In addition to arguing over who gets the silver tea service, the sailboat, and the right to see the children open their Christmas presents, divorcing couples are now grappling over Brave New World stuff. Family law attorney Lydia Fabbro Keephart is seeing many couples whose “relationships are on the rocks” and who “have eggs in the bank.”
Actually, they have more than eggs in the bank — the fertility center bank, that is. They often have embryos in the bank. “What shall we do about custody of potential children?” is a question that Keephart, a partner with Pellettieri, Rabstein and Altman, is hearing more and more often.
She speaks on “Embryonic Custody: Medical and Legal Responsibilities Associated with Planned Parenthood” on Tuesday, February 21, at noon at the Nassau Club. Also speaking is Dr. Melissa C. Yih, a physician specializing in reproductive endrocrinology and infertility with IVF New Jersey. The talk is sponsored by the Princeton Bar Association. Cost: $40. For more information contact Holly Russell at HollyARussell@aol.com.
“A lot of people are very troubled,” says Keephart. “Making babies is not so easy sometimes.” She and her husband, William Joseph Keephart, a CPA with a practice in Lawrenceville, grappled with infertility before having a son, who is now 22. She has tremendous sympathy for couples struggling to have a child. “There’s lots of potential conflict,” she says. “One person says ‘let’s adopt,’ but the other doesn’t want to. One says ‘let’s take a vacation.’ One doesn’t want to spend any money (on infertility treatments), and the other wants to spend everything.”
She is not sure if the stress of infertility makes divorce more likely, but does know that struggling with the issue is miserable. “It’s not romantic. It’s not pretty. It’s embarrassing. It’s bizarre.”
It’s also more common as childbearing is delayed. Keephart says that she and her husband did not even think about having a baby during their first five years of marriage. And they were married 32 years ago. Now it is common for women to delay serious dating — let alone marriage or any attempt at conception — until they are well past 30. Meanwhile, female fertility drops sharply by age 34. One result is lots of customers for fertility centers like IVF New Jersey, which has one of its three offices at 3100 Princeton Pike.
In vitro fertilization is the last option remaining when all other fertility treatments fail. It is a process through which eggs are harvested and inseminated. The result is a collection of embryos. Some of the embryos may fail to develop, but if the rest look healthy, fertility doctors will implant two to five of them — depending on a variety of factors, including the clinic’s policies in regard to limiting pregnancies with a high probability of yielding multiple children.
After in vitro treatments, there are often left-over embryos. These embryos are often left at the fertility center. Each, of course, has all of the genetic material it needs to grow into, say, a six-foot tall, blonde, gray-eyed basketball phenom, or a small-boned girl with curly hair and a real knack for crunching numbers.
What is to become of these potential people if a couple divorces? Couples fight over the question every day, says Keephart. Many of her clients are men, and they worry that they will be responsible for child support if the women they are divorcing decide to use the embryos to have children with new mates. Keephart is not sure whether or not they will be.
“You can never sign away a child’s right to support,” she says. But it’s early days in the left-over embryo wars, and she just isn’t sure whether a man can write a no-child support clause into his divorce papers if the “child” currently exists as a frozen embryo and resides in a fertility clinic vault.
There are also questions of visitation rights. If the father takes the eggs, and uses them to impregnate a future mate, can the children’s biological mother take them for two weeks in the summer?
Most of these details can be included in a divorce settlement. But sometimes the couple cannot agree. Keephart sometimes gets to the point where she throws her hands up. “I have sent people away to deal with doctors and (fertility) banks,” she says. When she is next consulted, the issue is generally not discussed. “I think they dispose of the eggs,” she says.
This method of solving the issue makes her uncomfortable. In fact, the whole IVF solution to infertility sits uneasily with her. “You know,” she says, “the reality is that there is selective reduction.” In other words, a woman in whom multiple embryos “take” may decide to have some of them killed in utero so that she will not end up with quintuplets, or, at the other extreme, because of the risk of a multiple pregnancy, with no baby at all. Keephart doesn’t like it. “I’m a Catholic,” she says. “This is a big moral issue for me. It’s a very big moral struggle.”
Interestingly, in light of these comments, Keephart says that Dr. Susan Treiser, the owner of IVF New Jersey, is her best friend. The two became friendly when their sons attended the Lawrenceville School together.
While Keephart is not happy about what science hath wrought in terms of family law, she does enjoy the work, at least most of the time. A graduate of the College of New Jersey (“I prefer Trenton State,” she says.), she began her career as a teacher in the East Windsor school system. She then completed graduate work in business administration at Rider, and went to work for ETS.
In a strange career twist, Keephart may be the only person who has ever gone to law school in search of a less stressful career. At the end of a long week, fresh from court, exhausted, and yearning for an upcoming vacation in Aspen, she laughs at the irony. But, yes, the work at ETS was just too much. “ETS had me traveling all over the place all the time,” she says. “I wanted more control over my life. It was important to be a mom.”
She earned her JD from Seton Hall and planned on becoming an environmental lawyer. But after serving a clerkship became “smitten with family law because it involves children.” She has been with Pellettieri since 1991, where she does “divorce and all the rest.”
She remains passionate about children, and sees a big part of her job as advocating for them, and making sure that they are in no way cheated in any marital re-arrangement.
Now she, with help from evolving case law, needs to decide just exactly what a “child” is in terms of a divorce settlement. Does a frozen embryo hanging around at a fertility clinic qualify? Maybe, and for the moment, Keephart is writing up divorce settlements that foresee a day when one or more of a divorcing couple’s embryos are plucked from a freezer to begin their journey into the world.