Every Judge a God

Of the hundreds of articles I’ve written, I’ve never done a piece on the issue of gay adoption. However, I was recently so struck by a particular court case that I feel compelled to weigh in.

Jennifer Roback Morse, a fellow “research fellow” at the Hoover Institution, opened my eyes to the details of a ruling by the California Supreme Court on the case K.M. v. E.G., which decided a case involving lesbian parental rights. “K.M.” and “E.G.” are the initials of the lesbian mothers of twin girls. K.M. donated her eggs and E.G. carried them to term. This makes K.M. the genetic mother and E.G. the gestational mother. I’ll quote from Morse’s excerpt of the actual text of the case, which gets complicated at points:

On March 6, 2001, petitioner K.M. filed a position to establish a parental relationship with twin 5 year-old girls born to respondent E.G., her former lesbian partner.  K.M. alleged that she “is the biological parent of the minor children,” because she donated her eggs to respondent, the gestational mother of the children.

E.G. moved to dismiss the petition on the grounds that although K.M. and E.G. “were lesbian partners who lived together before this action was filed,” K.M. “explicitly donated her ovum under a clear written agreement by which she relinquished any claim to offspring born of her donation.”

E.G. testified that she first considered raising a child before she met K.M. at a time when she did not have a partner. …K.M. and E.G. began living together in March 1994 and registered as domestic partners in San Francisco.

E.G. visited several fertility clinics in March 1993 to inquire about artificial insemination and she attempted artificial insemination without success on 13 occasions, from July 1993 through November 1994.  K.M. accompanied her to most of these appointments.  K.M. testified that she and E.G. planned to raise the child together, while E.G. insisted that, although K.M. was very supportive, E.G. made it clear that her intention was to be a “single parent.”

E.G.’s first attempts at in-vitro fertilization failed because she was unable to produce sufficient ova.  …E.G. asked K.M. to donate her ova, explaining that she would accept the ova only if K.M. “would really be a donor,” and E.G. would “be the mother of any child,” adding that she would not even consider permitting K.M. to adopt the child “for at least five years until she felt the relationship was stable and would endure.” E.G. told K.M. that she “had seen too many lesbian relationships end quickly, and she did not want to be in a custody battle.”  E.G. and K.M. agreed that they would not tell anyone that K.M. was the ova donor.

There is so much that could be said here. I’ll limit my remarks to this observation: legally, this situation is a nightmare. Who, or what, will decide what’s right? The answer is the presiding judge, the court or jury at hand, the legal precedent of the moment.

One need not be a fundamentalist preacher to arrive at this common-sense conclusion: Once society removes both Biblical law and natural law from the equation, “truth” is left to be defined by the governing cultural standards and mores of the day, subject to change by the next set of governing culture standards and mores of the next day. The culture, which influences judges, will attempt—and I emphasize the word attempt—to provide the absolute authority to decide what is “right” in this and each subsequent case.

The next “E.G.” or “K.M.” may be frustrated to find that justice, in her unique situation, was already allegedly predetermined by the last judge who ruled in the last case similar (in some ways) to hers.

The fact is that these two mothers stepped outside the natural order of things. For thousands of years, biology and civilization restricted these situations to a man and a woman, and religious teaching insisted on limiting each situation to a married man and woman. Now, test-tubes and judges are involved. We should not be surprised when we find ourselves deeply confused about what to do next. This is the Brave New World we have created.

This is completely uncharted territory that will be navigated by advanced-degree people in white coats and black robes, who refuse to allow any infusion of “narrow-minded” religious faith into their calculus. And regardless of one’s opinion about gay adoption or homosexuality generally, one must admit: this is a mess. A quagmire to be resolved not by one Arbiter but by a whole bunch of arbiters who will constantly tinker and quibble with the details of every new case and ruling.

The Court becomes God: No, actually, each court and each judge becomes a god unto itself, left to determine its own moral absolute du jour.

And in each case, even proponents of gay adoption will find themselves frustrated and left pondering whether justice was served, and by what authority. To such proponents, I warn: Don’t be shocked if you one day find yourselves angry at a decision, throwing your arms in the air, and screaming at a judge: Who made you God?! The answer will require that you look in the mirror.