by Jodi Picoult
“This is not just a custody case, Your Honor. This is a wake-up call to keep alive the cornerstone of our society—the traditional Christian family. Because research and basic common sense say that kids need both male and female role models and that the absence of this can have dire consequences, from academic struggles to poverty to high-risk behaviors. Because when traditional family values fall apart, the casualties tend to be children. Max Baxter, my client, knows that, Your Honor. And that’s why he is here today, to protect the three pre-born children conceived while he was married to the defendant, Zoe Baxter. All my client is asking the court to do today is to allow him to complete the original intent of these two parties—namely, to allow those children to be parented by a heterosexual, married couple. To let them thrive, Your Honor, in a traditional Christian family.”
Wade points a finger, bulleting that phrase as he repeats it. “A traditional family. That’s what Max and Zoe envisioned, when they took advantage of the science that is available to create these blessings, these pre-born children. Now, unfortunately, Max and Zoe’s marriage is no longer intact. And Max is not at a point in his life where he has remarried. But Max recognizes that he owes his pre-born children a debt, and so he is making a decision in the best interests of the children, instead of the best interests of himself. He’s identified his brother, Reid—a fine, upstanding man you will hear from—and his wife, Liddy—a paragon of Christian virtue in this community—as future parents for his pre-born children.”
“Amen,” someone says behind me.
“Your Honor, you’ve made it clear to the parties and counsel in this matter that this is the final case you will be handling after your long and distinguished career on the bench. It’s fit and proper that you be put in the position of protecting the traditional family here in Rhode Island—a state that was founded by Roger Williams, who fled to the colonies for religious freedom. Rhode Island, one of the last bastions in New England—a state holding true to Christian family values. But just to play devil’s advocate, let’s look at the alternative. Although Max has nothing against his ex-wife, Zoe is now living in sin with her lesbian lover—”
“Objection,” Angela Moretti says.
“Sit down, Counselor,” the judge replies. “You’ll have your chance.”
“These two women had to get married in the state of Massachusetts, because this one—their home state—does not legally recognize their same-sex union. Neither the government nor God sees their marriage as valid. Now, let’s imagine that these pre-born children wind up in that household, Your Honor. Imagine a young boy with two mommies, exposed to a homosexual lifestyle. What’s going to happen to him when he goes to school and is teased for having two mothers? What’s going to happen when, as studies show, he winds up gay himself because of the way he was raised? Judge, you grew up with a father. And you yourself have been a father. You know what these roles have meant to you. I beg you, on behalf of Max Baxter’s pre-born children, don’t let your decision today deny them the same opportunity.” He turns to the gallery. “Once we drive that final nail into the coffin of traditional family values,” Wade says, “we’ll never be able to resurrect them.”
He sits back down, and Angela Moretti stands up.
“If it looks like a family, talks like a family, acts like a family, and functions like a family,” she says, “then it’s a family. The relationship between my client, Zoe Baxter, and Vanessa Shaw is not housemates or roommates but life partners. Spouses. They love each other, they are committed to each other, and they function as a unit, not just as individuals. The last time I checked, that was a valid definition of a family.
“Mr. Preston would like to seduce you with talk of the demise of the traditional family. He raised the fact that Rhode Island is a state that was founded on religious freedom, and we could not agree more. We also know, however, that not every resident in the state of Rhode Island believes what Mr. Preston and his client do.” She turns to the gallery. “Moreover, Rhode Island does recognize the relationship between Zoe and Vanessa. For fifteen years, the state has offered limited legal rights to same-sex domestic partnerships. This very court routinely grants second-parent adoptions for gay and lesbian families. And, in fact, Rhode Island was one of the first states in the country to have a gender-neutral birth certificate that lists not mother and father but rather parent and parent.
“Unlike Mr. Preston, however, I don’t think this case is about general family values. I think it’s about one particular family.” She glances at Zoe. “The embryos in question today were created during the marriage of Zoe and her ex-husband, Max Baxter. These embryos are property that was not divided in the divorce settlement. There are two biological progenitors of these embryos—the plaintiff and the defendant, and they have equal rights to the embryos. The difference here, though, is that Max Baxter no longer wants to have a baby. He’s using biology as a trump card to gain an advantage, to take the embryos away from an intended parent and her legal spouse. If Your Honor rules in my client’s favor, we would make every effort to include the other biological progenitor of the embryos—Max—as part of this family. We believe there can’t be too many people to love a child. However, if Your Honor rules against my client, Zoe—the mother of these embryos—will be prevented from raising her biological children.”
She gestures at Zoe. “You’ll hear testimony, Your Honor, about medical complications that have left Zoe unable to gestate her own embryos. At this point in her life, she doesn’t have the time left in her reproductive cycle to go through additional in vitro procedures to harvest more eggs. Zoe, who so desperately wants to have a baby, is being robbed of that opportunity by her ex-husband—who doesn’t even want a child. He isn’t fighting for the right to be a parent. He’s fighting to make sure that Zoe isn’t one.”
