The Briefing

Documentation and Additional Reading

Part

Part

Part

WFAA

Surrogate-born baby's very life at center of legal fight, by Kevin Reece and Jobin Panicker

The Atlantic

When Parents and Surrogates Disagree on Abortion, by Katie O’Reilly

Part

New York Times

As Iran Erupts in Protest, Tehran Is Notably Quiet, by Thomas Erdbrink

Friday, January 5, 2018

Friday, Jan. 5, 2018

Tags: Audio, California, Marijuana, Surrogacy

Transcript

This is a rush transcript. This copy may not be in its final form and may be updated.

It’s Friday, January 5, 2018. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.

We’ll see that 2018 is going to be a pivotal year on the question of marijuana, we’ll ask if something is legal is now moral, we’ll look at the moral crisis over a baby in Texas and the vexing question of surrogate parenting, and we’ll look at the lessons of history from Iran.

Part

2018 is going to be a pivotal year on the question of marijuana

Any way you look at it 2018 is going to be a very big year in the United States on the question of marijuana. The stage for this was set on January 1 of this year when California, the nation's most populous state, became the latest state to legalize so-called recreational marijuana, but when we’re talking about recreational marijuana that means the sale, use, registered, growing, and possession of a limited amount of marijuana for personal recreational use ostensibly to be contrasted with medical use. But the story even in California doesn't begin on January 1 of 2018, that was just the date when so-called recreational marijuana became legal in California, we have to go back to the fall of 2016 when voters in the state authorized, by means of an amendment, the sale of recreational marijuana and the possession and use that goes along with it. But efforts to legalize marijuana in California go back at least to 1972 when voters turned down a similar kind of amendment. What we’re looking at here is a major moral shift in the United States. We have tracked something very interesting on The Briefing and others have noted it as well. There has been a rather similar timeline to the legalization of marijuana and the normalization of same-sex marriage. Now the issue of same-sex marriage, redefining humanity's most fundamental institution, that's a far more serious issue but that's not to say that marijuana is not a serious issue. But one of the other things to note is that the moral change on marijuana is being driven from two ends of the age spectrum, that’s something unique to this question. Almost all previous big issues of cultural and sexual change have been driven by the younger generations, that's particularly true on the array of LGBTQ issues and the question of same-sex marriage, but on the legalization of marijuana it turns out that some of the baby boomers who were activists on the question in 1972 are once again, as are many younger Americans, especially on college campuses, but the legalization of recreational marijuana in California has not gone seamlessly. The voters acted back in 2016 and the legal mechanism supposedly gave a full year to 2017 for all the mechanics and regulations and allied legislation to be put in place so that legal marijuana could be sold in California beginning the first day of this year. But note this, there were no legal sales of recreational marijuana in terms of registered sellers or growers in cities in California including Los Angeles and San Francisco. Why? Because as it turns out, coming up with those kinds of regulations is not so easy as can even be accomplished in California in just a year.

As Colin Atagi reports for USA Today,

“Los Angeles and San Francisco are among the cities where recreational pot will not be available right away because regulations were not approved in time to start issuing the city licenses needed to get state permits.”

On the other end of the extreme there in California, cities including Bakersfield, Fresno, and Riverside

“have adopted laws forbidding recreational marijuana sales.”

Part

If something is legal, is it now moral?

But others were absolutely giddy on New Year's Day. Thomas Fuller reporting to the New York Times tells us,

“Retail cannabis shops in California opened their doors for the first time [on New Year’s Day], inaugurating what proponents say will become the world’s largest market for legalized recreational marijuana.”

Fuller went on to report,

“A transaction that remains illegal in many parts of the country seemed almost banal on [New Year’s Day] for the customers at a dispensary in Oakland who picked out their marijuana, showed their driver’s licenses and walked into the brisk morning air with their drugs in a paper bag.”

One customer, Diana Gladden, a 48-year-old, said,

“This is a whole new world opening up. … My mother, a very strict Southern Baptist, now thinks it’s O.K. because it’s legal.”

