by Jodi Picoult
I look at Julia again. “We’re here today because there’s a difference in our system of justice between what’s legal and what’s moral. Sometimes it’s easy to tell them apart. But every now and then, especially when they rub up against each other, right sometimes looks wrong, and wrong sometimes looks right.” I walk back to my seat, and stand in front of it. “We’re here today,” I finish, “so that this Court can help us all see a little more clearly.”
• • •
My first witness is opposing counsel. I watch Sara walk to the stand unsteadily, a sailor getting her sea legs again. She manages to get herself into the seat and be sworn in without ever breaking her gaze away from Anna.
“Judge, I’d like permission to treat Mrs. Fitzgerald as a hostile witness.”
The judge frowns. “Mr. Alexander, I truly would hope that both you and Mrs. Fitzgerald can stand to be civilized, here.”
“Understood, Your Honor.” I walk toward Sara. “Can you state your name?”
She lifts her chin a fraction. “Sara Crofton Fitzgerald.”
“You are the mother of the minor child Anna Fitzgerald?”
“Yes. And also of Kate and Jesse.”
“Isn’t it true that your daughter Kate was diagnosed with acute promyelocytic leukemia at age two?”
“That’s right.”
“At that time did you and your husband decide to conceive a child who would be genetically programmed to be an organ donor for Kate, so that she could be cured?”
Sara’s face hardens. “Not the words I would choose, but that was the story behind Anna’s conception, yes. We were planning to use Anna’s umbilical cord blood for a transplant.”
“Why didn’t you try to find an unrelated donor?”
“It’s much more dangerous. The risk of mortality would have been far higher with someone who wasn’t related to Kate.”
“So how old was Anna when she first donated an organ or tissue to her sister?”
“Kate had the transplant a month after Anna was born.”
I shake my head. “I didn’t ask when Kate received it; I asked when Anna donated it. The cord blood was taken from Anna moments after birth, isn’t that right?”
“Yes,” Sara says, “but Anna wasn’t even aware of it.”
“How old was Anna the next time she donated some body part to Kate?”
Sara winces, just as I have expected. “She was five when she gave donor lymphocytes.”
“What does that involve?”
“Drawing blood from the crooks of her arms.”
“Did Anna agree to let you put a needle in her arm?”
“She was five years old,” Sara answers.
“Did you ask her if you could put a needle in her arm?”
“I asked her to help her sister.”
“Isn’t it true that someone had to physically hold Anna down to get the needle in her arm?”
Sara looks at Anna, closes her eyes. “Yes.”
“Do you call that voluntary participation, Mrs. Fitzgerald?” From the corner of my eye I can see Judge DeSalvo’s brows draw together. “The first time you took lymphocytes from Anna, were there any side effects?”
“She had some bruising. Some tenderness.”
“How long was it before you took blood again?”
“A month.”
“Did she have to be held down that time, too?”
“Yes, but—”
“What were her side effects then?”
“The same.” Sara shakes her head. “You don’t understand. It wasn’t like I didn’t see what was happening to Anna, every time she underwent a procedure. It doesn’t matter which of your children you see in that situation—every single time, it breaks you apart.”
“And yet, Mrs. Fitzgerald, you managed to get past that sentiment,” I say, “because you took blood from Anna a third time.”
“It took that long to get all the lymphocytes,” Sara says. “It’s not an exact procedure.”
“How old was Anna the next time she had to undergo medical treatment for her sister’s well-being?”
“When Kate was nine she got a raging infection and—”
“Again, that’s not what I asked. I want to know what happened to Anna when she was six.”
“She donated granulocytes to fight Kate’s infection. It’s a process a lot like a lymphocyte donation.”
“Another needle stick?”
“That’s right.”
“Did you ask her if she was willing to donate the granulocytes?”
Sara doesn’t answer. “Mrs. Fitzgerald,” the judge prompts.
She turns toward her daughter, pleading. “Anna, you know we never did any of these things to hurt you. It hurt all of us. If you got the bruises on the outside, then we got them on the inside.”
“Mrs. Fitzgerald,” I step between her and Anna. “Did you ask her?”
“Please don’t do this,” Sara says. “We all know the history. I’ll stipulate to whatever it is you’re trying to do in the process of crucifying me. I’d rather just get this part over with.”
“Because it’s hard to hear it hashed out again, isn’t it?” I know I’m walking a fine line, but behind me there is Anna, and I want her to know that someone here is willing to go the distance for her. “Added up like this, it doesn’t seem quite so innocuous, does it?”
“Mr. Alexander, what is the point of this?” Judge DeSalvo says. “I am well aware of the number of procedures Anna’s undergone.”
“Because we have Kate’s medical history, Your Honor, not Anna’s.”
Judge DeSalvo looks between us. “Be brief, Counselor.”
I turn to Sara. “Bone marrow,” she says woodenly, before I can ask the question. “She was put under general anesthesia because she was so young, and needles were put into the crests of her hips to draw out the marrow.”
