The Volokh Conspiracy - Biological Essentialism and Parenting:

Chuck Colson's syndicated column is about the Miller-Jenkins v. Miller-Jenkins case. I won't repeat the details here, though you can find them here; and you can find a broad response to Colson in this Overlawyered.com post by Walter Olson.

Here, though, I wanted to focus narrowly on a specific part of Colson's argument:

The subhead in the Post article says it all: "Janet Jenkins and Lisa Miller got hitched and had a baby together." Together? Anybody who knows anything about biology knows that's impossible. But that's just how the courts are looking at it. As a judge in the case told Janet Jenkins's lawyer, Janet (the lesbian partner) "without question is presumed to be the natural parent ... by the basis of the civil union." So in the court's eyes, Isabella is the child of two women, something biologically impossible.

"Had a baby together" is impossible to "anybody who knows anything about biology" only if you think "had a baby together" must be a statement about biology. Yet the whole point of a civil union is to make a partnership through which you commit to do things together. And one of the things that people try to do together through a civil union (whether others approve of civil unions or not) is bring into the world -- or, with adoption, into their family -- a child that they commit to support together. In reliance on the mutual promises, they invest time, effort, money, and physical exertion. One is willing to invest some things and another some other things (as with a male-female marriage) precisely because they've committed to this project together.

In fact, this is precisely how a man and a woman can have a baby together even if infertility requires them to use another man's sperm. It surely is an impoverished conception of parenthood to say that it's "impossible" (or wrong) for a husband and wife to have a baby together when they together commit to raising it, and they together arrange for it to be born, but for biological reasons they have to use donated sperm.

Yet it turns out that this is the very conception of parenthood that Colson is pointing to -- later on he condemns the use of donated sperm as well:

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.

Even adoption seems to be, despite his assurances, outside his vision of "the biblical view": He says it's "possible," and appears to defend it simply on the grounds that it's an "extraordinary circumstance." But surely 120,000 adopted children per year are likely to be no more "extraordinary" than the children of same-sex couples. (If 3% of the U.S. population is gay or lesbian, and if every one of them ended up in a couple and each couple yielded two children over the members' lifetimes, that too would be about 120,000 children per year.)

I strongly suspect adoptions are less "extraordinary" than births using donated sperm. And if a birth of a child who's biologically unrelated to the mother's husband is against the "biblical view of marriage," then it seems that an adoption -- especially an adoption at birth -- would be even further from that biblical view. (I realize that Colson says "the biblical view of marriage ... provides for one man and one woman in the union to raise the child," but from the sentences before and the sentences after, I take it he means for the biological father and the biological mother to raise the child, since otherwise this sentence would be completely unrelated to his faulting of heterosexuals' using donated sperm, or his discussion of adoption.)

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.)

	[Eugene Volokh, March 6, 2007 at 12:50am] Trackbacks Biological Essentialism and Parenting: Chuck Colson's syndicated column is about the Miller-Jenkins v. Miller-Jenkins case. I won't repeat the details here, though you can find them here; and you can find a broad response to Colson in this Overlawyered.com post by Walter Olson. Here, though, I wanted to focus narrowly on a specific part of Colson's argument: The subhead in the Post article says it all: "Janet Jenkins and Lisa Miller got hitched and had a baby together." Together? Anybody who knows anything about biology knows that's impossible. But that's just how the courts are looking at it. As a judge in the case told Janet Jenkins's lawyer, Janet (the lesbian partner) "without question is presumed to be the natural parent ... by the basis of the civil union." So in the court's eyes, Isabella is the child of two women, something biologically impossible. "Had a baby together" is impossible to "anybody who knows anything about biology" only if you think "had a baby together" must be a statement about biology. Yet the whole point of a civil union is to make a partnership through which you commit to do things together. And one of the things that people try to do together through a civil union (whether others approve of civil unions or not) is bring into the world -- or, with adoption, into their family -- a child that they commit to support together. In reliance on the mutual promises, they invest time, effort, money, and physical exertion. One is willing to invest some things and another some other things (as with a male-female marriage) precisely because they've committed to this project together. In fact, this is precisely how a man and a woman can have a baby together even if infertility requires them to use another man's sperm. It surely is an impoverished conception of parenthood to say that it's "impossible" (or wrong) for a husband and wife to have a baby together when they together commit to raising it, and they together arrange for it to be born, but for biological reasons they have to use donated sperm. Yet it turns out that this is the very conception of parenthood that Colson is pointing to -- later on he condemns the use of donated sperm as well: 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. Even adoption seems to be, despite his assurances, outside his vision of "the biblical view": He says it's "possible," and appears to defend it simply on the grounds that it's an "extraordinary circumstance." But surely 120,000 adopted children per year are likely to be no more "extraordinary" than the children of same-sex couples. (If 3% of the U.S. population is gay or lesbian, and if every one of them ended up in a couple and each couple yielded two children over the members' lifetimes, that too would be about 120,000 children per year.) I strongly suspect adoptions are less "extraordinary" than births using donated sperm. And if a birth of a child who's biologically unrelated to the mother's husband is against the "biblical view of marriage," then it seems that an adoption -- especially an adoption at birth -- would be even further from that biblical view. (I realize that Colson says "the biblical view of marriage ... provides for one man and one woman in the union to raise the child," but from the sentences before and the sentences after, I take it he means for the biological father and the biological mother to raise the child, since otherwise this sentence would be completely unrelated to his faulting of heterosexuals' using donated sperm, or his discussion of adoption.) 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.)