Well that comment is interesting at any number of levels, but it's important for us to recognize the argument behind it. Here you have a 48-year-old woman who says that her very strict Southern Baptist mother now thinks that marijuana is fine, we’re talking here about, remember, recreational marijuana, because it is now legal in the state of California. Now, her mother might be a very strict Southern Baptist, but in this sense she's also a rather confused Southern Baptist. But we can understand, indeed we must understand, what's behind that kind of comment and impulse. There is the impulse that is deeply ingrained within us to associate morality with the law, and that’s something that is not only unique to Western civilization but it is very important to understanding the Western tradition. And of course that Western tradition of law that gave birth to laws in Europe and in the United States was explicitly based upon a Judeo-Christian understanding of morality, and the understanding came down to legislation and to the fact that the law ought to recognize not only what is wrong but what is right. What is illegal should be recognized, according to this understanding of the law, as being morally wrong, injurious to society, and to be forbidden. But what is legal is not necessarily good, it is just not identified as being something that is morally wrong or at least something that rises to the level that requires society censure and condemnation and perhaps even criminalization.

Now putting this in other words, this means that when you accomplish the legalization of something that had been illegal, well, you’re actually accomplishing something that will have a moral and not just a legal impact. That was exactly what was behind the legalization of same-sex marriage. It was exactly the argument that appeared when the day at the US Supreme Court. It was a moral argument, not a legal argument. And as Anthony Kennedy's majority opinion in that Obergefell decision legalizing same-sex marriage made clear, he was swayed by the argument that unless same-sex marriage is legal society would be saying there is something wrong or at least something lesser about same-sex unions than about marriage as the union of a man and a woman. Of course, as we understand, that was exactly the case, that was exactly the intention of marital law, for millennia. The proponents of same-sex marriage and its legalization are convinced that given time, the fact that same-sex marriage is legal will very clearly lead to a change in moral judgment: What is legal must be therefore good. The same impulses behind marijuana, but there's more to it of course. A far larger percentage of the population, apparently, is interested personally in the legalization of marijuana. It's also noteworthy that in the less than seamless transition on the issue in California, major media had to point to some rather awkward facts, facts including the reality that the marijuana now sold is not the marijuana that the baby boomers remember from their college days; it is many times more powerful. And furthermore legislators and public authorities there in California are extremely worried about what will happen when teenagers, children, and young adults and others will have access to marijuana, often in the form of extremely potent edibles.

Trevor Hughes in the article in USA Today addresses the question,

“Is this going to be like my college experience?”

His answer,

“Probably not — today’s marijuana is far more potent,”

he explains,

“than the cannabis grown decades ago, and infused edibles, hash, oil, wax and ‘dabs,’”

he says,

“allow you to consume far more than if you were just smoking a joint.”

He goes on to report,

“one federal study found that people who smoke stronger marijuana simply use less, at least at first. If you’re going to indulge,”

he recommends,

“pace yourself, and that recommendation bears repeating a few more times for anyone trying edibles for the first time. Edibles,”

he explains,

“take longer to kick in than smoked marijuana, so it’s easy to accidentally consume more than you should.”

But note the fact that that article is addressed very explicitly to adults over the age of 21 who can legally use recreational marijuana in California, but it also points to the fact that there is now a remarkable exposure of young people, children, and adolescents in California to the very same problem, and thus to the very same edibles. We also need to note that there are very many mixed motivations behind the legalization of marijuana, that becomes clear and make no mistake, much of it is financial. As Hughes reports,

“There's a lot [of money] to be made. [California's] marijuana black-market is worth $13.5 billion.”

Let me repeat that, $13.5 billion, according to the cannabis financial analysis firm GreenWave Advisors. They also say that

“the legal market could be worth 5.1 billion in 2018.”

Well wait just a minute, we are told that the illegal market is $13.5 million whereas the legal market would be worth only $5.1 billion, how in the world does that add up? Well, it adds up to the fact that it is believed that only about one out of every seven marijuana products made and grown in California is actually consumed in California. California is the net biggest exporter of cannabis, not only to other states where it is legal but to many states where it is not. So the California legislators who were taking responsibility for trying to bring in hundreds of millions of dollars of tax support by the sale of marijuana are also in that very action taking on responsibility for the ill effects of marijuana elsewhere, far outside of their state.

But before leaving the big moral revolution on the question of marijuana, we have to recognize that big news came not just on January 1 but yesterday. As the Washington Post reports,

“Attorney General Jeff Sessions rescinded an Obama-era directive that discouraged enforcement of federal marijuana laws in states that had legalized the substance.”

