point is found not in the minuscule number of legal opinions that have involved “frozen embryos,” but in the ethical standards set by The American Fertility Society, as follows:

Three major ethical positions have been articulated in the debate over preembryo status. At one extreme is the view of the preembryo as a human subject after fertilization, which requires that it be accorded the rights of a person. This position entails an obligation to provide an opportunity for implantation to occur and tends to ban any action before transfer that might harm the preembryo or that is not immediately therapeutic, such as freezing and some preembryo research.

At the opposite extreme is the view that the preembryo has a status no different from any other human tissue. With the consent of those who have decision-making authority over the preembryo, no limits should be imposed on actions taken with preembryos.

A third view — one that is most widely held — takes an intermediate position between the other two. It holds that the preembryo deserves respect greater than that accorded to human tissue but not the respect accorded to actual persons. The preembryo is due greater respect than other human tissue because of its potential to become a person and because of its symbolic meaning for many people. Yet, it should not be treated as a person, because it has not yet developed the features of personhood, is not yet established as developmentally individual, and may never realize its biologic potential.

Report of the Ethics Committee of The American Fertility Society, supra, at 34S-35S.

Although the report alludes to the role of “special respect” in the context of research on preembryos not intended for transfer, it is clear that the Ethics Committee’s principal concern was with the treatment accorded the transferred embryo. Thus, the Ethics Committee concludes that “special respect is necessary to protect the welfare of potential offspring ... [and] creates obligations not to hurt or injure the offspring who might be born after transfer [by research or intervention with a preembryo].” Id. at 35S.

*597 In its report, the Ethics Committee then calls upon those in charge of IVF programs to establish policies in keeping with the “special respect” due preembryos and suggests:

Within the limits set by institutional policies, decision-making authority regarding preembryos should reside with the persons who have provided the gametes.... As a matter of law, it is reasonable to assume that the gamete providers have primary decision-making authority regarding preembryos in the absence of specific legislation on the subject. A person’s liberty to procreate or to avoid procreation is directly involved in most decisions involving preembryos.

Id. at 36S.

We conclude that preembryos are not, strictly speaking, either “persons” or “property,” but occupy an interim category that entitles them to special respect because of their potential for human life. It follows that any interest that Mary Sue Davis and Junior Davis have in the preembryos in this case is not a true property interest. However, they do have an interest in the nature of ownership, to the extent that they have decision-making authority concerning disposition of the preembryos, within the scope of policy set by law.

V. The Enforceability of Contract

Establishing the locus of the decision-making authority in this context is crucial to deciding whether the parties could have made a valid contingency agreement prior to undergoing the IVF procedures and whether such an agreement would now be enforceable' on the question of disposition. Under the trial court’s analysis, obviously, an agreement of this kind would be unenforceable in the event of a later disagreement, because the trial court would have to make an ad hoc “best interest of the child” determination in every case. In its opinion, the Court of Appeals did not address the question of the enforceability of prior agreements, undoubtedly because that issue was not directly raised on appeal. Despite our reluctance to treat a question not strictly necessary to the result in the case, we conclude that discussion is warranted in order to provide the necessary guidance to all those involved with IVF procedures in Tennessee in the future — the health care professionals who administer IVF programs and the scientists who engage in infertility research, as well as prospective parents seeking to achieve pregnancy by means of IVF, their physicians, and their counselors.

We believe, as a starting point, that an agreement regarding disposition of any untransferred preembryos in the event of contingencies (such as the death of one or more of the parties, divorce, financial reversals, or abandonment of the program) should be presumed valid and should be enforced as between the progenitors. This conclusion is in keeping with the proposition that the progenitors, having provided the gametic material giving rise to the preembryos, retain decision-making authority as to their disposition. 20

At the same time, we recognize that life is not static, and that human emotions run particularly high when a married couple is attempting to overcome infertility problems. It follows that the parties’ initial “informed consent” to IVF procedures will often not be truly informed because of the near impossibility of anticipating, emotionally and psychologically, all the turns that events may take as the IVF process unfolds. Providing that the initial agreements may later be modified by agreement will, we think, protect the parties against some of the risks they face in this regard. But, in the absence of such agreed modification, we conclude that their prior agreements should be considered binding.

*598 It might be argued in this case that the parties had an implied contract to reproduce using in vitro fertilization, that Mary Sue Davis relied on that agreement in undergoing IVF procedures, and that the court should enforce an implied contract against Junior Davis, allowing Mary Sue to dispose of the preembryos in a manner calculated to result in reproduction. The problem with such an analysis is that there is no indication in the record that disposition in the event of contingencies other than Mary Sue Davis’s pregnancy was ever considered by the parties, or that Junior Davis intended to pursue reproduction outside the confines of a continuing marital relationship with Mary Sue. We therefore decline to decide this case on the basis of implied contract or the reliance doctrine. 21

We are therefore left with this situation: there was initially no agreement between the parties concerning disposition of the preembryos under the circumstances of this case; there has been no agreement since; and there is no formula in the Court of Appeals opinion for determining the outcome if the parties cannot reach an agreement in the future.

