It’s bad enough to have children with someone and then get divorced — but what about getting divorced and then having kids with your ex? It may seem preposterous, but there are people who want to do exactly that. Well, to be fair, post-divorce procreation was not their original plan. These unfortunate souls are the ones who made embryos with their partners while still together, then they became infertile — typically because of an illness like cancer. The embryos, now frozen, are their last shot at having a kid with their genes. Their ex doesn’t want this to occur, for obvious reasons. A nasty court battle ensues.
In a fascinating California court ruling, the judge lamented that such battles are “a disturbing consequence of modern biological technology.” She then ruled that no, the unwilling ex in this case would not be forced into fatherhood. The embryos must be thawed and discarded.
This is not always the result, though. The 83-page judgment, which nicely summarizes the current state of American law on embryo fights, lays out various possibilities. It depends of course on the circumstances, and on which U.S. state the lawsuit occurs in, but — on more than one occasion — an unwilling ex has been forced to become a parent with the very person from whom they just bitterly split. Awkwaaard!
True, there is a twisted argument that it’s good for a child to be born into an already-broken home. After all, with a nearly 50-50 chance of parents divorcing, why not get it over with? That way, at least the kid won’t ever have to worry about mom and dad splitting up. This is a strange and rocky conceptual road to go down, though.
The almost-father in this case, business executive Stephen Findley, told the court how repugnant it would be to force him to procreate with his former wife Mimi Lee, a musician and anesthesiologist who had been diagnosed with breast cancer just before the marriage, and decided with Findley to create and store embryos to preserve her fertility. Apart from the obvious weirdness of having a kid with your ex, Findley said at trial that the whole thing reeked of extortion. He testified that the following conversation took place:
“How much are the embryos worth?” Lee asked him.
“What do you mean?” he retorted.
“Do I get a $1 million for those? $2 million for those? For each one?”
He said he refused to have that discussion. It made him feel sick to his stomach. He went on to testify that Lee also said: “you know, at some point if we have kids from those embryos, you should be worried about what I’ll say to them if you’re not generous to me.”
Not pretty. But in the eyes of the judge (Justice Anne-Christine Massullo, California Superior Court, pictured below),
Findley’s worries about extortion, and about the potential awkwardness of procreating with his ex, were not the reasons he won. While his concerns were “valid both from a financial and practical perspective,” Justice Massullo ruled that “in and of themselves, these concerns are not enough to dramatically weigh in his favor.”
After all, she said, family courts “routinely” deal with thorny issues such as divorced parents making disparaging remarks about each other in front of the children, and bitter disputes over custody, visitation and support.
No, the reason Findley won was something much simpler: it was the contract he and Lee entered into when they created the embryos. The contract said that in the event of divorce, the embryos would be thawed and discarded. And contracts occupy a holy place in law. For one thing, they show the intent of the parties, which ought to be followed. And, as long as they are not illegal, contracts are a key part of our freedom. To illustrate, Justice Massullo quoted an antique California case from 1894: “People of full age and competent understanding shall have the utmost liberty of contract, and their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice.”
(Lee argued that the “competent understanding” requirement had not been met, because she didn’t understand what she was signing. The judge rejected that argument, noting that Lee, being a Harvard graduate, a medical doctor, and a Juilliard-trained concert pianist, is not what you’d call an “unsophisticated” person!)
In California this “contractual approach” to embryo fights is the governing rule, but it is not the only approach. There is also the “balancing approach,” where the focus is on weighing the rights of both parties — the right to reproduce, versus the right not to. There is also a third approach, so far used only in Iowa, called “contemporaneous mutual consent.” Forget prior contracts, forget balancing — what counts is what both parties say right now, and they both have to agree. Justice Massullo rejected this as being a recipe for coercion and extortion. Imagine, she warned, “giving an antagonized ex-spouse the power to either block parentage, or to name the price that potential parentage will cost.”
For the sake of argument, Justice Massullo applied the balancing approach to the case at bar, even though it’s not the correct approach in California, and even though it was unnecessary since she had already decided the case under the contractual approach. She arrived at the same result — Findley would not be forced into fatherhood.
True, the judge said, Lee — like anyone else — has the constitutional right to reproduce, a right which was first affirmed in the sad 1942 case Skinner v. Oklahoma, where authorities wanted to sterilize “habitual criminal” Jack Skinner and keep his evil genes from the human gene pool, after the sorry, one-footed drifter was convicted once for chicken-stealing, and twice for armed robbery. The U.S. Supreme Court said no.
That’s all well and good, said Justice Massullo: Lee has a general right to reproduce. But she does not have the right to reproduce with Findley. And the judge found that Lee, after the relationship began to break down, failed to safeguard her general right in that she never tried to freeze her eggs in the hopes she might reproduce someday with, say, a new partner, or a sperm donor.
Lee’s eggs might still have been okay, because it turned out her cancer was treated with drugs only, not radiation or chemo. True, she was 43 when the relationship soured, so freezing eggs may well not have worked — but then again, it might have. The judge’s point was: she didn’t even try.
Would the case have gone the other way if the facts had been different? Suppose Lee had tried to freeze her eggs after her marriage went bad? Suppose she was seen as entirely blameless, and she really just wanted to be a bio-mom — somehow, anyhow? It is not outlandish to imagine that, with those different facts, Justice Massullo might have bent the rules and allowed the embryos to be used, contract-be-damned.
And the rationale would be compelling: if it’s somebody’s last shot at genetic parenthood, should this not trump the ex’s desire, albeit an entirely reasonable desire, to avoid procreation?
Indeed, there is a 2012 appellate-level decision from Pennsylvania (the only appellate case so far in the U.S.) called Reber v. Reiss, where the court decided this way. True, there was no prior contract here saying what to do with the embryos in the event of divorce, but it’s not hard to imagine that this kind of reasoning could pull the heart strings of judges in future cases, even where there is a prior contract. “Ordinarily the party wishing to avoid procreation should prevail,” said the court. “But in our balancing of the facts unique to this case, we find that wife’s inability to achieve biological parenthood without the use of the pre-embryos is an interest which outweighs husband’s desire to avoid procreation.”
There is no end to the discussions, ethical and legal, that can be had with this type of issue. We’re not sure if there is a right or wrong answer. What do you think?
Bill Rogers is a Toronto-based lawyer, journalist, and family law mediator.