“In a memo,”

it says,

“to U.S. attorneys [on] Thursday, [that's yesterday] Sessions noted that federal law prohibits the possession and sale of marijuana, and he undid [four previous] Obama administration memos memos that advised against bringing [weed] prosecutions in states where it was legal to use the drug for recreational or medical purposes.”

Sessions, the Attorney General, said that

“prosecutors should use their own discretion — taking into consideration the department’s limited resources, the seriousness of the crime and the deterrent effect that they could impose — in weighing whether charges were appropriate.”

All this came after warnings, even before the Attorney General’s announcement, that the federal government could, in effect, pour a lot of very cold water on the legalization of marijuana. Why? Because even though California and several other states have legalized marijuana in one form or another, it remains a schedule one illegal narcotic according to the United States government. So even though that 48-year-old woman's so-called strict Southern Baptist mother in California now thinks that marijuana is okay because it's legal, perhaps her mother needs to be reminded that it is still very much illegal according to the United States government. The Attorney General's announcement yesterday was met with a great deal of opposition some of it from even Republican senators from states that have legalized marijuana, one of them Cory Gardner, a Republican Senator from Colorado, indicated his outrage. But here's what's really interesting, if the United States Congress wanted to legalize marijuana it has a mechanism for doing so, otherwise known as the law, but until there is federal legislation making the same kind of change you see in California and other states, according to the law of the government of the United States of America, marijuana is not only still illegal, but a very dangerous substance. So stay tuned for what's likely to be a very interesting year ahead. 2018 may well be seen in an historical perspective as the hinge year on the question of the legalization of marijuana, but as we’ve seen, that's not at all clear. As anyone who knows a hinge understands that hinge can go either way; time will tell.

Part

The moral crisis over a baby in Texas and the vexing question of surrogate parenting

Next, on questions of morality and the law, an absolutely massive story that occurred over the Christmas holidays, a story that is still unfolding, a story that points us to the state of Texas and to the city of Dallas. As Dallas station WFAA reported on December 21,

“A baby boy born Thursday morning at Medical City Dallas is at the center of a custody dispute between the biological parents, the surrogate who carried the child, and now Dallas County and the state of Texas.”

The story by Kevin Reece and Jobin Panicker goes on to say,

“Attorneys for the surrogate, a woman from Collin County who has successfully served as a surrogate twice before, said she agreed to carry the child for a couple from out of state. But at 16 weeks of pregnancy, doctors discovered the baby had a heart problem.”

According to the report,

“The surrogate and the biological parents were reportedly informed the child would need life-saving surgery within three to four days of birth after the unborn baby was diagnosed with hypoplastic left heart syndrome (HLHS). HLHS is a birth defect where the left side of the heart is critically underdeveloped and unable to effectively pump blood to the body.”

here's a key paragraph from the story,

“The surrogate said the biological parents informed her in July that because of the diagnosis they didn't want her to carry the baby to term and demanded she have an abortion, which she refused. At that time,”

says the story,

“the biological parents discontinued covering her medical costs.”

Later in the article an attorney for the surrogate says,

“We reached out to the doctors involved and expressed our client’s desire and expressed our belief that if the biological parents did not authorize medical care today that other legal avenues will need to be taken.”

We are also told that the surrogate, according to her contract with the biological parents, has no legal standing. As it is reported in the Dallas and the national media,

“The common procedure wouldn't allow the surrogate to see the child after he was born”

much less contend for his life. The story continues to unfold with an attorney for the surrogate saying,

“There's a difference of opinion,”

that means between the surrogate and the parents, at least the couple who hired her,

“on how the baby should have been or might have been handled post and pre-birth because there is a demarcation.”

Well, that's legal language we need to impact pretty quickly. Here we are told that so long as the baby was unborn and inside the surrogate mother, the surrogate mother could decide on what would happen to the baby, but the instant the baby is born — that's the word demarcation — everything changes. The couple who hired the surrogate mother wanted her to abort, interestingly, according to the reports, the surrogate and the parents had talked about such things before, and those who hired the surrogate had identified themselves as pro-life, but all that apparently changed once there was a diagnosis of a problem with the unborn child.

