Lesbian fertility rights

Two California doctors endure an eight-year legal vendetta for declining to help bring a fatherless child into the world.
Jennifer Roback Morse | Sep 12 2008 | comment  



Ms Benitez with son Gabriel and partner (left). Photo, Denis Porov / APIn the case of the lesbians versus their doctors, the California State Supreme Court continued its war against religion by declaring that equality trumps liberty of conscience. But, contrary to the impression created in the media, the case of Guadalupe Benitez v. North Coast Woman’s Care is not over. The case still has to be tried. The Supreme Court’s ruling only means that the doctors cannot use religious liberty as a defense for violating the prohibition on sexual orientation discrimination.

Very well, then. Let us argue the case without reference to religion.

As it happens, I have a feature length article on this case in the September issue of Town Hall magazine. Rather than repeat the details of that article, this column defends the doctors’ conduct, without reference to any religion.

The complaint against the doctors is simple: they have a policy of not performing artificial inseminations on unmarried women. Benitez and her allies in the gay rights movement find this offensive and wish it to be outlawed. I believe the doctors’ policy should not only be permitted, but positively celebrated, praised and supported by law.

That is because I believe that every child is entitled to a relationship with both of his or her biological parents. Children have a right to know and be known by both parents. Every child has a right to their genetic and social heritage. Every child is entitled to care, bonding and attachment with both parents.

Children cannot possibly defend these rights by themselves. Adult society must protect them by preventing harm, not through restitution after the fact. By the time a child is old enough to grasp that something of value has been withheld from him the damage has been done. He has gone through a significant part of his childhood without his father. That loss can not be restored.

Children are sometimes separated from one or both of their parents. But these situations are universally recognized as unavoidable tragedies. No woman, gay or straight, has a right to make a lifelong plan that her child will have no relationship with his father. Deliberately depriving a child of his father is grotesquely unjust and unspeakably cruel.

This is the harm that doctors Brody and Fenton sought to prevent through their policy of not inseminating unmarried women. Society should positively support and affirm doctors who promote the rights of children. Any rights that same sex couples may have should not be permitted to trump these more basic rights that every single child has by virtue of their membership in the human race.

The doctors did no tangible harm to Guadalupe Benitez. They helped her ovulate. They prescribed medication for her. They advised her when she performed self-insemination at home. But as a matter of principle, they would not take the final step of inseminating her with sperm from a man her child would never know or see.

And when she strolled in with fresh sperm from a friend, the doctors had even more medical and legal reservations. Like most responsible infertility clinics, they do not use fresh sperm from a non-spouse. They use only fresh sperm from the woman’s husband, or frozen sperm from a sperm bank. Sperm banks routinely freeze donor sperm, so it can be quarantined while the sperm bank tests for sexually transmitted diseases. Sperm banks also make sure the donor gives fully informed consent.

So when Benitez demanded the use of fresh, non-frozen sperm from a friend, the doctors declined to participate. And for declining to participate, they have endured an eight-year legal vendetta, along with irreparable harm to their medical practice, their personal finances and their reputations.

But the doctors are in the right. Benitez and her army of left-wing lawyers are wrong. Children are entitled to a relationship with both of their parents. The state has no business helping mothers disrupt that most natural of relationships by creating artificial barriers between fathers and their children.

And to require each and every doctor to assist these women is more than cruel to the child. It is unjust to medical professionals who really deserve our respect and gratitude.

Jennifer Roback Morse, PhD, is the Founder and President of the Ruth Institute. http://www.ruthinstitute.org/



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