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Parental Rights:The Guardian of Freedom

In 09 Mary Summa, JD on 2013/05/01 at 12:00 AM

By Mary Summa, J.D.

In 2007, soldiers abruptly entered a home in Germany and took a young boy because his mother chose to home-school him.1 In Scotland, in 2009, the government took custody of a couple’s three and four year-old children because a government bureaucrat had deemed the children “too fat.”2 In September 2009, Swedish authorities stopped a plane about to take-off to remove a seven year-old from his parents because they refused to put the boy in a government-run school.3 These events abroad should give every American pause. In many parts of the world today, families are at the mercy of the government.

Research demonstrates that the traditional, intact family is the best environment to raise children. The intact family is also the protector of political freedom. As communities succumb to the power of the government, the family unit serves as the last barrier between freedom and tyranny. Until recent years in this country, the government befriended the family. Correctly, courts have stepped in and protected children from the small minority of parents who have threatened their children’s well-being.

For the vast majority of families, however, courts and legislatures have protected their autonomy and respected the inherent rights of fit parents to raise their own children as they deem appropriate. Yet, as government’s thirst for power and control increases, the family has become a target. If this assault is not confronted and stopped, precious freedoms will be diminished and eventually lost.

What Are Parental Rights?

Parental rights are powers vested in parents to conceive and rear children free from government control. These rights, recognized by the courts, include: the right to the custody and care of minor children, the right to establish a child’s residence, and the right to direct a child’s moral and spiritual upbringing, education, and medical treatment.

With these rights, come responsibilities, and parents are charged with the responsibility to educate, discipline, support, and protect their minor children.4 These powers emanate from the family—the basic unit of society—which historians and anthropologists believe has existed in every known human society.5 The family is not a creation of government.6

English Common Law adhered to the belief that marriage and family are institutions established by God. Therefore, rights emanating from that institution—parental rights—are natural rights that government was obliged to protect. Parental decision-making was limited by the State only in cases where the parent placed the child in clear and present danger, a strictly interpreted doctrine called the Parens Patriae Doctrine.7

Throughout colonial America, only fathers could enforce these rights. Fathers retained the custodial rights of children, and mothers had little authority to enforce custody or other parental rights.8 In 1944, with the Supreme Court’s decision in Prince v. Massachusetts,9 parental rights were recognized for both the mother and the father. Those rights, as the court recognized, “reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”10

The family is not a creation of government.

America’s History – Protecting Parental Rights

Traditionally, the U.S. Congress and state legislatures have restrained themselves from trampling on the right of fit parents to rear children free from government control11 When they did stray from this basic tenet, the Supreme Court struck down these laws as unconstitutional. The Court has protected family autonomy and parental rights as being guaranteed by the Ninth Amendment12 and the Due Process Clause and Equal Protection Clause of the 14th Amendment13 to the U.S. Constitution. The courts have recognized that the right to conceive and rear children is a “basic civil right of man,”14 and a right “far more precious … than property rights.”15

In the early to mid 20th Century, the Supreme Court vigilantly protected the right of parents to educate their children as the parent deemed appropriate.16 In 1925, in Pierce v. Society of Sisters,17 the Supreme Court struck down a state statute requiring children to attend public schools. Parents in this case had chosen to send their children to parochial schools, which under state statute violated compulsory education laws. In Pierce, the court stated:

The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.18

Later in 1944, in Prince v. Massachusetts,19 the U.S. Supreme Court, although recognizing the state’s interest in an educated citizenry, underscored the paramount rights of parents to direct the religious training and upbringing of their children:

The custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.

In Wisconsin v. Yoder,20 in 1972, the Supreme Court affirmed this common law principle by preventing the state from forcing Amish parents to send their children to school beyond eighth grade. Recognizing family autonomy in the areas of education and religious upbringing, the court rejected the State’s argument that it had a right to “save” the child from the decisions of the parents. The court stated:

The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.21

Without exception, the highest court held fast to the principle that fit parents, not the state, have the primary role of raising and nurturing children. Under the doctrine, Parens Patriae, the State can pierce this wall of protection only when the parent places a child in clear and present danger of harm.

The 1960s witnessed a rise in individual rights movements—women’s rights, children’s rights, homosexual rights, and minority rights. Holding their banners of protest, masses marched on Washington, D.C., demanding equality. Rights are a funny thing, though. They are not asserted in a vacuum. Whether justified or not, when a right is asserted by one citizen or entity, another citizen’s rights are modified, reduced, or even eliminated.

The Children’s Rights Movement

The Children’s Rights Movement, some believe, struck the first crippling blow to family autonomy and parental rights when it roared onto the political scene in the 1960s. Despite, some strides in the early part of the 20th Century in the areas of juvenile justice and labor laws, the movement floundered until the Supreme Court changed course in 1967 with its decision in In re Gault.22 In that decision, the Court extended 14th Amendment Due Process protections to children in juvenile delinquency hearings. For the first time in law, the government recognized children’s rights, separate and apart from parents’. Congress, state legislatures, and courts, however, quickly expanded the standard’s original application to justify a plethora of legislation and court cases in the area of child custody, education, health care, and discipline.

This movement has not been confined to the United States. The conflict between parent rights and child rights was never more apparent than with the 1989 United Nation’s Convention on the Rights of the Child (UNCRC). The document acknowledges the individual rights of children, which may be separate and distinct from and conflict with parents’ rights.

Article 3 gives administrative or legislative authority to decide what actions are “in the best interest of the child.” Article 12 gives to the child “who is capable of forming his or her own views” the right to express them. The child’s views will be given “due weight,” depending on the age and maturity of the child.23

According to Michael Farris, an attorney and chairman of the Home School Legal Defense Association, the UNCRC dictates two things: “1. Government can override parental decisions without proof of abuse, neglect or harm; 2. Children have legally enforceable rights to complain about parental decision-making in every area of their life, including religious and educational decisions.”24

Parents who are citizens of countries that have ratified the treaty have lost the unfettered discretion to make decisions on behalf of their children. A parent’s violation of the ‘rights’ of their own children could subject the parent to international condemnation or, worse, punishment.

According to a 2009 Congressional Research Service report, 193 countries have ratified the treaty. The United States and Somolia are the only two countries that have not.25 Consequently, U.S. parents, unlike most parents around the world, do not have to answer to bureaucrats or courts for decisions they make regarding the rearing of their own children.

Scripture and history warn that a house divided against itself cannot stand. Creating conflicting rights within a family—in this case, parent against child—will do nothing but weaken the autonomy and strength of the family, and lead to its demise.

Discipline

As mentioned previously, under the Doctrine of Parens Patriae, the government has always had the right to step in and protect the child from unfit parents. According to one law professor, the government has also used this doctrine to assist parents

in discipline. Called “juvenile status offense legislation,” many states still have truancy laws, curfew laws, and laws dealing with children who perpetually run away from home.26 One could argue that traditionally written statutory rape laws provided parents with a “big stick” solution for boys who took advantage of daughters.

Today, the tables have turned. The government is no longer in the business of assisting parents in their inherent responsibility to discipline. Rather, government is partnering with children to punish their parents. Never, until recently, has the government taken such an active role in pitting children against parents.

A 1980 case illustrates this point. In In re Welfare of Sumney,27 under a Washington State statute, the state granted a 15 year-old’s petition seeking “alter- native residential placement.” Despite the fact that there was no evidence of abuse, neglect or parental unfitness, the State granted the petition citing “the best interest of the child.” In his dissent, Washington State Supreme Court Justice Robert Brachtenbach pointed out when the child was asked why she thought there was a conflict in the home, the child replied, “I just feel there is a communication gap there.” Further testimony revealed that the only “crime” committed by the parents was an insistence that their daughter not take drugs … use alcohol … or be sexually active and that she be in at a reasonable hour.”28 In exchange for asking their daughter to adopt a healthy, moral lifestyle, the parents were denied custody.

Health Care

Under common law, children were viewed as incapable of consenting to all medical treatment. Parents had the exclusive authority to make medical decisions on behalf of their children. In emergencies, parental consent was assumed and did not need to be obtained prior to treatment. In cases of abuse or neglect, common law recognized the right of the government to step in and act as the parent to remove the child from harm.

Abortion. In 1976, in Planned Parenthood v. Danforth,29 the court found unconstitutional a statute requiring parental consent for abortion. Again, in 1979, the Court proclaimed that parents did not have “an absolute and possibly arbitrary” right to veto a child’s decision to obtain an abortion.30

In 1992, however, the Supreme Court changed course and allowed to stand a state statute requiring parental consent for abortion with a judicial bypass, which allows a judge to sign off on a minor’s abortion in place of her parents in some circumstances.31Over the past 18 years, states have responded to this opportunity to restore parental authority over their children’s healthcare. According to a September 2010 Guttmacher Institute report, 34 states require some parental involvement in a minor’s decision to have an abortion. Of these states, 20 require parental consent only—two of which require both parents to consent; 10 states require parental notification only—one of which requires both parents to be notified; and four states require both parental consent and notification.32

In 1995, incidentally, the North Carolina General Assembly enacted a statute requiring parental consent for abortion. The law is flawed, however, because it does not require authenticity of the signature by a notary, thus, allowing forged signatures to meet the consent requirement of the statute.33

Contraception. Over the past 30 years, legislators at both the state and federal levels have aggressively weakened parental authority in other areas of children’s healthcare, including healthcare associated with sexual activity. The U.S. Congress has led the charge. Since its inception in 1970, there have been no “parental consent” requirements on monies for Title X of the Public Health Service Act or federal “family planning.” In the 1980s, regulations were promulgated to give parents the right to consent to contraceptives and other services provided by Title X funding. In the 1990s, additional administrative and legislative attempts were made to return to parents their rightful authority to control the health-care of their children. While valiant, all these efforts ultimately failed legislatively or by court challenge.34

State legislators have made some strides in protecting parental authority in relation to minors’ access to contraceptives. According to a January 2011 Guttmacher Institute report, 21 states and

How to Protect the Family

To rebuild the wall protecting family autonomy, we should:

• Enact a marriage amendment in N.C. defining marriage as a covenant between a man and a woman, which serves as the first step to protecting family autonomy.

• Enact federal and state constitutional amendments on parental rights, including an amendment to the U.S. Constitution to bar enactment of the U.N. Convention on the Rights of the Child.

• Repeal no-fault divorce. • Repeal state laws that deny parents the right to decide all medical

decisions for their children, including drug and alcohol treatment, STD treatment, abortion, and contraceptives, except in cases of emergency and with a judicial bypass if required by case law.

• Expand parental choice in education, through means such as education tax credits.

D.C. give minors unrestrained access to contraceptives without parental consent. Twenty-five states allow a minor access to contraceptives only under certain circumstances without parental consent, and four states require parental consent before a minor can receive contraceptives.35

STD Treatment. Attempts to maintain parental authority over other healthcare related to sexual activity have been less successful. For example, all 50 states and D.C. deny parents the right to consent to their children’s STD services. Eleven of those states retain the right for parents if the child has not reached a certain age (12 or 14). Eighteen of those states allow, but do not require, physicians to inform a minor’s parent that he/she is seeking STD testing and treatment. Although one state requires the physician to inform the parent if the child tests positive for HIV, the other 17 states do not.36 A child may be infected with the deadly HIV virus, and in 49 states, parents are not even notified.

School Health Clinics. For years, children’s rights advocates have further eroded parental authority by setting up healthcare facilities in schools. These clinics have been funded by a menagerie of federal, state, and private funds. Trumpeted as a way to provide better care for children, these facilities are used as referral centers for abortion. On March 25, 2010, Fox News reported that a 15 year-old had used a school-based clinic to obtain an abortion without notifying her mother. The mother reported that her daughter had been told that if she told her mother, the mother would be financially responsible for the abortion. If the daughter kept it secret, she was told the abortion would be free. Without any parental involvement, the school-based clinic called a cab for the girl, which took her to the local abortion clinic where an abortion was performed.37

In March 2010, the federal government authorized the expenditure of taxpayer dollars to further undermine parental authority in the area of their children’s healthcare. With the passage of the new federal health care bill, Congress authorized a

Parents are primarily responsible for directing the education of their children, and have the inherent right to decide whether that education shall take the form of public, private, parochial, or home schooling.

specific program for school-based clinics.38 While the law could have required parental consent for services, it did not. Undoubtedly, these clinics will provide all kinds of services, including contraceptives and abortion referral services, without parental consent.39

Education

Parents are primarily responsible for directing the education of their children, and have the inherent right to decide whether that education shall take the form of public, private, parochial, or home schooling. The Supreme Court in 1925 struck down an Oregon statute requiring all children to attend public school. In that case, the high court made it clear that a fundamental cornerstone of liberty is a parent’s right and duty to make decisions regarding a child’s education.40

For years, the public schools have indoctrinated children with beliefs inconsistent with beliefs taught at home. The assault on parents’ rights to educate their children, however, has never been stronger or more blatant than in the area of home schooling. In recent years, the number of parents choosing to homeschool their children has exploded. It is estimated that 1.5 million children are homeschooled, with some sources claiming that the numbers are really much higher.41 With the rising numbers, teachers’ unions and legislatures have taken notice, and efforts are underway in several jurisdictions to further restrict this option for parents. According to the Home-School Legal Defense Association, in 2008, D.C. was the first jurisdiction to severely limit the right of parents to homeschool. While not banning home schooling entirely, the D.C. City Council decided to regulate it to death. In casting his vote against the plan, one D.C. Councilman reportedly called the government’s new power over home schooling parents “a type of socialism.”42

Custody

Custody of one’s children serves as the cornerstone of family autonomy and parental rights. All other parental rights—to educate, to provide health care, to instill moral and religious values—become insignificant if a parent cannot retain the right to keep a child in his presence. Traditionally, in the area of custody, and following the belief that parents naturally have the best interest of the child in mind, government deferred to the parents on issues of custody. However, with the rise of divorce and the introduction of the “Best Interest of the Child,” the court ultimately decides who assumes custody of children, regardless of the parent’s wishes. In her book, Supremacists, long-time conservative activist and lawyer, Phyllis Schlafly estimates that over 48.3 million American parents are controlled by judges in child custody matters.43

Grandparents’ Rights Movement

While not exclusively a “divorce issue,” the Grandparents’ Rights movement has been catapulted forward, in large part, due to rising divorce rates. Next to children, grandparents are the second victims of divorce when a parent denies them access to grandchildren. It can be heart-wrenching for grand-parents to be told suddenly that they can no longer see their grandchild. As difficult as this reality may be, because they diminish parental rights, grandparent rights to custody and visitation of grandchildren has never been recognized by common law.

The Grandparents’ Rights Movement serves as a new and different assault on parental rights. Whereas other movements, particularly the Children’s Rights Movement, have created conflicting individual rights within the nuclear family, the Grandparents’ Rights Movement seeks to legitimize the right of government to bulldoze the cornerstone of family autonomy and parental rights—the right to custody of children.

Grandparents’ rights organizations formed in the 1980s to persuade legislatures and courts to create visitation rights for grandparents. Initially, these groups set their sights on Washington to solve their problem. Despite Congressional hearings in both the House and Senate in the 1980s,44 Grandparents’ Rights advocates failed to convince legislators to create a “right” to visitation through federal legislation.

Unrelenting, in the 1990s, these groups successfully turned their energies toward state legislatures. In one case, however, the state legislature pushed the pendulum too far. The Washington State Legislature passed legislation that allowed “any person,” relative or nonrelative, to petition the court for visitation rights. In effect, the Washington statute stole from parents, and gave to the government the right to decide custody and visitation for children. Thankfully, in Troxel v. Granville,45 the Supreme Court overturned this state statute as an unconstitutional infringement on parental rights. The Troxel decision dealt a serious blow to the Grandparents’ Rights Movement and the government’s assault on parental authority in the area of visitation.

Today, all states allow some sort of visitation rights for grandparents. These statutes fall into one of two categories: restrictive visitation statutes and permissive statutes. The restrictive statutes allow visitation by grandparents, only if: (1) the child’s parents are divorced or separated, or (2) one or both of the child’s parents have died. Visitation in these states will be allowed only if the court decides that it is in the best interest of the child.

Permissive statutes allow grandparents the right to obtain visitation if the court decides it is in the “best interest of the child.”The “best interest of the child” standard many times requires a grandparent to show evidence of a continual relationship with the child. The parents do not need to be divorced or deceased. A court can step in and force fit parents, living in an intact family, to allow grandparents to visit their children.

In North Carolina, the N.C. Supreme Court reaffirmed the U.S. Supreme Court finding that parents, not government, hold the right to “custody, care and the nurture of children.”46 Only in cases where the nuclear family is disrupted by divorce,

or when a child is adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child may a grandparent petition the court for visitation rights to the grandchild.47 Attempts to expand grandparents’ rights have failed.

While the N.C. General Assembly has run roughshod over some areas of parental authority, it has, thus far, restrained itself from meddling in custody and visitation rights of fit, married parents whose children live in intact families.

At a Crossroads

As America continues to turn away from God, the inalienable rights for which her founders fought and died face political extinction. A government that fails to recognize the Author of those rights will refuse to uphold mankind’s inherent right to live or be free. Family autonomy no longer enjoys government’s protection. America is at a crossroads—she can rebuild the strength of family autonomy, or she can continue to sit back and watch as government assaults that wall separating freedom from tyranny. If the latter path is chosen, what is happening to parents in Sweden, Germany, and Scotland, will no longer be a tragedy occuring somewhere else. Rather, it will be a reality at America’s doorstep.v

Mary Summa, J.D., is an attorney in Charlotte, North Carolina, who served as Chief Legislative Assistant to U.S. Senator Jesse Helms during the 1980s. For a footnoted version of this article, please visit ncfamily.org.

Family North Carolina

Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION.

Originally appeared – “Parental Rights:  The Guardian of Freedom. Family NC. Spring 2011.

Myth of Sexual Liberty by Mary Summa, J.D.

In 09 Mary Summa, JD on 2013/04/24 at 12:00 AM

 

 

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How Lawrence v. Texas Threatens Families and Freedom

On July 12, 2011, Kody Brown and his “wives” stood before the cameras to announce that they were filing a lawsuit challenging Utah’s anti-polygamy law. Proud polygamists, Kody and company star in the hit reality show “Sister Wives,” which follows the lives of this Mormon clan. Recently, the state of Utah began investigating their polygamous relationship, and the Browns fled to Nevada to avoid prosecution. They are now suing the State of Utah, claiming that the anti- polygamy statute is unconstitutional. They have hired Jonathan Turley, a high-powered constitutional lawyer and law professor at George Washington University Law School, to pursue their case against the State and to defend them if they are prosecuted.

In response to the Brown lawsuit, Americans barely seemed to stir from a deep sleep. Perhaps they just do not believe that a case like this will actually go anywhere. After all, polygamy is illegal in every state and has been illegal under federal law since the mid-1800s. The thought of legalizing may just seem beyond the pale.

Sadly, it is not. Kody Brown’s case is a logical step down the slippery slope our nation embarked on 50 years ago. Encouraged by the legal elite, the judiciary has advanced the social agenda of this country’s few to the detriment of many. It has weakened the moral fiber of this country and has abandoned its job to protect the fundamental rights of its citizenry. Eight years ago, waving the banner of liberty, the Supreme Court, in Lawrence v. Texas, for the most part nullified state anti-sodomy laws and opened the legal floodgates for future legal attacks on “morality laws.” Most recently, the logic of Lawrence has been used to legalize same-sex “marriage,” and now, with the skillful pen of Jonathan Turley, Lawrence is being employed to promote the legalization of polygamy.

Americans need to wake up. Kody Brown’s victory, should the case prevail, could spell liberty’s defeat. To change course, Americans need to appreciate the proper foundation of law, the appropriate role of government, and the role that traditional marriage serves in preserving freedom. If Americans remain asleep, freedom now enjoyed will be a thing of the past. A Foundation in Natural Law

The Merriam-Webster Dictionary defines law as “a binding custom or practice of a community.” Law is, and always has been, a method to regulate human behavior in civil society.

As noted by the late Notre Dame Professor Ralph McInerny, natural law provides foundational values which are critical for a society’s survival. Natural law teaches “that there is an absolute right and wrong and that God is the ultimate source of law.” Fairness, goodness, and justice are founded in divine law.

Furthermore, natural law recognizes “natural rights” bestowed on man by God. Government’s role is to protect these rights. These fundamental rights include, but are not limited to, the right to life, the right to liberty, the right to ownership of property, the right to marry.

Natural law is reflected in our founding documents. Thomas Jefferson, a student of classical thought, embraced natural law in the Declaration of Independence when he wrote, “all men are created equal. They are endowed by their Creator with certain inalienable rights, that among these rights are life, liberty and the pursuit of happiness.” The Bill of Rights, first introduced by James Madison at the first Congress, adopted and ratified by the states in 1791, encapsulated these rights in the U.S. Constitution.

Historically, legislative enactments and court decisions have reflected the principles of natural law. Rights were recognized as emanating from the Creator—the right to life, the right to freedom of religion, speech, press, the right to private property, the right to marry, the right to educate and rear one’s own children free of government interference—and when threatened, were protected by the courts. “Morality laws,” enacted by state legislatures, reflected natural law.

Legal Positivism

Legal positivism dictates that God and the moral law serve no role in governmental law. Law is a separate and distinct creation of man and a product of force, not conscience or human reason. The courtroom, in the mind of the legal positivist, is a “laboratory” where law is “discovered.” Jurists embracing this theory view their role not as determining the founding fathers’ intent in the Constitution, but as interpreting a “living and breathing” document that should evolve as society needs change. As pointed out by Paul Rickert at the Helms School of Government at Regent University, legal positivism shifts power away from the individual to the state and the “elevation of personal freedom over accepted morality.”

Legal positivism reached the highest levels of the American judicial system with the confirmation of Oliver Wendell Holmes to the U.S. Supreme Court in 1902. While it continued to grow in popularity on the Court during the early part of the 20th Century, legal positivism did not hold a consensus on the Court until the 1960s.

Removing God from Public

The social and legal consequences of this newly adopted jurisprudence soon became painfully evident. In 1961, in Torasco v. Watkins, the Court struck down a Maryland state statute requiring individuals holding the position of notary publics to acknowledge the existence of God. In 1962, in Engle v. Vitale, the Court struck down a 10-year- old non-denominational prayer recited in New York public schools. In 1963, in Abington Township v. Schempp, the Court struck down a state statute requiring daily Bible reading in public schools.

This reverse discrimination of removing God from public policy, according to Charles Rice, an eminent constitutional law professor, did not simply create “neutral” public policy but, by default, resulted in “a governmental preference of agnostic secular humanism.” Agnostic secular humanism takes no position on the existence of God and holds that man, not God, is the final arbiter of right and wrong. Ultimately, as Professor Rice points out, that authority will be seized by the State.

The Court’s Assault on Morality

With God ushered to the exit door of public policy, the dismantling of “morality laws” soon followed. The opportunity arose in 1965, when the Court addressed the constitutionality of “Com- stock Laws” that had enjoyed a long history in the United States. In 1873, the U.S. Congress enacted the Comstock Act, which outlawed the “interstate mailing, shipment or importation of articles, drugs, medicines and printed materials of ‘obscenities,’ which applied to anything used ‘for the prevention of conception.’” By 1920, according to one source, 45 states had enacted laws to regulate “obscene” or “immoral” information. By 1960, 30 states explicitly outlawed the distribution of information or advertising about articles, instruments, and medicine concerning contraception, and 24 states explicitly banned the sale of such articles, instruments, or medicines. Several states had exceptions to this law for physicians, pharmacists, or “legitimate businesses.”

Law is, and always has been, a method to regulate human behavior in civil society.

