The end of a marriage is always sad, but divorce can be particularly devastating for a woman who still wants children but whose fertility is on the decline. Her ex may have many years left to start a new family of his own, but by the time she meets a new partner, it may be too late.
This kind of scenario is playing out at fertility clinics across the country: A couple might have always planned to have kids but then the marriage unraveled; or they might have tried but failed to get pregnant; or they might have one child already, but the woman really wanted another. Now she's 35. Or 38. Or 41. Could egg freezing help her save the last of her fertility?
That's the hope of a 38-year-old woman who is a client of Ronald G. Lieberman, a family law attorney in Haddonfield, N.J. Lieberman is asking his client's soon-to-be-former husband of eight years to pay $20,000 to cover her egg-freezing procedure, medication costs and several years of egg storage. "When they got married, the expectation was they would start a family," he told me. "Now she might not have the chance much longer."
A woman's window of fertility has always been elusive - doctors can't identify her exact baby deadline. Yet the science of egg freezing, which allows women to preserve their eggs until they're ready to reproduce, now enables women to quantify their fertility in a new way. You might not know when your baby-making days are up, but you can calculate what it's worth to preserve them. Figures vary by woman and by clinic, but the formula involves the cost of extraction surgery and freezing ($5,000 to $13,000, generally speaking), the number of eggs you can expect to get, the number you're advised to stash away, your clinic's success rate and the number of children you want.
All of a sudden, fertility has been assigned a value. If the point of a divorce settlement is to take inventory of a couple's joint life and divide the assets, then that commodity belongs on the negotiating table - alongside vacation time-shares and projected earnings from his and her MBA's.
In the New Jersey couple's case, they decided to divorce after undergoing three failed attempts at in vitro fertilization. Lieberman's argument is that since fertility treatments were part of the marriage, they should be considered part of the marital lifestyle, which should be maintained as much as possible post-divorce. The only difference is, in the future, she'll use another man's sperm.
Because no state case law exists directly on the topic, Lieberman is hoping to settle the issue out of court. But there is some precedent. In a few rare circumstances, courts have acknowledged the limits of a woman's biological clock and awarded her custody of fertilized embryos created during a past romantic relationship. But awarding money to freeze future unfertilized eggs is different, because the genetic material belongs solely to the woman.And yet it makes sense. Legal experts like Kevin Noble Maillard of Syracuse University speculate that a woman's missed opportunities to have a baby during a marriage could be viewed as a form of "sacrifice" for which she should be compensated (in much the same way that a woman who put her husband through law school could expect to be compensated if he divorced her just before he reaped the financial rewards of the degree). And it helps rectify one of life's greatest biological injustices: that men but not women can typically start a family well into middle age and beyond.
To be sure, the question of whether to include the cost of egg freezing as part of a divorce settlement is complex. What if he wanted to have kids earlier in the marriage, but she delayed it because of her career? Does it matter if they tried for several years or if he had the fertility problem? Then there's the slippery slope: if a woman is to receive money to save her declining fertility, what's to stop her from claiming to need breast implants or a face-lift because she used up her youth in the marriage?
Perhaps it would be simplest for a couple to address their procreation expectations on the front end of marriage, in a prenuptial agreement. A couple could agree on money for egg freezing if children didn't materialize by a certain year.
Whatever the case, family lawyers should be educated about fertility preservation. And women should fight for their reproductive futures by saying: "My fertility is worth something. I'm sorry this didn't work out. I wish you the best. May we both have the opportunity to make our dreams come true."
Sarah Elizabeth Richards is the author of "Motherhood, Rescheduled: The New Frontier of Egg Freezing and the Women Who Tried It."
© 2013 New York Times