Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, March 6, 2007

Volokh on Colson on Biological Essentialism

Chuck Colson devotes his latest column to the case of Isabella Miller-Jenkins, a case in which "a judge will soon decide whether a woman with no biological or adoptive ties to Isabella can legally be declared her mother."  The case is a thorny custody dispute stemming from the break-up of a civil union, which Colson uses to make a broader point:

How is it possible that laws and court procedures could have become so dangerously fantasy-based? Actually, we should not be surprised. Many modern parents have unwittingly been collaborating with the process for years. The Washington Post tells us how Judge Cohen explained it: "[C]onsider the situation of a heterosexual couple in which an infertile husband agrees for his wife to be artificially inseminated with donor sperm." In such a case, the judge stated, the husband would be presumed to have parental rights even though someone else had actually fathered the child.

It all ties together. Heterosexual couples have tacitly approved this practice of including a silent third partner in a marriage to produce a child. And then it makes it very difficult to cry foul when homosexuals do the same thing.

Isabella’s plight shows us the tragic consequences of rejecting the biblical view of marriage, which provides for one man and one woman in the union to raise the child. Sure, there are extraordinary circumstances, and adoption is possible. But the norm is the norm, and the law has always recognized the natural moral order.

Eugene Volokh wonders:

How did this supposedly religiously motivated fixation on the child's biological relatedness to both parents come about? Does the Bible indeed somewhere condemn, explicitly or by strong implication, the use of donated sperm? I know the stories of Hagar and Tamar in the Old Testament discuss what some people do when they can't have children naturally with their spouses (because of the wife's infertility, the husband's death, or the husband's refusal to impregnate the wife); but I take it that the moral message of the stories is not necessarily clear.

Is there something elsewhere that takes such a biologically essentialist view, to the point of prohibiting the use of donated sperm, and treating adoption as grudgingly tolerated in "extraordinary" cases? (I'm not speaking just of Catholic natural law reasoning; Colson is a Protestant who, I take it, focuses much more on the words of the Bible.)

https://mirrorofjustice.blogs.com/mirrorofjustice/2007/03/volokh_on_colso.html

Vischer, Rob | Permalink

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