When Canada’s Parliament last fall legalized same-sex marriage, the sponsors of the legislation were effusive in their reassurances that this was in no sense a precedent for polygamy. Less than three months after the bill was passed, that reassurance was demolished last week by the Ontario Court of Appeal.
Reversing the ruling of a trial judge, the court decided that a child could have three legal parents, in this case his lesbian birth mother and her “wife” of 16 years, plus the father who donated the sperm and has taken an active role in raising the boy, now 5.
How three people could be the legal parents of a child, without there being a three-person marriage, was a question the court did not contend with, though it would clearly follow from the decision.
The trial judge, Justice David Aston, had shrunk from creating three-person parenthood because, as he said, it might open similar claims from stepparents or members of an extended family.
Joseph Ben-Ami, executive director of the Institute for Canadian Values, said there was absolutely no reason for the three-judge Court of Appeal to legally entrench the role of a third parent. If the birth mother had died, for instance, the “wife” could have gone to court to gain custody. It was a case of “naked judicial activism,” he said.
“All areas of social policy that the courts are not competent to rule on belong in the hands of legislatures and legislators,” he said. “They are responsible and fully accountable to the people who are electing them.”
Canada’s powerful gay organizations saw the case very differently. Kaj Hasselriis, executive director of the same-sex rights group EGALE, said the ruling enshrines the rights “for all types of modern-day family formations.” He added that “multiple-parent families are not all that new in Canada.” The courts were merely “catching up with reality.”
The fact that legal multiple-parent families would almost certainly lead to legal “multiple-partner marriages,” meaning polygamous ones, he did not mention. Nor did the media raise the possibility. However, given the Ontario ruling, the case for multiple wives or husbands is now almost certain to come before the courts, particularly if the Ontario ruling goes unappealed. Ruth Ross, executive director of the Christian Legal Fellowship, which had intervener status in the Ontario case, said her group has not decided whether to appeal it.
It’s noteworthy that when the case for gay marriage first came before the Commons – with the then-Liberal government hotly denying that gay marriage would lead to polygamy – it was disclosed that a committee of its own Justice Department had already reached the conclusion that gay marriage would make polygamy inescapable.
What made the Ontario case possible, however, was modern technology and the process of in vitro fertilization. How much else might become inescapable is outlined in a book by professor Margaret Somerville of the McGill University Centre for Religion, Ethics and the Law, whose repeated warnings of the dangers to public health involved in the gay lifestyle saw her denounced by the liberal left. In her current “The Ethical Imagination: Journey of the Human Spirit” (Anansi Press, Toronto), she warns of other possibilities from human reproductive engineering, such as:
- Cloning by combining two ova or two sperm, so that two men or two women could have a shared baby;
- Cloning involving the creation of synthetic sperm or ova from adult stem cells for use by same sex couples;
- Alteration of an embryo’s germ cell line to change not only the embryo but all of his or her descendants;
- Creation of a chimera, a human-animal combination, possibly sought as an inherent human right by someone wanting to perpetuate himself or herself with a pet dog or cat.
In Canada, apparently, the legality of all these processes is to be established, not by our elected politicians, but by our unelected judges, almost all of whom were appointed by the previous Liberal government specifically because they were considered people dedicated to fashion a new and ultra-liberal society, uninhibited or constrained by values drawn from the past.
Moreover, our chief justice, Beverley McLachlin, has informed us that when a person becomes a judge, she or he acquires an inner depth of understanding and wisdom that is not conferred upon mere politicians, tainted as they are by the electoral process. It’s therefore vital, she adds, that judges not be subjected to parliamentary review prior to their appointment. They must remain untainted.
One might add: “Oh, Canada!”
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