‘Your Honour!’ Estelle interjected.
‘Mrs Arden,’ said Judge Cameron. ‘Please.’
‘Nothing further, Your Honour,’ Elliott said, retreating to the bar table.
The court was silent as the judge’s associate hurried to fill Grace’s water glass and then Estelle Forlani slowly approached the witness stand.
‘Mrs Arden, you said you loved your son before you knew him.’ ‘That’s right.’
‘I wonder if you could tell me, who was it that you loved? Was it a child who would be both a combination of you and your husband, but also their own surprising person?’
‘I …’
‘Perhaps someone with your lovely blue eyes, and your husband’s smile? A nose that is a mirror image of your own mother’s?’
Grace looked to Elliott for help. He leapt to his feet.
‘This case isn’t about who loves the child and who doesn’t love the child. It’s about who his rightful parents are.’
Estelle was unfazed. ‘That is what I’m trying to establish,’ she said.
‘Mr Jones, Ms Forlani is entitled to question your client.’
Elliott threw his hands up, annoyed. His Adam’s apple was straining against his starched collar and his neck was mottled and red. ‘Your Honour, during this entire hearing Estelle Forlani has treated my client like a suspect she needs to break. Grace Arden is not a criminal. She’s a victim,’ he said hotly.
‘It was a legitimate question,’ Estelle barked.
‘She is deliberately goading my client!’
Grace rubbed her eyes, exhausted. The constant crying had left her skin itchy and sore.
‘Okay.’ Judge Cameron raised her voice above the din. ‘We’re all on edge. I’m going to adjourn for a short break and when we return I hope to see more decorum from the legal counsel.’
Grace was eventually excused from the witness stand and experts were ushered in. As Estelle Forlani harangued the court, Dan and Grace huddled together.
‘The important thing is who is Sam’s rightful mother. Not just for his birth but for his whole life,’ Estelle said.
Grace recalled all the nights she lay in bed, on her back, her orb-like stomach swollen with expectation. The worst of it wasn’t just that she had to give him up, it was that he would forget her; that was the central plank of the silver-haired lawyer’s argument, and she couldn’t stop hammering it home.
‘There’s nothing connecting them but the Ardens’ desire to fulfil their own goals of parenthood,’ she said.
‘All right, Ms Forlani,’ Judge Cameron barked. ‘You’ve made that point forcefully enough. As Mr Jones has said, the Ardens are not on trial here.’
Estelle’s statement tore right through Grace. She thought of Sam’s little face. He was everything to her, but if they lost the case, she would be nothing to him.
Forty-two
By the morning of the final day, Priya felt like she had run a marathon. Nick cooked up crispy bacon breakfast sandwiches while Priya was seized by a cleaning frenzy.
‘This flat,’ she said as she wiped dust from the TV cabinet, ‘is filthy.’
‘Perhaps your nesting instinct is kicking in,’ Nick said, handing her a plate of food.
‘I can’t believe we’re nearly at the end.’
‘You know, Rajesh was saying he pulled out one of the twins’ cradles last night and cleaned it up. We could drive over there tomorrow afternoon and pick it up.’
‘No, not yet. It would be bad luck to start preparing before we know the outcome.’ Priya took a desultory bite from her bacon sandwich. Nick put a gentle hand on her arm.
‘Hopefully you’ve reached your quota of bad luck for one lifetime,’ he said.
Estelle delivered devastating arguments she had drafted and redrafted, calibrating the language for maximum efficiency. She brought in child-behavioural specialists to talk about separation anxiety in infants. Geneticists to speak on the issue of nature versus nurture. Psychologists cherrypicked for their views on the detrimental effects displacement could have. Bespectacled men and women with strongly held opinions and many letters after their names.
One spoke about the inviolable bond of family.
Another said the child would never be truly happy if he grew up in a home that was not his own.