Amidst this political and legal backdrop, in 1961, Estelle Griswold, an Executive Director of Planned Parenthood in Connecticut, opened a Planned Parenthood clinic that provided contraceptives and contraceptive counseling to married couples. Griswold was arrested, prosecuted, and found guilty of violating Connecticut’s Comstock law. In turn, Griswold filed a lawsuit against the state challenging the law’s constitutionality. In 1965, the Supreme Court overturned the conviction and, in effect, nullified Connecticut’s Comstock law.

Griswold served as a legal launch pad for an all-out assault on fundamental rights traditionally protected by the courts. While some of these rights have been repaired in subsequent decisions, they were never fully restored:

• In 1973, the Supreme Court gutted the fundamental right to life.

• In 1976, it weakened parents’ rights to make medical decisions for their children by denying parents the right to consent to their child’s abortion.

• In 1977, it denied parents the fundamental exclusive right to consent to their child’s use of contraceptives.

Griswold paved the way for legal positivism in American courts. The courts, both federal and state, abandoned their traditional role of Chief Guardian of fundamental rights and became, instead, Chief Creator of “rights.” In effect, Griswold stole from the people the power of self-governance through representation and gave it to the courts. The courts could now overturn laws reflecting accepted morality under the guise of the “freedom” of the few. Secondly, as pointed out by Professor Rice, the case set into law an important tenet of secular humanism—that there is no inherent connection between the unitive and procreative aspects of sex and that man is the final determiner of whether sex will have any relation to procreation.

The cultural collapse that coincided with the court’s newfound role in American jurisprudence cannot be denied. According to William Bennett in his book, The Index of Cultural Indicators, between 1960 and 1990:

The courts, both federal and state, abandoned their traditional role of Chief Guardian of fundamental rights and became, instead, Chief Creator of “rights.”

There has been more than a 500 percent increase in violent crime; more than a 400 percent increase in illegitimate births a tripling of the percentage of children living in single-parent homes; a tripling in the teenage suicide rate, a doubling in the divorce rate and a drop of almost 80 points in SAT scores. … The social regression of the last 30 years is due in large part to the enfeebled state of our social institutions and their failure to carry out a critical and time-honored task: the moral education of the young.

Although few would blame the courts for this moral decay, their hand in aiding and abetting the culture’s decline cannot be refuted.

A “Right” to Sex

Before 1986, the Supreme Court had tacitly approved of non-marital sexual activity by finding a fundamental right to privacy for minors to obtain abortions and contraceptives without parental approval, but had never addressed the issue head-on. In 1986, the opportunity arose, and the Court upheld a state statute prohibiting sodomy. In 2003, in Lawrence v. Texas, the Court did an about-face. Refusing to call it a “fundamental right,” the court used a distorted view of “liberty” to declare a Texas anti-sodomy law unconstitutional. Justice Anthony Scalia warned in his dissent that the case could spell the end to all “morality laws.” His words have proven prophetic.

Almost immediately, law professors and their students began opining about Lawrence’s impact on the constitutionality of statutes outlawing incest, adultery, bigamy, and prostitution. Surely, many gleefully argued, Lawrence would serve to justify same-sex “marriage,” and “free” Americans from the archaic legal restraints on all private consensual sexual behavior.

A few state courts subsequently used the Lawrence decision to impose same-sex “marriage” on their citizens. In fact, the ink was barely dry on the Lawrence decision when State Supreme Court Justice C.J. Marshall applied it to legalize same-sex “marriage” in Massachusetts in 2003. In total, since the Lawrence decision, six states and the District of Columbia, have legalized same-sex “marriage.”

Broadening Lawrence

Attempts to overturn other laws restricting sexual behavior soon followed the Lawrence decision. Most notably, in 2005 in Muth v. Frank, petitioners asked the U.S. Court of Appeals for the Seventh Circuit to find a Wisconsin law prohibiting incest unconstitutional. In this case, a brother and sister married. In 1997, the couple was charged and convicted of incest. During the court proceedings, using Lawrence to justify their position, the couple argued that the Lawrence case prohibited all legislative proscriptions on sexual activity between consenting adults. Writing for the majority, Judge Daniel Manion, a Reagan appointee and a strict constructionist, refused to find that Lawrence granted a fundamental right to engage in incest. Later that year, the Supreme Court refused to review the case and so the Manion decision stood. Perhaps, the Supreme Court, by denying review of the circuit court’s decision, was unwilling, just yet, to face the logical consequences of its previous actions. The blistering response from the legal community over the Manion decision indicates that this issue is far from over. At least one other circuit court has refused to find that Lawrence recognized a “fundamental right” to sexual intimacy.

A Blessing in Disguise?

Marriage between a man and a woman, intended for a lifetime, while recognized by the government, is ultimately a God-given institution. It has pre-existed and survived government. It has served the purpose of funneling sexual desires into an institution that provides the best environment for raising children. Traditionally, government has protected the rights of fit parents to rear children as they deem appropriate. Overall, the family unit has escaped the meddling hand of government control.

Legally protecting the right to engage in sexual activity—homosexual and heterosexual—outside of marriage devalues marriage as a critical institution for the rearing of children. Legalizing institutions that mimic marriage and legally creating rights that emanate from those institutions threaten parental autonomy traditionally enjoyed within the walls of marriage. Legalizing polygamous marriage undercuts a key component of marriage—sexual fidelity to one person—and could be the knock-out blow to marriage as a social institution protecting freedom.

The Court may still face the consequences of its decision in Lawrence. Notwithstanding a legal hurdle in September, most legal scholars anticipate that a battle to stop same-sex “marriage” in California may soon reach the U.S. Supreme Court. The Court will then be forced to face whether to constitutionally justify same-sex “marriage.” While that case winds its way through the legal maze, however, Kody Brown and his lawyers may be on a faster track. If the Brown polygamy train reaches the Court first, the collective conscience of the court may see the legalization of polygamy as just too great a leap and jeopardize the legalization of same-sex “marriage.” Indeed, Kody Brown’s lawsuit may not spell the end of traditional marriage, but instead prove to be its saving grace.

Preserving Freedom

Seeking justice should be the highest goal of American jurisprudence. By routinely renouncing natural law in favor of legal positivism, the courts have abandoned their preeminent duty. Mortimer Adler, an American philosopher, has suggested that by rejecting absolute good and absolute truth, the legal positivists “can find no basis for the distinction between what ‘ought’ to be desired or done and what is desired or done… Just and unjust is determined solely by whoever has the power to lay down the law of the land.”

Historically, the movements against slavery, segregation, and genocide were driven by natural law and scriptural ideals, rather than temporal culture. Without natural law’s impetus, these valid movements would have lacked justification and would have been snuffed out by the will of the majority.

Since its inception, America has always been the shining beacon of hope for millions around the world thirsting for freedom. Her civil institutions have been constrained by the belief that their role is to preserve fundamental rights given by a gracious God. Her people have understood and cherished their independence and self-government and the understanding that enduring freedom rests in the pursuit of truth. Marriage between one man and one woman has served the critical role of providing the best environment for the rearing of children, the nation’s future citizens.

Of late, with the judiciary at the helm, our nation has taken a different path, which will only lead to its demise as the freest nation in the world. But it is not too late to correct the error. Americans can reclaim their nation’s liberties by using the ballot box. They must elect legislative and judicial candidates who believe in absolute moral truth and that the government’s role is to preserve, not create, fundamental rights, and that justice should be the highest goal of American law. If legislators and judges hold these beliefs, blessings of liberty will be preserved for America’s posterity. If they do not, the world will witness the demise of the greatest experiment of liberty ever known. The choice is ours.

Mary Summa, J.D., is an attorney in Charlotte, North Carolina, who served as Chief Legislative Assistant to U.S. Senator Jesse Helms during the 1980s. For a footnoted version of this article, please visit ncfamily.org.

Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION.

 “The Myth of Sexual Liberty:  How Lawrence v. Texas Threatens Families and Freedom.  Family NC.  Fall 2011.

The Changing Definition of Parenthood: How Adult Whims Have Superseded Children’s Needs in American Family Law

In 09 Mary Summa, JD on 2013/04/17 at 12:00 AM

by Mary Summa, JD

A Letter To My Father. Who are you?
I ask myself this question every time I catch a glance of my reflection in the morning … I fear for what the future holds and wonder if I will receive  any slight information about you. I grieve for you and for the part of myself that I will never truly know. I feel as though half of me is missing alongside my family, because that’s what you are. Family.
I feel as though I have been cheated out of knowing you, communicating with you, as I never got a say in the first place. I still don’t now, You are Anonymous.
And there is nothing I can do to change that.1

The pain revealed by this writer is palpable. One may think it is the story of a child whose father died or abandoned the family. In truth, it is a letter from a child to her biological father, an anonymous sperm donor.

One hundred sixty years ago, human beings in this country were treated as chattel, bought and sold on the auction block to the highest bidder. A civil war settled the matter: America would not tolerate the sale of human life. Now, with the help of the medical profession and the blessing of the judiciary, this past is being repeated. The only difference is that now babies, in whole or in part, are being sold, many times by their own parents, who before these babies’ conceptions have no intention of rearing them.

This new phenomenon raises several questions: Should parents be free to sell their biological children? Do children have a right to know their biological heritage? How does the changing meaning of parenthood affect freedom? Failing to confront and properly answer these questions could spell disaster.

Parenthood Within Marriage 

Traditionally, “parent” has always been defined as a mother or father related to a child by blood. Under common law, a woman who gave birth to a child was considered the child’s legal mother. If the mother and father were married at the time of the child’s birth, the husband was presumed to be the child’s father. The title of mother and father, and the obligations and rights attached to that title were exclusively the husband’s and wife’s. In short, biology determined motherhood. Marriage presumed legal fatherhood.2

The inextricable common law link between marriage and parenthood was not serendipitous. Rather, the law elevated marriage and parenthood,3 reflecting an aspirational morality.4 Judges and lawmakers understood that marriage provided the best environment for the rearing of children. Additionally, marriage linked fathers to their children.

Illegitimacy was frowned upon in public policy well into the 20th Century. Laws extended few, if any, of the rights traditionally enjoyed by married couples to unmarried couples. Adoption laws were legislatively-created laws, which were not found in common law, enacted to protect children’s health and well-being.

Marriage laws were designed to keep the marriage intact, and to keep children in the custody of their biological parents. Divorce was obtainable, but only after egregious behavior by a spouse was proven in court.

Government Redefines Marriage 

Law often influences a society’s morality. As pointed out by Hadley Arkes in his book, Natural Rights & the Right to Choose, “as the public absorbs the understandings of right and wrong contained in the laws, the character of the public becomes shaped for better or for worse.”5

The 20th Century brought forth a different understanding of the foundation of law and public policy. Influenced by their European counterparts, American jurists began rejecting natural law and embracing legal positivism, a jurisprudence that defines law by what the majority says it is, and that was less moralistic, less judgmental, and less demanding than natural law. Stoked by the sexual revolution, the last quarter of the 20th Century witnessed personal autonomy masquerading as individual liberty dominating legal theory, particularly in the area of sexual freedom. In terms of marriage laws, the focus shifted from children’s needs to adults’ wants.

No-fault divorce illustrates the law’s changed focus and its impact on marriage and parenthood. In 1969, California enacted the country’s first no-fault divorce law.6 By 1974, all but five state legislatures had adopted no-fault divorce.7 In 2010, New York became the final state to legalize no-fault divorce.8 As a result, divorce rates sky-rocketed. Since 1974, according to the online publication National Affairs, over one million children every year see their parents divorce.9

The same-sex “marriage” movement has impacted the stability of marriage and family life as well. In order to accommodate homosexual relationships under the marriage umbrella, courts and legislatures have redefined marriage in ambiguous terms of “love and commitment,” rather than as an institution designed to channel sexual activity into a permanent, life-long relationship for the rearing of children the couple begets.10 This slight of hand, has imposed significant damage on the meaning of parenthood. As underscored by one expert, “Rather than attaching children to their biological parents, same-sex ‘marriage’ is the vehicle that separates children from a parent.”11

Reproductive Technology Is Redefining Parenthood

No-fault divorce legitimized the separation of children from one parent, usually the biological father. Remarriage and step-parenting introduced into public policy the idea that “parenthood” was no longer exclusively the right of one father and one mother.

Concurrently with the legal weakening of marriage, new reproductive technology, such as artificial insemination, in vitro fertilization, and surrogacy, medically redefined parenthood. For the first time in history, legal parenthood no longer depended on genetics and gestation.

Artificial Insemination separates conception from the procreative act, allowing it to occur with sperm donations from anonymous donors. The first baby produced by artificial insemination was born in 1953. Today, the procedure is relatively routine. There are no official records of the number of children conceived by artificial insemination. One source has reported that by 1987, 172,000 women were artificially inseminated in the U.S. each year, resulting in 65,000 births.12

In vitro fertilization, a newer procedure, allows for conception to occur outside the womb, many times with anonymously donated eggs and/or sperm. The embryo is then implanted into a woman’s uterus. In 1979 the federal Ethics Advisory Board approved federal funding for research on in vitro fertilization. The first IVF clinic opened in the U.S. in 1980. In 1981, the first “test tube” baby was born in the U.S. By 2004, according to a series produced by PBS, over half a million babies worldwide were conceived outside the womb. There are 450 IVF clinics in the United States alone.13

Sperm banks and egg donor centers have become big business in the U.S. While it is unclear how many banks exist in the U.S., Daily Finance, an online business publication, reports that donations are up during this recession. Cryobank, a sperm bank in Los Angeles, pays donors $100 per donation. The sperm bank recruits college students, who make approximately $1,000 per month donating sperm to the bank. Donors work for the company an average of one and a half years.14 Just doing the math, conceivably, an anonymous college male student could biologically father hundreds of babies during his employment with the sperm bank, a possibility that has raised concern about accidental incest.15 Egg donations reap even greater profits. According to the website Heartlander, it is a $3 billion business reaping $4,000 per egg for the egg donor.16

Surrogacy. Artificial insemination and in vitro fertilization separate legal parenthood from genetics. Surrogacy removes legal parent status from the gestating mother. With surrogacy, a woman is paid to carry to term a baby for another person or couple in exchange for money. She is neither biologically related to the child nor intends to keep the child. Although there is no official recordkeeping on how many babies are born via surrogacy, a 2010 Chicago Tribune article estimated that 1,400 babies are born in the United States each year through surrogacy.17

Most recently, reproductive technology has pushed the envelope even further. In Britain, scientists have been granted permission to create embryos with three genetic parents, and, according to the Commission on Parenthood, researchers announced in 2005 that they developed human embryonic stem cells into forms of cells that can become eggs and sperm. In Edinburgh, Scotland, researchers announced that they had “tricked” an egg into dividing and created a human embryo without a genetic father.18

Government Dismantles Parenthood

Rather than protecting children’s needs for a mother and father, legislatures and courts have engaged in legal back-bending to accommodate adults’ desire for parenthood. The term “parent,” once defined by biology, is now being legally defined in terms of genetics or gestation or intent. In fact, legal trends indicate the elimination of genetics or gestation as grounds for parenthood and a reliance solely on parenthood by “intent.” In Ireland, for example, a proposal was presented that recommended that a surrogate have no legal standing with regard to a child that she bears during or after birth.

This trend in the U.S. is most readily seen in the area of surrogacy. According to the website Allaboutsurrogacy.com, 14 states have statutorily legalized surrogacy contracts.19 In North Carolina, in 2009, a bill was introduced to legalize surrogacy contracts. In that bill, the surrogate was described as the “gestational carrier.” The contracting couple was described as the “intended parents.” Currently, gestation establishes legal motherhood.20 If the bill had been enacted, arguably, the bill would have surreptitiously introduced into North Carolina statutory law “parenthood by intent.”

Same-Sex Relationships’ Effect

The legalization of same-sex “marriage” has brought increased political pressure on jurisdictions outside the U.S. to define parenthood by “intent” and to erase references to genetics on birth certificates.

In Canada, when same-sex “marriage” was legalized in 2004, the law quietly changed the term “natural parent” to “legal parent.”

In Spain, eight months after legalizing same-sex “marriage” in 2005, the law governing birth certificates was changed. Rather than “mother” and “father,” birth certificates now read “Progenitor A” and “Progenitor B.”21

In the U.S., courts have succumbed to pressure from same-sex couples to eliminate references to gender or genetics on birth certificates.

In 2005, the American Civil Liberties Union won a court order in New Jersey granting the right to two lesbians to be listed on a birth certificate as the parents of the child born to one of the lesbian partners.22

In Virginia, in 2006, a court ordered lesbians to be listed as “Parent 1” and “Parent 2” on a birth certificate after the couple opposed having one of the partners listed as “father.”23

In Iowa, as of November 2011, a case was pending where a lesbian couple asked the court to require the state to list them as the “parents” of a child born to one of the partners as a result of artificial insemination.24

Parenthood Myths. In recent years, courts and legislatures have created two very similar legal myths, called the “psychological parenting doctrine” and the “de facto parenting doctrine,” to award parentage and custody rights based on “intent” to non-biologically related individuals. Although this doctrine has been used by cohabitating heterosexual couples, the expanding body of case law involves same-sex couples.

A “de facto parent,” as defined by the American Law Institute, is an unrelated adult who has lived with a child for two years and provides a majority of childcare (or at least the same amount as the primary legal parent) with the approval of one legal parent or where the legal parent fails to provide it.25 Psychological parenting bears a similar definition.

Under de facto and psychological parenting, a child may have a number of “parents” petitioning the court for joint custody and visitation.26 Unbeknownst to an ex-husband, the government may force him to share his child visitation with one or more of his ex-wife’s boyfriends or girlfriends.

In several states, courts have refused to adopt the de facto parenting doctrine. Nonetheless, the doctrine has received significant traction in other state courts. According to a report by the Commission on Parenthood, as of 2006, at least 10 states have recognized the de facto parenting doctrine. The North Carolina Court of Appeals adopted the doctrine in 2008, and the North Carolina Supreme Court used it in 2010 in two cases to award joint custody to a lesbian partner who was not biologically related to the child.27

The Psychological Impact on Children

Despite all the medical and legal energy expended to accommodate adults (whether heterosexual or homosexual) desiring parenthood, very little thought has been given to the overall impact on children. Collateral research suggests the damage is irreparable.

Biology matters. Research shows that children who grow up in families with one biological parent and a step-parent have outcomes that more closely resemble children growing up in single-parent households in numerous statistical areas: lower academic achievement, poorer physical and mental health, and more abuse within the home. Girls engage in earlier sexual activity and have higher rates of pregnancy. Boys have higher rates of violent behavior.28

Children want to know their parents. More children, similar to the one at the outset of this article, are coming forward and revealing their pain. In 2005, David Blakenhorn, a marriage and family expert, spoke about Narelle Grech from Australia. Narelle, is now a 28-year old donor-conceived female who wrote to the Canadian ethicist Margaret Somerville about a magazine article where Somerville advocated societal acceptance of all reproductive technologies. As quoted by Blakenhorn, Narelle wrote the following:

I feel as though donor conceived people are the last to be thought of in these trade deals; only adults, including clinics, doctors and wannabe parents … little bits of non-identifying information will not substitute for the real person’s family. You are not only encouraging people to intentionally separate people from their families, you are going to be the cause of people who have to question their identity and no one on this earth should have to do that. How dare someone take away someone else’s freedom to know themselves.29

Researchers caution that stories like these could become all too commonplace as children continue to be biologically separated from their parents.30

For the Sake of Freedom 

In his book, The American Cause, 20th Century political theorist Russell Kirk cautioned,

The American cause is not the cause of a revolutionary thirst for demolishing all obstacles to anarchic self-gratification…. American freedom has been the liberty of temperate policies and temperate intellects.31

The right of fit parents to rear their biological children as they deem appropriate is a fundamental right of liberty, historically recognized in common law and protected by courts and legislatures. The right to custody is the keystone of parental rights.

These attempts to satisfy the desires of adults at the expense of children are dismantling the foundations of freedom. Redefining parenthood by disconnecting it from biology and connecting it to “intent” takes the presumption of parenthood from parents and gives it to the state. Parents have become beholden to the whims of an all-powerful bureaucracy or judiciary to determine the destiny of their own children.

For the Sake of Children

Reportedly, Mother Theresa once said, “One of the greatest diseases is to be nobody to anybody.”32 By promoting anonymous parenting by commission or omission, legislatures and courts are inflicting far worse on today’s children: They are allowing the creation of children who are intended to be “nobodies” to their own parents.

The parent/child relationship is the strongest bond in human nature. Marriage is the best environment for children to thrive. Laws have recognized these facts and protected these relationships. Of late, those laws have been dismantled to accommodate the selfish whims of adults.

North Carolinians should demand that the General Assembly restore children’s interests, not adults, to the focus of family law. The Legislature can begin that process by prohibiting the sale of these children, in whole or in part, by banning surrogacy agreements and the marketing of sperm and eggs. Secondly, the General Assembly should legislatively nullify the judge-created de facto parenting doctrine existing in this state. Lastly, the General Assembly should repeal no-fault divorce laws, especially when minor children are involved.

Refusal to take these active steps will make the outcries by the woman at the outset of this article not merely the scars of a disease affecting a few, but the manifestation of an epidemic intentionally inflicted on children.

Mary Summa is an attorney in Charlotte, North Carolina.

Re-printed with permission from Family Council of North Carolina.  Summer 2012

A Threat to Liberty: Same-sex “marriage”

In 09 Mary Summa, JD on 2013/04/10 at 12:00 AM

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A Threat to Liberty: Same–Sex “Marriage,” Domestic Partnerships, and Civil Unions

Family North Carolina…written by: Mary Summa, J.D.

In Sweden in 2004, a court convicted a pastor of a hate crime and jailed him for one month for preaching against homosexuality.1 In Canada in 2007, fearful of losing custody of their children for refusing to put them in government-run schools that taught homosexuality as an ‘alternative’ lifestyle contrary to their religious beliefs, Mennonites fled Quebec for Ontario.2

These accounts should surprise no one. The homosexual rights army has been on the march for decades. The last 10 years have witnessed the fiercest battles for legalization of civil unions (or its equivalent), domestic partnerships, and same-sex “marriage.”3

What is surprising is America’s response to the struggle. Many people, including some Christians, have adopted a laissez-faire attitude when it comes to same-sex “marriage.” They have been indoctrinated by the homosexual lobby to believe that the legalization of civil unions, domestic partnerships, and same-sex “marriage” has nothing to do with them. Sadly, it does.

Make no mistake, the legalization of same-sex “marriage” would fundamentally transform the social and legal understanding of marriage. It would affect the rights and freedoms Americans hold dear and spell the death-knell of liberty. In fact, it already has.

The Steep Climb Toward

Same–Sex “Marriage”

The legalization of same-sex “marriage,” domestic partnerships, and civil unions does not represent the genesis of the homosexual rights movement, but rather its pinnacle. Beverly LaHaye, the founder of Concerned Women for America, astutely wrote: “The homosexual ideology implies the intent to rearrange our perceptions, lifestyle and legal system in the strict sense of the term. This change is revolutionary. It requires, if it is to be effectively implemented, the careful and gradual application and transfer of power. The homosexual movement is a … hard-nosed political movement bent on changing our society.”4

The goal of altering society has not come easily for the homosexual rights movement. While the first homosexual rights group was founded in 1924, 5 the movement stalled and sputtered through most of the 20th Century. Things changed drastically in 1973, when the American Psychiatric Association did an about-face and removed homosexuality from its official list of mental disorders. Buttressed with their new medical ally and aligning itself to the civil rights bandwagon, the homosexual rights movement gained traction and then momentum. Focusing on anti-discrimination laws, the movement began building an arsenal of local, county, and state laws prohibiting discrimination on the basis of sexual orientation. Simultaneously, the movement began successfully targeting anti-sodomy statutes and “hate crimes” based on sexual orientation.

In the 1980s, homosexual advocacy groups began demanding legalization of their status as couples. A former ally in the fight to preserve the traditional family, numerous courts became the family’s enemy. The last 25 years have witnessed a struggle between the courts (and some legislatures) who have sought to destroy marriage, and the public who has fought to preserve it.

