Just Destiny (32 page)

He watched her carefully as if waiting for her to get some secret meaning.

She frowned. “Why would
you
testify?”

He stood and turned so that his body blocked the curious press milling around them. “Jenny, we’ve been friends for years. I live next door and would have heard any arguments you two may have had. It’s natural that they would question me about your relationship. And once I was under oath, they’d be able to ask me all kinds of questions I don’t want to answer.” He raised his eyebrows and stared at her hard. “Understand?”

Jenny’s hand covered her mouth as comprehension set in. Under oath they could ask Steve about his relationship with her and he’d be forced to tell the truth.

“Oh my God. If they found out about that night I spent with you—even though we really didn’t—” she whispered, feeling faint.

“Not to mention the times you confided in me that you
didn’t
want to have children.
And why
.” Steve murmured and gave her another meaningful look.

Oh, boy. Under oath, he might have been forced to reveal her family’s secret. She’d lose her case for sure if they knew about Michael. And she didn’t even want to contemplate the damage to her brother—especially should he learn the truth under those circumstances. She felt Steve’s attention as the full horrifying force of his implications hit her.

“But that
can’t
happen,” Steve said, gently. “I’m your counsel and they can’t ask me to testify against you.”

Tears filled her eyes at the magnitude of his sacrifice. Steve was risking his job and his reputation on a case he didn’t even believe in, just to protect her. “I don’t know what to say. Thank you is so inadequate.”

“There’s nothing to say. Everything’s fine.” Steve leaned over and took the tissue Helen held out to him and handed it to her. “Alex and your mom did great. Now paste a happy smile on your face and let’s go to lunch.”

“I don’t think I can eat,” she mumbled.

“You can and you will.” With a hand firmly at her back, Steve moved her to the waiting family.

After lunch, Jenny’s parents stayed for support. Alex and Ted, having just finished final exams and the move back home, had to unpack and get to their summer jobs, so they left and Judith replaced them. Sliding into the seat next to her parents, Judith quizzed them about the morning’s testimony.

The judge returned and called the court to order. The plaintiff called the paramedic to detail Gabe’s injuries and testify that he’d never regained consciousness. Then she asked the young emergency room resident similar questions before calling Dr. Collins, the neurologist, to the stand.

Ms. Blair asked the neurologist the same questions as the previous two witnesses before asking about Gabe’s treatment. “So Dr. Collins, could you please explain to the court exactly what constitutes brain death in the state of Michigan.”

Resting her elbows on the arms of her chair, she lightly laced her fingers and crossed her legs, as if totally at ease in the courtroom. “According to the State of Michigan Determination of Death Law, a person is considered dead if two physicians declare that, based on ordinary standards of medical practice, there is an irreversible cessation of the spontaneous respiratory and circulatory functions.”

“What ordinary standards of medical practice are used to determine this?”

“The patient must be in a deep coma without any response to internal or external stimuli. Respiratory movements and spontaneous limb movements must be absent. We then confirm the clinical assessment with two EEGs to verify the loss of cerebral cortical function,” she recounted the procedure in a professional, unemotional voice.

“When did Dr. Harrison meet these criteria?”

“We performed the first EEG in the ER and then we did a second one approximately eight hours later. At Mrs. Harrison’s request, we did a third one twelve hours later, with exactly the same results. On Dr. Harrison, we also did a formal four-vessel cerebral angiography to confirm complete cessation of circulation to his brain.”

“And then?”

“Then Mrs. Harrison asked Dr. Stanley, St. Francis’s head of neurology, to consult. His exam substantiated our findings that Dr. Harrison’s condition was irreversible. At that time, Dr. Harrison was declared legally dead. He was left on the ventilator until Mrs. Harrison could be approached about donating his organs.”

“You stated that Dr. Harrison never regained consciousness, therefore he was unable to consent or object, to the recovery of his sperm, correct?”

“Obviously that’s right.”

“And Dr. Collins, this might sound obvious, but when Dr. Harrison is brain dead, he is completely at another’s mercy, correct?”

“Of course.”

“He was incapable of making any decision, incapable of protecting himself. He was completely helpless. Correct?”

