by Jodi Picoult
“Did your clinic assist them with that?” Angela asks.
“Yes,” Dr. Fourchette says, “we provided IVF services.”
“Can you describe the process for a couple that comes in for IVF treatments?”
“We begin by doing a medical workup—lots of testing to determine the causes for the infertility. Based on those causes, we chart a course of treatment. In the Baxters’ case, both Max and Zoe had fertility issues. For this reason we had to inject Max’s sperm individually into Zoe’s eggs. For her part, Zoe was on hormone therapy for weeks that allowed her to produce multiple eggs, which were harvested at a very precise time and fertilized with Max’s sperm. For example, during their first cycle, Zoe produced fifteen eggs, eight were successfully fertilized, and of those eight that were fertilized, two looked good enough to be transferred and another three looked good enough to be frozen for a future cycle.”
“What do you mean, ‘looked good enough’?”
“Some embryos just look a little more uniform, more regular than others.”
“Maybe someone’s playing them beautiful music or whispering words of gratitude,” Preston mutters. I glance over, but he’s poking through the medical file.
“Our policy is to only transfer two embryos per patient, three if she’s older, because we don’t want her winding up with multiples like the Octomom. If there are additional embryos that look good enough for future use, we freeze them.”
“What do you do with the ones that aren’t ‘good’?”
“They are discarded,” the doctor says.
“How?” Angela asks.
“Since they are medical waste, they’re incinerated.”
“What happened during Zoe’s last fresh cycle?”
Dr. Fourchette slides her glasses onto her nose. “She became pregnant at forty and carried the fetus to twenty-eight weeks, at which point it was delivered stillborn.”
“Were there embryos remaining after that procedure?”
“Yes, three. They were frozen.”
“Where are those embryos now?”
“They’re at my clinic,” the doctor says.
“Are they viable?”
“We won’t know until we thaw them,” she replies. “They could be.”
“Following that last procedure,” Angela asks, “when was the last time you saw Zoe?”
“She came to the clinic asking to use the embryos. I explained that, according to our policy, we could not release the embryos to her without her ex-husband’s signed consent.”
“Thank you, nothing further,” Angela says.
Wade Preston taps his finger on the plaintiff’s table, considering the doctor before he goes in for the kill. “Dr. Fourchette,” he says, “you say the embryos that aren’t ‘good’ are discarded. Incinerated?”
“That’s correct.”
“Incinerated means ‘burned,’ does it not?”
“Yes.”
“Which is in fact,” he says, standing, “what we sometimes do with people who die. Cremate them. Right?”
“True, but these embryos are not people.”
“And yet they’re treated in the same manner as a deceased person. You don’t flush them down the toilet—you reduce them to ash.”
“It’s important to note that sixty-five percent of embryos actually are abnormal and die on their own,” the doctor says. “And that both parties in this lawsuit actually signed a contract with the clinic agreeing to the incineration of embryos that were not appropriate to be transferred or frozen, among other things.”
At the word contract, Wade Preston turns. Angela, in front of me, snaps erect. And Judge O’Neill leans toward Dr. Fourchette. “Excuse me? There’s a contract?”
He asks to see it, and Dr. Fourchette hands over the document. The judge scans it for a few moments in silence. “According to this contract, in the event of divorce of these parties, any embryos that remain shall be destroyed by the clinic. Dr. Fourchette, why was this contract not carried out?”
“The clinic was unaware of the Baxters’ divorce,” the doctor says. “By the time we learned of it, it was clear that a lawsuit was about to be filed.”
The judge glances up. “Well. This makes my job a lot easier.”
“No,” Zoe breathes, at the same time that both Angela and Wade Preston leap up, shouting their objections.
“Your Honor, we need a recess—” Angela says.
“A chambers conference,” Preston interrupts.
Judge O’Neill shakes his head. “I do believe enough of my time has been wasted. Counsel, approach the bench.”
