That is, essentially, the question asked by a recent New York Times op-ed piece written by Sarah Elizabeth Richards. The argument goes that children may have been part of a couple’s overall plan, not unlike one spouse going to graduate school while the other works, or someone giving up their career to stay with the kids. In this instance, the thought is that a marriage may span the reproductive years of a woman; upon the divorce, she may find she lost the opportunity to have a family. The case referenced in the article is in New Jersey, but the general premise could be applied anywhere.
The New York Times op-ed offers a brief “slippery slope” possibility of how far a woman could go in seeking redress for spending her best years with someone and she’s not far off in one point – people (not just women) demand numerous concessions in a divorce. Can a woman ask for cosmetic surgery costs be paid for at equitable distribution? Sure. Can a man ask to be compensated for the cost of reversing a vasectomy so he can have kids with his girlfriend? Absolutely. Will a Court, sitting in equity to divide the marital estate, award those types of requests? Probably not. Or at least not without a reason so compelling that I would not feel comfortable even taking a guess at it in print or otherwise.
The similarity between Ms. Richards’ anecdotal case and cases elsewhere is that most states have relatively little or no existing law on dealing with assisted reproductive issues. Pennsylvania dealt with the equitable distribution of pre-embryos in a divorce, and my colleague, Julie Ganz, recently moderated a panel discussion on the drafting and reviewing of written agreements for gestational carriers, egg donors and sperm donors. Many of these issues end up being contract driven; as these conflicts become more common and are addressed in the Courts, I also foresee provisions dealing with these issues becoming prevalent in prenuptial agreements, as well. Assisted reproductive issues – unlike the cosmetic surgery – are very much on the Court’s radar. It is an emerging area of law and the epitome of the blending of competing and complimentary interests in a divorce: financial, emotional, and contractual.