To date, 37 states have enacted Defense of Marriage Statutes (DOMAs) and 30 states have passed amendments to preserve the definition of marriage in their State Constitutions.6 Six states and the District of Columbia have legalized same-sex “mar- riage,” either by judicial mandate or by legislature initiation.7 Unlike every other southern state, North Carolina lacks a Marriage Protection Amendment.

Some courts, although unwilling to overturn traditional marriage laws, began mandating that state legislatures enact laws to allow and recognize civil unions. The homosexual rights lobby saw civil unions, simply, as a legal waiting room for the subsequent coronation of the marriage title. In 1999, responding to a court mandate, Vermont became the first state to legalize civil unions.8 Praising the decision, Lambda Marriage Project Director Evan Wolfson commented, “Americans will see that when lesbians and gay men are given access to most of the rights and obligations of civil marriage, the sky will not fall and the institution of marriage will be even stronger.”9 Seven years later, the New Jersey Supreme Court mimicked Vermont’s high court and mandated the legislature to enact civil unions legislation.10 In 2005, Connecticut became the first state to legalize civil unions without a court mandate.11

Judges and legislators who thought the legalization of civil unions would quell the demand for same-sex “marriage” have been proven dead wrong. As Archbishop Charles Chaput, Archbishop of Denver, noted in a recently published article, “…in every state where civil unions have become law, the political pressure for ‘gay marriage’ has not declined; it has increased.”12

To date, seven states—Connecticut, Vermont, New Hampshire, New Jersey, Hawaii, Illinois, and Delaware—have enacted civil unions laws. The laws in Hawaii and Delaware will go into effect in January 2012. Seven states—California, Oregon, Nevada, Washington, Hawaii, Maine, and Wisconsin—and the District of Columbia legally recognize domestic partnerships.13

Three of those jurisdictions—Connecticut, Vermont, and New Hampshire—have subsequently replaced civil unions with legalized same-sex “mar- riage.”The District of Columbia has legalized same-sex “marriage“ and retained its domestic partnership law.14 If the trend in the U.S. continues, most, if not all, of these states with legalized civil unions or domestic partnerships will eventually legalize same- sex “marriage.”

Undermining Marriage

Marriage is God-given, not a creation of government, and has, in fact, existed outside of government.15 In every known human society, marriage has served as the foundational institution for society, and its purpose to regulate heterosexual activity and provide stability for the rearing of children has remained constant.16 Courts have recognized both of these facts.

Attempting to accommodate same-sex relations within the definition of “marriage,” some recent court decisions have ignored its source and minimized its foundational role in society. According to at least one court, God did not institute marriage. The State did. In Baehr v. Lewin, the Hawaii court described marriage as “a state-conferred legal status, the existence of which gives rise to rights and benefits reserved exclusively to that particular relationship.”17 In Goodridge v. Department of Public Health, a court decision that forced Massachusetts to legalize same-sex “marriage,” the court ignored the long-standing procreational aspect of marriage and described it in terms of “exclusivity, mutual support and commitment to one another.”18 The words “commitment” and “love,” as pointed out by William Duncan, Director of the Marriage Law Foundation, “are terminable in a way that ‘obliga- tion’ is not because both are subjective and can, to some degree, be chosen or unchosen.”19

Who Cares?

Anyone who cherishes freedom should care about marriage. Traditionally, state legislatures and courts have only slightly regulated the marital institution or the decisions made regarding children. The state has simply provided a “legal shell that gave the institution status and legal effect.”20

In contrast, same-sex “marriage,” domestic partnerships, civil unions, and the rights ensuing from those institutions are totally created by government. Their lifeblood depends on the winds of power. As courts and legislatures empower these institutions with rights and privileges identical to marriage, the lines of distinction blur, and government begins to tread on the rights and privileges of traditional marriage.

Undermining Parental Rights

As the definition and purpose of “marriage” has been altered, so, too, have been the rights of parents. In 2007, William Duncan argued that if marriage is no longer about “procreation” but simply a “mutual commitment,” “it is at least possible that natural parents will have to be treated the same as individuals with no natural tie to a child.”21 In fact, by 2007, the courts in several states had already re-crafted the definition of “parenthood” by legalizing “de facto” parenting, giving individuals who were not biologically linked to a child the status of “parent” with at least partial parenthood rights and privileges.

North Carolina joined the “de facto” parent- hood bandwagon in 2008, when the State Court of Appeals in Mason v. Dwinnell ruled that a non- biological ex-partner was given rights to custody and visitation to a child over the objection of the biological parent.22 This de facto parenting doctrine recently was used by the North Carolina Supreme Court in Boseman v. Jarrell to justify the awarding of custody and visitation to a non-biological parent over the objection of an ex-same-sex partner, who was the biological mother.23 Biological parents can no longer be assured that their rights, at least the rights to custody and visitation, are secure.

The court’s creation of marriage-like institutions has adversely affected other parental rights in traditional marriage. The fundamental right of parents to provide for their child’s educational, moral, and religious upbringing—rights long protected by the courts—have been victimized as well. After Massachusetts legalized same-sex “marriage” in 2003, the State Board of Education altered its curriculum to accommodate same-sex couples. In 2008, the kindergarten “Diversity Book Bag” included a picture book, Who’s In a Family?, which depicted a variety of families, including two moms or two dads. Second graders were required to listen to the reading of King and King, which describes the story of a prince falling in love with another prince. Parents objected to the content of these pro-homo-sexual materials and sued because they had never been given the opportunity to remove their children from the classroom while the materials were being taught. The lower court dismissed the lawsuit, and on appeal, the federal circuit court affirmed that dismissal. Brushing aside a parent’s rights to provide for the spiritual and moral well-being of their own children, First Circuit Judge Sandra Lynch admitted in the opinion that the book “affirmatively endorsed homosexuality and gay marriage,” and boldly concluded, “It is a fair inference that the reading of King and King was precisely intended to influence the listening children toward tolerance of gay marriage. That was the point of why that book was chosen and used.”24

Threatening Religious Freedom

For the past 20 years, churches and religiously- affiliated institutions worldwide have felt the sting of the homosexual rights movement. While not yet directly barring biblical teaching against homosexuality, many institutions have found themselves staring down the barrel of a lawsuit because they have refused to accommodate the homosexual lifestyle. In 1987, 13 years before D.C. legalized same-sex “marriage,” in Georgetown University v. Gay Rights Coalition of Georgetown Law Center, the D.C. Courts found Georgetown University, a Catholic institution, in violation of a public accommodations law for failing to allow homosexual groups to meet on campus. In the opinion of the court, “the goal of eradicating sexual orientation discrimination represents a more important government interest than protecting religious liberty.”25

The legalization of civil unions, while not called “marriage,” intensified the wrath against those who courageously spoke out against the homosexual life- style. In 2007, civil unions in California were legal but same-sex “marriages” were not. Four San Diego firefighters objected to participating in the San Diego Gay Pride Parade. Their superiors forced them to do so. (Subsequently, the firefighters won a sexual harassment suit in 2010 for injury occurring from working at the event.)26 In 2007, one year after New Jersey legalized civil unions, the State of New Jersey removed a greenway tax exemption from a New Jersey Methodist camp, because that camp refused to host a same-sex union in its marriage pavilion.27

The legalization of homosexual “marriage” has intensified the government’s scrutiny of organizations and individuals who have refused to bow to the homosexual agenda. In 2006, three years after the courts forced the Massachusetts legislature to legalize same-sex “marriage,” Catholic Charities of Massachusetts was faced with a dilemma: place children with same-sex couples or lose its license. Unable to obtain a waiver of the anti-discrimination laws regarding sexual orientation, and refusing to violate religious convictions, Catholic Charities closed its doors to the adoption business after 100 years of service.28

In 2008, the same year the judiciary redefined marriage,29 a California court refused to allow a physician to claim a religious exemption when he was asked to perform In Vitro Fertilization treatments on a lesbian woman. The court, in North Coast Women’s Care Medical Group v. San Diego County Superior Court, found that the state’s compelling interest in extinguishing discrimination on the basis of sexual orientation superseded a religious belief, even if that burden on freedom of religion was “substantial.”30 The legalization of same-sex “marriage” will elicit numerous cases of this nature.

The pro-homosexual attitude in government has pervaded government entities even in jurisdictions without civil unions or same-sex “marriage.” In many cases, local human rights commissions have wielded the hammer.

• In 2006, the Arlington, Virginia Human Rights Commission ordered a professed Christian, who operated a video duplicator business, to do a job for a lesbian activist. He had refused because he did not want to help promote homosexuality.31

• In 2008, a Christian couple in Albequerque, New Mexico was tried before the State Human Rights Commission after declining to photograph a same-sex ceremony. Reportedly, the couple had to pay the commission a fine of $6,600.32

These few examples provide a glimpse of how far the homosexual agenda has advanced in this country. Looking at Canada, a country that legalized same-sex “marriage” in 2005, one can see what persecution might lie ahead.

• In 2005, the Alberta Roman Catholic Bishop Fred Henry, faced two complaints filed against him because of his pastoral letter defending the traditional definition of marriage. In a 2008 article, Bishop Henry is quoted as saying, “The social climate right now is that we’re into a new form of censorship and thought control, and the commissions are being used as thought police.”33

• In 2007, a Catholic city councilman from British Columbia was fined $1,000 and required to apologize for saying that homosexuality is “not normal or natural.”34

• In 2009, Ontario’s Ministry of Education mandated a policy that required every school board in Ontario, Catholic and public, to

implement a new ‘equity and inclusiveness’ policy recognizing sexual orientation” as a ground protected from discrimination by September 2010.35

These situations make one wonder how anyone could ever question how the legalization of same-sex “marriage” will affect them.

For Family and Freedom

Thomas Jefferson wrote in the Declaration of Independence, 235 years ago, that man is endowed with the inalienable right to liberty. That right includes religious freedom and the right of parents to instill those religious beliefs in their children. Our forefathers understood that those rights serve as the foundation of freedom and a government must protect them.

Totalitarianism, on the other hand, is a system of government that is dictatorial and requires complete subservience of its citizenry. Strong families and the Church are its two primary enemies because both diminish the power of the State to control the loyalty of its citizenry. One demands loyalty to one’s spouse and children. The latter demands loyalty to God.

As the battle over homosexual “marriage” continues to be waged in state legislatures and courtrooms nationwide, marriage defenders should not fool themselves into thinking that it does not affect all individuals and marriage at large. Amidst charges of “homophobia,” “unfairness,” and “bigotry,” the fight to preserve traditional marriage—the foundation of freedom—must continue. North Carolinians must act now to stem the tide by demanding a state constitutional amendment that will protect the definition of marriage as being between a man and a woman with that relationship being the only valid and legally recognized domestic union in the state. If pro-family citizens sit back and do nothing, this religious persecution and all-out war against the family will intensify here in North Carolina. As a result, parental and religious freedom will be lost.v

Mary Summa, J.D., is an attorney in Charlotte, North Carolina, who served as Chief Legislative Assistant to U.S. Senator Jesse Helms during the 1980s. For a footnoted version of this article, please visit ncfamily.org.

Family North Carolina

Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION.

“A Threat to Liberty:  Same Sex ‘Marriage,’ Domestic Partnerships and Civil Unions. Family NC.  Summer 2011.

Hijacking Conscience Clauses: Manipulating the Law to Protect the “Right to Kill”

In 09 Mary Summa, JD on 2012/11/02 at 10:40 AM

By: Mary Summa, J.D.

Baby Ryan Nguyen was born six weeks premature with barely a heartbeat. He was diagnosed with severe brain damage, an intestinal blockage and failing kidneys. After several weeks, doctors decided that continuing dialysis was not only “inappropriate” but “immoral” since, in the doctors’ view, it would prolong agony with “no likelihood of a good outcome.”1 The doctors stopped all treatment. When the parents successfully obtained an injunction from a court to force the hospital to treat Ryan, the hospital administrator reported the parents to Child Protective Services for “physical abuse and physical neglect.”2 The parents found another doctor to treat Ryan. Under the new doctor’s care, Ryan was treated, removed from dialysis and returned home. Ryan lived for several more years.

The Nguyens’ battle to save their child reads like a story from the Third Reich. Surprisingly, it occurred in Spokane, Washington in 1994, and sadly, served as a harbinger of things to come.

This new ethic in medicine—the futile care theory—has transformed the practice of medicine and the meaning of American freedom. The medical profession was once steeped in the sanctity of life ethic. Now it has become the standard-bearer of the euthanasia movement, a 20th Century movement whose proponents seek to extinguish the lives of the elderly, the infirmed, and the handicapped.

These strides have not been made single-handedly. With only one exception, many state and federal lawmakers have remained complacent, while many doctors and hospitals have misused laws written to protect life, in order to provide legal immunity for doctors who kill their own patients.

Such laws must be amended to vigilantly protect the inherent right to life. To accomplish this goal, one must understand the origin of the futile care theory, its depth and breadth in the practice of medicine, and how laws intended to protect life have been co-opted to promote euthanasia. Only then can Americans understand how the laws must be changed to protect the living and, ultimately, the freedoms upon which this nation was founded.

The Sanctity of Life Ethic

Medical ethics have existed since the time of Hippocrates around 400 B.C. As Christianity spread, the belief that God endowed man with intrinsic value began to influence law and medical ethics. Called the “sanctity of life ethic,” it imposed on doctors a duty to treat and heal all life, including the lives of the physically and mentally challenged and the unwanted. Performing abortions or euthanizing patients violated medical standards of care.

Throughout most of history, until the Enlightenment period of the 18th Century, this ethic remained unchallenged. Religious revivalism in the mid-1700s protected the ethic in America and Europe from being dismantled by law and rejected by medicine. Well into the 19th Century, euthanasia and suicide were condemned as a rejection of God’s providence and a violation of the sanctity of life ethic.3 Abortion was illegal under Anglo-American common law and by 1900, every state, with the blessing of the medical community, had codified common laws against abortion.4

Euthanasia, Eugenics, Birth Control, and Abortion

The emergence of the Euthanasia Movement in the early 20th Century challenged the sanctity of life ethic. Euthanasia, a movement born during the Enlightenment, rejected the belief in the inherent value of every life and, instead, weighed its value in terms of its utility to society.

At the beginning of the 20th Century, America remained a Christian nation whose laws and ethics reflected a belief in moral absolutes established by the Creator. Recognizing this fact, many euthanasia proponents directed their attention and financial resources to movements linked in spirit to the euthanasia movement—the eugenics movement in the 1920s and 30s, the birth control movement in the 1940s, and the abortion movement in the 1960s and 70s. Prominent euthanasia advocates, including Margaret Sanger,5 John D. Rockefeller III, and Hugh Moore,6 gave these initiatives credibility and financial resources. The medical community tolerated, and, in some cases, enthusiastically supported the movements.

Euthanasia’s Disguise 

Euthanasia can be divided into several categories. With voluntary euthanasia, a patient decides whether he should die as a result of withholding treatment so as to hasten death, or be killed proactively. With non-voluntary euthanasia, a surrogate makes the decision, and with involuntary euthanasia, a third party makes the decision over the objection of the loved one or surrogate. Euthanasia can be passive by withdrawing life-sustaining treatments or active, which requires the doctor to actively kill the patient.

Living Wills. The rise of medical technology in the late-1960s and early-1970s gave euthanasia advocates an opportunity they had sought for years. Cases began to arise where, against the will of the patient or the patient’s loved ones, doctors were keeping patients artificially alive on machines. Aided with medicine’s new emphasis on individual freedom and patient autonomy, the Euthanasia Society of America and the Euthanasia Education Council of America resurrected the idea of living wills, which would allow patients to give consent in advance for the withdrawal of certain treatments. The concept of “living wills” arose in 1949, but was dismissed by many in the movement because passive euthanasia was “tangential to the movement’s real objective.”7 Other euthanasia proponents saw living wills as the prelude to legalized active involuntary euthanasia that “include[d] deformed infants and severely handicapped adults.”8

Reintroduced in the 1970s, the idea caught fire in state legislatures.9 In 1976, California became the first state to legalize living wills. Laws authorizing non-voluntary euthanasia soon followed in the form of Health Care Powers of Attorney (HCPOAs), which authorized the withdrawal of life-sustaining care, including antibiotics and artificial food and water, under certain circumstances. Today, laws authorizing advance directives have been enacted in every state.10

The Duty to Kill

In the late 1980s and early 1990s, involuntary euthanasia proponents began pushing their cause with “the futile care theory” which promoted the idea that the right to life is not inherent, but should be determined by a third party judging the patient’s perceived quality of life and mental cognizance.

As early as 1990, articles began appearing in prominent medical journals espousing the benefits of the theory. In a 1990 article, three prominent doctors penned an article where they stated,

If survival requires the patient’s entire preoccupation with intensive medical treatment, to the extent that he or she cannot achieve any other life goals … the treatment is effective but not beneficial; it need not be offered to the patient and the patient’s family has no right to demand it.11

In 1993, Peter Singer, a well-known utilitarian bioethicist argued that the right to live and “personhood” would be determined by a perceived quality of life and the mental cognizance of the patient.12

In 1996, in lockstep with the medical elite, the American Medical Association issued a report supporting the implementation of the futile care theory in every hospital in America. In that report, the AMA failed to define “futile care,” emphasizing that it was a “value judgment” where “reasonable people will disagree.” “Appropriate care” should no longer be based on the age-old test of what was physiologically beneficial to the patient. Rather, the decision to treat or not to treat would be weighed against such things as the patient’s “possible quality personal interaction” and cognitive awareness. Furthermore, doctors, not patients or their families, would dictate the care received.13

Sixteen years after the AMA issued this report, the definition of futility remains unclear. In a 2009 article, the author reported that some physicians may determine care is futile if it offers a 10-20 percent chance of benefit, whereas other physicians consider care futile when they believe it offers a zero percent chance of success.14

Recently, bioethicists have interjected lifeboat ethics into the definition of “futile care.” In 2009, bioethicist Jacob Appel wrote an article condemning the provision of artificial hydration to unconscious patients in favor of preventative care for others. “I like to think of our current healthcare system as an enormous yet finite blanket that can only cover so many people—when one individual slides under the cloth, somebody else is pushed out,” Appel wrote.15

Another 2009 article echoed the same sentiment when the author questioned,

How will providing the treatments one patient demands burden or benefit others in the community? Can resources used to support the life of one dying patient be redistributed to benefit others?16

Stooping to a new low in 2010, another author argued that providing antibiotics to patients he deemed futile “can be considered unethical…”.17

This new criteria for determining who receives care has opened the door for rationed care not only for “futile” care but for “marginally beneficial” care. In England, often the forbearer of U.S. policy, some cancer experts are now pushing the state-run health care system to halt life-prolonging cancer treatments, claiming they are too costly and offer “false hope.” They argue monies should be spent on preventative care, which could save more people, rather than expensive drugs that simply prolong a person’s life who will eventually die, according to these experts.18

Legal Efforts to De-sanctify Human Life

As poignantly stated by one anti-euthanasia advocate, over time, the ethical question “what is right?” became “who decides?”—which now has devolved into “what is legally allowed?”19

The medical establishment found one answer right beneath their noses in the form of “conscience clauses.” A fixture in law and the practice of medicine since the 1970s, most states and the federal government had created these “legal life boats” to prevent doctors and medical personnel, objecting on religious or conscience grounds, from being forced to participate in abortion. With the enactment of advance medical directives, legislators included similar conscience clauses to protect doctors who did not want to comply with a patient’s directive to withdraw medical treatment. At that time, the possibility that a doctor or hospital would terminate life-sustaining treatment against the patient’s wishes was simply beyond contemplation by doctors or legislators.

The shifting ethical foundation of medicine has turned these protections inside out. Now with the futile care theory dominating ethics taught in medical schools and governing hospitals, in many hospitals it has become “a violation of conscience” to provide life-sustaining medical care for patients whose lives the doctor believes are not worth saving.

A 2005 Massachusetts case provides a vivid example of how conscience clauses have been hijacked to promote involuntary euthanasia. Barbara Howe suffered from Lou Gehrig’s disease, and made it clear in her medical directive and to the nursing staff that she wanted life-sustaining treatment, including a ventilator. She signed a medical directive making her daughter the health care proxy. Massachusetts law regarding health care directives contains language allowing a doctor, on moral or religious grounds, to refuse to follow the patient’s directive.20 Hiding behind this provision, the doctor refused to keep Barbara Howe on a ventilator. The daughter sued, and ultimately, the doctor won in court. The ventilator was cut off and the mother died directly as a result of the doctor’s violation of her wishes.21

Dozens of such cases have appeared in magazines and newspapers over the years, and in many cases, doctors have successfully used conscience protections to kill their own patients.

What Should Be Done?

Conscience clauses served as a short-term fix for pro-life doctors wanting to continue life-sustaining medicine. They should never have been and should never be the only strategy to thwart the utilitarian morality that dominates medical practice.

First, the government should prohibit conscience clauses from being used to protect doctors who choose to hasten their patient’s death. Conscience clause language should be amended as follows:

Conscience protection should apply only to elective procedures;

Conscience protection should not be allowed to be used for the withholding of life-sustaining treatments or procedures;

Conscience protection should be procedure specific.

Secondly, state legislatures should go on the offensive to repeal euthanasia already codified in state statutes:

Laws governing medical directives should exclude artificial nutrition and hydration or antibiotics from life-sustaining treatments which can be removed from a patient, if, in reasonable medical judgment, its denial would hasten or result in the death of the patient.

“Appropriate care” should exclude care that intentionally hastens death, including the withdrawal of artificial food and water and antibiotics.

“Appropriate care” should be redefined to be care or treatment that provides a physiological benefit to the patient. Considerations such as the impact of treatment on other individuals, the value of the patient’s life, the patient’s disability, the patient’s ability to pay, or the patient’s age should not be considered by the doctor in determining whether the treatment is appropriate.22

The “Soul” of American Freedom

First they came for the communists,
and I didn’t speak out because I wasn’t a communist.

Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.

Then they came for the Jews,
and I didn’t speak out because I wasn’t a Jew.

Then they came for me
and there was no one left to speak out for me.

These words, attributed to Martin Niemoller, an opponent of Nazism and Hitler, are etched on a large stone wall located in the Holocaust Museum in Washington, D.C. They serve as a chilling reminder that the sanctity of life is not just a cliché trumpeted by pro-life groups, but is a keystone of freedom. Denied to some, it will eventually be denied to all, and as history proves, the denial of the right to live will spell the death knell of every other inherent right.

Hitler, alone, cannot be blamed for the Holocaust. In fact, before Hitler rose to power, Germany’s medical elite had abandoned the sanctity of life ethic. Pressured by rising medical costs in Germany, they had adopted a utilitarian view of life and approved of euthanasia for the unfit.23 Hitler, when he rose to power as Chancellor in 1933, simply provided official approval for their actions.24 With the inherent right to life eliminated in medical ethics, Hitler saw an opportunity, and exploited it to impose totalitarianism on Germany.

The lessons of history have not been heeded. Americans have sat idly by while the government forcibly sterilized the poor and mentally disabled, claiming that they polluted the population. Americans have justified the murder of unborn children, claiming they are burdensome and unwanted. Now, faced with mounting health care costs, leaders in the medical profession and bioethics have justified the extermination of the disabled and elderly. As Hitler did, American governments are providing the legal shield for doctors to do so.