Zoe turns around, frantic. “He wouldn’t do that, would he? I can’t lose this baby to a technicality.”
“Ssh,” I say, but I’m not just trying to comfort her. The lawyers are in a heated discussion, and I’m close enough to hear. “Why did counsel not know about this contract?” the judge demands.
“My client never said anything about it, Your Honor,” Angela replies.
“Nor did mine. We didn’t even know this contract existed,” Preston adds.
“And yet both of your clients initialed this,” the judge points out. “I can’t just ignore the fact that a contract exists.”
“Circumstances have changed since the time it was signed,” Preston says.
“And there’s case law—”
The judge holds up his hand. “You have one day. Tomorrow at nine A.M. we’ll reconvene in a hearing about the enforceability of the contract.”
Angela reels back. “What?”
“We need more time,” Preston insists.
“You know what I need?” the judge storms. “I need attorneys who actually do their homework before walking into my courtroom. I need counselors who know basic contract law, something a 1L student would have easily flagged in this case. What I do not need are two whining, contentious attorneys who could be using their time to better advantage!” The clerk scrambles forward to make his announcement as Judge O’Neill strides off the bench, so that we all rise, too, like some magnetic aftereffect of his anger.
Angela finds a small conference room on the upper level of the courthouse and Zoe, Dara, and I follow her into it. “Talk,” she demands, sitting across from Zoe, who is a mess.
“He can’t really order the clinic to destroy the embryos if we both want them, right?” Zoe sobs.
“A contract’s a contract,” Angela says flatly.
“But this was a consent form. Like when you have anesthesia and they make you sign something just before you go under. All we wanted to do was have a baby. I figured we had to check off all the boxes if we were even going to be considered.”
Angela raises her brows. “So you didn’t read through the whole thing?”
“It was twenty pages long!”
Angela closes her eyes and shakes her head. “Great. Fabulous.”
“How long could this postpone the judge’s decision?” I ask. “That could affect the embryos, too.”
“He might be incredibly speedy,” Angela says. “He might just follow the damn contract and be done with it by nine-fifteen tomorrow morning. This certainly gives him an easy out, a legal precedent to follow. And it wouldn’t hurt his reputation any to have his judgment compared to the judgment of Solomon.” She stands and grabs her briefcase. “I’m outta here. I have a shitload to do before tomorrow morning.”
As the door closes behind her, Zoe buries her face in her hands. “We were so close,” she whispers.
Dara leans down to kiss the crown of Zoe’s head. “You need something to eat,” she says. “There is very little in this world that Oreos cannot solve.”
She goes to forage in a vending machine downstairs. Meanwhile I rub Zoe’s back, feeling utterly helpless. “Who the fuck is Solomon?” I ask.
A small laugh bubbles up from Zoe’s throat. “Really?”
“What? Is he some famous lawyer or politician I should know?”
She sits up, wiping her eyes. “He was a biblical king. Super
smart. When two women came to him with a baby, each claiming to be the mom, Solomon suggested cutting the baby in two with a sword so they could each have a piece. One woman got hysterical and said she’d rather give up the baby than kill it, and that’s how Solomon figured out who was the real mother.” Zoe hesitates. “I’d do that, you know. I’d give Max these embryos before I’d let them be destroyed.” She wipes her eyes. “You would have been such a fantastic mom, Vanessa.”
“It ain’t over till it’s over,” I reply.
I say this, because it’s what Zoe needs to hear.
But I’m already missing something I never even had.
MAX
When I come upstairs to the kitchen the next morning, Wade Preston is pouring maple syrup on a waffle. He looks well rested and sharp, which is more than I can say for me. I don’t think I got five minutes of sleep last night. Then again, I’m sure Wade has minions to do his legal research for him. He probably watched Leno and called it a night.
“Morning, Max,” Wade says. “I was explaining contract law to Reid, here.”
I smell mango and mint, like summertime, as Liddy leans over me to set a plate down. She is wearing a bathrobe. All the hair on the back of my neck stands up.
