I’m more than a little reluctant to write this column. Whatever I write will be interpreted through another lens: that of the abortion debate. One of the many bad consequences of a debate that has now lasted more than four decades is that we can’t talk about anything without first trying to fit it within the abortion debate, which is not necessarily the only or best way to look at it.
So just for a moment, let’s assume that Roe v. Wade is the law of the land, as it has been for more than four decades, and just focus on the question at hand:
A husband and wife freeze their embryos. Eventually, the couple ends up divorcing. The man doesn’t want to be a father with his ex-wife. His ex-wife is a 46-year-old woman who froze these embryos before she had cancer treatment. She has about zero chance of getting pregnant without them. What do you do?
For the lawyers, this question is made easier by two points: the couple signed a form provided by the clinic in which they agreed to destroy the embryos if they divorced; and they’re in California, where, until this week, no court had ever ruled on the question. That’s because surrogacy is legal in California, and contracts are generally enforceable.
“It is a disturbing consequence of modern biological technology that the fate of nascent human life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles,” the judge wrote. She went on to enforce the contract, finding that the wife, an anesthesiologist, was smart enough to understand what she was signing.
The wife, Dr. Mimi Lee, did sign a contract. And contracts are enforceable by courts. On the other hand, if a contract is against public policy, that is grounds for non-enforcement.
I don’t care what kind of contract she signed, I have never heard of a case in which a woman was forced to terminate a pregnancy because the man didn’t want to father a child with her. That a woman lied about taking birth control is no defense for the father in a paternity claim.
The Superior Court wrote a careful, 83-page opinion, but there are some pretty gaping holes. For instance, Lee’s expert said she had a .03 percent chance of getting pregnant, while the fertility clinic said the chances of pregnancy were between 0 percent and 5 percent. On this basis, the court concluded that she hadn’t proved that this was her only chance. Getting pregnant at 46 after cancer treatment is both stunningly impossible and, in the eyes of many oncologists, dangerous — doing it within five years of treatment can contribute to a recurrence. And then there are the mega-fertility-drugs she would need to take.
No, it seems to me that there’s nowhere to hide: She wants to be a mother; he doesn’t want to be a father. An embryo is not life, but it isn’t an expensive painting or a block of stock, either. Commodifying it, treating it like any other object of a contract, seems wrong — not from the point of view of the expanding cells in the embryo, but from that of the parents, and especially the mother. The ex-husband can look forward to someday having a family with another woman. Dr. Lee is losing the only chance she has at what is, for many of us, the most important thing we ever do, which is to have our children.
As we say in the legal world, hard cases make bad law.