“As helpless as a dead person can be,” she agreed equitably, obviously considering the attorney’s repeated questions silly. “His body, his organs, were only kept functioning because we were notified that he was a potential organ donor.”

“But in his condition, he was utterly helpless. Correct?”

Helen’s head came up and her hand stilled over the drawing. She turned her attention to the proceedings. “Judge, asked and answered.”

“Point made, counselor. Move on,” the judge instructed.

“In your fifteen years in practice, approximately how many people have you declared brain dead?”

Dr. Collins looked almost bored, as if she thought this whole procedure a waste of her time. “I can’t be sure. Maybe twenty-five to fifty.”

“And of those twenty-five to fifty, how many spouses have requested the deceased’s sperm or ova be recovered?”

“One.”

“For Dr. Harrison?”

“Yes.”

“So would you say that this was a highly unusual request?”

“Yes, but—”

“The constitution guarantees everyone the right of procreational choice and the right to privacy. Don’t you consider taking Dr. Harrison’s sperm, in his condition, an invasion of his privacy?”

“Objection. You can’t invade the privacy of a dead person,” Helen observed.

“But if that person is still breathing and his bodily organs are functioning, he’s not dead in the true meaning of the word,” the attorney pointed out.

“Your witness just testified that he was dead. Dead is dead,” Helen argued.

“
Brain
dead. She testified that he was brain dead, not dead.”

Helen slapped down her pen, reached in her briefcase and withdrew a beat-up old red and blue paperback dictionary. “Webster defines ‘dead’ as no longer living, without life, lacking feeling, emotion, or sensitivity, being unresponsive, not having the capacity to live, devoid of human activity and no longer productive.” She slammed the dictionary closed. “I’d say Dr. Harrison met most of the criteria for being dead. So nobody could have invaded his rights because dead people have no rights.”

“Enough.” Judge Delaney glared at both attorneys before centering his attention on Helen. “Ms. Johnson, you are not the witness; stop testifying. I will not tolerate any bickering in my court. You are both to address
me
only. Now, this argument goes to the ultimate issue in the case and I’d like to hear what the witness has to say. Objection overruled.”

Ms. Blair turned back to the doctor. “Wouldn’t you say recovering his sperm was an invasion of his privacy?”

“No more so than recovering his other organs.” Spoken like a true scientist.

“No more questions,” Ms. Blair said.

Helen passed up her opportunity to cross-examine the witness, having nothing to refute. Gabe had been at their mercy, and if a dead person still has rights, then it could be argued that his had been violated.

They took a break, and when they came back, Ms. Blair put Dr. Steinmetz, the urologist, on the stand. She questioned him about his professional qualifications: what medical school he attended, where he did his residency and fellowship, about his professional achievements, and current practice.

“Dr. Steinmetz, please tell the court how you became involved in Dr. Harrison’s case.”

“Amy Bromley, the coordinator from Save a Life, the organ donation organization, approached me and asked me to review Dr. Harrison’s case and see if I’d be willing to help Mrs. Harrison.”

“And what did you find?”

“Dr. Harrison had suffered extensive brain damage. After I reviewed his chart and x-rays, read Dr. Stanley’s note, and talked with Dr. Collins, it was clear that he was brain dead.”

“And then what did you do?”

“I spoke with Mrs. Harrison regarding her request that her husband’s sperm be recovered. I listened to her reasons and told her what I could do for her.”

“Which was what?”

“With several different procedures, I could probably recover enough sperm for, maybe, three attempts at insemination.”

“And then?”

“After she signed the addendum to the organ recovery, I took the sperm, froze it, and sent it to the sperm lab.”

“You operated on a patient without his explicit knowledge or consent?”

He blinked, then stared at Ms. Blair through sparkling round wire-rimmed glasses. “Dr. Harrison was declared brain dead. As next of kin, his wife signed the consent.”

“But that was not your patient’s consent. Not the donor’s consent. You operated on Dr. Harrison without his direct consent?”

Dr. Steinmetz shrugged. “If you want to look at it that way, I guess so. But then, the all the doctors on the transplant team took his organs too—without the legally-declared-dead patient’s explicit knowledge and consent.”