Man is made in the image and likeness of God. Because of that relationship, the Creator has given man certain rights which government cannot abridge—the right to life, the right to liberty, and the right to happiness. These rights are proclaimed in the Declaration of Independence. America’s founding fathers sought to protect these rights in the Constitution. The belief in inherent rights and a Creator who gave those rights to all people are foundational principles of America, and as Archbishop Charles Chaput has stated, the “soul” of American freedom.25

The motivation to fight against the continued advancement of euthanasia and medicine’s futile care theory is not just an individual fight for those Americans who are faced with the life-and-death decisions for themselves or their children, like the Nguyens did 1996. Rather, this is a fight for the very existence of liberty and the freedoms enshrined in some of history’s most revolutionary documents, documents which founded this world’s “last best hope,”26 “the shining city on a hill.”27

Hijacking Conscience Clauses

Endnotes

1. Alexander Morgan Capron. “Baby Ryan and Virtual Futility.” The Hastings Report. Vol. 2, 1995.

2. Wesley J. Smith. “Can Hospitals Have the Right to Pull Your Plug?” The Rational Argumentator: A Journal for Western Man. Issue XXXIII. 1 April 2005. http://rationalargumentator.com/issue33/hospitalspullplug.html. Last visited April 7, 2012.

3. Ian Dowbiggin. A Merciful End: The Euthanasia Movement in Modern America. New York: Oxford University Press. 2003. 4.

4. Telzrow, Michael E. “Before Roe v. Wade: Attitudes against Abortion Developed Slowly in America but by 1900, Every State in the Union Had Anti-Abortion Laws. It Took at Liberal Onslaught (and Roe v. Wade) to Reverse This.” The New American. 24:2. 21 January 2008.

5. Ian Dowbiggin. 73.

6. id.130-133.

7. Ian Dowbiggin. 121.

8. Ian Dowbiggin. 139.

9. Nancy Valko, R.N. “Of Living Wills and Butterfly Ballots.” Women for Faith and Family. 16:2. 2001. http://www.wf-f.org/0601Livingwills.html. Last visited April 4, 2012.

10. “Living Wills: State laws.” Findlaw.com. http://estate.findlaw.com/living-wills-state-laws.html. Last visited June 25, 2012.

11. Lawrence J. Schneiderman, et.al. “Medical Futility: Its Meaning and Ethical Implications.” Annals of Internal Medicine.12:12. 5 June 1990. 949-953.

12. Peter Singer. Practical Ethics. Cambridge: Cambridge University Press. 1993. 190.

13. See CEJA Report 2-I-96 Medical Futility in End-of-Life Care” AMA. 1996. A version of this report was published as “Medical Futility in End-of-Life Care” JAMA 1999: 281; 937-941.

14. Dianna Howard, MD.et al “Withdrawing Medically Futile Treatment.” Journal of Oncology Practice. 5:4. 193-195 at 194.

15. Jacob M. Appel, “What’s So Wrong with ‘Death Panels’?” Huffingtonpost.com. November 22, 2009. http://www.huffingtonpost.com/jacob-m-appel/whats-so-wrong-with-death_b_366804.html Last visited May 2, 2012.

16. Lisa Day. “Medical Futility, Personal Goods and Social Responsibility.” Am. J. Critical Care. 18: 279-282.

17. M.S. Niederman and J.T. Berger. “The Delivery of Futile Care is Harmful to Other Patients.” Crit. Care Med. Oct. 2010. 38.

18. Sophie Borland. “Don’t Give Out Cancer Drugs If It’s Just to Extend Life. Treatments Cost Can’t Be Justified Says Experts.” Mail Online. 27 Sept. 2011. http://www.dailymail.co.uk/health/article-2042172/Dont-terminal-cancer-patients-drugs-just-prolong-lives-say-experts.html. Last visited June 20, 2012.

19. Nancy Valko. “Futility Policies and the Duty to Die. Voices Online Edition Lent/Easter 2003.18:1. Women for Faith and Freedom. http://www.wf-f.org/03-1-Futility.html. Last visited June 20, 2012.

20. Mass. Ann. Laws ch. 201D Sec. 15(b) (2010.

21. Liz Kowalczyk. “Hospital, Family Agree to Withdraw Life Support.” Boston Herald. 12 March 2005. http://www.boston.com/news/local/massachusetts/articles/2005/03/12/hospital_family_agree_to_withdraw_life_support/. Last visited June 21, 2012

22. Thaddeus Pope, J.D., PhD. “Idaho Anti-Futility Bill Signed Into Law.” Medical Futility Blog. 8 Ap. 2012.  http://medicalfutility.blogspot.com/2012/04/idaho-anti-futility-bill-signed-into.html. Last visited June 20, 2012.

23. Donal P. O’Mathuna. “Human Dignity in the Nazi Era: Implications for Contemporary Bioethics. BMC Medical Ethics. 7:2 (2006) http://www.google.com/search?hl=en&source=hp&q=http%3A%2F%2Fwww.biomedcentral.com%2F1472-6939%2F7%2F2&gbv=2&oq=http%3A%2F%2Fwww.biomedcentral.com%2F1472-6939%2F7%2F2&aq=f&aqi=&aql=&gs_l=hp.12…3513.3513.0.4401.1.1.0.0.0.0.0.0..0.0…0.0.r5ZjpkCjN-Q. Last visited June 20, 2012.

24. ] Richard J. Evans. The Third Reich At War 1939-1945. London: The Penguin Group. 2008. 79.

25. Charles J. Chaput. Render Unto Caesar. New York: Doubleday. 2008. 30.

26. Ronald Reagan. “We Will Be A City Upon a Hill.” Speech to the First Conservative Political Action Conference. January 25, 1974. http://reagan2020.us/speeches/City_Upon_A_Hill.asp. Last visited July 2, 2012.

27. Ronald Reagan. Farewell Address to the United States. January 11, 1989.

————————————————————————————————————————–

Copyright © 2012. North Carolina Family Policy Council. All rights reserved.

Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION.

Originally printed – “Conscience Clauses: Manipulating the Law to Protect the Right  to Kill.” Family NC.

Summer, 2012

 

 

 

Designer Babies: The Slippery Slope of Artificial Reproductive Techniques

In 09 Mary Summa, JD on 2012/11/02 at 10:30 AM

By: Mary Summa, J.D.

Nic and Jules, [both females], are married and share a cozy suburban Southern California home with their teenage children, Joni and Laser. Nic and Jules gave birth to and raised their children, and built a family life for the four of them. As Joni prepares to leave for college, 15-year-old Laser presses her for a big favor. He wants Joni, now 18, to help him find their biological father; the two teenagers were conceived by donor insemination.”1 The two teenagers find their father and, presumably, everything is fine.

This description of a 2008 movie, “The Kids Are All Right” addresses a new phenomenon in American life—children who are “produced” by Artificial Reproductive Technology (ART). It is estimated that, worldwide, ART has resulted in the births of over one million children since 1978. Initially, it provided an opportunity for heterosexual married couples to overcome the heartbreak of infertility, and to fulfill a life-long dream of parenthood. Of late, it has also been used by homosexual couples and individuals through the use of donated sperm, eggs, and/or surrogates to produce children they would otherwise be unable to have.

Mass media, as displayed in this movie, paints a picture in which everyone touched by this phenomenon is all right.

In fact, they are not. ART, including In Vitro Fertilization (IVF), has been around for over 30 years, but the long-term effects of the technology are just now being realized, and regardless of the marital status or sexual orientation of the parents, the news is not good for the children “produced” by IVF, the women who carry them to term, or the young men and women who contribute sperm or egg, respectively, for their production.

ART has impacted the social fabric as well. IVF has been used to justify the commodification and extermination of innocent human life. It has been used to launch eugenics and designer baby movements, and with the use of sperm and egg donations, has raised concern about accidental incest. On the theological plane, it has made man the master of life rather than its steward.

Before continuing down this road, Americans should re-examine whether the cost to society, in general, and citizens, in particular, is just too high to pay.

What is ART?

Artificial Reproduction Technology (ART) is a term defined by the Centers for Disease Control (CDC) as “all fertility treatments in which the egg and sperm are handled.” ART includes the two most popular treatments—traditional In Vitro Fertilization (IVF) and Intracytoplasmic Sperm Injection (ICSI).2

In Vitro Fertilization, “vitro” meaning “in glass,” is a procedure used to fertilize a woman’s egg outside the womb, and transfer that fertilized egg into the woman’s uterus. Louise Brown, born in 1978 in the United Kingdom, was the first child born using this procedure. The treatment has been used in the United States since 1981.3

In addition to traditional IVF, ICSI is the other procedure used to fertilize eggs outside the womb. Originally used to improve fertilization rates among mainly married couples where the male suffered from severe infertility, today, it is widely used by all types of couples.4 In this procedure, an egg is harvested, and a single sperm is retrieved and injected across the membrane of the woman’s egg. The first ICSI child was born in the United Kingdom in 1992.5

Both procedures are used by a variety of individuals and couples: married heterosexual couples using their own sperm and eggs or using donations, and homosexual couples or individuals acting alone who use donations to produce the embryo.

Both procedures involve the following steps: 1. The egg donor is given fertility drugs to boost egg production, and undergoes follicular aspiration, a procedure for removal of the eggs; 2. Sperm is taken from the man; 3. The egg is fertilized outside the womb, resulting in an embryo; 4. One or more embryos are implanted in a woman’s womb.6

According to a 2009 Science Daily article, worldwide, ART has produced annually between 219,000 and 246,000 children, or about one to three percent of all births in developed nations.7 According to the CDC, in 2008, 61,426 infants were born in the U.S. using ART.8 Most of those children were a product of the ICSI procedure.9

Exploiting Young Women

The egg donation industry has changed drastically since its inception in 1976. In the form of traditional surrogacy, the surrogate would be inseminated with the intended father’s sperm. With the dawn of IVF, surrogacy and egg donation became separate components to child “production.” Egg brokers and women looking to sell their eggs exploded. According to Debora Spar in her book, “The Baby Business,” New York’s Columbia-Presbyterian Medical Center had five egg donors on file in 1995. By 1998, the program’s director reported that he received as many as 100 calls per week from potential egg donors and had 500 egg donors on file.10 According to a 2010 Los Angeles Times article, women over 40 and homosexual men are the primary purchasers of these eggs.11

According to Spar, the separation of surrogacy from egg donation provided an opportunity for each “market” to prosper and the cost of eggs to increase. Egg prices rose from $2,500 to over $50,000 for eggs from Ivy Leaguers,12 due to the ability to differentiate between donors. Proven, “successful” eggs bring more money to the donor. The most common donors are college-age women.13 The most common recipients of these young eggs are women over the age of 40.14

Ads targeting money-strapped college women fail to mention what a donor must endure to earn her fee. She must take high doses of fertility drugs to produce greater numbers of eggs, undergo anesthesia, and endure invasive egg retrieval. Ovarian hyperstimulation syndrome, or OHSS, can be the most dangerous complication from egg retrieval. Symptoms of the condition can begin within a week after the egg collection. While most women experience mild cases of OHSS, complications associated with severe OHHS include blood clotting, kidney disorders, and respiratory failure. Women at risk include those women most targeted for egg donation—thin women and women under 30.15

Studies on the long-term effects of egg donation are scarce. A 2011 Dutch Study, however, has linked women receiving ovarian stimulation with ovarian cancer later in life.16 Some individual case studies raise other concerns. In a documentary produced by the Center for Bioethics and Culture, entitled “Eggsploitation,” Jennifer Lahl followed several young women who underwent egg donation as a way to pay off tuition or debt. They were repaid with serious health complications, resulting in disability, infertility, and lingering health problems. One woman almost died.17

Despite these health risks, the government has done nothing to protect these women. Used car sales are regulated more than the egg industry. There are no mandated warnings regarding potential harm. There is no government-imposed limit on the amount that can be paid for an egg sale. There are no limits on the number of times women can sell their eggs, despite the increased risk of OHSS with each donation. There is no mandatory tracking of buyers.18

Health Risk to the Carrier

While a 1992 federal law requires the reporting of babies born using ART,19 there are few long-term studies on the effects on women carrying a baby “produced” by IVF. As reported in the October 21, 2011 edition of BioNews.com, American researchers have found that women receiving IVF treatments are at a 40 percent greater chance of experiencing preeclampsia than women who do not undergo IVF treatments.20

This conclusion has been consistent with studies abroad. As reported in The Telegraph, a 2011 study in the U.K. found that IVF puts mothers-to-be at higher risk of preeclampsia, which results in high blood pressure, seizures, and, occasionally, death. Scientists believe that lab-grown embryos lead to poor development of the placenta, contributing to high blood pressure in the woman and stunted growth in the baby. Left untreated, it can lead to seizures.21 Additionally, hormone therapy undergone in preparation for IVF carries its own risks. In addition to the side-effects from the chemicals used, simply altering hormone levels can cause depression, uterine fibroids, osteoporosis, memory loss, and infections.22

Harm to Children 

Children produced by ART are 20-30 percent more likely to suffer birth defects than babies conceived the old fashioned way, according to a 2012 report in Fertility and Sterility.23 Whether the hike in birth defects is due to the age of the women receiving the fertility treatments or the ART procedure itself is unclear. As reported in The Guardian, the embryo’s exposure to more oxygen and the culture media used to keep the embryos alive in Petri dishes “may affect how genes are expressed in IVF embryos.”24

Research now shows that the harm to the child may not be realized at birth. As reported in The Sydney Morning Herald, a Switzerland study published in 2012 found significant abnormalities in the blood vessels in the body and lungs of 12-year-old children produced by IVF, which could lead to increased risk of heart attacks or strokes.25 That report comes on the heels of another report in 2010 that found IVF may increase the risk of diabetes, certain cancers, and the onset of high blood pressure in a child produced by ART before that child reaches the age of 50.26

If the IVF procedure involves donated egg or sperm, there is an emotional cost as well. According to Elizabeth Marquardt, the principle investigator of the 2010 report “My Daddy’s Name is Donor,” donor children are “more likely to struggle with mental illness or substance abuse or depression.”27

Destroying Innocent Human Life

Many times, heart-warming stories about couples obtaining a child through IVF ignore the darker, anti-life side. In truth, IVF raises moral and ethical questions because the procedure involves the destruction of human life at its earliest form, both before and after implantation.

Abortion of babies after implantation is not uncommon. A small number of IVF babies are aborted because women are just changing their mind. A June 7, 2010 article in the Daily Mail reported that 97 children conceived by IVF were aborted in the U.K. in 2007. Almost one-third of the women aborting those children were between the ages of 18 and 34.28 A larger and growing number of babies are being aborted after implantation through a procedure known as “fetal reduction.” Due to the cost of the IVF procedure and the belief that it increases the rate of success, many doctors implant several embryos in women with the hope that some will survive. If more than the desired number survive, women are encouraged to abort the unwanted child(ren). According to a May 20, 2012 article appearing in The Telegraph, over 100 babies produced through IVF in the U.K. and growing in their mother’s womb were aborted because their mother wanted fewer children. These women were pregnant with twins, triplets or quintuplets, but did not wish to carry all of their children to term. Reportedly, reduction abortions in the U.K. almost doubled between 2006 and 2012.29 The decisions on which children live and which die may be based on the child’s sex, the child’s expected disability, or his or her position in the womb. Recently, researchers have found that multiple transfers do not increase “success” rates of implantation, and are now encouraging practitioners to implant only one embryo.30

Even if this recommendation is followed, it does not rescue the other victims of IVF—the “unused” embryos not transferred for implantation. Studies indicate that hundreds of thousands of embryos are created and then stockpiled in fertility clinics.31 According to a 2007 survey conducted by scientists at Duke Medical Center and Johns Hopkins University, most couples prefer that these embryos be used for research,32 which result in their destruction. As reported by the American Society for Reproductive Medicine (ASRM) only 7.5 percent of all fertilized eggs will be implanted and allowed to live.33

As an alternative to destroying these embryos, in 1997 a pro-life adoption agency, Nightlight Christian Adoptions, began the first embryo adoption program in the world. Called the Snowflake Program, abandoned embryos are adopted by couples and the woman will have the embryo implanted in her uterus. Over 3,000 children have been born through this initiative.34 Federally funded in previous years, it has been targeted for defunding by the current Administration.35 Whether it will survive without federal funding remains to be seen.

Accidental Incest and Rare Diseases

Artificial insemination has been around for almost a decade longer than IVF, and recent reports have exposed the underbelly of ART procedures that involve anonymous sperm donors. In a September 5, 2011 New York Times article entitled, “One Sperm Donor, 150 Offspring,” the writer reported what seemed impossible: a child conceived by donated sperm has over 150 half-siblings. As reported, Cynthia Daily, who had used a sperm bank to conceive her son, started an on-line group to track the children her donor had fathered. Over the years the list grew and grew. Ms. Daily, who vacations with other families who used the same donor, is quoted as saying, “It’s wild when we see them all together—they all look alike.”36

Other parents, donors, and medical experts are not so lighthearted about the situation. The U.S. has no regulation on the number of times a man can sell his sperm to a particular sperm bank. A sperm bank is under no limitations on how many sperm can be sold in a certain geographic area. Sperm is donated anonymously and the most a sperm purchaser has is an identification number. The sperm banks do not track purchasers. Online volunteer registries are now showing that many half-siblings live within a close geographic area. This news raises concern of the possibility of “accidental incest”37 or a faster proliferation of rare diseases through the general population than would otherwise occur.38

The government’s failure to require extensive testing of donors has placed children at risk of injury or death. Sperm donors are tested for garden-variety genetic disorders and illnesses, but not for rare ones. In July 2011, ABC News reported on Tyler Blackwell, a 15-year-old, who became curious about his donor father. He located and contacted his father, but the father never responded to Tyler’s request to meet him. A relative, researching the family tree, did contact Tyler and told him that the donor father, still living, had an aortic heart defect. Tyler was tested, and discovered that he, too, had the defect that could have killed him at any moment. According to the article, the donor also had a connective tissue disorder, but had never notified the three sperm banks that had bought his sperm.39

Other children were not so fortunate. In 2009, ABC News reported on a case of a sperm donor siring 24 children. The donor had a genetic heart condition known as Hypertrophic Cardiomyopathy (HCM). Nine of the children inherited the genetic mutation for the disorder, one had functional limitations, one had palpitations, and one died at the age of two, awaiting a heart transplant.40

The government’s failure to require record-keeping of egg purchasers has also hurt children. In 2008, an egg donor died of cancer at the age of 29. The young woman had donated to one egg bank three times. After the woman’s death, her mother contacted the egg broker who bought her eggs, so that he, in turn, could contact the affected children. Unfortunately, these children will never know of their genetic link to cancer. The egg broker had destroyed the records.41

IVF’s Link to Eugenics

The term “eugenics” was first coined in 1883 by Francis Galton, a cousin of Charles Darwin. Galton defined eugenics as “the science which deals with all influences that improve the inborn qualities of a race; also with those that develop them to the utmost advantage.”42 Although initially enthusiastic, the public and public officials lost their penchant for the movement later, as World War II images of the Holocaust appeared on the front pages of daily newspapers.

Many believed that the movement had died by the middle of the 20th Century. In fact, many of the organizations, including the Eugenics Society, continued to function, attracting scientists, politicians, and ordinary citizens to their membership. The organizations quietly promoted their cause under the banners of reproductive freedom and patient autonomy.

Scientific advancements in reproductive techniques continued as well. In the 1970s, a British scientist named Robert Edwards invented IVF, and in 1978, attracting worldwide attention, the first “test tube baby” was born. The details about the scientist missed the headlines: Robert Edwards served as President of the Eugenics Society for 20 years. In 1999, he startled some in the scientific community when he matter-of-factly predicted that, “soon it will be a sin for parents to have a child which carries the heavy burden of genetic disease.”43

By the 1980s, even before Edward’s startling revelation, some scientists saw the eugenics direction that IVF technology was taking. A leading French IVF specialist, Jacques Testart, cautioned that IVF technology could lead to the practices of screening embryos for genetic disease or for sex selection.44 In 1986, Testart denounced further development of IVF technology, rather than take the risk that the technology would be used for such eugenics purposes.45

Paid no heed, Testart’s predictions have become reality. In the late 1980s, using research from Robert Edwards and David Gardner in the 1960s, scientists invented a technique to test embryos for genetic disorder. Called “Pre-Implantation Genetic Diagnosis” (PGD), the technique requires the removal of one cell from the embryo and the DNA is removed from the embryo for genetic testing. If the embryo has the qualities desired by the parents, it is implanted in the woman’s womb.

Most developed countries restrict or ban PGD. According to one report, only 13 out of 53 countries, including the U.S., do not. According to the Center for Genetics and Society, three-quarters of U.S. IVF clinics offer PGD, and all of the large clinics offer the service.46 PGD can be used to select embryos free of genetic diseases that may cause birth defects, as well as to select embryos free of a genetic predisposition for Alzheimer’s, Huntington’s Disease, polycystic kidney disease, and certain types of cancers. The technology has also been used to produce “savior siblings,” a term used to describe a child who is created for the sole purpose of saving the other sibling.

In the U.S., most shockingly, parents are now purchasing “designer babies.” A Los Angeles clinic, called The Fertility Institute, uses PGD to provide parents with the opportunity to choose the desired traits of their child, including sex and eye color. The clinic’s director, Jeff Steinberg was on the team that produced the first IVF baby in 1978. Despite severe criticism from the medical community, Steinberg remains undeterred. The Fertility Institutes has offices in New York, Los Angeles, and Mexico.47

Moral Liberty

In 1809, before a group in Maryland, former President Thomas Jefferson said the following: “The care of human life and happiness and not their destruction is the first and only legitimate object of good government.”48

For a couple to be told they will never be able to have a child can be the most devastating news they will ever receive. Desperate, they will do anything to bring a new life into the world, but good government should never allow a noble end to justify an ethically questionable means. Yet, through inaction, government has done just that. Politicians have done nothing as young, college-aged women and men are being lured into harvesting their eggs and sperm in exchange for money. There are no mandatory warnings on the health risks for these women or mandatory information about the potential numbers of children they will produce. There are no mandatory warnings to couples, so desperately wanting to have a child, about the health risks of carrying a baby produced by IVF or the health risks to the child they will produce. Furthermore, the government has sat idly by while baby business industrialists have encouraged parents to abandon countless unborn children before implantation and destroy them after implantation in the name of “reproductive choice,” allowing medical technology to advance eugenics and commodify human life.

This country’s founding documents recognized that man possesses an inalienable right to liberty. Liberty, however, does not mean the right to do as one chooses. According to the renowned historian Russell Kirk, the founding fathers viewed unrestrained liberty as just as great a threat to freedom as unrestrained tyranny. As Kirk so aptly states in his book, The American Cause, “The American cause is not the cause of a revolutionary thirst for demolishing all obstacles to anarchic self-gratification.” Liberty must be tempered with moral absolutes, the most important of which is the recognition of the dignity of the human person.49

Americans must demand that politicians no longer remain on bended knee before the altar of “reproductive choice,” and no longer allow the baby business industrialists to continue to profit while exploiting citizens. Politicians must re-examine whether the current practice of ART, which harms desperate individuals and destroys the most innocent of human life, should be allowed to continue. Perhaps, upon examination, they will rightly conclude that it should not. 

Designer Babies

Endnotes

1. “The Kids Are All Right.” Mnetmovies.com. 18 May 2012. http://mnetmovies.dstv.com/2012/05/10/the-kids-are-all-right/

2. “Assisted Reproductive Technology (ART).” Centers for Disease Control. http://www.cdc.gov/art/. Last visited June 28, 2012

3. id.

4. “The Fertility Milestones.” BBCNews.com. 22 July 2003. http://news.bbc.co.uk/2/hi/health/3056141.stm. Last visited June 28, 2012.

5. “Side Effects of IVF Treatment” surrogacyclinics.com. 20 Nov. 2011. http://www.surrogacyclinics.com/side-effects-of-ivf-treatments. Last visited June 25, 2012.

6. “Assisted Reproduction Increasing: Almost 250,000 Babies Born In One Year.” ScienceDaily.com. 27 May 2009. http://www.sciencedaily.com/releases/2009/05/090527210720.htm. Last visited June 28, 2012.

7. David Celermajer. “Study Sparks Health Fears for IVF Children.” SidneyMorningHerald.com. 19 April 2012. http://www.smh.com.au/national/health/study-sparks-health-fears-for-ivf-children-20120418-1x7j0.html.