“Was it one needle stick, like the other procedures?”
“No,” Sara says quietly. “It was about fifteen.”
“Into the bone?”
“Yes.”
“What were the side effects for Anna this time around?”
“She had some pain, and was given some analgesics.”
“So this time, Anna had to be hospitalized overnight . . . and she needed medication herself?”
Sara takes a minute to compose herself. “I was told that donating marrow isn’t considered a particularly invasive procedure for a donor. Maybe I was just waiting to hear those words; maybe I needed to hear them at that time. And maybe I was not thinking as much of Anna as I should have been, because I was so focused on Kate. But I know beyond a doubt that—like everyone else in our family—Anna wanted nothing more than for her sister to be cured.”
“Well, sure,” I reply, “so that you’d stop sticking needles in her.”
“Enough, Mr. Alexander,” Judge DeSalvo interjects.
“Wait,” Sara interrupts. “I have something to say.” She turns to me. “You think you can lay it all out in words, black-and-white, as if it’s that easy. But you only represent one of my daughters, Mr. Alexander, and only in this courtroom. I represent both of them equally, everywhere, every place. I love both of them equally, everywhere, every place.”
“But you admitted that you’ve always considered Kate’s health, not Anna’s, in making these choices,” I point out. “So how can you claim to love both of them equally? How can you say that you haven’t been favoring one child in your decisions?”
“Aren’t you asking me to do that very thing?” Sara asks. “Only this time, to favor the other child?”
ANNA
WHEN YOU ARE A KID you have your own language, and unlike French or Spanish or whatever you start learning in fourth grade, this one you’re born with, and eventually lose. Everyone under the age of seven is fluent in Ifspeak; go hang around with someone under three feet tall and you’ll see. What if a giant funnelweb spider crawled out of that hole over your head and bit you on the neck? What if the only antidote for
venom was locked up in a vault on the top of a mountain? What if you lived through the bite, but could only move your eyelids and blink out an alphabet? It doesn’t really matter how far you go; the point is that it’s a world of possibility. Kids think with their brains cracked wide open; becoming an adult, I’ve decided, is only a slow sewing shut.
• • •
During the first recess, Campbell takes me to a conference room for privacy and buys me a Coke that isn’t cold. “So,” he says. “What do you think so far?”
Being in the courtroom is weird. It’s like I’ve turned into a ghost—I can watch what’s going on, but even if I felt like speaking no one would be able to hear me. Add to that the very bizarre way I have to listen to everyone talk about my life as if they can’t see me sitting right there, and you’ve landed in my surreal little corner of earth.
Campbell pops open his 7 UP and sits down across from me. He pours a little into a paper cup for Judge, and then takes a good long drink. “Comments?” he says. “Questions? Unadulterated praise for my skillful litigation?”
I shrug. “It’s not like I expected.”
“What do you mean?”
“I guess I figured when it started, I’d know for sure that I was doing the right thing. But when my mom was up there, and you were asking her all those questions . . . ” I glance up at him. “That part about it not being simple. She’s right.”
What if I was the one who was sick? What if Kate had been asked to do what I’ve done? What if one of these days, some marrow or blood or whatever actually worked, and that was the end? What if I could look back on all this one day and feel good about what I did, instead of feeling guilty? What if the judge doesn’t think I’m right?
What if he does?
I can’t answer a single one of these, which is how I know that whether I’m ready or not, I’m growing up.
“Anna.” Campbell gets up and comes around to my side of the table. “Now is not the time to start changing your mind.”
“I’m not changing my mind.” I roll the can between my palms. “I think I’m just saying that even if we win, we don’t.”
• • •
When I was twelve I started baby-sitting for twins who live down the street. They’re only six, and they don’t like the dark, so I usually wind up sitting between them on a stool that’s shaped like the stubby foot of an elephant, toenails and all. It never fails to amaze me how quickly a kid can shut off an energy switch—they’ll be climbing the curtains and bam, five minutes later, they’re conked out. Was I ever like that? I can’t remember, and it makes me feel ancient.
Every now and then one of the twins will fall asleep before the other one. “Anna,” his brother will say, “how many years till I can drive?”
“Ten,” I tell him.
“How many years till you can drive?”
“Three.”
Then the talk will split off like the spokes of a spiderweb—what kind of car will I buy; what will I be when I grow up; does it suck to get homework every night in middle school. It’s totally a ploy to stay up a little bit later. Sometimes I fall for it, mostly I just make him go to sleep. See, I get a round hollow spot in my belly knowing I could tell him what’s coming, but also knowing it would come out sounding like a warning.
• • •
The second witness Campbell calls is Dr. Bergen, the head of the medical ethics committee at Providence Hospital. He has salt-and-pepper hair and a face dented in like a potato. He is smaller than you’d expect, too, given the fact that it takes him just short of a millennium to recite his credentials.