Ms. Blair ignored his sarcastic answer. “The Human Fertilisation and Embryology Act 1990 strictly prohibits the preservation of sperm without the decedent’s prior written consent. Did it ever occur to you that removing Dr. Harrison’s sperm without his consent was a gross breach of ethics and an invasion of his privacy?”

“Objection,” Helen stood. “First, Dr. Steinmetz is not on trial here. Second, in the United States, there is no law forbidding postmortem sperm retrieval. The Human Fertilization and Embryology Act is a law in the United Kingdom and has absolutely no bearing upon these events.”

“Objection sustained.”

“Excuse me, I’d like to answer the question,” Dr. Steinmetz said.

The judge turned to the witness. “The objection has been sustained, you may not answer.” He glared at Ms. Blair. “Counselor, approach the bench.”

Jenny couldn’t hear what the judge whispered to Ms. Blair, but judging by the stern look on his face and the color flooding hers, she was getting quite the dressing-down. Helen and Steve exchanged knowing looks.

What’d she do wrong?
Jenny scribbled on Helen’s legal pad.

Attempted to mislead the court. Very unethical
. She smiled broadly.
Apparently Delany doesn’t appreciate her trying to make him look like a fool
.

Ms. Blair returned to the stand and studied her notes for a minute, taking time to recover her composure before continuing her questioning. “Dr. Steinmetz could you explain to the court exactly how you extracted Dr. Harrison’s sperm?”

“Objection,” Helen said. “It’s irrelevant. The sperm already exists and is frozen. The issue now is my client’s right to it.”

“Goes to prove the procedures were a clear invasion of the deceased’s privacy.”

“Overruled. The witness is instructed to answer the question.”

Dr. Steinmetz shifted in his seat. “Given that the deceased’s physiological processes were still intact, I used electroejaculation to extract the sperm, which was then cryopreserved in a one to one dilution of TES and Tris-yolk buffer with six percent glycerol.”

“What exactly does electroejaculation entail?”

“To obtain sperm, a probe is inserted into the rectum and delivers electricity through the rectal wall, inducing seminal emission.”

“So you stuck a probe up Dr. Harrison’s anus and repeatedly shocked him until he ejaculated?” Ms. Blair asked, sounding outraged.

“Essentially, yes,” he admitted matter-of-factly.

“Electroejaculation sounds like a barbaric invasive procedure.”

“Not at all. It’s a means to simulate a natural ejaculation. Besides, Dr. Harrison didn’t feel anything; he was dead. It’s certainly no more barbaric than organ removal.”

Ms. Blair crossed her arms and stared at the witness quizzically. “Dr. Steinmetz, did you have any moral qualms about this case?”

He met her gaze, with an open, honest look. “No.”

“Did you know that five Michigan sperm banks refused to take Dr. Harrison’s sperm because it was recovered without his consent?”

Dr. Steinmetz went utterly still before softly admitting, “No, I did not.”

Jenny’s heart dropped. Damn, Judith and her sage advice.
She should have been honest with him
, Jenny thought. But if he’d refused to help, they would have been even worse off than they were right now. It’d been a gamble.

“You were
not
informed of this difficulty before performing the procedure?” Ms. Blair clarified.

Dr. Steinmetz gave her a steady, unreadable look. “No.”

“Don’t you consider it unethical of Mrs. Harrison and Amy Bromley not to have informed you of the difficulty they were encountering finding a sperm bank willing to take Dr. Harrison’s sperm?”

He bridged his fingers and raised an eyebrow. “Unethical? Perhaps.”

“Yes or no?”

“Yes.”

“Had you known that the California sperm bank was the
only
one they contacted willing to store his sperm, because of the lack of donor consent, would you have had any qualms about this case?”

He thought for several seconds. “Possibly.”

“Yes or no?”

“I can’t say. I’d have to think about it.”

“Yes or no, doctor?”

Dr. Steinmetz glared at her. “Yes. I would have had doubts about performing the surgery.”

“If you’d been fully informed of the difficulties Mrs. Harrison had in finding an institution willing to breach ethical standards, would you still choose to become involved in this case?”

“To be honest, it didn’t occur to me that there would be this much made of it. But had I known about the resistance to storing Dr. Harrison’s sperm, I probably still would have performed the recovery.”