8. “Section 5: ART Trends 1999-2008.” Centers for Disease Control and Prevention. http://www.cdc.gov/art/ART2008/section5.htm. Last visited June 25, 2012.

9. “IVF Treatment Used to Help Infertile Men Become Fathers ‘Linked to Birth Defects’.” MailOnline. 5 May 2012. http://www.dailymail.co.uk/health/article-2139931/Fertility=treatment-used-help-infertile-men-fathers-linked-birth-defects.html. Last visited June 25, 2012.

10. Debora L. Spar, The Baby Business. Boston: Harvard Business School Publishing Corporation. 2006. 81.

11. “Ads Soliciting Egg Donors Violate Guidelines.” Los Angeles Times. 24 March 2010. http://www.latimesblogs.latimes.com/booster_shots/2010/03/donor-eggs-ethics-guidelines.html. Last visited June 25, 2012.

12. Spar, id. 81.

13. Abbie Waters. “How Much Money Can An Egg Donor Make From Donating Eggs?” fertilitynation.com. http://www.fertilitynation.com/how-much-money-can-an-egg-donor-make-from-donating-eggs. Last visited June 25, 2012.

14. “Gratitude From Women.” Colorado Center for Reproductive Medicine. http://www.coloeggdonor.com/Gratitude.aspx . Last visited June 25, 2012.

15. “Risks and Complications of IVF Treatment.” ivf-infertility.com. June 30, 2011. http://www.ivf-infertility.com/ivf/standard/complications/ovarian_stimulation/ohss.php. Last visited June 28, 2012.

16. “Statement Regarding Dutch Study into IVF and Ovarian Cancer.” Human Fertilisation and Embryology Authority. 27 October 2011. http://www.hfea.gov.uk/6735.html. Last visited June 25, 2012.

17. Steven Ertelt. “Eggsploitation Documentary Tells Students of Egg Donation Risks.” LifeNews.com. 10 Jan 2011. http://www.lifenews.com/2011/01/10/eggsploitation-documentary-tells-students-of-egg-donation-risks/. Last visited June 28, 2012

18. “College Age Women, Donor Eggs, and Assisted Reproduction.” Center for Genetics and Society. http://www.geneticsandsociety.org/downloads/CollegeWomenAndEggs.pdf. Last visited June 28, 2012.

19. 42 U.S.C. 263A (1992).

20. Louisa Petchy. “IVF Increases Risk of Preeclampsia by 40%, Study Claims.” BioNews.com. 24 Oct 2011. http://www.bionews.org.uk/page_110221.asp. Last visited June 28, 2012.

21. Martin Beckford. “Women Who Have IVF At Higher Risk of Complications.” The Telegraph. 20 Oct. 2011. http://www.telegraph.co.uk/health/healthnews/8836212/Women-who-have-IVF-at-higher-risk-of-complications.html. Last visited June 25, 2012.

22. Kristin Hawkins. “Pro-Life Concerns About IVF Include Abortion, Exploitation.” http://www.lifenews.com. 6 Sept. 2011. http://wwwilifenews.com/2011/09/06/pro-life-concerns-about-ivf-include-abortion-exploitation/.

23. Darine E-Chaar, M.D., Qiuying Yang, M.D., et.al., “Risks of Birth Defects Increased in Pregnancies Conceived by Assisted Human Reproduction. Fertility and Sterility. 92:5. 1557-1561.Nov 2009.

24. Ian Sample. “IVF May Raise Risk of Diabetes, Hypertension and Cancer Later in Life.” TheGuardian. 22 February 2010. . http://www.guardian.co.uk/science/2010/feb/22/ivf-risk-diabetes-hypertension-cancer

25. David Celermajer. “Study Sparks Health Fears for IVF Children.” The Sydney Morning Herald. 19 April 2012.

26. Art Caplan. “Time to Think of Health Costs to IVF Babies, Bieoethicist Says.” Vitals, msnbc.msn.com. 20 April 2012. http://vitals.msnbc.msn.com/_news?2012/04/20/11310417-time-to-think-of-health-costs-to-ivf-babies-biethicist-says?lite%5D

27. “My Daddy’s Name is Donor.” NPR. 16 Aug 2010. [http://www.npr.org/templates/story/story.php?storyId=129233185

28. “Dozens of IVF Babies Aborted ‘After Women Change Their Minds About Becoming a Mother’.” MailOnline. 7 June 2010. http://www.dailymail.co.uk/health/article-1284384/IVF-babies-aborted-women-change-minds.html. Last visited June 28, 2012.

29. “Abortions to Reduce Multiple Births on the Rise.” The Telegraph. 24 May 2012. http://www.telegraph.co.uk/health/8981504/Abortions-to-reduce-multiple-births-on-the-rise.html

30. telegraph,id.

31. “How Many Frozen Embryos Are Available for Research.” The Rand Corporation Research Briefs. http://www.rand.org/pubs/research_briefs/RB9038/index1.html last visited June 13, 2012.

32. “Stem Cell Research Favored.” Duke Magazine. 93:5. Sept-Oct 2007. http://www.dukemagazine.duke.edu/issues/091007/depgaz12.html Last visited June 28, 2012.

33. “New Study Confirms Overwhelming Death Rate of IVF Human Embryos,” LifeSiteNews.com. 26 Oct 2010. http://www.lifesitenews.com/news/archive/ldn/2010/oct/10102604.

34. “Snowflakes Adoption Program Announces 299th and 300th Snowflake Babies Born on Leap Year Day 2012.” PRWeb. 13 June 2012. http://www.prweb.com/releases/2012/3/prweb9304393.htm last visited June 13, 2012.]

35. Stoyan Zaimov. “’Snowflake Babies’ Adoption Program to be Cut By Obama Administration.” ChristianPost.com. 6 March 2012. http://global.christianpost.com/news/snowflake-babies-adoption-program-to-be-cut-by-obama-administration-70919/last visited 13 June 2012.

36. Jacqueline Mroz. “One Sperm Donor, 150 Offspring.” Nytimes.com. 9 Sept 2006. http://www.nytimes.com/2011/09/06/health/06donor.html?pagewanted=all

37. Mroz, id.

38. Diane Dimond. “Laws to Catch Up With Science.” Jewish World Review. 19 Sept 2011. http://www.jewishwowrldreview.com/0911/science_law.php3.

39. Susan Donaldson James. “Sperm Donor’s 24 Kids Never Told About Fatal Illness.” Abcnews.go.com. 21 July 2011. http://abcnews.go.com/Health/sperm-donors-24-children-told-fatal-illness-medical/story?id=14115344. Last visited June 27, 2012

40. Courtney Hutchinson, Joseph Brownstein, et. al. “The Upside and Downside of Screening Embryos.” Abcnews.go.com. 21 Oct. 2009. http://abcnews.go.com/Health/HeartDiseaseNews/jama-study-shows-benefits-screening-genes-embryos/story?id=8873549. Last visited June 27, 2012

41. Barbara Pinto. “When Anonymous Egg Donors Have Genetic Diseases.” ABCnews.go.com. 28 Mar 2008. http://www.abcnews.go.com/Health/story?id=4544449&page=1. Last visited June 28, 2012.

42. Francis Galton. “Eugenics: Its Definition, Focus and Aims. The American Journal of Sociology. July 1904. Vol. 10. No. 1.

43. “Testimony of CTA Executive Director Andrew Kimbrell at a Hearing on Science, Policy and Ethics of Prenatal Genetic Testing.” The Senate Committee on Commerce, Science and Transportation, Subcommitee on Science, Technology and Space. United States Senate. November 14, 2004 quoting Robert Edwards speaking at European Society of Human Reproduction and Embryology as reported in Metro (UK), July 5, 1999.

44. Christine Ewing. “Tailored Genes: IVF, Genetic Engineering and Eugenics.” Reproductive and Genetic Engineering: Journal of International Feminist Analysis. 1:1. 1988. http://finrrage.org/pdf_files/Genetic%20Engineering/Tailored_Genes_IVF_Genetic_Engineering_and_Eugenics.pdf. Last visited June 27, 2012. See also See also Jacques Testart and Bernard Sele. “Towards An Efficient Medical Eugenics: Is the Desireable Always the Feasible?”  Human Reproduction. Vol 10. No. 12. pp. 3086-3090. 1995.

45. Christine M. Ewing. “Tailored Genes: IVF, Genetic Engineering and Eugenics. Reproductive and Genetic Engineering: Journal of International Feminist Analysis. I:1 (1988) quoting Jacques Testart from Robert Walgate. “French Scientist Makes a Stand.” Nature 323:385 (1986).

46. ”PGD Frequently Asked Questions.” Center for Genetics and Society. 1 Mar 2010. http://www.geneticsandsociety.org/article.php?id=452 Last visited June 27, 2012.

47. Phillip Sherwell. L.A. Delivers First Designer-Baby Clinic.” WAToday.com. 2 March 2009. http://www.watoday.com.au/world/la-delivers-first-designerbaby-clinic-20090303-8mp3.html. Last visited June 27, 2012.

48. Thomas Jefferson to Maryland Republicans, 1809. ME 16:359. http://www.famguardian.org/Subjects/Politics/ThomasJefferson/jeff0650.htm. Last visited June 28, 2012.

49. Russell Kirk. The American Cause. Wilmington, DE: Intercollegiate Studies Institute. 2002.

——————————————————————

Copyright © 2012. North Carolina Family Policy Council. All rights reserved.

Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION.

Originally printed – “Designer Babies: The Slippery Slope of Artificial Reproductive Technologies.” Family NC, Summer 2012.

The Silent Killer: An Argument Against Euthanasia

In 09 Mary Summa, JD on 2012/09/13 at 9:11 AM

By Mary Summa, J.D.“He’s not responding. What do you want us to do with him? What are your plans?”The young woman had been sitting beside her father, holding his hand. The elderly man was a pillar of the community, a devoted husband, a loving father, a hero to those who knew him. She looked up to see the hospital social worker—file in hand—ready to write down her instructions. Her father had suffered a massive stroke five days before, which the doctors expected to kill him. By the grace of God, he had rallied.“We’re having a gastro feeding tube put in next week,” the daughter responded. The social worker looked at her as if she was a stupid child. “Oh, everyone likes to feed their family members, but it’s not so bad after a couple of days.”The daughter could not believe her ears! She looked the social worker straight in the eye. “We are feeding my father. We are not starving him to death.”The social worker snapped her file shut, turned and exited the room. She did not like what she heard. The daughter didn’t either.This true encounter illustrates the diminished value placed on human life in America today. Previously, our long-held belief that life is sacred had deemed all forms of intentional killing including abortion, infanticide, euthanasia, and suicide to be ethically wrong. Doctors’ and nurses’ commitment to this basic principle would have led them to do everything they could to keep this man alive. To have even suggested to a daughter that she consent to starving her father would have been unheard of, much less promoted.Now, in 2009, as this woman discovered, our nation’s rejection of God has real ramifications. Without God, man has no inalienable rights, including the right to live; only life with a utilitarian value deserves protection. Otherwise, extinguishing that life by starvation is morally acceptable.In order to understand how our nation has slid into this abyss and what we can do about it, one must understand what euthanasia is, where it came from and what is legally happening in North Carolina and elsewhere.

The word “euthanasia” derives from the Greek word for “easy death.”1 Euthanasia is defined as the “intentional killing by act or omission of a dependent human being for his or her alleged benefit.” There are two types of euthanasia. (1) Euthanasia by omission ends a patient’s life by withdrawing medicines or food and water necessary to sustain life. (2) Euthanasia by action is achieved by administering a treatment or lethal dose of medication to a patient who has requested to die. Either form of euthanasia can be voluntary where the patient consents to the euthanasia; non-voluntary where the patient did not make a request or give consent; or involuntary where the patient withheld consent.2

Origin and History of Euthanasia
Euthanasia dates back to Ancient Greece and Rome when doctors commonly administered poisons to hasten the death of patients.3 The growth of the Christian Church caused support for euthanasia to wane and Western governments, for the most part, condemned euthanasia until the 20th Century.4

While a few doctors and philosophers promoted euthanasia in the 18th and 19th Centuries, it failed to gain much support until the early 1930’s. Then, on October 16, 1931, C. Killick Millard, the Medical Officer of Health for the City of Leicester in Britain, reignited the debate by calling voluntary euthanasia “rational, courageous and often highly altruistic” and proposed a draft bill. Undaunted by his lack of success in Parliament, in 1935 Millard founded the Voluntary Euthanasia Legalization Society (VELS) to promote his cause.5 Some historians have suggested that the VELS, although framed as an organization promoting “voluntary” euthanasia, in fact, obscured the distinctions between voluntary and involuntary euthanasia and sympathized with Nazi euthanasia.6

For the next 40 years, the Euthanasia Movement continued to organize voluntary euthanasia societies around the world. In 1973, voluntary euthanasia societies formed in the Netherlands; in 1976 in Japan and Germany. That same year the first international conference of voluntary euthanasia associations was held in Tokyo.7

The U.S. Euthanasia Movement 
In the United States, just as in Europe, the voluntary Euthanasia Movement preceded judicial and legislative victories permitting euthanasia. In 1935, the same year Millard established the VELS in Britain, Reverend Charles Potter founded a lobbying group in the U.S. called the Euthanasia Society in America. The U.S. organization’s goals extended well beyond those of its British counterpart. Unlike the British organization, which fostered “voluntary” euthanasia, the Euthanasia Society in America aspired to legalize all euthanasia, voluntary and involuntary. In 1942, Foster Kennedy, M.D., a former president of the Society, while criticizing euthanasia laws that “ignore creatures who cannot speak,” offered a plan of involuntary euthanasia for defective children. Eight years later, in 1950, Reverend Potter publicly praised and supported the “mercy killing” of two cancer patients. The Society had moved very quickly from the position of supporting the killing of those who “want” to die to those who “should” ask to die.8

The philosophical table was set for judicial and legislative action to legalize the taking of human life, whether the patient expressed the desire to die or not.

Physician-Assisted Suicide
The Euthanasia Movement has had limited success in legalizing physician-assisted suicide, a type of voluntary, active euthanasia, which can be accomplished through direct consent from the patient or indirectly through a living will. Either through court action or legislative mandate, only three countries—Netherlands, Belgium, and Luxembourg—have legalized physician-assisted suicide.9 Switzerland does not officially allow physician-assisted suicide, but the government will not prosecute physicians who engage in it.10 In Uruguay and Columbia, “mercy killings” are not prosecuted.11 Just this year in Britain, the Director of Prosecutions issued a similar directive to prosecutors to withhold prosecutions against individuals who assist in suicide.12

In the U.S., there have been many attempts but few successes to legalize physician-assisted suicide. The Ohio State Legislature made the first attempt in 1906. That bill failed 79-23.13 The International Task Force on Euthanasia and Assisted Suicide reports that between 1994 and 2009, 24 state legislatures entertained a total of 113 bills that would have legalized this type of active euthanasia. All attempts failed. Between 1991 and 2000, four states entertained ballot initiatives to legalize physician-assisted suicide. All failed. In 1997, Oregon legalized physician-assisted suicide, followed by Washington State in 2008, which legalized it by referendum.14 Currently, the Montana Supreme Court is considering the constitutionality of physician-assisted suicide.15

Euthanasia “by Omission”
While the Euthanasia Movement has made slow progress in courthouses and state legislatures with physician-assisted suicide, it has knocked the hinges off the backdoors of hospital rooms and nursing homes with euthanasia “by omission.” Judicial implementation of a legal fiction called “substituted judgment” and legislatures’ broadening of the definition of “medical treatment” has led to the passive euthanasia of countless individuals in this country and abroad, primarily through the withdrawal of food and water to living patients (i.e., silent euthanasia). Here’s how it happened:

As technological advances allowed the elderly to live longer, bio-ethicists began to question, “How much is too much?” In 1983, Daniel Callahan, a bio-ethicist and co-founder of the Hastings Center, wrote “On Feeding the Dying.” In that article he stated the widely held view that “…a denial of nutrition, may, in the long run, become the only effective way to make certain that a large number of biologically tenacious patients actually die…Given the increasingly large pool of superannuated, chronically ill, physically marginal elders, it could well become the non-treatment of choice.” He recognized, however, that society’s “deep-seated revulsion” to starving patients to death would prolong the journey toward legalization of the practice.16 While not totally convinced in 1983, Daniel Callahan 10 years later wholeheartedly endorsed the starvation of patients in a “vegetative” state.17 Most recently, he has joined the torch-bearers for rationed, government-run health care.18

While bio-ethicists deliberated the ethics of using advancing technology on the elderly, the Euthanasia Movement’s leaders saw an opportunity to advance the cause. In 1984, Helga Kuhse, a leader in the Euthanasia Movement and a philosophy professor at Australia’s Monash University, seized the opportunity. At an international conference, she informed the audience that by showing the public how painful death by dehydration and starvation really is, society would conclude that a lethal injection is “in the patient’s best interest.” In effect, coming in the backdoor will accomplish what the Euthanasia Movement was unable to accomplish through the front.19

Social and verbal re-engineering was needed to accomplish this long-term goal. First, euthanasia proponents needed to transform the simple procedure of inserting a feeding tube into a complicated “medical treatment” in order to disguise the desire to starve a patient.20

The often-cited story of Mary Hier illustrates how verbal re-engineering can affect the outcome. Mrs. Hier was a 92-year-old patient suffering from severe dementia, but not terminally ill. An abnormality in her esophagus required that she be tube-fed for many years. When her tube became dislodged, the court denied the petition of her guardian ad litem to reinsert it, citing the “relatively high risk” to the patient of performing this “major medical procedure.”21 On the same day the paper reported on the Hier case, it also reported on a 94-year-old woman who received the same procedure, now characterized as “minor surgery to correct a nutritional problem.” The woman was Rose Kennedy. Eventually, Mrs. Heir’s feeding tube was reinserted and she and Mrs. Kennedy lived for several more years.22

This dichotomy in the characterization of the same procedure begs the question, “Is it called a ‘medical procedure’ when the real intent is to starve the patient?” In truth, gastrostomy tubes (G-tubes) have been around for at least 100 years.23 In the early 1980s the technique was perfected so as to be performed in a 30 minute procedure.24

While the “food and hydration” debate has focused on “artificial” feeding through tubes, some courts and ethicists have argued that there is no distinction between food given “artificially” and that given by mouth. Both should be considered “medical treatment,” which can be withdrawn from a patient.25

Still others have argued that removing a ventilator is morally equivalent to removing artificial food and hydration. There is, however, a very clear distinction. Without a ventilator, the patient will die due to the underlying condition, which perpetrated the decision to ventilate the patient. Without food and hydration, the person will die of a new cause—deliberate starvation and dehydration—not the underlying condition, which prompted insertion of the feeding tube.26

Lastly, medical and law journals are filled with the burden/benefit argument—a low quality of life is considered in light of the “burden” to the hospital, the family and society. In this argument, the patient is not dying (or not dying fast enough), and it is deemed best to end the patient’s suffering. The response is philosophical—The sanctity of human life gives it intrinsic value. A person’s value and right to live should not be determined by his/her utilitarian value.

Judicial and Legislative Action
The Euthanasia Movement has won tremendous victories over the past 25 years. First, the case of Karen Ann Quinlan provided the foothold needed for the Euthanasia Movement in America by allowing parents to remove their daughter’s ventilator. In 1990, the Supreme Court declared in the Cruzan case that the “right to die” is protected under the Due Process Clause of the Constitution. While the court did not rule specifically on whether food and water could be treated as “treatment,” which could be withdrawn from the patient, nonetheless, that was the effect. The Cruzan family was allowed to kill their child by withdrawing her food and water.27

The Schiavo case ranks as the most public of all euthanasia cases. It highlighted for the world that food and hydration are no longer considered medical “care,” but are “medical treatment,” and can be withdrawn from any patient. Using a “legal fiction” of substituted judgment, the courts decided that Terri Schiavo would have wanted her feeding tube to be withdrawn.28 Terri died 13 days after her feeding tube was removed by court order.29 In effect, the courts ruled just as the Euthanasia Society of America wanted in 1950: What a patient wants has been supplanted with what a patient “should” want.30

Most courts and state legislatures have fallen into the arms of the Euthanasia Movement and now characterize artificial food and hydration as “medical treatment,” which can be withheld at the consent of the patient or another person acting on the patient’s behalf. Many states allow food and hydration to be withdrawn by legislative mandate or court action.

North Carolina succumbed to the Euthanasia Movement relatively early. In 1991, the North Carolina legislature authorized “Living Wills” and “Health Care Powers of Attorney.”31 In that statute, “Life-Prolonging Measures,” which can be withdrawn by a physician with consent of the patient or an agent of the patient, include “artificial nutrition and hydration.” So, in North Carolina, it is legal for a doctor to starve a patient to death as long as he receives some kind of consent from the patient or the patient’s designee.

Although many have supported voluntary euthanasia—euthanasia with the consent of the patient or the patient’s designee—others have argued that the distinction between voluntary and involuntary euthanasia is fleeting. That conclusion has proven prophetic.

Chris Docker, Director of the Scottish euthanasia group, Exit, wrote a paper in 1996 suggesting that when a patient is in a persistent vegetative state (PVS), the consent of the patient’s loved one should be replaced with “institutional guidelines developed by the professional associations.” These guidelines “could be developed for other conditions as well as PVS where the patient’s preference is no longer the most relevant factor.”32

Sadly, Mr. Docker did not have to wait long to see his theory put into action. In the fall of 2009, The Daily Telegraph (a London-based newspaper) reported several cases where hospitals euthanized or attempted to euthanize non-terminally ill patients under the British Palliative Care Program, the “Liverpool Care Pathway.”33

Shockingly, according to a recently released audit of the program, 28 percent of the families did not even know that their loved ones were put into the Liverpool Care Pathway.34

Conclusion
Natural rights, including the right to life, serve as the foundation of our democracy. Preserving these rights insures freedom. Destroying them guarantees tyranny.
“If we wish to be free,” Patrick Henry once said, “We must fight.”35 Turning our nation from a culture of death to a culture of life will not be easy. The Euthanasia Movement is a formidable foe, but for the sake of human freedom and dignity, we must be willing to fight the battle.

To begin this quest to regain our freedom, state legislatures should criminalize physician-assisted suicide. Despite legalization in only two states, many states, including North Carolina, remain silent on the issue, leaving the door wide open for physicians to engage in this ghastly act with impunity. Secondly, state laws should designate food and hydration, including “artificial” food and hydration, as “care” not “treatment” which can be withdrawn. We need to be a nation which honors the living, not one which abandons the dying.

No one should be put through the scene described at the outset of this article. I understand the pain. You see, I was the daughter and my father was the patient. My father regained his ability to speak, understand, eat and sit up on his own. He lived for three more months, giving my siblings and me, and, most importantly, our mother, the opportunity to take care of him the way he took care of us all our lives. In his dying hours, Dad held my hand, with extra squeezes in the same rhythm that he used when I was a little girl. He died in God’s time, not the hospital’s, in the wee hours of a warm summer morning while I, alone in his hospital room, held his hand reciting the 23rd Psalm.

Footnotes
1 Dowbiggin, Ian, “A Prey on the Normal People’: C. Killick Millard and the Euthanasia Movement in great Britain, 1930-55”, Journal of Contemporary History, Vol. 36, No. 1. 59-85. 2001. Sage Journals Online. 8 Nov. 2009.

