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Posted in: Motherhood & Custody, Feminism, Gender, Psychology & Law

Published on Jul 02, 1998 by Phyllis Chesler and Susan L. Bender

Published by Newsday

Who Has Custody of Woman's Eggs?

In 1993, suffering reproductive difficulties, Maureen Kass had her own eggs surgically "harvested," fertilized by her husband's sperm outside her body and frozen. After nine unsuccessful implantations, and more than $75,000 worth of in vitro fertilization costs, the Kasses decided to divorce.

Steven Kass changed his mind about fatherhood. He wanted the destiny of the pre-zygotes (or fertilized eggs) to be decided by a court according to the in vitro fertilization contract the Kasses had signed. Maureen Kass, by then in her early 40s, wanted to continue implanting the remaining pre-zygotes, claiming "this was her only chance for genetic motherhood." A custody battle ensued.

We do not believe that the Kasses fought a five year custody battle over unborn children. But we cannot think of their pre-zygotes as simply, property," which is what the New York State Court of Appeals ruled in May. Nor do we think that custody disputes—even over pre-zygotes—are best settled by applying commercial contract law.

Because the pre-zygotes were not inside Maureen Kass' body, the Court of Appeals ruled that Roe vs. Wade—which grants a woman the right to terminate a pregnancy on privacy grounds—was inapplicable.

"We conclude that disposition of these pre-zygotes does not implicate a woman's right of privacy or bodily integrity in the area of reproductive choice."

We argue that the glass dish where the sperm penetrated the egg was, in effect, an extension of Maureen Kass' body. She could not get pregnant any other way: the pre-zygotes existed only because she intended to bear and rear them as her genetic, biological children; this was her explicit intention. Maureen Kass endured the egg-retrieval process six times; and fertilized eggs were implanted in her nine times, resulting in one miscarriage and one life-threatening ectopic pregnancy. Kass' "sweat equity" investment in time and risk—in vitro fertilization and implantation process—was far greater than any sperm donor's could ever be. The glass dish was her surrogate womb. Thus, Maureen Kass, not the court or Steven Kass, should have the right to choose the destiny of her pre-zygotes.

But she was not allowed to explain to a court how hard she had tried to get pregnant, what becoming a biological mother meant to her, whether she would be able and willing to support the child on her own.

Nor did Steven Kass have the opportunity to explain why he no longer wanted to have a child with her, be liable for child support, or live with the knowledge that, against his will, a child with his genes existed in the universe. But he didn't have to do so. Contract law upheld his interests, reflected his desires—not Maureen Kass', Roe vs. Wade be damned. This decision may now open the door to state control of private genetic material, at least when it is contested.

We respect the court's desire to avoid endless, costly and complicated litigation in the area of reproductive rights—something the court believes can be achieved by contract law. But life is chaotic. While contract law may effectively resolve disputes between business entities when (only) money or its equivalent is at stake, contract law cannot neatly dispose of a baby. Nor is its application humane or just in a nonmonetary battle between biological and social unequals— between men and women. Perhaps the in vitro fertilization contract that contractually determined the parties "disposition of the fertilized eggs," is against public policy; perhaps not. What, then, is a poor girl to do?

For starters: Never sign a pro forma in vitro fertilization contract that refers to her prezygotes as "property" and that grants the sperm donor or a court the power to decide what to do with them.

Myth aside, contracts are not sacred. People modify or back out of contracts every day—to buy and sell houses or companies. The change may incur a financial penalty. However, when the stakes are eternal, mere dollar amounts will not do. Thus, every state recognizes that, within limits, a birth mother has the right to change her mind about surrendering a child for adoption. The state also retains control over custody decisions despite what any pre-existing prenuptial, divorce or judicial ruling might say. It does so "in the best interests" of the child. What may be in the mother's "beat interests" does not exist in law.

An adhesion contract is said to exist when two parties of unequal bargaining power enter into an arrangement that is, essentially, coerced. Maureen Kass had no choice but to sign the pro forma rVF contract—that is, if she were to become the biological or genetic mother of a legitimate child. She risked more and had more to lose than her husband, Steven, did. Arguably, Steven Kan can become a genetic father with another woman for the next 40 years; Maureen Kass can never become a genetic mother.

In the Kass ruling, the state says that it bowed out and allowed a private contract to prevail. In our opinion, the state has used a contract to interfere with Maureen Kass' right to choose motherhood.

After a two-year battle, a woman in England recently won the right to use her dead husband's sperm, frozen when he was in a coma. She is now pregnant with that sperm. The courts there found that a woman had the right to choose a particular sperm donor even if the donor could not give his consent.

Perhaps women—especially those who wish to be mothers without risking the routine exposure to endless, costly custody battles that most women endure when sperm donors want custody—might consider whether it is wise to tell any man that his sperm has fertilized your egg.

Of course, such advice runs counter to everything that "nice" girls have been taught about the sanctity of marriage and the rights of fathers. Never mind. Be "bad."

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