In granting joint custody to the parties, the Court of Appeals must have anticipated that, in the absence of agreement, the preembryos would continue to be stored, as they now are, in the Knoxville fertility clinic. One problem with maintaining the status quo is that the viability of the pre-embryos cannot be guaranteed indefinitely. Experts in cryopreservation who testified in this case estimated the maximum length of preembryonic viability at two years. 22 Thus, the true effect of the intermediate court’s opinion is to confer on Junior Davis the inherent power to veto any transfer of the preembryos in this case and thus to insure their eventual discard or self-destruction.

As noted in Section I of this opinion, the recognition of such a veto power, as long as it applies equally to both parties, is theoretically one of the routes available to resolution of the dispute in this case. Moreover, because of the current state of law regarding the right of procreation, such a rule would probably be upheld as constitutional. Nevertheless, for the reasons set out in Section VI of this opinion, we conclude that it is not the best route to take, under all the circumstances.

VI. The Right of Procreational Autonomy

Although an understanding of the legal status of preembryos is necessary in order to determine the enforceability of agreements about their disposition, asking whether or not they constitute “property” is not an altogether helpful question. As the appellee points out in his brief, “[as] two or eight cell tiny lumps of complex protein, the embryos have no [intrinsic] value to either party.” Their value lies in the “potential to become, after implantation, growth and birth, children." Thus, the essential dispute here is not where or how or how long to store the preembryos, but whether the parties will become parents. The Court of Appeals held in effect that they will become parents if they both agree to become parents. The Court did not say what will happen if they fail to agree. We conclude that the answer to this dilemma turns on the parties’ exercise of their constitutional right to privacy.

The right to privacy is not specifically mentioned in either the federal or the Tennessee state constitution, and yet there can be little doubt about its grounding in the concept of liberty reflected in those two documents. In particular, the Fourteenth Amendment to the United States Constitution provides that “[n]o state shall ... de *599 prive any person of life, liberty, or property, without due process of law.” Referring to the Fourteenth Amendment, the United States Supreme Court in Meyer v. Nebraska observed:

While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923).

The right of privacy inherent in the constitutional concept of liberty has been further identified “as against the [power of] government, the right to be let alone— the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). As to scope, “the concept of liberty protects those personal rights that are fundamental, and it is not confined to the specific terms of the Bill of Rights.” Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1683, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring).

Moreover, the protection of fundamental rights is not confined to federal constitutional law. As the Minnesota Supreme Court noted in Thiede v. Town of Scandia Valley, 217 Minn. 218, 14 N.W.2d 400, 405 (1944) (citations omitted):

The entire social and political structure of America rests upon the cornerstone that all men have certain rights which are inherent and inalienable. Among these are the right to be protected in life, liberty, and the pursuit of happiness; the right to acquire, possess, and enjoy property; and the right to establish a home and family relations — all under equal and impartial laws which govern the whole community and each member thereof. The rights, privileges, and immunities of citizens exist notwithstanding there is no specific enumeration thereof in State Constitutions. ‘These instruments measure the powers of rulers, but they do not measure the rights of the governed.’ ‘The fundamental maxims of a free government seem to require, that the rights of personal liberty and private property should be held sacred.’ Government would not be free if they were not so held.

Hence, it is not surprising that in the Tennessee Constitution, the concept of liberty plays a central role. Article I, Section 8 provides:

That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.

Indeed, the notion of individual liberty is so deeply embedded in the Tennessee Constitution that it, alone among American constitutions, gives the people, in the face of governmental oppression and interference with liberty, the right to resist that oppression even to the extent of overthrowing the government. The relevant provisions establishing this distinctive political autonomy appear in the first two sections of Article I of the Tennessee Constitution, its Declaration of Rights:

Section 1. All power inherent in the people — Government under their control.

That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an inalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.

*600 Section 2. Doctrine of nonresistance condemned.

That government being instituted for the common benefit, the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.

The right to privacy, or personal autonomy (“the right to be let alone”), while not mentioned explicitly in our state constitution, is nevertheless reflected in several sections of the Tennessee Declaration of Rights, including provisions in Section 3 guaranteeing freedom of worship (“no human authority can, in any ease whatever, control or interfere with the rights of conscience”); those in Section 7 prohibiting unreasonable searches and seizures (“the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures”); those in Section 19 guaranteeing freedom of speech and press (“free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty”); and the provisions in Section 27 regulating the quartering of soldiers (“no soldier shall, in time of peace, be quartered in any house without the consent of the owner”).

Obviously, the drafters of the Tennessee Constitution of 1796 could not have anticipated