2 “Euthanasia Definitions”, Euthanasia.com. 4 Dec. 2009. <www.euthanasia.com/definitions.html>

3 Emanuel, Ezekiel J., “The History of Euthanasia Debates in the United States and Britain,” Annals of Internal Medicine, Vol 121 pp. 793-802 (1994) 793. 4 Nov. 2009. <http:annals.highwire.org/content/121/10/793.abstract>

4 Euthanasia’s resurgence in the 1800’s coincided with a philosophical shift in man’s view of the origin of law. From the 1200’s when Thomas Aquinas published Summa Theologica until the 1700’s, most political philosophers accepted the Thomastic theory that laws of a society should be based on natural law. Jeremy Bentham, an 18th Century British philosopher, challenged the philosophical cornerstone that God’s natural law could be discerned by reason and known to everyone. He argued that law based on natural law and the rights attached to that law were “nonsense on stilts.”4 Rather, Bentham argued, the morality of a law should reflect its overall benefit to society. Hence, human life has no value unless it provides an overall societal benefit. Viewed as a political radical, mainstream political scientists ignored Bentham’s theory.
Nonetheless, this theory did not die entirely. A follower of Bentham’s theory, John Stuart Mill, retooled the theory, and in 1861 published a thesis titled “Utilitarianism,” which rejected natural law. Mill’s position as a highly respected member of Parliament and political theorist gave utilitarianism credence it had previously not enjoyed.

In America, the Founding Fathers were very influenced by philosophers who argued in favor of natural law and natural rights. “We hold these truths to be self-evident,” Jefferson wrote in the Declaration of Independence, “that all men are created equal; that they are endowed by their creator with certain inalienable rights; that among these rights are life, liberty and the pursuit of happiness.” The Founding Fathers believed in natural law and believed the preservation of these rights were worth sacrificing everything, including their own lives.

5 C. Ann Potter, C. Ann. “Will the ‘Right to Die ‘ Become a License to Kill? The Growth of Euthanasia in America”, 19 Journal of Legislation 31, Notre Dame Law Review. 34. See also, Ezechiel Emanuel, 796.

6 Ian Dowbiggin, Ian. 59-85.

7 Docker, Chris. “A Short History of Important Events, Scottish Voluntary Euthanasia Society. 1995.

8 Potter, C. Ann. 34.

9 Baklinksi, Thaddeus. “Luxenbourg Legalizes Euthanasia.” LifeSiteNews.com. 18 March 2009.18 Nov. 2009. 4 Dec 2009. http://www.lifesitenews.com/ldn/2009/mar/09031803.html

10 White, Hillary, “Switzerland Refuses to Alter Assisted Suicide to Nix Death Tourism.” LifeSiteNews.com. June 2, 2006,. 4 Dec 2009. http://www.lifesitenews.com/ldn/2006/jun/06060210.html.

11 Aysegil Demirhan Erdemir, M.D ,”A Short History of Euthanasia Laws, and Their Place in Turkish Law”, Eubios Journal of Asian and International Bioethics 11 (2001), 47-49 rpt at < http://www.eubios.info/EJ112/EJ2F.htm&gt;

12 Gilbert, Kathleen, “Britain Won’t Prosecute Assisted Suicide: Chief Prosecutor,” LifeSiteNews.com. 21 Sept. 2009. 4 Dec. 2009. <http://www.lifesitenews.com/ldn/2009/sep/09092109.html&gt;

13 Ezekiel, Emanuel. 796.

14 “Failed Attempts to Legalize Euthanasia/Assisted Suicide in the United States.” International Task Force.org. 4 Dec. 2009. http://www.internationaltaxkforce.org/usa.htm

15 “Montana’s Top Court to Hear Right-to-Die Argument,.” CNN.com/US. 1 Sept 2009. 4 Dec 2009. < http://www.cnn.com/2009/US/09/01/montana.right.to.die/index.html&gt;

16 Callahan, Daniel. “On Feeding the Dying,” Hastings Center Report, October 1983. 22.

17 Callahan, Daniel, et. al. “The Sanctity of Life Seduced: A symposium on Medical Ethics,” April 1994. 4 Dec. 2009. Reprinted at <http://www.firstthings.com/article/2009/001-the-sanctity-of-life-seduced-a-symposium-on-medical-ethics-8&gt;

18 Callahan, Daniel. “America’s Blind Spot: Health Care and the Common Good” Commonweal Magazine. Vol. CXXXVI, No. 17. 9 Oct 2009. 4 Dec 2009.
<http://www.commonwealmagazine.org/article.php3?id_article=2659&gt;

19 Marker, Rita L., Smith, Wesley J. “The Art of Verbal Engineering”, Dusquene Law Review. Vol. 35. No. 1. Fall 1996. 81-107. 4 Dec 2009. Reprinted at

20 Marker, Rita, Smith, Wesley. 96.

21 Marker, Rita, Smith, Wesley. 96.

22 See In re Hier, 18 Mass. App 200, 464 N.E. 2d 959 (1984).

23 Marker, Rita L., Smith, Wesley J. 97.

24 Minard, MD, Gaule, “The History of Surgically Placed Feeding Tubes”, “Nutrition in Clinical Practice”, Vol. 21. No. 6. 626-633 (2006). Sage Journals Online. 4 Dec 2009. Also see Marker, Rita L., Smith, Wesley J., fn 70.

25 See “Gastrostomy”, Surgeryencyclopedia.com. 6 Nov 2009. <http://ncp.sagepub.com/cgi/content/abstract/21/6/626&gt;

26 Marker, Rita L., Smith, Wesley J.. 99. See fn 80.

27 Grimstad, Julie, “Providing Nutrition and Hydration to Patients,” Women for Faith and Family, September 2000. 4 Dec 2009.

28 Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990).

29 Snead, Carter O., “The ‘Surprising’ Truth About Schiavo: A Defeat for the Cause of Autonomy.” Constitutional Commentary. Winter 2005. 1-18. 4 Dec 2009.

30 “Terri’s Story.” Terri Schindler Schiavo Foundation. 4 Dec 2009. http://www.terrisfight.org/pages.php?page_id=3

31 Potter, C. Ann. 35.

32 Docker, Chris. “Limitations of the Best Interests and Substituted Judgment Standards: A Brief Argument to Suggest that the Law’s Current Mechanisms for Making Decisions About Incompetent Persons Are Inadequate.” Dying In Dignity Mensa Sig News Journal. Vol 3. Issue 1. 1-11. 1993. 23 Nov 2009. http://www.euthanasia.cc/bi.html

33 Blake, Heidi, “Fighting for a Peaceful, Pain-Free Death.” Daily Telegraph. 23 Nov 2009, 8 Dec 2009. http://www.telegraph.co.uk/health/6613732/Fighting-for-a-peaceful-pain-free-death.html;
Devlin, Katie. “Sentenced to Death on the NHS.” Daily Telegraph. 2 Sept 2009. 9 Dec 2009. < http://www.telegraph.co.uk/health/healthnews/6127514/Sentenced-to-death-on-the-NHS.html&gt;; Devlin, Kate. Irvine, Chris. “Daughter Claims Father Wrongly Placed on Controversial NHS End-of-Life Scheme.” Daily Telegraph. 8 Sept 2009. 9 Dec 2009. <http://www.telegraph.co.uk/health/healthnews/6156076/Daughter-claims-father-wrongly-placed-on-controversial-NHS-end-of-life-scheme.html&gt;; See also Smith, Wesley. “Hazardous Pathway.” National Review Online. 20 Oct 2009. 9 Dec 2009. <http://article.nationalreview.com/?q=MzVjMTU3ZGE2MDVkM2ZjMTg1YTY3NDIwYjdmOWZmYTE=&w=MQ=&gt;

34 “National Care of Dying Audit—Hospitals, Round 2, Geriatric Report 2008/2009.” Marie Curie Palliative Care Institute Liverpool in collaboration with Clinical Standards Department of the Royal College of Physicians. 7.

35 Henry, Patrick. “Give Me Liberty or Give Me Death.” 23 March 1775. 5 Dec 2009 <http://avalon.law.yale.edu/18th_century/patrick.asp&gt;


Mary Summa, J.D., is an attorney in Charlotte, North Carolina.


Copyright © 2010. North Carolina Family Policy Council. All rights reserved.

Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION.

Originally printed – “The Silent Killer:  An Argument Against Euthanasia.” Family NC, Winter 2010.

Do No Harm: The Shifting Standard in Medicine

In 09 Mary Summa, JD on 2012/08/17 at 1:11 PM

By Mary Summa, JDImagine receiving a call that your teenage son has been in a horrible car accident and has suffered a brain injury. You race to the hospital and discover he is burning up with a 105 degree fever. The doctor refuses to give him medicine to reduce his fever claiming that your son’s life isn’t worth saving.1Imagine rushing your disabled infant to the hospital because he is having trouble breathing. He is placed on a ventilator. He is stable and alert. Then, over your objections, the hospital staff decides that he’s not worth treating. They stop bathing him, changing his diaper and feeding him. They cut off his ventilator.2You may think you are reading futuristic fiction. Yet, unfortunately, both are true stories, which occurred here in the United States; the first in 1994 and the latter in November 2009.The movement driving the legalization of abortion has come full circle. Society’s acceptance of destroying the most vulnerable of human life threatens the lives of everyone, including the physically and mentally challenged, the elderly, the severely infirmed, and anyone and everyone deemed to be lacking in “usefulness.”3These two cases are not unique and are becoming all-too-common-place in American hospitals and nursing homes. Traditionally, public policy has upheld a “sanctity of life” ethic, that the intentional killing of innocent human life is always morally wrong.4 Yet, now family members are being encouraged to “let go” of their infant with severe deformities, to “let go” of their mother with Alzheimer’s, or to “let go” of their brother severely brain-damaged from a car accident. Such doctors and others in the medical profession are orchestrating their deaths, many times over the objections of the patient or loved ones. They say a life “not worth living” is not worth saving either. Medicine’s shift from a “sanctity of life” ethic to a “quality of life” morality endangers the lives of all of us.Historical PerspectivesMedical ethics—the ethics code of behavior controlling what should be done in medical research and clinical care of patients—has existed since medicine began. In Western Culture, this code of conduct was shaped by a theological principle—unlike other living creatures, human life is sacred because man has a soul and is made in the image and likeness of God. Doctors adhered to the principles mirrored in the ancient Hippocratic Oath—to do no harm. Doctors and medical professionals were obliged to cure the sick and comfort the dying. History testifies to the ramifications of doctors abandoning these basic tenets.The European Eugenics Movement
Hitler’s Holocaust remains one of the most disgraceful examples. In his book, The Third Reich at War, Richard Evans reported that under the Nazi Regime, in the 1930s, some 360,000 people were forcibly sterilized, abortion on eugenic grounds was legalized, and doctors were given the authority to kill “sick people who by human estimation are incurable … [i]nfants suffering from Downs Syndrome, microcephally, the absence of a limb or deformities of the head or spine, cerebral palsy and similar conditions and vaguely defined conditions such as ‘idiocy.’” The Jews were the last to be targeted for extinction.5It is important to underscore a critical point. Hitler did not create the underlying attitude in society that made this extreme depreciation of human life possible. That responsibility lies with the scientific and medical communities, which, since the beginning of the 20th century, had been promoting a morality which devalued human life.6

This orchestrated effort by the medical profession to “weed out” undesirables in society was the Eugenics Movement. Aspects of it were the brainchild of Francis Galton, a cousin of Charles Darwin and a scientist who lived from 1822-1911. Influenced by his cousin’s theory of evolution, Galton believed that society would be improved through the propagation only of those individuals with desirable traits—physically, intellectually, and morally.7 Only a generation later, Hitler was citing the Eugenics Movement in the United States.8

 

The U.S. Eugenics Movement
The Eugenics Movement was actually born in the United States. In the early 1900s, the Race Betterment Foundation, the Galton Society, and the American Eugenics Society were established in the U.S. to promote eugenics. The American Eugenics Society is “credited” with successfully promoting forced sterilization laws against the mentally disabled. By 1944, state-authorized programs had sterilized over 40,000 “feeble-minded” or “insane” individuals in 30 states.9 One investigation revealed that the practice continued until the 1970s with close to 8,000 women sterilized in North Carolina alone.10

 

The Eugenics Movement also left an indelible black mark on the private practice of medicine. In 1915, Dr. Harry Haiselden of Illinois became an overnight celebrity after he was acquitted of a murder charge for failing to provide treatment to a severely disabled newborn. Claiming that the doctor acted within his “professional rights” to decline treatment, the jury failed to convict the doctor, and he walked out of the courtroom as a free man. When Dr. Haiselden was asked by a reporter whether he considered his vindication a victory for eugenics, he responded, “Eugenics? Of course, it’s eugenics.”11 Dr. Haiselden continued to make headlines a few years later when he refused to operate on a child, claiming that the “kindest thing to do was to let the child die.”12

 

Thankfully, the horrors of Aushwitz and Dachau served to turn American public opinion in the 1940s against the Eugenics Movement. Nevertheless, history forgotten is soon repeated. Many believed that the Eugenics Movement ended when the crematorium at Auschwitz was finally closed. In this country, however, it was simply smoldering in the ashes, waiting for some sort of kindling to set it ablaze. It did not have long to wait.

 

Rebirth in the U.S.
In the 1960s, Joseph Fletcher with his book, Situation Ethics, ushered into American thought (and public policy) a wholehearted rejection of the moral absolutes of the Christian ethic. The premise is that as long as love is your intention, the end—any end—justifies the means. Succinctly put, “For the situationist there are no rules, none at all.”13

 

Dismissed by the general public as extreme, Fletcher’s ideas caught fire in the academic world, and did not take long to influence public policy.14 Bioethics was a new and upcoming subcategory of ethics. In 1979, Congress enacted legislation authorizing the creation of a commission to create guidelines through “consensus” on what was ethical in the fields of medical research, technology and patient care. Dominated by followers of Fletcher’s “moral relativism,” the field of bioethics in the 1990s drove a stake in the heart of the “sanctity of life” ethic.15

 

An Australian psychologist by the name of Peter Singer was an ardent follower of Fletcher and his theory of relativism. In 1993, Singer published a book entitled, Practical Ethics, which applied Fletcher’s theory to the rights of man and the practice of medicine. In 1999, a small but influential band of intellectual elites ushered him from Australia to the halls of Princeton University as the Chair of Bioethics in the newly created Center for the Study of Human Values, where he has become the most widely known bioethicist in the world, and, unfortunately, one of the most influential.

 

Rejecting the “sanctity of life” ethic, Singer believes that certain categories of people do not have a right to life, and can be exterminated with moral impunity. His conclusion is based on the belief that “personhood” is defined by specified levels of cognitive ability. “Some non-human animals are persons,” Singer says, and so, “killing a chimpanzee is worse than killing a human being who, because of congenital intellectual disability, is not and never can be a person.”16

 

Singer supports infanticide of newborns and euthanasia of some elderly because he believes that neither are “persons.” “Killing a disabled infant is not morally equivalent to killing a person. Very often it is not wrong at all,” he writes.17Comparing the elderly with cognitive impairments to a disabled infant, he matter-of-factly states, “The considerations of a right to life or of respecting autonomy do not apply. If they have no experiences at all, and can never have any again, their lives have no intrinsic value.”18

 

Exterminating the Sick and Elderly
Ideas can have deadly consequences. The Futile Care Theory is a belief that it is morally acceptable for a doctor to refuse to treat a patient if the doctor believes the patient does not or will not have an acceptable “quality of life.” Treatment withheld could include artificial food and hydration, medications to cure infections or a fever, ventilator support, or kidney dialysis.19 The theory represents the latest bioethical effort to implement the anti-life morality in medical practices and public policy.20

 

Medical Practice
Traditionally, hospitals have refused to provide treatment on physiological grounds—the treatment would not save or physiologically improve the patient’s life. For example, a patient could not march into a hospital demanding a heart transplant when his heart worked just fine. However, as Wesley Smith, an attorney and outspoken critic of the Futile Care Theory,21 has so aptly stated, it is “an exercise in raw social Darwinism in that it views some patients’ lives as having so little quality, value, or worth that the treatment they request is not worth the investment of resources or emotion it would cost to provide.” Proponents of the theory rarely articulate their position precisely. Instead, they speak in code words such as “quality of life,” a “life not worth living,” “limited resources,” and “duty to die.”

 

This utilitarian view of life and the “duty to die” mentality has been embraced and promoted since the 1990s by many influential bioethicists, who have discarded the “sanctity of human life” ethic in favor of the “quality of life” morality or, as one pro-life ethicist has described them, “death culture” policies.22 The inclusion of this view in numerous highly respected bioethics journals began to affect the practice of medicine. Long before state legislatures began imposing “futile care” laws, hospitals and medical institutions were incorporating their “quality of life” morality into hospital protocols.23,24,25 More recently, the Futile Care Theory has been expanded to suggest that “reasonable treatment” for a patient should also take into account the “needs of other members of society.” In other words, “how will providing the treatments one patient demands burden or benefit others in the community?”26

 

Public Policy
Two state legislatures have codified the “quality of life” morality into law—Texas in 1999 and Virginia in 2006. Idaho came very close in 2009, but to date, proponents of the Futile Care Theory have not succeeded in Idaho. Noteworthy, however, is that 24 states provide no effective protection of a patient’s wishes for life-preserving measures if a doctor refuses treatment. Only 11 states have laws to protect a patient’s directives for life-saving measures.27

 

In July 2008, a 53-year old Oregon man, diagnosed with prostate cancer, applied to the state-run health plan for help. He received a letter saying that the state would not cover the man’s pricey treatment—it did not meet the requirement of providing a greater than five percent chance of prolonging the man’s life for five more years—but would pay for the cost of physician-assisted suicide, which is legal in Oregon. The state was not willing to help the man live, but was happy to foot the bill to kill him. The man fought back and received the care he needed to help save his life.28

 

North Carolina has no relevant provision protecting a patient’s wishes. Instead, the legislature has skipped down the path toward codifying the Futile Care Theory. In 2007, the legislature authorized Medical Orders for Life-Sustaining Treatment (MOST), which are documents that may override a patient’s Advance Directives. Furthermore, the statute authorizing the MOST document states that physicians are not prohibited from issuing orders “in accordance with acceptable medical practice and the facilities’ policies.” If the facility has adopted a “futile care” policy based on “quality of life,” it is unclear whether the doctor’s order would supercede the MOST or medical directive.

 

The Solution
The problem of treatment based on a “quality of life” ethic is so evasive in the medical community and public policy, according to futile care critic Smith, that the best approach is containment.29 Sanctity of life advocates must focus attention on what bioethics is, why it is important, and the real-life consequences of an unabated “culture of death.”

 

Secondly, pro-life doctors and lawyers should band together to provide needed assistance to families fighting hospitals and insurance companies who have adopted the Futile Care Theory. Doctors should refuse to participate in “futile care” protocols and should fight for the lives of their patients. Some do, but not enough. Lawyers should be willing to legally fight for patients if their wishes are not protected.

 

Thirdly, there are a number of steps state legislatures should take to protect the sanctity of human life:

 

  1. Repeal laws that provide legal immunity for hospitals and doctors if they base care on the Futile Care Theory in violation of patients’ wishes.
  2. Enact legislation that specifically protects a patient’s medical directives to obtain food, water, and medicines, and provides specific criminal and civil liability for doctors and hospitals who override the patient’s medical directives for this basic care.
  3. Prohibit the withdrawal of artificial food and water, food and water by mouth, and the withdrawal of medical treatments if withdrawal of food and water and medical treatments is intended to cause death.
  4. Repeal, if enacted, the Medical Orders for Life-Sustaining Treatments (MOST) documents and any other documents that allow the suspension of a patient’s medical directives. North Carolina is one of seven states to codify MOST documents.
  5. Reconsider statutes authorizing living wills. Living wills were enacted to protect loved ones from doctors who were trying to keep patients artificially alive on machines. Time has shown that it is almost impossible to predict every medical condition and adequately address them with a rigid set of directives. With the Futile Care Theory imbedded in many hospital protocols, living wills could be used to kill patients. It may be time to kill the living will.30

 

Conclusion
Doctors’ actions at Hitler’s death camps at Auschwitz, Dachau, and Treblinka remain forever burned into the memory of those who lived through the Holocaust. As Elie Wiesel wrote, “Thus, instead of doing their job, instead of bringing assistance and comfort to the sick people who needed them most, instead of helping the mutilated and the handicapped to live, eat, and hope one more day, one more hour, doctors became their executioners.”31

 

History will treat us no differently if we turn a blind eye to this travesty in American medicine.
We need to be a nation where the weak are protected from the strong, where our right to live will not be judged by our “usefulness” to society, where doctors and medical professionals return to the basic goal to heal rather than to harm.

 


 

Mary Summa, JD is an attorney in Charlotte, North Carolina. She served as Chief Legislative Assistant to U.S. Senator Jesse Helms during the 1980s.

 


 

Endnotes

 

  1. Smith, W. “Futile Care and Its Friends Hospitals – and Legislators – Want to Decide When Your Life Is No Longer Worth Living.” National Right to Life News. 1 Aug 2001. Web. 2 June 2010. <http://www.nrlc.org/news/2001/NRL08/index.html>
  2. “Breaking:Emergency Injunction Filed to Stop Hospital From Discontinuing Baby’s Care.” Jill Stanek. 23 Nov. 2009. Web. 25 May 2010. <http://www.jillstanek.com/euthanasia/breaking-hospit.html>; Unruh, Bob. World Net Daily “Hospital Backs off Threat to Stop Treating Baby.” World Net Daily. 23 Nov. 2009. Web.
  3. Pope John Paul II, Evangelium Vitae, 25 Mar 1995. Web. 1 June 2010. Reprinted at <http://www.vatican.va/holy_father/john_paul_ii/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae_en.html>
  4. Irving, D. “The Impact of International Bioethics on the ‘Sanctity of Life Ethics’, and the Ability of OB Gyn’s to Practice According to Conscience, International Conference: The Future of Obstetrics and Gynaecology. International Federation of Catholic Medical Associations (FIAMC) and MaterCare International Rome, Italy, June 18, 2001. 3. Edited August 28, 2001. Print. Reprinted athttp://www.lifeissues.net/writers/irv/irv_40bioandconscience03.html June 1, 2010.
  5. Evans, R. The Third Reich at War. New York: Penguin Group. 2008. 77. Print.
  6. Potter, A. “Will the Right to Die Become a License to Kill? The Growth of Euthanasia in America.” Journal of Legislation, Notre Dame Law School. 1993. 19:31.50-52. Print.
  7. Weickert, Richard. From Darwin to Hitler. New York: Palgrave Macmmillian. 2004. 36. Print.
  8. Black, Edwin. “Eugenics and the Nazis—the California Connection.” San Francisco Chronicle 9 November 2003. Web. Reprinted athttp://articles.sfgate.com/2003-11-09/opinion/17517477_1_eugenics-ethnic-cleansing-master-race/5.
  9. Sofair, Andre, M.D. and Kaldjian, Lauris, M.D. “Eugenic Sterilization and a Qualified Nazi Analogy: The United States and Germany, 1930-1945” Annals of Internal Medicine. 15 Feb 2000. 32:312-319. Print.
  10. “State Secret: Thousands Secretly Sterilized.” abcnews. 15 May 2005. Web. 25 May 2010. <http://abcnews.go.com/WNT/Health/story?id=708780>
  11. See “Hitler’s Debt to America” The Guardian 6 Feb 2004. G2, p8. Print. Reprinted at <http://www.guardian.co.uk/uk/2004/feb/06/race.usa>
  12. “Surgeon Lets Baby Born to Idiocy, Die” New York Times. 25 July 1917. Print.http://query.nytimes.com/mem/archive-free/pdf?res=9E06E3DF103BE03ABC4D51DFB166838C609EDE
  13. Joseph Fletcher. Situation Ethics: The New Morality. The Westminister Press. Philadelphia. 1966. Print.
  14. Smith, W. “Peter Singer Values Thriving.” Bioethics. 31 Oct 2008. Web. 25 May 2010. <http://bioethics.com/?p=5618>
  15. Irving, Dianne. What is Bioethics? Tenth Annual Conference: Life and Learning X (in press), University Faculty for Life, Georgetown University, Washington, D.C. 3 June 2000. 4. Print.
  16. Singer, P. Practical Ethics. Cambridge University Press. New York. 1993. 117-118. Print.
  17. id., 191.
  18. id., 191-192.
  19. Smith, W. “Can Hospitals Have the Right to Pull Your Plug? Rational Argumentator. XXXII. 1 April 2005. Web. 25 May 2010. <http://rationalargumentator.com/issue33/hospitalspullplug.html>
  20. Robert Powell. “Will Your Advance Directive Be Followed?” A report by the Robert Powell Center For Medical Ethics of the national Right to Life Committee. April 15, 2005. Revised May 2007. 5. Print. Quoting “When Others Must Choose: Deciding for Patients Without Capacity” New York State Task Force on Life and the Law (1992) 196-7.
  21. Wesley Smith is a CBS News Special Consultant, a Senior Fellow in Human Rights and Bioethics at the Discovery Institute and the Associate Director of the International Task Force on Euthanasia and Assisted Suicide.
  22. id., Smith, W. Bioethics.
  23. Smith, W. “Futile Care Theory and Medical Fascism” Raw Food Info. Web. 25 May 2010. <http://www.rawfoodinfo.com/articles/art_medicalfascism.html>
  24. Callahan, D. The Troubled Dream of Life: In Search of a Peaceful Death. Washington, D.C.: Georgetown University Press. 2000. Print.
  25. John Hardwig. “Is There A Duty to Die?” The Hastings Center Report. 27. 2. (1997) 34-42. Print. Reprinted at
  26. id., Robert Powell Center for Medical Ethics Report,.
  27. Day, L. “Medical Futility. Personal Goods and Social Responsibility,” American Journal of Critical Care, May 2009. 18. 3. 278-82. 282. Print. <http:// http://www.ajcc.aacnjournals.org&gt;
  28. id., Robert Powell Center for Medical Ethics, 7.
  29. Smith, W. Culture of Death: The Assault on Medical Ethics In America. New York: Encounter Books. 2000. 220. Print.
  30. Kerr, K. “Experts: Living Wills Often Flawed” Newsday 21 June 2004. Web. 25 May 2010 reprinted at <www.deathwithdignity.org/news/nday.06.21.04.asp> See Allen, C. “Back Off! I’m Not Dead Yet” The Washington Post. 14 October 2007. Web. 25 May 2010. <http://www.washingtonpost.com/wp-dyn/content/article/2007/10/12/
    AR2007101201882.html
    >
  31. Wiesel, E. “Without Conscience” The New England Journal of Medicine. 14 April 2005. 352. 15, 1511-13. Print.