I wonder briefly why Wade is explaining his legal strategy to my brother instead of me. “If the old goat decides to follow the letter of the contract,” Wade says, “I can mobilize every pro-life group in this country. He’ll retire in the middle of the biggest shitstorm imaginable. He knows I’ve got that kind of pull, which leads me to believe that he’ll think twice before giving his ruling.”
“Then again,” Reid says, “if the church is the victim in this, it puts us in a very sympathetic light.”
I look at him. “Not the church.”
“I beg your pardon?” Wade asks.
“Not the church. Me. These are my embryos. My pre-born children.”
“Now, Max.” Wade takes a long sip of coffee, staring at me over the rim of his mug. “Don’t let the judge hear talk like that. You have no attachments here. These babies are destined to belong to your brother and his wife.”
There is a clatter in the sink. Liddy has dropped a spoon. She places it on the dish rack and turns to find us all staring at her. “I need to get dressed,” she says, and she leaves the kitchen without meeting my gaze. While Wade continues talking, I stare at the sunlight that fills the space where she stood.
Pastor Clive is missing. Today, of all days, when I could have used his support in the courtroom, the seat he’s always taken directly behind me is conspicuously empty.
I imagine Zoe is feeling the same way. Because it’s 9:05 and court’s in session and her lawyer is MIA.
“I’m here, I’m here,” Angela Moretti shouts, bursting through the double doors. Her blouse is untucked, and she’s wearing sneakers with her suit instead of heels. There is a smudge on her cheek that could be jam or blood. “Kid fed bacon to the minivan CD player,” she explains. “Sorry for the holdup.”
“You may begin anytime, Counselor,” Judge O’Neill says.
Angela sifts through her briefcase. She pulls out a SpongeBob coloring book, a Cooking Light magazine, and a novel before locating her brief. “Your Honor, there’s only one case in this country where a consent form like the one the Baxters signed was actually enforced. In Kass v. Kass, both parties signed forms that stated in the event of divorce, if they were unable to agree on the placement of their embryos, the clinic would dispose of the embryos, and a court upheld that agreement. If the parties were willing to be bound to the agreement back then, the court reasoned, they could enforce it now. However, the rest of the cases in this country regarding embryo donation—and they’re a slim group—rule primarily in favor of the party wishing to avoid procreation. In Davis v. Davis, the mother originally wanted the embryos but then decided to donate them—and that tipped the court in favor of the father, who did not wish to become a parent. The court said that, if there had been a contract, it would be upheld—but if not, you have to balance the rights of the party wishing to be a parent with those of the party that does not. In A.Z. v. B.Z. in Massachusetts, forms filled out gave the wife use of embryos in the case of divorce or separation. However, the ex-husband sought an injunction against allowing her to use them. The court said that the contract that had been filled out was trumped by a person’s choice, post-divorce, to not procreate. Namely, although a contract did exist, the circumstances had changed so drastically from the time of signing it that enforcement wouldn’t be legitimate. Plus, the court said that, as a matter of public policy, it was wrong to enforce an agreement that would compel one of the donors to become a parent against his or her will.”
Angela buttons her suit jacket. “In the case of J.B. v. M.B. in New Jersey, there was a contract stating that, in the event of divorce, embryos would be destroyed. By the time the divorce occurred, the ex-wife wanted them destroyed, but the ex-husband now said that was a violation of his religious beliefs and his right to become a parent. The court did not uphold the contract—not because they felt it was contrary to public policy, as in Massachusetts, but because a person had a right to change his mind up till the point of use or destruction of the embryos. The contract had to be a formal, unambiguous record of the intent of both parties, and since that wasn’t the case, the court said the party wishing not to have children would prevail, since the father could go on to have children in the future.”
