Solomon’s Wisdom Missing in California Decisions

The ancient king of Israel, Solomon, was faced with a dilemma. Two women came before him claiming parentage 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, stating, “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 that a child can have two mothers with all the parental rights and responsibilities accompanying the designation of parent.

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. And 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 joint home for any length of time, then chances are great that the women will be considered natural parents in California, even though one of them has no biological or adoptive relationship.

Gay rights proponents immediately lauded these decisions as victories for gay parents. The National Center for Lesbian Rights applauded the work of the court as “groundbreaking” and opined that the California cases will lead the way to similar outcomes nationally.

I hope not.

The potential for increased mischief in the nation’s family courts is now much greater. Custody cases already give rise to confusing, counter-intuitive decisions. Biological parents are fighting nationwide to retain parental rights to direct the rearing of children. However, family courts are finding 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 even though the former partner has no legal relationship with the child. The California court went a step further and said such non-biologically related, non-adoptive ex-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 writing in Elisa B. vs. Emily B. stated, “We perceive no reason why both parents of a child cannot be women.” Left unresolved are probable conflicts with other states. Different state courts don’t often perceive things in the same way.

For instance, Vermont and Virginia are currently locked in a battle of competing custody decisions involving a woman who had a child via technology while in a relationship with a lesbian partner. Although the couple entered into a civil union in Vermont, they have since split and the biological mother returned to Virginia where the lesbian ex-partner’s claim is not recognized. The biological mom is now heterosexual. What happens if the biological mother marries a man who adopts the child in Virginia? Will the state court of Vermont perceive that there is no reason why 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.

What is wrong with a society that lauds the rights of adults to do what they want without considering the impact upon children? 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 to be so.

These legal cases highlight the complexity of sexual orientation and artificial reproduction for custody decisions. These issues are not new but are still unsolved. Shouldn’t they 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 provide testimony to the chaos that can occur 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.