 


Copyright © 2010. North Carolina Family Policy Council. All rights reserved.

 

Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION.

 

Originally appeared: “Do No Harm:  The Shifting Standard in Medicine.”  Family NC. Summer 2010.

 

The Changing Definition of Parenthood: How Adult Whims Have Superseded Children’s Needs in American Family Law

In 09 Mary Summa, JD on 2012/08/11 at 11:11 AM

 

by Mary Summa, JD

A Letter To My Father. Who are you?
I ask myself this question every time I catch a glance of my reflection in the morning … I fear for what the future holds and wonder if I will receive [sp] any slight information about you. I grieve for you and for the part of myself that I will never truly know. I feel as though half of me is missing alongside my family, because that’s what you are. Family.
I feel as though I have been cheated out of knowing you, communicating with you, as I never got a say in the first place. I still don’t now, You are Anonymous.
And there is nothing I can do to change that.1

The pain revealed by this writer is palpable. One may think it is the story of a child whose father died or abandoned the family. In truth, it is a letter from a child to her biological father, an anonymous sperm donor.

One hundred sixty years ago, human beings in this country were treated as chattel, bought and sold on the auction block to the highest bidder. A civil war settled the matter: America would not tolerate the sale of human life. Now, with the help of the medical profession and the blessing of the judiciary, this past is being repeated. The only difference is that now babies, in whole or in part, are being sold, many times by their own parents, who before these babies’ conceptions have no intention of rearing them.

This new phenomenon raises several questions: Should parents be free to sell their biological children? Do children have a right to know their biological heritage? How does the changing meaning of parenthood affect freedom? Failing to confront and properly answer these questions could spell disaster.

Parenthood Within Marriage 

Traditionally, “parent” has always been defined as a mother or father related to a child by blood. Under common law, a woman who gave birth to a child was considered the child’s legal mother. If the mother and father were married at the time of the child’s birth, the husband was presumed to be the child’s father. The title of mother and father, and the obligations and rights attached to that title were exclusively the husband’s and wife’s. In short, biology determined motherhood. Marriage presumed legal fatherhood.2

The inextricable common law link between marriage and parenthood was not serendipitous. Rather, the law elevated marriage and parenthood,3 reflecting an aspirational morality.4 Judges and lawmakers understood that marriage provided the best environment for the rearing of children. Additionally, marriage linked fathers to their children.

Illegitimacy was frowned upon in public policy well into the 20th Century. Laws extended few, if any, of the rights traditionally enjoyed by married couples to unmarried couples. Adoption laws were legislatively-created laws, which were not found in common law, enacted to protect children’s health and well-being.

Marriage laws were designed to keep the marriage intact, and to keep children in the custody of their biological parents. Divorce was obtainable, but only after egregious behavior by a spouse was proven in court.

Government Redefines Marriage 

Law often influences a society’s morality. As pointed out by Hadley Arkes in his book, Natural Rights & the Right to Choose, “as the public absorbs the understandings of right and wrong contained in the laws, the character of the public becomes shaped for better or for worse.”5

The 20th Century brought forth a different understanding of the foundation of law and public policy. Influenced by their European counterparts, American jurists began rejecting natural law and embracing legal positivism, a jurisprudence that defines law by what the majority says it is, and that was less moralistic, less judgmental, and less demanding than natural law. Stoked by the sexual revolution, the last quarter of the 20th Century witnessed personal autonomy masquerading as individual liberty dominating legal theory, particularly in the area of sexual freedom. In terms of marriage laws, the focus shifted from children’s needs to adults’ wants.

No-fault divorce illustrates the law’s changed focus and its impact on marriage and parenthood. In 1969, California enacted the country’s first no-fault divorce law.6 By 1974, all but five state legislatures had adopted no-fault divorce.7 In 2010, New York became the final state to legalize no-fault divorce.8 As a result, divorce rates sky-rocketed. Since 1974, according to the online publication National Affairs, over one million children every year see their parents divorce.9

The same-sex “marriage” movement has impacted the stability of marriage and family life as well. In order to accommodate homosexual relationships under the marriage umbrella, courts and legislatures have redefined marriage in ambiguous terms of “love and commitment,” rather than as an institution designed to channel sexual activity into a permanent, life-long relationship for the rearing of children the couple begets.10 This slight of hand, has imposed significant damage on the meaning of parenthood. As underscored by one expert, “Rather than attaching children to their biological parents, same-sex ‘marriage’ is the vehicle that separates children from a parent.”11

Reproductive Technology Is Redefining Parenthood

No-fault divorce legitimized the separation of children from one parent, usually the biological father. Remarriage and step-parenting introduced into public policy the idea that “parenthood” was no longer exclusively the right of one father and one mother.

Concurrently with the legal weakening of marriage, new reproductive technology, such as artificial insemination, in vitro fertilization, and surrogacy, medically redefined parenthood. For the first time in history, legal parenthood no longer depended on genetics and gestation.

Artificial Insemination separates conception from the procreative act, allowing it to occur with sperm donations from anonymous donors. The first baby produced by artificial insemination was born in 1953. Today, the procedure is relatively routine. There are no official records of the number of children conceived by artificial insemination. One source has reported that by 1987, 172,000 women were artificially inseminated in the U.S. each year, resulting in 65,000 births.12

In vitro fertilization, a newer procedure, allows for conception to occur outside the womb, many times with anonymously donated eggs and/or sperm. The embryo is then implanted into a woman’s uterus. In 1979 the federal Ethics Advisory Board approved federal funding for research on in vitro fertilization. The first IVF clinic opened in the U.S. in 1980. In 1981, the first “test tube” baby was born in the U.S. By 2004, according to a series produced by PBS, over half a million babies worldwide were conceived outside the womb. There are 450 IVF clinics in the United States alone.13

Sperm banks and egg donor centers have become big business in the U.S. While it is unclear how many banks exist in the U.S., Daily Finance, an online business publication, reports that donations are up during this recession. Cryobank, a sperm bank in Los Angeles, pays donors $100 per donation. The sperm bank recruits college students, who make approximately $1,000 per month donating sperm to the bank. Donors work for the company an average of one and a half years.14 Just doing the math, conceivably, an anonymous college male student could biologically father hundreds of babies during his employment with the sperm bank, a possibility that has raised concern about accidental incest.15 Egg donations reap even greater profits. According to the website Heartlander, it is a $3 billion business reaping $4,000 per egg for the egg donor.16

Surrogacy. Artificial insemination and in vitro fertilization separate legal parenthood from genetics. Surrogacy removes legal parent status from the gestating mother. With surrogacy, a woman is paid to carry to term a baby for another person or couple in exchange for money. She is neither biologically related to the child nor intends to keep the child. Although there is no official recordkeeping on how many babies are born via surrogacy, a 2010 Chicago Tribune article estimated that 1,400 babies are born in the United States each year through surrogacy.17

Most recently, reproductive technology has pushed the envelope even further. In Britain, scientists have been granted permission to create embryos with three genetic parents, and, according to the Commission on Parenthood, researchers announced in 2005 that they developed human embryonic stem cells into forms of cells that can become eggs and sperm. In Edinburgh, Scotland, researchers announced that they had “tricked” an egg into dividing and created a human embryo without a genetic father.18

Government Dismantles Parenthood

Rather than protecting children’s needs for a mother and father, legislatures and courts have engaged in legal back-bending to accommodate adults’ desire for parenthood. The term “parent,” once defined by biology, is now being legally defined in terms of genetics or gestation or intent. In fact, legal trends indicate the elimination of genetics or gestation as grounds for parenthood and a reliance solely on parenthood by “intent.” In Ireland, for example, a proposal was presented that recommended that a surrogate have no legal standing with regard to a child that she bears during or after birth.

This trend in the U.S. is most readily seen in the area of surrogacy. According to the website Allaboutsurrogacy.com, 14 states have statutorily legalized surrogacy contracts.19 In North Carolina, in 2009, a bill was introduced to legalize surrogacy contracts. In that bill, the surrogate was described as the “gestational carrier.” The contracting couple was described as the “intended parents.” Currently, gestation establishes legal motherhood.20 If the bill had been enacted, arguably, the bill would have surreptitiously introduced into North Carolina statutory law “parenthood by intent.”

Same-Sex Relationships’ Effect

The legalization of same-sex “marriage” has brought increased political pressure on jurisdictions outside the U.S. to define parenthood by “intent” and to erase references to genetics on birth certificates.

In Canada, when same-sex “marriage” was legalized in 2004, the law quietly changed the term “natural parent” to “legal parent.”

In Spain, eight months after legalizing same-sex “marriage” in 2005, the law governing birth certificates was changed. Rather than “mother” and “father,” birth certificates now read “Progenitor A” and “Progenitor B.”21

In the U.S., courts have succumbed to pressure from same-sex couples to eliminate references to gender or genetics on birth certificates.

In 2005, the American Civil Liberties Union won a court order in New Jersey granting the right to two lesbians to be listed on a birth certificate as the parents of the child born to one of the lesbian partners.22

In Virginia, in 2006, a court ordered lesbians to be listed as “Parent 1” and “Parent 2” on a birth certificate after the couple opposed having one of the partners listed as “father.”23

In Iowa, as of November 2011, a case was pending where a lesbian couple asked the court to require the state to list them as the “parents” of a child born to one of the partners as a result of artificial insemination.24

Parenthood Myths. In recent years, courts and legislatures have created two very similar legal myths, called the “psychological parenting doctrine” and the “de facto parenting doctrine,” to award parentage and custody rights based on “intent” to non-biologically related individuals. Although this doctrine has been used by cohabitating heterosexual couples, the expanding body of case law involves same-sex couples.

A “de facto parent,” as defined by the American Law Institute, is an unrelated adult who has lived with a child for two years and provides a majority of childcare (or at least the same amount as the primary legal parent) with the approval of one legal parent or where the legal parent fails to provide it.25 Psychological parenting bears a similar definition.

Under de facto and psychological parenting, a child may have a number of “parents” petitioning the court for joint custody and visitation.26 Unbeknownst to an ex-husband, the government may force him to share his child visitation with one or more of his ex-wife’s boyfriends or girlfriends.

In several states, courts have refused to adopt the de facto parenting doctrine. Nonetheless, the doctrine has received significant traction in other state courts. According to a report by the Commission on Parenthood, as of 2006, at least 10 states have recognized the de facto parenting doctrine. The North Carolina Court of Appeals adopted the doctrine in 2008, and the North Carolina Supreme Court used it in 2010 in two cases to award joint custody to a lesbian partner who was not biologically related to the child.27

The Psychological Impact on Children

Despite all the medical and legal energy expended to accommodate adults (whether heterosexual or homosexual) desiring parenthood, very little thought has been given to the overall impact on children. Collateral research suggests the damage is irreparable.

Biology matters. Research shows that children who grow up in families with one biological parent and a step-parent have outcomes that more closely resemble children growing up in single-parent households in numerous statistical areas: lower academic achievement, poorer physical and mental health, and more abuse within the home. Girls engage in earlier sexual activity and have higher rates of pregnancy. Boys have higher rates of violent behavior.28

Children want to know their parents. More children, similar to the one at the outset of this article, are coming forward and revealing their pain. In 2005, David Blakenhorn, a marriage and family expert, spoke about Narelle Grech from Australia. Narelle, is now a 28-year old donor-conceived female who wrote to the Canadian ethicist Margaret Somerville about a magazine article where Somerville advocated societal acceptance of all reproductive technologies. As quoted by Blakenhorn, Narelle wrote the following:

I feel as though donor conceived people are the last to be thought of in these trade deals; only adults, including clinics, doctors and wannabe parents … little bits of non-identifying information will not substitute for the real person’s family. You are not only encouraging people to intentionally separate people from their families, you are going to be the cause of people who have to question their identity and no one on this earth should have to do that. How dare someone take away someone else’s freedom to know themselves.29

Researchers caution that stories like these could become all too commonplace as children continue to be biologically separated from their parents.30

For the Sake of Freedom 

In his book, The American Cause, 20th Century political theorist Russell Kirk cautioned,

The American cause is not the cause of a revolutionary thirst for demolishing all obstacles to anarchic self-gratification…. American freedom has been the liberty of temperate policies and temperate intellects.31

The right of fit parents to rear their biological children as they deem appropriate is a fundamental right of liberty, historically recognized in common law and protected by courts and legislatures. The right to custody is the keystone of parental rights.

These attempts to satisfy the desires of adults at the expense of children are dismantling the foundations of freedom. Redefining parenthood by disconnecting it from biology and connecting it to “intent” takes the presumption of parenthood from parents and gives it to the state. Parents have become beholden to the whims of an all-powerful bureaucracy or judiciary to determine the destiny of their own children.

For the Sake of Children

Reportedly, Mother Theresa once said, “One of the greatest diseases is to be nobody to anybody.”32 By promoting anonymous parenting by commission or omission, legislatures and courts are inflicting far worse on today’s children: They are allowing the creation of children who are intended to be “nobodies” to their own parents.

The parent/child relationship is the strongest bond in human nature. Marriage is the best environment for children to thrive. Laws have recognized these facts and protected these relationships. Of late, those laws have been dismantled to accommodate the selfish whims of adults.

North Carolinians should demand that the General Assembly restore children’s interests, not adults, to the focus of family law. The Legislature can begin that process by prohibiting the sale of these children, in whole or in part, by banning surrogacy agreements and the marketing of sperm and eggs. Secondly, the General Assembly should legislatively nullify the judge-created de facto parenting doctrine existing in this state. Lastly, the General Assembly should repeal no-fault divorce laws, especially when minor children are involved.

Refusal to take these active steps will make the outcries by the woman at the outset of this article not merely the scars of a disease affecting a few, but the manifestation of an epidemic intentionally inflicted on children. 

Mary Summa is an attorney in Charlotte, North Carolina.

Re-printed with permission from Family Council of North Carolina.  Summer 2012

1. “Stories From Donors Conceived: A Letter to My Father.” AnonymousUs.org. September 26, 2011. http://anonymousus.org/stories/ Last visited March 10, 2012.

2. Although not recognized by common law, states in the mid 19th Century began enacting adoption laws that provided a legal link between children and married parents. In the early 20th Century, adoption laws were fleshed out to insure that the child was being placed in a stable and safe environments. Social mores dictated that children Preferences in Adoption Law in All 50 States, iMAPP Policy Brief. February 4, 2005. http://www.marriagedebate.com/pdf/iMAPPmarriage.adoption.pdf Last visited March 12, 2012.

3. Linda C. McClain, “Love, Marriage, and the Baby Carriage: Revisiting the Channelling Function of Family Law.” 28 Cardoza Law Review 2133, 2133 (2007). http://www.cardozolawreview.com/content/28-5/28.5_mcclain.pdf. Last visited March 9, 2012.

4. Carl Schneider. “Moral Discourse and the Transformation of American Family Law.” 83 Mich. L. Rev. 1803, 1819 (1985).

5. Hadley Arkes. 2002. NATURAL RIGHTS AND THE RIGHT TO CHOOSE. Cambridge: Cambridge University Press. 3.

6. W. Bradford Wilcox. “The Evolution of Divorce” National Affairs. Issue No. 1. Fall 2009. http://nationalaffairs.com/publications/detail/the-evolution-of-divorce Last visited March 9, 2012.

7. Ryan MacPherson, “From No-Fault Divorce to Same-Sex Marriage: The American Law Institute’s Role in Deconstructing the Family” The Family in America. Spring 2011. http://www.familyinamerica.org/ Last visited March 10, 2012.

8. Carolyn Kolker and Patricia Hurtado. DLR 170 (2010). “Divorce Easier As New York Ends Need to Lie.” Bloomberg. August 16, 2010. http://www.bloomberg.com/news/2010-08-16/breaking-up-not-so-hard-to-do-as-new-york-s-divorce-law-ends-need-to-lie.html. Last visited March 11, 2012.

9. Wilcox. 2.

10. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003).

11. Jennifer Roback Morse. “Prepared Remarks for the Rhode Island Legislature, Hearings on Same Sex Marriage.” Providence, Rhode Island. February 9, 2011. Reprinted at http://www.ruthinstitute.org/DefendingMarriage/RhodeIsland.pdf. Last visited March 13, 2012.

12. Diane Fitzpatrick. “The History of Artificial Insemination.” Life123.com. http://www.life123.com/parenting/pregnancy/infertility/the-history-of-human-artificial-insemination.shtml Last visited March 10, 2012.

13. The History of InVitro Fertilization” PBS. Last visited March 9, 2012.

14. Betsy Schiffman. “U.S. Sperm Donations Rise in Recession” Daily Finance. 5/6/10. < http://www.dailyfinance.com/2010/05/06/sperm-bank-donations-rise-in-recession/&gt; Last visited March 9, 2012.

15. See Jacqueline Mroz, “One Sperm, 150 Offspring”, The New York Times online. September 5, 2011. <http://www.nytimes.com/2011/09/06/health/06donor.html?pagewanted=all&gt; Last visited March 9, 2012.

16. Emerging Human Embryo Market Poses Moral and Ethical Dilemmas. Heartlander. May 1, 2008.< http://news.heartland.org/newspaper-article/2008/05/01/emerging-human-embryo-market-poses-moral-and-ethical-dilemmas.&gt; Last visited March 12, 2012.

17. Nana Schoenberg. “Born in the U.S.A.” Chicago Tribune. April 16, 2010. http://articles.chicagotribune.com/2011-04-13/health/ct-news-surrogate-mom-20110413_1_surrogacy-center-for-surrogate-parenting-international-parents. Last visited March 9, 2012.

18. Roger Hieghfiel and Nic Fleming. “Scientists Create Human Embryo Without a Father.” The Daily Telegraph. 10 September 2005. Reprinted at http://www.chiefsplanet.com/BB/archive/index.php/t-123682.html&gt; Last visited March 10, 2012.

19. “State Laws By State.” AllAboutSurrogacy.com. http://www.allaboutsurrogacy.com/surrogacylaws.htm.

20. N.C.G.S. 130A-101(2009).

21. David Rennie. “How’s Your ‘Progenitor A?’ The Telegraph. March 7, 2006. http://www.telegraph.co.uk/news/worldnews/europe/spain/1512344/Hows-your-Progenitor-A.html Last visited March 9, 2012.

22. “Birth Certificate Victory for Same Sex Couple” ACLU Newsletter. 24 May 2005. http://www.aclu-nj.org/news/2005/05/24/birth-certificate-victory-for-same-sex-couple/ Last visited March 9, 2012.

23. Anne Case, et. al. “How Hungry is the Selfish Gene?” The Economic Journal 110 (October 781-804) (2000).

24. “Gay Couple Fights for Names on Birth Certificate” Des Moines Register. November 8, 2011 <http://www.usatoday.com/news/nation/story/2011-11-08/same-sex-couple-birth-certificate/51122394/1&gt; Last visited March 9, 2012.

25. AMERICAN LAW INSTITUTE: PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION; ANALYSIS AND RECOMMENDATIONS. 2002. Section 2.03. St. Paul, Minnesota: American Law Institute Publishing.

26. See William Duncan, “The Legal Fiction of DeFacto Parenthood” 36 Journal of Legislation 263, 265 (2010). <http://www.nd.edu/~ndlaw/jleg/issue_articles/volume36/Duncan_Final.pdf&gt; Last visited March 9, 2012.

27. Boseman v. Jarrell, ___N.C.____ , 704 S.E.2d 494 (N.C. 2010); Davis v. Swan, ___N.C.___, 697 S.E.2d 473 (2010).

28. Anne Case, 784.

29. David Blankenhorn. “The Rights of Children and the Redefinition of Parenthood.” Presentation Before the Danish Institute for Human Rights. 2 June 2005. http://www.americanvalues.org/html/danish_institute.htm Last visited March 12, 2012.

30. David Blankenhorn et al. 2006. THE REVOLUTION IN PARENTHOOD: THE EMERGING GLBOAL CLASH BETWEEN ADULT RIGHTS AND CHILDREN’S NEEDS. New York: Institute for American Values. http://www.americanvalues.org/pdfs/parenthood.pdf. Last visited March 11, 2012.

31. Russell Kirk. 2002. THE AMERICAN CAUSE. Wilmington, Delaware: ISI Books. 65.

32. ”Quotes from Mother Theresa.”.<goodreads.com.http: http://www.goodreads.com=”&#8221; quotes=”” search?q=”%22The+greatest+disease+is+<span” class=”hiddenGrammarError” pre=”is “>to+be+nobody+to+anybody.%22&commit=Search> Last visited March 10, 2012.

Parental Rights: The Guardian of Freedom

In 09 Mary Summa, JD on 2012/06/30 at 11:11 AM

By Mary Summa, J.D.

In 2007, soldiers abruptly entered a home in Germany and took a young boy because his mother chose to home-school him.1 In Scotland, in 2009, the government took custody of a couple’s three and four year-old children because a government bureaucrat had deemed the children “too fat.”2 In September 2009, Swedish authorities stopped a plane about to take-off to remove a seven year-old from his parents because they refused to put the boy in a government-run school.3 These events abroad should give every American pause. In many parts of the world today, families are at the mercy of the government.

Research demonstrates that the traditional, intact family is the best environment to raise children. The intact family is also the protector of political freedom. As communities succumb to the power of the government, the family unit serves as the last barrier between freedom and tyranny. Until recent years in this country, the government befriended the family. Correctly, courts have stepped in and protected children from the small minority of parents who have threatened their children’s well-being.