Elliott, of course, wanted to grill Priya thoroughly. How would she juggle work and raising a child alone? What role would Nick play in the baby’s life? What would she feed him?
‘Formula, at first,’ she said, her voice uncertain.
‘Formula. A substitute for the breastmilk Grace Arden has been providing.’
Estelle interrupted: ‘Formula is a perfectly suitable substitute. What else does he think she would feed the baby? What an idiotic question.’
Elliott continued. ‘Ms Laghari, is it true you initially didn’t want custody of Baby S?’
Priya stiffened. ‘No, that’s not true.’
‘But you wrote to the Ardens when you learned of the mix-up and said you didn’t want to claim Baby S as your own.’
‘I wanted him,’ Priya said, haltingly. ‘But I was more concerned with what was best for him. I thought taking him away from the people who had been caring for him would be bad for him.’
‘And that’s something you no longer care about?’
Priya flinched. ‘No! I mean, I think he would be better off with me.’
‘Is that so?’ Elliott rocked on his heels, his stare clamped on Priya. ‘What changed your mind?’
Priya shifted in her chair. She didn’t want to reveal that she’d driven to the Ardens’ house and spied on them.
‘I was in shock,’ Priya said. ‘When I first learned of what had happened I could hardly believe it.’
‘And you didn’t seek any professional advice? You didn’t ask for guidance and support with making this monumental decision?’
‘I was overwhelmed.’
Elliott gave her a mean little smile. ‘Ah, well, yes. Having a child can be overwhelming. You completely collapsed at the mere thought of it.’
‘Your Honour!’ Estelle was out of her chair like a shot.
Elliott changed tack. ‘If you’re granted custody, you will be supported in raising Baby S by your partner, Nick. That’s right, isn’t it?’
‘Yes, he’s a very responsible man.’
‘But Nick isn’t the baby’s father, is he?’
‘Not biologically, no.’
‘Not biologically?’ Elliott raised his eyebrows, theatrically turned to the Ardens, then returned to face Priya. ‘No?’
Priya flushed red. ‘No.’
‘But you say your relationship is solid?’
‘Yes. Very.’
‘Because you were married, or are married?’
‘We separated but we are back together.’
‘And, despite your long marriage, your solid relationship and so forth, you broke things off with your husband and proceeded with IVF using a donor. That’s correct, isn’t it?’
‘I wanted to have a baby. I wanted to be a mother,’ Priya answered, her voice rising.
‘Please, just yes or no, Ms Laghari.’
‘Yes.’
‘Huh.’ Elliott paced up and down the front of the courtroom. A sense of trepidation crept up Priya’s spine.
‘You’re very cavalier about starting and severing relationships, aren’t you, Ms Laghari?’ He shot Priya a withering glare.
‘Don’t answer that!’ Estelle ordered.
‘Mr Jones,’ Judge Cameron’s voice held a warning. ‘I’ll remind you of what I told Ms Forlani yesterday about badgering people.’
‘Sorry, Your Honour, I’ll withdraw that.’ He turned back to the witness stand. ‘Ms Laghari, did you undergo IVF treatment with a donor sperm mere months after embarking upon the process with the man you now say is a dependable partner?’
‘Yes, but we’d had trouble—’ Priya tried to blurt out her answer, but Elliott cut her off with a palm held up like a stop
sign.
‘That will be all. Thank you, Ms Laghari.’
The Ardens’ lawyer was summing up. Priya watched him as he peacocked, striding up and down in front of the judge, projecting his voice as if performing on a stage. ‘How can you make a distinction between genetic bonds and gestational bonds?’ he asked. ‘How can you say one is more important to the life of a child than another?
‘There was no guarantee that if the same egg had been implanted in Ms Laghari it would have flourished. Perhaps it was the very fact that the embryo was in Grace Arden’s uterus that made it become a foetus that became a baby that became Baby S. By that logic, Grace was just as responsible for Sam’s existence as was the provider of the egg.’