Angela Moretti looks at the judge. “Mr. Baxter’s attorney has raised a lot of questions about God and what God wants and what God intends a family to be. But Max Baxter is not asking for God’s blessing here, to be a parent. He’s not asking God what the best situation for these embryos is.”
She faces me, and, in that moment, I can barely breathe. “Max Baxter is asking you to play God instead,” she says.
Being on the witness stand, Pastor Clive says, is like testifying at church. You just get up there and tell your story. It doesn’t matter if it’s humiliating or hard to relive. What’s important is that you’re a hundred percent honest, because that’s how people become convinced.
Pastor Clive is one of the witnesses out there waiting in whatever limbo they’ve been sent to, and I sorely wish that wasn’t the case. I could use his strength right now, just so that I have someone to focus on while I’m on the witness stand. As it is, I have to keep wiping my palms on my pants, because I’m sweating so much.
What calms me down, actually, is the sheriff coming at me with a Bible. At first I think he’s going to ask me to read a passage, and then of course I remember how every trial starts. Do you swear to tell the truth, the whole truth, and nothing but the truth? I rest my hand on the worn leather cover. Immediately, my heart stops its jackhammering. You’re not alone up there, Pastor Clive had said, and sure enough, he’s right.
Wade and I have rehearsed my part a dozen times. I know the questions he’s going to ask, so I’m not worried about that. What’s getting me all tied up in knots is what happens when he’s done, when Angela Moretti has her turn to rip me apart.
“Max,” Wade begins, “why have you petitioned the court for custody of these pre-born children?”
“Objection,” Angela Moretti says. “It’s one thing to listen to him calling embryos ‘pre-born children’ during his opening statement, but are we going to have to listen to this through the entire trial?”
“Overruled,” the judge replies. “I don’t care about semantics, Ms. Moretti. You say tomayto, I say tomahto. Mr. Baxter, answer the question.”
I take a deep breath. “I want to make sure they have a wonderful life, with
my brother, Reid, and his wife, Liddy.”
His wife, Liddy. The words burn my tongue.
“Why didn’t you negotiate custody in your divorce agreement?”
“We didn’t have lawyers; we did our own divorce settlement. I knew we were supposed to divide up the property, but these . . . these were children.”
“Under what circumstances were these pre-born children created?” Wade asks.
“When Zoe and I were married, we wanted to have kids. We wound up having in vitro fertilization five times.”
“Which of you two is infertile?”
“We both are,” I say.
“How was the in vitro done?”
As Wade walks me through our medical history, I feel a sad emptiness in my stomach. Could a marriage of nine years really come down to this: two miscarriages, one stillbirth? It is hard to imagine that all that’s left behind are some legal documents, and this trail of blood.
“How did you react to the stillbirth?” Wade says.
It sounds awful to say so, but when a baby dies, I think the mother has it easier. She can grieve on the outside; her loss is something everyone can actually see in the slope of her belly. For me, though, the loss was on the inside. It ate away at me. So that, for a long time, all I wanted to do was fill myself.
God knows I tried to, with alcohol.
My eyes are tearing up; this embarrasses me. I duck my head. “I may not have shown it the way Zoe did,” I say, “but it wrecked me. Completely. I knew I couldn’t go through that again even though she wanted to.” Looking up, I find Zoe staring right at me. “So I said I wanted a divorce.”
“What was your life like after that, Max?”
Just like that, my throat seems to turn into cotton, so that I feel like if I don’t have a drink I’ll die. I force myself to think of Liddy, the other night, sitting on the edge of my bed, praying over me. “I went through a bad time. I missed a lot of work opportunities. And I started drinking again. My brother took me into his home, but I kept digging myself deeper and deeper into a hole. And then one day, I crashed my truck into a tree and wound up in the hospital.”
“Did things change after that?”
“Yes,” I say, “I found Jesus.”
“Objection, Your Honor,” Angela Moretti says. “We’re in court, not a revival meeting.”
“I’ll allow it,” Judge O’Neill replies.
“So you became religious,” Wade prompts.
I nod. “I started going to the Eternal Glory Church, and talking to the pastor—Clive Lincoln. He saved my life. I mean, I was a complete mess. I’d screwed up my home life; I was an alcoholic, and I didn’t know anything about religion. I thought at first that, if I went to church, everyone would be judging me. But I was completely blown away. These people didn’t care who I was—they saw who I could be. I started going to adult Bible study, and to potluck dinners, and to the fellowship hour after Sunday’s services. They all prayed for me—Reid and Liddy and Pastor Clive and everyone else in the congregation. They loved me unconditionally. And one day I sat down on the edge of my bed and asked Jesus to be the Savior of my soul and the Lord of my life. When He did, the seed of the Holy Spirit was planted in my heart.”
When I finish, I feel like there’s light coming out from inside me. I look over at Zoe, who is staring at me as if she’s never seen me before.
“Your Honor,” Angela Moretti says. “Apparently Mr. Preston didn’t get the memo about the separation of church and state . . .”
“My client has the right to testify about what changed his life,” Wade answers. “Religion is what led Mr. Baxter to file this lawsuit.”