On December 22 the same station, WFAA there in Dallas, indicated that the baby boy had been born and would be receiving the surgery that was needed. Later in this report we are told that the biological parents had contended that the surrogate mother violated their contract when she refused to get an abortion and once again that they had not paid or communicated with her directly since. But the Christian worldview, a biblical analysis, would have us to understand all of these problems are directly attached to the reality we’re talking about, the idea of surrogacy, of third-party parenting. This gets to the biblical principle, it is one well understood in Christian theology, that the further you alienate a good from its origin the more moral risk you take on, which is to say, the more you get from the relationship between a husband and a wife, biologically, to the process of birth, you're going to involve a great deal of moral risk, and this story from Dallas underlines that emphatically. But not for the first time, back in February 2016 Katie O'Reilly had written a piece for The Atlantic, it was entitled,

“When Parents and Surrogates Disagree on Abortion.”

O'Reilly began her article this way,

“When a woman agrees to become a gestational surrogate—meaning she’ll gestate an IVF-created embryo as it grows into a fetus—she and the commissioning parents”

by the way it doesn't have to be commissioning parents, it can be commissioning parent in this day of modern biological and reproductive technology, well she says,

“[they] will typically sign a legally binding contract. The terms vary widely from contract to contract and state to state.”

But the important part is how she ends the sentence,

“but the vast majority will include a clause allowing the parents to make decisions about abortion.”

Now wait just a minute, what does the word parents mean there? Well in this case, it means the agent or agents who hire a woman to carry the baby, but the baby is inside that other woman. So at least in this sense, she is certainly for that period of about nine months, the parent. The fact that she could be the parent then but not the parent thereafter, well that points to the inherent problem, and the problem comes down to a legal crisis when those who have hired this surrogate demand an abortion and the surrogate refuses. O'Reilly is writing from a position of secular concern, but Christians ought to be even more concerned. Consider this statement in her essay,

“As long as people have been using third-party reproduction, they’ve been grappling with novel legal and social questions about the meaning of parenthood, and what it means to set the terms of pregnancy and childbirth in a contract.”

Well, that's because the very idea that pregnancy and implantation of an embryo and childbirth can be reduced to a contract rather than a covenant and a biological process, well, that's something that represents the brave new world in which we are living and the moral questions that come with it, unavoidably.

O'Reilly in the article also points to the fact that many if not most surrogacy contracts also require the surrogate mother to agree to what’s called selective reduction, that's a euphemism for the killing of some of the babies in the womb when there are multiples, a multiple pregnancy. O'Reilly responded to this by saying,

“I found the idea unsettling, despite the fact that I'm fervently pro-choice.”

Well unsettling is a start, but that's hardly a term adequate to what we’re talking about here. One of the legal scholars cited in the article said that

“while surrogacy isn’t ethically a bad idea, it creates an absolute legal mess.”

Well, let's look at that for a moment. From a Christian perspective, if it creates such an absolute legal mess, and here we’re talking about life and death, how can it be anything other than ethically a bad idea. But what you see here is the reversal, the great revolution in ethics in terms of our postmodern era, in which whatever people want to do and seems to be made possible by biomedical revolutionary technology, well it must be good, it must be ethically a good idea, we just have to find some way to make it look like a good idea. This legal authority went on to say that these questions are now unavoidable once human beings begin

“creating babies in petri dishes.”

Well indeed, she's absolutely right on that, and there's something not just immoral but absolutely horrific about a contract that would require a woman to abort the baby or the babies inside her.

Part

The lessons of history from Iran

Finally, on the international scene, the big story this week has been protests breaking out in the nation of Iran, the Islamic theocracy, where the future is still very much uncertain. The interesting thing about these particular protests is that they have broken out in the provinces, more in the towns and villages, rather than in the cities and in particular Tehran, the nation's capital. But here you see the inevitable story that comes when tyranny is met with this kind of resistance. It will either end with the Iranian theocrats breaking down ruthlessly against the protesters or it will mean something different. It will mean that the people of Iran have actually grown finally exhausted and exasperated with the failed promises of the Islamic theocrats who took power at the end of the 1970s. The protests are a direct complaint and a call for the removal of Ayatollah Khamenei, who is the supreme ruler of Iran. He is likely along with his government to respond with outright repression, even forceful military repression, but those Iranian leaders have to remember that even as they gained power in a coup they could well lose power in a coup. Those who gain power by the sword can lose it by the sword.

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

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