“Dr. Bergen,” Campbell starts, “what’s an ethics committee?”
“A diverse group of doctors, RNs, clergy, ethicists, and scientists, who are assigned to review individual cases to protect patients’ rights. In Western Bioethics, there are six principles we try to follow.” He ticks them off on his fingers. “Autonomy, or the idea that any patient over age eighteen has the right to refuse treatment; veracity, which is basically informed consent; fidelity—that is, a health-care provider fulfilling his duties; beneficence, or doing what’s in the best interests of the patient; nonmaleficence—when you can no longer do good, you shouldn’t do harm . . . like performing major surgery on a terminal patient who’s 102 years old; and finally, justice—that no patient should be discriminated against in receiving treatment.”
“What does an ethics committee do?”
“Generally, we’re called to convene when there’s a discrepancy about patient care. For example, if a physician feels it’s in the patient’s best interests to go on with extraordinary measures, and the family doesn’t—or vice versa.”
“So you don’t see every case that passes through a hospital?”
“No. Only when there are complaints, or if the attending physician asks for a consultation. We review the situation and make recommendations.”
“Not decisions?”
“No,” Dr. Bergen says.
“What if the patient complaining is a minor?” Campbell asks.
“Consent isn’t necessary until age thirteen. We rely on parents to make informed choices for their children until that point.”
“What if they can’t?”
He blinks. “You mean if they’re not physically present?”
“No. I mean if there’s another agenda they’re adhering to, that in some way keeps them from making choices in the best interests of that child?”
My mother stands up. “Objection,” she says. “He’s speculating.”
“Sustained,” Judge DeSalvo replies.
Without missing a beat, Campbell turns back to his witness. “Do parents control their children’s health-care decisions until age eighteen?”
Well, I could answer that. Parents control everything, unless you’re like Jesse and you do enough to upset them that they’d rather ignore you than pretend you actually exist.
“Legally,” Dr. Bergen says. “However, once a child reaches adolescence, although they can’t give formal consent, they have to agree to any hospital procedure—even if their parents have already signed off on it.”
This rule, if you ask me, is like the law against jaywalking. Everyone knows you’re not supposed to do it, but that doesn’t actually stop you.
Dr. Bergen is still talking. “In the rare instance where a parent and an adolescent patient disagree, the ethics committee weighs several factors: whether the procedure is in the adolescent’s best interests, the risk/benefit scenario, the age and maturity of the adolescent, and the argument he or she presents.”
“Has the ethics committee at Providence Hospital ever met regarding the care of Kate Fitzgerald?” Campbell asks.
“On two occasions,” Dr. Bergen says. “The first involved allowing her to enter a trial for peripheral blood stem cell transplant in 2002, when her bone marrow transplant and several other options had failed. The second, more recently, involved whether or not it would be in her best interests to receive a donor kidney.”
“What was the outcome, Dr. Bergen?”
“We recommended that Kate Fitzgerald receive a peripheral blood stem cell transplant. As for the kidney, our group was split on that decision.”
“Can you explain?”
“Several of us felt that, at this point, the patient’s health care had deteriorated to a point where major invasive transplant surgery was going to do more harm than good. Others believed that without a transplant, she would still die, and therefore the benefits outweighed the risk.”
“If your team was split, then who gets to decide what will ultimately happen?”
“In Kate’s case, because she is still a minor, her parents.”
“During either of the times that your committee met regarding Kate’s medical treatment, did you discuss the risks and benefits to the donor?”
“That wasn’t the issue at stake—”
“What about the consent of the donor, Anna Fitzgerald?”
Dr. Bergen looks right at me,
sympathetic, which it turns out is worse even than him thinking I’m a horrible person for filing this petition in the first place. He shakes his head. “It goes without saying that no hospital in the country is going to take a kidney out of a child who doesn’t want to donate it.”
“So, theoretically, if Anna was fighting this decision, the case would most likely land on your desk?”
“Well—”
“Has Anna’s case landed on your desk, Doctor?”
“No.”
Campbell advances toward him. “Can you tell us why?”
“Because she isn’t a patient.”
“Really?” He pulls a stack of papers out from his briefcase, and hands them to the judge, and then to Dr. Bergen. “These are Anna Fitzgerald’s hospital records at Providence Hospital for the past thirteen years. Why would there be records for her, if she wasn’t a patient?”
Dr. Bergen flips through them. “She’s had several invasive procedures,” he admits.
Go, Campbell, I think. I am not one to believe in knights who ride in to rescue damsels in distress, but I bet it feels a little like this. “Doesn’t it strike you as odd that in thirteen years, given the thickness of this file and the fact it exists in the first place, the medical ethics committee never once convened to discuss what was being done to Anna?”
“We were under the impression that donation was her wish.”
“Are you telling me that if Anna had previously said she didn’t want to give up lymphocytes or granulocytes or cord blood or even a bee sting kit in her backpack—the ethics committee would have acted differently?”