“In this particular case, I have to agree,” Judge O’Neill says. “Mr. Baxter’s spiritual transformation is intrinsic to the matter at hand.”
“I can’t believe this,” Angela Moretti mutters. “Literally and figuratively.” She sits back down, arms folded.
“Just to clarify,” Wade asks me, “do you still drink alcohol?”
I think about the Bible I’ve sworn on. I think about Liddy, who so badly wants this baby. “Not a drop,” I lie.
“How long have you been divorced?”
“It’s been final for about three months, now.”
“After your divorce, when was the next time you thought about your pre-born children?”
“Objection! If he’s going to keep calling these embryos children, Your Honor, I’m going to keep objecting—”
“And I’m going to keep overruling,” Judge O’Neill says.
When Wade and I practiced the answer to this question, he suggested I say, Every day. But I am thinking of how I lied about drinking, and how I can feel Jesus just behind me, and how He knows when you aren’t being true to yourself or to Him. So when the judge looks at me for a response, I say, “Not until Zoe came to talk to me about them, a month ago.”
For a second, I think Wade Preston is going into cardiac arrest. Then his features smooth. “And what did she say?”
“She wanted to use them to have a baby with her . . . with Vanessa.”
“How did you react?”
“I was shocked. Especially at the thought of my baby growing up in a house full of sin—”
“Objection, Your Honor!”
“Sustained,” the judge says.
Wade doesn’t even bat an eyelash. “What did you tell her?”
“That I needed time to think about it.”
“And what conclusion did you reach?”
“That it wasn’t right. God doesn’t want two women to raise a baby. My baby. Every child is supposed to have a mother and a father; that’s the natural order of things, according to the Bible.” I think about those animal cutouts Liddy and I made for the Sunday School kids. “I mean, you don’t see the animals going on the ark in girl-girl pairs.”
“Objection,” Angela Moretti says. “Relevance?”
“Sustained.”
“Max,” Wade asks, “when did you find out your ex-wife had embraced a lesbian lifestyle?”
I glance at Zoe. It is hard for me to imagine her touching Vanessa. It makes me feel like this new life of hers is a sham, or else ours was, and I just can’t let myself go there. “After we split up.”
“How did it make you feel?”
As if I had swallowed tar. As if I had opened my eyes and the world was suddenly only black and white, and no matter how I rubbed my eyes I could not bring the color back. “Like there was something wrong with me,” I say tightly. “Like I wasn’t good enough for her.”
“Did your opinion of Zoe change after you learned that she is living in a homosexual lifestyle?”
“Well, I prayed for her, because it’s a sin.”
“Do you see yourself as anti-gay, Max?” Wade asks.
“No,” I reply. “Never. I’m not doing this to hurt Zoe. I loved her, and I can’t erase the nine years we were married. I wouldn’t want to. I just need to look out for my children.”
“If this court sees fit to give you back your pre-born children, what’s your intention?”
“They deserve the best parents any kid could have. But I’m smart enough to realize that means someone other than me. That’s why I would want my brother, Reid, to have them. He and Liddy—they’ve taken care of me, they’ve loved me, they’ve believed in me. I’ve changed so much, for the better, because of them. I know I’d be part of the babies’ extended family, and that they would be raised in a Christian, two-parent household. They’d go to Sunday School and to church, and they’d grow up loving God.” I glance up, just like Wade told me to, and I say what we’ve practiced. “Pastor Clive told me that God doesn’t make mistakes, that everything happens for a reason. For a long time, I believed my life was a mistake. That I was a mistake. But now I know I’m not. This was God’s plan all along—to bring me together with Reid and Liddy at the same time my pre-born children needed a home and a family.” I nod, convincing myself. “This is what I was put on this earth to do.”
“N
othing further,” Wade says, and, with an encouraging nod at me, he sits down.
When Angela Moretti starts walking forward, I realize what she reminds me of: some kind of jungle cat. A panther, I guess, with all that black hair. “Mr. Baxter, through the four years of your marriage when you tried naturally to conceive, and the five years of fertility treatments—did you believe Zoe would make a good mother?”
“Of course.”
“What is it today that makes her any less fit to raise a child?”
“She’s living a lifestyle that I think is wrong,” I say.
“It’s different from yours, granted,” the lawyer corrects. “Is the fact that she’s a lesbian the only detriment you see to Zoe being a parent?”
“It’s a pretty big deal. God explains in the Bible that—”
“This is a yes or no question, Mr. Baxter. Is that the only negative thing you have to say about Zoe’s ability to be a good mother?”
“Yes,” I say quietly.
“Isn’t it true, Mr. Baxter, that you still have sperm with which to create more embryos?”
“I don’t know. I have male pattern infertility—which means, if I do, it won’t be easy.”
“Yet you don’t want these embryos. You want to give them away.”
“I want these children to have the best life possible,” I say. “And I know that means having a mother and a father.”
“In fact you were raised by a mother and a father, isn’t that right, Mr. Baxter?”
“Yes.”
“And yet, you still ended up a drunk, divorced loser living in your brother’s guest room.”
I can’t help it, I come halfway out of my witness chair.