For the vast majority of families, however, courts and legislatures have protected their autonomy and respected the inherent rights of fit parents to raise their own children as they deem appropriate. Yet, as government’s thirst for power and control increases, the family has become a target. If this assault is not confronted and stopped, precious freedoms will be diminished and eventually lost.

What Are Parental Rights?

Parental rights are powers vested in parents to conceive and rear children free from government control. These rights, recognized by the courts, include: the right to the custody and care of minor children, the right to establish a child’s residence, and the right to direct a child’s moral and spiritual upbringing, education, and medical treatment.

With these rights, come responsibilities, and parents are charged with the responsibility to educate, discipline, support, and protect their minor children.4 These powers emanate from the family—the basic unit of society—which historians and anthropologists believe has existed in every known human society.5 The family is not a creation of government.6

English Common Law adhered to the belief that marriage and family are institutions established by God. Therefore, rights emanating from that institution—parental rights—are natural rights that government was obliged to protect. Parental decision-making was limited by the State only in cases where the parent placed the child in clear and present danger, a strictly interpreted doctrine called the Parens Patriae Doctrine.7

Throughout colonial America, only fathers could enforce these rights. Fathers retained the custodial rights of children, and mothers had little authority to enforce custody or other parental rights.8 In 1944, with the Supreme Court’s decision in Prince v. Massachusetts,9 parental rights were recognized for both the mother and the father. Those rights, as the court recognized, “reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”10

The family is not a creation of government.

America’s History – Protecting Parental Rights

Traditionally, the U.S. Congress and state legislatures have restrained themselves from trampling on the right of fit parents to rear children free from government control11 When they did stray from this basic tenet, the Supreme Court struck down these laws as unconstitutional. The Court has protected family autonomy and parental rights as being guaranteed by the Ninth Amendment12 and the Due Process Clause and Equal Protection Clause of the 14th Amendment13 to the U.S. Constitution. The courts have recognized that the right to conceive and rear children is a “basic civil right of man,”14 and a right “far more precious … than property rights.”15

In the early to mid 20th Century, the Supreme Court vigilantly protected the right of parents to educate their children as the parent deemed appropriate.16 In 1925, in Pierce v. Society of Sisters,17 the Supreme Court struck down a state statute requiring children to attend public schools. Parents in this case had chosen to send their children to parochial schools, which under state statute violated compulsory education laws. In Pierce, the court stated:

The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.18

Later in 1944, in Prince v. Massachusetts,19 the U.S. Supreme Court, although recognizing the state’s interest in an educated citizenry, underscored the paramount rights of parents to direct the religious training and upbringing of their children:

The custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.

In Wisconsin v. Yoder,20 in 1972, the Supreme Court affirmed this common law principle by preventing the state from forcing Amish parents to send their children to school beyond eighth grade. Recognizing family autonomy in the areas of education and religious upbringing, the court rejected the State’s argument that it had a right to “save” the child from the decisions of the parents. The court stated:

The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.21

Without exception, the highest court held fast to the principle that fit parents, not the state, have the primary role of raising and nurturing children. Under the doctrine, Parens Patriae, the State can pierce this wall of protection only when the parent places a child in clear and present danger of harm.

The 1960s witnessed a rise in individual rights movements—women’s rights, children’s rights, homosexual rights, and minority rights. Holding their banners of protest, masses marched on Washington, D.C., demanding equality. Rights are a funny thing, though. They are not asserted in a vacuum. Whether justified or not, when a right is asserted by one citizen or entity, another citizen’s rights are modified, reduced, or even eliminated.

The Children’s Rights Movement

The Children’s Rights Movement, some believe, struck the first crippling blow to family autonomy and parental rights when it roared onto the political scene in the 1960s. Despite, some strides in the early part of the 20th Century in the areas of juvenile justice and labor laws, the movement floundered until the Supreme Court changed course in 1967 with its decision in In re Gault.22 In that decision, the Court extended 14th Amendment Due Process protections to children in juvenile delinquency hearings. For the first time in law, the government recognized children’s rights, separate and apart from parents’. Congress, state legislatures, and courts, however, quickly expanded the standard’s original application to justify a plethora of legislation and court cases in the area of child custody, education, health care, and discipline.

This movement has not been confined to the United States. The conflict between parent rights and child rights was never more apparent than with the 1989 United Nation’s Convention on the Rights of the Child (UNCRC). The document acknowledges the individual rights of children, which may be separate and distinct from and conflict with parents’ rights.

Article 3 gives administrative or legislative authority to decide what actions are “in the best interest of the child.” Article 12 gives to the child “who is capable of forming his or her own views” the right to express them. The child’s views will be given “due weight,” depending on the age and maturity of the child.23

According to Michael Farris, an attorney and chairman of the Home School Legal Defense Association, the UNCRC dictates two things: “1. Government can override parental decisions without proof of abuse, neglect or harm; 2. Children have legally enforceable rights to complain about parental decision-making in every area of their life, including religious and educational decisions.”24

Parents who are citizens of countries that have ratified the treaty have lost the unfettered discretion to make decisions on behalf of their children. A parent’s violation of the ‘rights’ of their own children could subject the parent to international condemnation or, worse, punishment.

According to a 2009 Congressional Research Service report, 193 countries have ratified the treaty. The United States and Somolia are the only two countries that have not.25 Consequently, U.S. parents, unlike most parents around the world, do not have to answer to bureaucrats or courts for decisions they make regarding the rearing of their own children.

Scripture and history warn that a house divided against itself cannot stand. Creating conflicting rights within a family—in this case, parent against child—will do nothing but weaken the autonomy and strength of the family, and lead to its demise.

Discipline

As mentioned previously, under the Doctrine of Parens Patriae, the government has always had the right to step in and protect the child from unfit parents. According to one law professor, the government has also used this doctrine to assist parents

in discipline. Called “juvenile status offense legislation,” many states still have truancy laws, curfew laws, and laws dealing with children who perpetually run away from home.26 One could argue that traditionally written statutory rape laws provided parents with a “big stick” solution for boys who took advantage of daughters.

Today, the tables have turned. The government is no longer in the business of assisting parents in their inherent responsibility to discipline. Rather, government is partnering with children to punish their parents. Never, until recently, has the government taken such an active role in pitting children against parents.

A 1980 case illustrates this point. In In re Welfare of Sumney,27 under a Washington State statute, the state granted a 15 year-old’s petition seeking “alter- native residential placement.” Despite the fact that there was no evidence of abuse, neglect or parental unfitness, the State granted the petition citing “the best interest of the child.” In his dissent, Washington State Supreme Court Justice Robert Brachtenbach pointed out when the child was asked why she thought there was a conflict in the home, the child replied, “I just feel there is a communication gap there.” Further testimony revealed that the only “crime” committed by the parents was an insistence that their daughter not take drugs … use alcohol … or be sexually active and that she be in at a reasonable hour.”28 In exchange for asking their daughter to adopt a healthy, moral lifestyle, the parents were denied custody.

Health Care

Under common law, children were viewed as incapable of consenting to all medical treatment. Parents had the exclusive authority to make medical decisions on behalf of their children. In emergencies, parental consent was assumed and did not need to be obtained prior to treatment. In cases of abuse or neglect, common law recognized the right of the government to step in and act as the parent to remove the child from harm.

Abortion. In 1976, in Planned Parenthood v. Danforth,29 the court found unconstitutional a statute requiring parental consent for abortion. Again, in 1979, the Court proclaimed that parents did not have “an absolute and possibly arbitrary” right to veto a child’s decision to obtain an abortion.30

In 1992, however, the Supreme Court changed course and allowed to stand a state statute requiring parental consent for abortion with a judicial bypass, which allows a judge to sign off on a minor’s abortion in place of her parents in some circumstances.31Over the past 18 years, states have responded to this opportunity to restore parental authority over their children’s healthcare. According to a September 2010 Guttmacher Institute report, 34 states require some parental involvement in a minor’s decision to have an abortion. Of these states, 20 require parental consent only—two of which require both parents to consent; 10 states require parental notification only—one of which requires both parents to be notified; and four states require both parental consent and notification.32

In 1995, incidentally, the North Carolina General Assembly enacted a statute requiring parental consent for abortion. The law is flawed, however, because it does not require authenticity of the signature by a notary, thus, allowing forged signatures to meet the consent requirement of the statute.33

Contraception. Over the past 30 years, legislators at both the state and federal levels have aggressively weakened parental authority in other areas of children’s healthcare, including healthcare associated with sexual activity. The U.S. Congress has led the charge. Since its inception in 1970, there have been no “parental consent” requirements on monies for Title X of the Public Health Service Act or federal “family planning.” In the 1980s, regulations were promulgated to give parents the right to consent to contraceptives and other services provided by Title X funding. In the 1990s, additional administrative and legislative attempts were made to return to parents their rightful authority to control the health-care of their children. While valiant, all these efforts ultimately failed legislatively or by court challenge.34

State legislators have made some strides in protecting parental authority in relation to minors’ access to contraceptives. According to a January 2011 Guttmacher Institute report, 21 states and

How to Protect the Family

To rebuild the wall protecting family autonomy, we should:

• Enact a marriage amendment in N.C. defining marriage as a covenant between a man and a woman, which serves as the first step to protecting family autonomy.

• Enact federal and state constitutional amendments on parental rights, including an amendment to the U.S. Constitution to bar enactment of the U.N. Convention on the Rights of the Child.

• Repeal no-fault divorce. • Repeal state laws that deny parents the right to decide all medical

decisions for their children, including drug and alcohol treatment, STD treatment, abortion, and contraceptives, except in cases of emergency and with a judicial bypass if required by case law.

• Expand parental choice in education, through means such as education tax credits.

D.C. give minors unrestrained access to contraceptives without parental consent. Twenty-five states allow a minor access to contraceptives only under certain circumstances without parental consent, and four states require parental consent before a minor can receive contraceptives.35

STD Treatment. Attempts to maintain parental authority over other healthcare related to sexual activity have been less successful. For example, all 50 states and D.C. deny parents the right to consent to their children’s STD services. Eleven of those states retain the right for parents if the child has not reached a certain age (12 or 14). Eighteen of those states allow, but do not require, physicians to inform a minor’s parent that he/she is seeking STD testing and treatment. Although one state requires the physician to inform the parent if the child tests positive for HIV, the other 17 states do not.36 A child may be infected with the deadly HIV virus, and in 49 states, parents are not even notified.

School Health Clinics. For years, children’s rights advocates have further eroded parental authority by setting up healthcare facilities in schools. These clinics have been funded by a menagerie of federal, state, and private funds. Trumpeted as a way to provide better care for children, these facilities are used as referral centers for abortion. On March 25, 2010, Fox News reported that a 15 year-old had used a school-based clinic to obtain an abortion without notifying her mother. The mother reported that her daughter had been told that if she told her mother, the mother would be financially responsible for the abortion. If the daughter kept it secret, she was told the abortion would be free. Without any parental involvement, the school-based clinic called a cab for the girl, which took her to the local abortion clinic where an abortion was performed.37

In March 2010, the federal government authorized the expenditure of taxpayer dollars to further undermine parental authority in the area of their children’s healthcare. With the passage of the new federal health care bill, Congress authorized a

Parents are primarily responsible for directing the education of their children, and have the inherent right to decide whether that education shall take the form of public, private, parochial, or home schooling.

specific program for school-based clinics.38 While the law could have required parental consent for services, it did not. Undoubtedly, these clinics will provide all kinds of services, including contraceptives and abortion referral services, without parental consent.39

Education

Parents are primarily responsible for directing the education of their children, and have the inherent right to decide whether that education shall take the form of public, private, parochial, or home schooling. The Supreme Court in 1925 struck down an Oregon statute requiring all children to attend public school. In that case, the high court made it clear that a fundamental cornerstone of liberty is a parent’s right and duty to make decisions regarding a child’s education.40

For years, the public schools have indoctrinated children with beliefs inconsistent with beliefs taught at home. The assault on parents’ rights to educate their children, however, has never been stronger or more blatant than in the area of home schooling. In recent years, the number of parents choosing to homeschool their children has exploded. It is estimated that 1.5 million children are homeschooled, with some sources claiming that the numbers are really much higher.41 With the rising numbers, teachers’ unions and legislatures have taken notice, and efforts are underway in several jurisdictions to further restrict this option for parents. According to the Home-School Legal Defense Association, in 2008, D.C. was the first jurisdiction to severely limit the right of parents to homeschool. While not banning home schooling entirely, the D.C. City Council decided to regulate it to death. In casting his vote against the plan, one D.C. Councilman reportedly called the government’s new power over home schooling parents “a type of socialism.”42

Custody

Custody of one’s children serves as the cornerstone of family autonomy and parental rights. All other parental rights—to educate, to provide health care, to instill moral and religious values—become insignificant if a parent cannot retain the right to keep a child in his presence. Traditionally, in the area of custody, and following the belief that parents naturally have the best interest of the child in mind, government deferred to the parents on issues of custody. However, with the rise of divorce and the introduction of the “Best Interest of the Child,” the court ultimately decides who assumes custody of children, regardless of the parent’s wishes. In her book, Supremacists, long-time conservative activist and lawyer, Phyllis Schlafly estimates that over 48.3 million American parents are controlled by judges in child custody matters.43

Grandparents’ Rights Movement

While not exclusively a “divorce issue,” the Grandparents’ Rights movement has been catapulted forward, in large part, due to rising divorce rates. Next to children, grandparents are the second victims of divorce when a parent denies them access to grandchildren. It can be heart-wrenching for grand-parents to be told suddenly that they can no longer see their grandchild. As difficult as this reality may be, because they diminish parental rights, grandparent rights to custody and visitation of grandchildren has never been recognized by common law.

The Grandparents’ Rights Movement serves as a new and different assault on parental rights. Whereas other movements, particularly the Children’s Rights Movement, have created conflicting individual rights within the nuclear family, the Grandparents’ Rights Movement seeks to legitimize the right of government to bulldoze the cornerstone of family autonomy and parental rights—the right to custody of children.

Grandparents’ rights organizations formed in the 1980s to persuade legislatures and courts to create visitation rights for grandparents. Initially, these groups set their sights on Washington to solve their problem. Despite Congressional hearings in both the House and Senate in the 1980s,44 Grandparents’ Rights advocates failed to convince legislators to create a “right” to visitation through federal legislation.

Unrelenting, in the 1990s, these groups successfully turned their energies toward state legislatures. In one case, however, the state legislature pushed the pendulum too far. The Washington State Legislature passed legislation that allowed “any person,” relative or nonrelative, to petition the court for visitation rights. In effect, the Washington statute stole from parents, and gave to the government the right to decide custody and visitation for children. Thankfully, in Troxel v. Granville,45 the Supreme Court overturned this state statute as an unconstitutional infringement on parental rights. The Troxel decision dealt a serious blow to the Grandparents’ Rights Movement and the government’s assault on parental authority in the area of visitation.

Today, all states allow some sort of visitation rights for grandparents. These statutes fall into one of two categories: restrictive visitation statutes and permissive statutes. The restrictive statutes allow visitation by grandparents, only if: (1) the child’s parents are divorced or separated, or (2) one or both of the child’s parents have died. Visitation in these states will be allowed only if the court decides that it is in the best interest of the child.

Permissive statutes allow grandparents the right to obtain visitation if the court decides it is in the “best interest of the child.”The “best interest of the child” standard many times requires a grandparent to show evidence of a continual relationship with the child. The parents do not need to be divorced or deceased. A court can step in and force fit parents, living in an intact family, to allow grandparents to visit their children.

In North Carolina, the N.C. Supreme Court reaffirmed the U.S. Supreme Court finding that parents, not government, hold the right to “custody, care and the nurture of children.”46 Only in cases where the nuclear family is disrupted by divorce,

or when a child is adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child may a grandparent petition the court for visitation rights to the grandchild.47 Attempts to expand grandparents’ rights have failed.

While the N.C. General Assembly has run roughshod over some areas of parental authority, it has, thus far, restrained itself from meddling in custody and visitation rights of fit, married parents whose children live in intact families.

At a Crossroads

As America continues to turn away from God, the inalienable rights for which her founders fought and died face political extinction. A government that fails to recognize the Author of those rights will refuse to uphold mankind’s inherent right to live or be free. Family autonomy no longer enjoys government’s protection. America is at a crossroads—she can rebuild the strength of family autonomy, or she can continue to sit back and watch as government assaults that wall separating freedom from tyranny. If the latter path is chosen, what is happening to parents in Sweden, Germany, and Scotland, will no longer be a tragedy occuring somewhere else. Rather, it will be a reality at America’s doorstep.v

Mary Summa, J.D., is an attorney in Charlotte, North Carolina, who served as Chief Legislative Assistant to U.S. Senator Jesse Helms during the 1980s. For a footnoted version of this article, please visit ncfamily.org.

1) Dale Hurd. “Child Welfare Agency Echoes Nazi Germany?”, CBNNEWS.com, 28 April 2010. < http://www.cbn.com/cbn- news/world/2010/March/Child-Welfare-Agency-Echoes-Nazi- Germany> (accessed January 24, 2011).

2) Drew Zahn. “Nanny State Snatches Kids For Being Too Fat,” WorldNetDaily.com. 20 September 2009. < http://www. wnd.com/index.php?fa=PAGE.view&pageId=110476> (accessed January 24, 2011)

3) Bob Unruh. “Judge Banishes Family’s Custody Lawyer,” WorldNetDaily.com.

10 June 2010..< http://www.wnd.com/?pageId=165361&gt; (accessed January 24, 2011)

4) John Duncan. “The Ultimate Best Interest of the Child Enures from Parental Reinforcement: The Journey to Family Integrity” 83 Nebraska Law Review 1240, 1248 (2004).

5) Carlson, Allan. “The Family as the Fundamental Unit of Society.” World Family Policy Forum, Provo, Utah. January 13, 1999.(accessed January 24, 2011)

6) William Duncan.“Does the Family Have a Future?”83 North Dakota Law Review, 101, 102 (2007) and Bartlett, Katharine. “Rethinking Parenthood As an Exclusive Status: The Need For Legal Alternatives When The Premise of the Nuclear Family Has Failed”, 70 Va. L. Rev. 879, 888 (1984).

7) C.f. Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123 (3d. Cir. 1997).

8) John Duncan, at 1256. 9) 321 U.S. 158 (1944). 10) id, at 166. 11) William Duncan at 102

12) (Duncan at 1248 and M.L.B. v. S.L.J., 519 U.S. 102, 116- 117 (1996); Prince v. Massachusetts, 321 U.S. 158 (1944) Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925); Meyer v. Nebraska, 262 U.S. 390 , 399 (1923).

13) Griswold v. Connecticut, 381 U.S. 479 (1965) 14) Skinner v. Oklahoma, 316 U.S. 535 (1942) 15) May v. Anderson, 345 U.S. 528 (1953) 16) Meyer v. Nebraska 262 U.S. 390 (1923).

17) 268 U.S. 510 (1925). 18) Pierce, at 535 (1025). 19) 321 U.S. 158, 166 (1944) 20) 406 U.S. 205 (1972).

21) Wisconsin v. Yoder, 406 U.S. 205 (1972).

22) 87 S.C. 1428 (1967).

23) U.N. General Assembly, “Convention on the Rights of the Child”, 2 September 1990. < http://www2.ohchr.org/english/ law/crc.htm> accessed January 25, 2011.

24) Michael Farris, J.D. “Nannies in Blue Berets: Understanding the U.N. Convention on the Rights of the Child” HSLDA.org. http://www.hslda.org/docs/news/20091120.asp accessed January 24, 2011.

25) Luisa Blanchfield, “The United Nations Convention on the Rights of the Child: Background and Policy Issues” Congressional Research Service. April 1, 2009 < http://fpc.state.gov/documents/organization/134266.pdf&gt; accessed January 24, 2011.

26) John Duncan, 1267. 27) In re Sumney, 94 Wash. 2d 757 (1980). 28) In re Sumney, 94 Wash. 2d 757 at 770; Duncan, at 1265. 29) Planned Parenthood v. Danforth, 428 U.S. 52 (1976)

30) Belotti v. Baird, 443 U.S. 622 (1979). See also, Bruce Hafen. “The Family as an Entity”. 22 U.C. Davis L. Rev. 865, 888 (1988-1989).

31) Planned Parenthood v. Casey, 505 U.S. 833 (1992).

32) “Parental Involvement in Minors’ Abortion” Guttmacher Institute: State Policies in Brief. September 1, 2010. Accessed on January 24, 2011.

33) Jackson v. A Woman’s Choice, Inc., 349 N.C. 360, 517 S.E. 2d 896 (1998)..

34) “Title X and the U.S. Family Planning Effort”, Alan Guttmacher Institute, Facts in Brief ” (1997) at http://www.guttmacher. org/pubs/ib16.html (accessed January 24, 2011); “Contraceptive Services for Adolescents: What Health Care Providers Need to Know About the Law”, Center for Adolescent Health and the Law Healthy Teen Network, November, 2006. http://www.cahl. org/PDFs/HelpingTeensStayHealthy&Save_Full%20Report.pdf accessed on January 25, 2011.

35) “Minors’ Access to Contraceptive Services”, Guttmacher Institute: State Policies in Brief. January 1, 2011. http://www. guttmacher.org/statecenter/spibs/spib_MACS.pdf accessed on January 24, 2011.

36) ” Minors Access to STI Services”, Guttmacher Institute State Policies in Brief, January 1, 2011).< http://www.guttmacher.org/ statecenter/spibs/spib_MASS.pdf >accessed on January 24, 2011

37) Dan Springer. “School-Assisted Abortion a Shocking Lesson.” Foxnews.com, March 25, 2010.accessed January 24, 2011.

38) Tina Hinz ,“Health Official Advocates for School Clinics in D.C.” Waterloo-Cedar Falls Courier, reprinted in allbusiness. com June 17, 2010. http://www.allbusiness.com/government/ government-bodies-offices/14646153-1.html> accessed January 24, 2011.]

39) “Parents Rights and Civil Wrongs: School-based Clinics and Abortion”, The Foundry: Conservative Policy News. March 25, 2010.parental-rights-and-civil- wrongs-school-based-clinics-and-abortion> January 24, 2011.

40) Pierce v. the Society of Sisters, 268 US 519 (1925).

41) Vidya Rao, “As Home-schooling Moves to Mainstream, Stigma Fades”, Today show.com, September 27, 2010

42) “State Board of Education Approves New Restrictive Homeschool Regulations”, July 23, 2008. http://www.hslda.org/hs/ state/dc/200807230.asp)

43) Phyllis Schlafly, The Supremacists, Dallas: Spence Publishing 2004 at 127.

44) “Grandparents’ Visitation Rights”, Hearing Before the Subcommittee on Separation of Pwers of the Committee on the Judiciary, United States Senate, 98th Congress, First Session on S. Con. Res. 40. November 15, 1983. http://ia700309.us.archive. org/19/items/grandparentsvisi00unit/grandparentsvisi00unit. pdf ;accessed on January 25, 2011; See also: “Grandparents: The Other Victim of Divorce and Custody Disputes” Hearing Before the Subcommittee on Human Services of the Select Committee on Aging, U.S. House of Representatives, Ninety-seventh Congress, 2nd Session [Ninethy-eighth Congress, 1st Session.] http://www.archive.org/stream/grandparentsothe00unit/grand- parentsothe00unit_djvu.txt accessed January 25, 2011. “

45) Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 LEd.2d 49 (2000).

46) McIntyre v. McIntyre, 341 NC 629, 633, 461 S.E.2d 745, 748-49 (1995).

47) N.C. 50-13.2(b1) (2009); N.C.G.S. 50-13.5 (j) (2009); N.C.G.S. 50-13.2A (2009). See http://www.ncga.state.nc.us/ gascripts/statutes/StatutesTOC.pl?Chapter=0050 accessed on January 25, 2011.

Family North Carolina

Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION.

Originally appeared – “Parental Rights:  The Guardian of Freedom. Family NC. Spring 2011.