She turns to look at Zoe. “The difference between those cases and this case, Your Honor, is that neither party wishes to destroy these embryos. For different reasons, both Zoe and Max want them. Yet, as in those other cases, there is a prevalent theme throughout which is applicable here, Your Honor: when there’s a change of circumstances from the time that the consent form is signed—due to divorce or remarriage or religious beliefs—then a contract is no longer legally binding. Today—when both parties want to give these embryos a chance at life—for you to enforce a contract that is no longer relevant would simply be bad case law.”
There is a racket at the back of the courtroom. I turn and see Pastor Clive barreling down the aisle. His face is nearly as white as his suit. He leans over the gallery railing, between Ben Benjamin and me, as Wade stands up.
“I can sink her,” Pastor Clive whispers.
“I am surely glad you’re sitting, Your Honor, because for once we agree with everything Attorney Moretti said,” Wade begins.
Ben turns in his seat. “Seriously?”
Pastor Clive nods. Ben gets up and walks toward Wade, who’s still speaking. “We are of the opinion, in fact, that it would be preferable to have the embryos go to a lesbian couple than it would be to send them to the incinerator—” He breaks off as Ben leans over and murmurs into his ear. “Your Honor?” Wade asks. “Might we have a recess?”
“What the hell?” Angela Moretti says.
“My co-counsel informs me that some new evidence has come to light, evidence that might affect Your Honor’s decision in this matter.”
The judge looks at him, and then at Angela. “Fifteen minutes,” he pronounces.
The courtroom empties. Wade pulls Angela Moretti aside and speaks quietly with her; a moment later she gathers Zoe and ushers her out of the courtroom. “We couldn’t have asked for a better Hail Mary moment if we’d designed it ourselves,” Wade says, coming back toward me.
“What’s going on?”
“Your ex-wife is about to be charged with sexually harassing a student,” he says. “Or in other words, you can go out and buy a stroller or a bassinet. No judge is going to give a baby to someone who sexually abused a kid. As far as I’m concerned, you just won this case.”
But I keep hearing the first part of his statement. “Zoe would never do that. It can’t be true.”
“Doesn’t matter if it’s true,” Ben says. “It just matters that the judge hears it.”
“But this doesn’t feel right. Zoe could lose her job—”
Wade waves awa
y my concern, batting at my words like they’re mosquitoes. “Max, boy,” he says. “Eyes on the prize.”
ZOE
“Please tell me you’ve never heard of a girl named Lucy DuBois,” Angela says.
Immediately, I picture Lucy, with her long red hair, her chewed fingernails, the ladder-back scars of her arms. “Is she all right?”
“I don’t know.” Angela’s voice sounds too tight, like a spring. “Is there something you want to tell me?”
Vanessa pulls up a chair and sits down next to me. We are back in the conference room from the other day, but it is raining. The world outside the window looks ripe and lush, the grass so green it hurts to look at it. “She’s a student who suffers from severe depression,” Vanessa explains to Angela, and then she touches my arm. “Didn’t you say she was upset two days ago?”
“She was talking about killing herself. Oh, my God, she didn’t do it, did she?”
Angela shakes her head. “Her parents have accused you of sexual assault, Zoe.”
I blink, certain I haven’t heard correctly. “What?”
“They say you came on to her on two separate occasions.”
“That’s absolutely ridiculous! Our relationship is completely professional!” I turn to Vanessa. “Tell her.”
“She’s a seriously disturbed girl,” Vanessa says. “Surely whatever Lucy’s said would have to be taken with a grain of salt the size of a salt lick.”
“Which is why it’s particularly damaging that someone named Grace Belliveau has apparently signed a statement indicating she saw Zoe and the girl in a compromising position.”
My bones feel like they are floating loose inside me. “Who the hell is Grace Belliveau?”
“She teaches math,” Vanessa says. “I doubt you’ve ever even met her.”
I have a brief and vivid flash of a teacher with short black hair, poking her head into the room at the end of a particularly emotional session with Lucy. My hand on Lucy’s back, rubbing slow circles.