After he had finished, it was Estelle’s turn.
‘This is about dislocation,’ she said. ‘The idea of genetic bonds and gestational bonds may seem conceptual and slippery but there are some very tangible elements at play in this case. Culture. History. Family. How can you dismiss this child’s right to his heritage because of the emotions of two people who have no familial link to him?’
At the end of the day Judge Cameron thanked both the lawyers and the families.
‘I will make a decision as quickly as possible. You will be notified before noon on Friday.’
And then it was over. There was nothing anybody could do but wait.
Forty-three
It was seven o’clock on Friday morning when phones in Coogee and Glebe ripped the air with hysterical priiings. Priya and Nick were seated at Priya’s dining table when the phone stilled the scrape of cutlery on plates.
Grace was lying on her side speaking with Dan in a whisper lest they wake Sam, who now spent his nights nestled between them. They had abandoned his cot since the hearing began, not wanting to be separated from him a moment more than necessary. The phone’s peal made Sam whimper. Grace froze.
‘I know, little man,’ Dan soothed. He rolled off the bed and answered with a tense, ‘Yes?’
Judge Cameron would make a ruling at nine, said the dour voice.
‘We’ll know at nine,’ said Nick, in the kitchen across town.
The venerable judge looked pale as she shuffled onto the bench. When her associate tried to fill her water glass she shooed him away. ‘Let’s just get on.’ The air was charged as she raised her voice to the assembled families.
‘I know you’re all nervous, so I’ll try to get through this as quickly as possible. This … this has been a very difficult case.
‘The bond between mother and child is indelible. I have three children of my own.’ She stopped, looking pained. ‘It is only recently that the complex question of who can be considered the mother of a child has existed. Prior to the introduction of assisted reproductive technology, it could only be the woman who conceived and gave birth to the child that could claim that right. However, times have changed. Technological advancements that have allowed wondrous things to happen have brought with them a tangle of tricky ethical and philosophical questions.
‘It is hard to imagine a question more difficult than the one we face today. Before us, we have the case of one baby and two mothers, each with a connection and potential claim to the child. Each with a fierce, true love for the boy. So, how do we decide?
‘There is neither legislation nor case law in Australia to help us navigate this thorny issue.
‘A case that came before the Californian Supreme Court grappled with a similar conundrum. In that matter, a surrogate who had given birth to a child from a donated embryo decided she did not want to hand the baby over. A custody battle ensued and the judge was forced to decide whether genetic relationship or the act of giving birth conferred mothering rights. The court ultimately found the party that intended to bring about the birth of a child was the rightful parent; that she whose actions and wishes initiated the conception is the natural mother under Californian law. But that is no help to us here, where there was an intention to procreate by both parties, and indeed more than an intention, a very deep desire such that they each undertook invasive and costly procedures to do so.
‘It is ironic that the very clinic the hopeful parents thought was the answer to their prayers was the source of this tragic mistake.
‘It is no less a tragedy that due to a medical error, the sincere intention of two women to procreate resulted in the birth of only one child between them, with each having a role to play in his creation.’ She was reading quickly, aware of the desperate anxiety in the hearts of all assembled before her.
‘It is no exaggeration to say that this was the hardest, most complex decision of my long judicial career. There are no winners here. I do not believe that Ms Laghari takes pleasure in her bid to deny Mr and Mrs Arden the child they so obviously love. Likewise, the Ardens are motivated solely by the desire to keep the child they bore—and not because they want to withhold him from a woman with a primal biological connection. Though some of the arguments and line of questioning have been abrasive, I see before me nothing but good people full of love. Ultimately, the best I can hope for is to try to protect the rights and interests of the child.
‘For the fourteen months Baby S was in the care of the Ardens, nine were in utero when the error could not be known. While it is true the Ardens did not alert the medical authorities or seek to rectify the mistake as soon as practicable, they were not malicious. I think it would be a rare person who would fail to sympathise with the very cruel circumstances they find themselves in. What I am about to say therefore is not intended as punishment.’
