- The Washington Times - Saturday, September 17, 2005

Ancient king of Israel Solomon faced a dilemma: Two women came before him claiming to be the mother of an infant son. Each woman was adamant the infant belonged to her.

Knowing real maternal instincts, Solomon called for a sword to split the child in two so both women could each be satisfied. In horror, the actual birth mother consented for the child to be given to the pretender. Solomon, knowing two women could not both be the child’s mother, presented the baby to the women who moments before was willing to give up her claim, saying, “She is his mother.”

Today, in California, if two women come before a judge both claiming motherhood, they may both get the child. Recently, the California Supreme Court issued decisions in three cases deciding a child can have two mothers with all parental rights and accompanying responsibilities.

Via second-parent adoption in California, it was previously possible for a child to have two mothers. However, these new cases involved children born through artificial reproduction. To find in favor of two moms, the court relied on statutes originally designed to determine paternity.

So when Sally says to Jane, “I want to have your [artificially produced] baby,” she can. Even if Jane wants to break up with Sally, Jane cannot leave the child, well, fatherless. If two women collaborate in some way to produce a child and if the child lives in their home for any time, chances are great the women will be considered natural parents in California, though one of them has no biological or adoptive relationship.

Homosexual-rights proponents lauded these decisions as victories for homosexual parents. The National Center for Lesbian Rights applauded the court’s work as “groundbreaking” and opined these cases will lead to similar outcomes nationally. I hope not.

The potential for mischief in the nation’s family courts is now much greater. Custody cases already give rise to confusing decisions. Biological parents fight nationwide to retain parental rights to direct the rearing of children. However, family courts find new categories of parenting unknown to Solomon.

In Colorado, a woman who adopted a child while in a lesbian relationship now must share custody with her former partner, though the former partner has no legal relationship with the child. The California court went further saying such nonbiologically related, nonadoptive former partners are presumed to be legal mothers because they lived with the children for a few years and held them out to others as natural children. The California Supreme Court stated in Elisa B. v. Emily B.: “We perceive no reason why both parents of a child cannot be women.” Left unresolved are probable conflicts with other states.

Vermont and Virginia are locked in a battle of competing custody decisions involving a woman who had a child via technology while in a lesbian relationship. Though the couple entered into a civil union in Vermont, they have since split. The biological mother returned to Virginia, which does not recognize the lesbian ex-partner’s claim.

The biological mom is now heterosexual. What happens if the biological mother marries a man who adopts the child in Virginia? Will the Vermont state court perceive there is no reason a child cannot have three parents: two mothers and an adoptive father? Instead of a village raising the child, we could have several parents and a couple of law firms involved. Increasingly, optimal conditions for child-rearing (a married mother and father) are being placed out of reach by legislatures and family courts.

Brothers and sisters, this ought not be so. These legal cases highlight the complexity of sexual orientation and artificial reproduction for custody decisions. Shouldn’t these issues be resolved before more children are created?

The existence of reproductive technology does not create a right for all to use it. These recent custody battles testify to the possible chaos when the possession of children is viewed as a civil rights issue. Before men become nothing more than sperm donors and women become fathers, we should pause and consider whether the rights of adults should trump the compelling interest of children to have at least a chance for a relationship with a mother and a father.

WARREN THROCKMORTON

Assoc. professor of psychology

Grove City (Pa.) College.

www.drthrockmorton.com


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