Having the ability to do a thing does not always mean having the capacity to judge whether to do it.
That truism comes to mind in reflecting on a recent California divorce dispute. The case involved a disagreement between the husband and wife about what to do with five fertilized embryos they had created during the marriage. When they created the embryos through IVF, they had signed a “Consent & Agreement” form “that in the event of a divorce, the Embryos would be thawed and discarded.” The wife wanted to use the embryos and the husband wanted them discarded.
The wife pointed to her age and cancer treatment as reasons that she needed to have the embryos since her chances of conception were very low. The husband said he was concerned that the wife’s motivation “behind seeking the Embryos is not that that she wants a child or children but because she wants his child or children so that she can use them to blackmail and extort money from him in the future.”
The court treated the form as a binding contract. Among other reasons, it believed that treating the form agreement as binding would avoid more litigation over the intentions of the parties. The court said that the wife knew at the time she signed the form that she had cancer, was 41 years old and since “almost half of all marriages in America end in divorce” and she had been previously married she “should have anticipated this possibility.”
The court said that even if the contract had not been valid, it would have decided the parties intended this result because the spouses’ intent in creating the embryos was to have a child together rather than separately. As evidence, the court said the wife had told her husband “one of the reasons that she had never previously had children was because she did not have the right partner, and to that end had terminated four prior pregnancies.”
The court said “the Legislature established a no-fault divorce system specifically structured to allow once married individuals to move forward in their separate lives disentangled from each other after a final judgment of dissolution. That noble goal is not achieved by creating unenforceable orders that are subject to unforeseen future contingencies and protracted litigation.”
One senses in reading a case like this, that rules changes can do only so much in addressing scenarios like this one, and more attention needs to be paid to ensuring that our moral judgment keeps pace with our technological prowess.
William C. Duncan is director of Sutherland Institute’s Center for Family and Society.