Grace gripped Dan’s arm. Priya drew a breath.
‘The error separated Baby S not just from his biological mother but from cousins, an aunt, an uncle and his culture. If he lives to be one hundred—as modern science suggests he may well do—the five months he spent with the Ardens will be a small fraction of his time on earth. It seems the only course open to the court is to ensure he spends the remaining years surrounded by his biological family, and those to whom he has genetic and cultural ties.
‘I find that in the long term, Baby S will be best served if he is to grow up in the home of Ms Laghari.
‘I have read the Ardens’ truncated medical history that was provided to the court and as this is, I understand, the end of their chances of bearing their own children, the loss they will feel will be a very grave and very deep one. Many people have given evidence here to their fine characters. I hope those same people will rally around them now when they will need them more than ever.’
Judge Cameron took off her glasses and rested them on the bench.
‘When I examined the law closely, I found the difficulty arose only from not wanting to deprive this decent couple of the baby they love so tenderly and so wholly. The child belongs with his biological mother. He belongs with his intended family.’
‘I will make orders as to the conditions of the transfer of custody, and then I will adjourn the court to allow all parties to get on with the tasks that fall to each of them.’
Forty-four
It couldn’t be true. Grace’s hands gripped her chair as she willed herself to wake up from this nightmare, warm in her bed, her baby snug by her side.
Appeal was the word on her lips. ‘Appeal!’
She got to her feet, legs unsteady, and staggered towards the door. She had one thought: get to Sam. In her mind she was already sweeping him up in her arms and bundling him into the car, pulling onto the freeway, her seat-belt unbuckled, her hair whipping in the wind. She was turning onto the main road, slipping unseen into the traffic, disappearing among the fast flow of cars. She was entering the freeway and pressing her foot on the accelerator, stopping only to fill her tank with petrol and empty her account of cash before speeding north. She grabbed the handle of the courtroom door. Her arms would hardly obey. Her breathing was shallow.
A voice shouted across the courtroom. ‘No!’ She recognised it as her own.
‘Grace,’ Elliott was behind her. ‘I think you should sit. You loo
k pale.’
‘Grace!’ It was Dan. ‘Grace, are you okay?’ She felt wild. She turned and her eyes settled Priya, who was clutching her sister. Their faces were red, the shock of the victory rendering them speechless, but their smiles were big and their cheeks bulged like polished apples.
‘No,’ came Grace’s own disembodied voice again. Someone was restraining her, holding her back. She felt like she was having a heart attack.
‘Grace, sit down, you’ve had a shock.’ The voice was her husband’s. But she couldn’t see him. The room swayed. Her field of vision narrowed.
‘I need to see him. I have to get home,’ she gasped. Her grip slipped from the courtroom door handle. Her hands were sweaty, as was her forehead. The temperature in the room was soaring. People were closing in around her. A rush of heat scorched her chest, her face.
She pulled her sleeve over her hand and tried the door again. The lock’s click heralded freedom. She stumbled into the corridor. She could see the light of the door to the street. Her link to Sam was stronger than Priya’s could ever be, Grace thought. If Sam lived with Priya for a hundred years, that woman would still never know what it was like to feel him flutter to life in her womb. Grace tried to walk but her legs failed her. Her heartbeat was flickering, like an overheated lightbulb about to burn out, ready to snap into blackness.
Now what would her life become? She was a mother without a child. A song without sound—just words on a page. Flat. Dull. Her ribs were crushing her lungs. She gasped for breath. Darkness descended, and then there was nothing.
Everything was white and smelled of disinfectant. Metal bars rose from either side of Grace’s bed. The sheet pinning her flat was thick and rough. She could see Dan. Her husband’s head was hanging forward. He glanced up at her and relief washed over his face.
‘Grace!’
She tried to speak but her throat was dry.
The Mothers Page 29