It's all about the children

Margaret Somerville, Citizen Special
Published: Friday, September 29, 2006

It has been forcefully brought home to me over the last few months by protests and demonstrations against my being honoured or speaking in the public square that asking, "Why were children's human rights almost entirely neglected in the court cases and public and Parliamentary debates that resulted in the Civil Marriage Act 2005 legalizing same-sex marriage?" is seen as an inflammatory question. Nevertheless, I believe we -- and especially Parliament -- must now address it.

Like married women, children did not exist as legal persons until the 20th century; hence neither could claim rights. Women's rights emerged early in the century; the idea of children's human rights is only now emerging. As one human-rights lawyer puts it, "children are the newest kids on the human-rights block."

The most widely ratified convention ever, the International Convention on the Rights of the Child, is the most prominent and powerful statement of children's human rights. While it establishes children's human rights to know and be raised in their birth families, as I explain below, legalizing same-sex marriage overtly contravenes those same rights.

The general nature of human rights has also been a barrier to recognizing children's human rights. Traditionally, human rights have been negative content rights against the state (that is, rights against the state doing something to an individual). Children need positive content rights that individuals must fulfill (that is, rights to something that others must provide).

In the same-sex marriage cases, the courts ruled that the human rights of same-sex couples not to be discriminated against on the basis of their sexual orientation (that is, their rights against discrimination) were breached by the law (that is, state action) that restricted marriage to a man and a woman. Consequently, they held that restriction was constitutionally invalid as a breach of homosexual people's human rights.

But they failed to consider children's human rights with respect to their biological parents.

Marriage is a compound right: the right to marry and to found a family. Giving same-sex couples the right to found a family unlinks parenthood from biology. In doing so, it unavoidably takes away children's rights to both a mother and a father and, unless an exception is justified as being in the best interests of a particular child (as in adoption) to know and be reared within their own biological family. (In contrast, because civil unions do not carry the right to found a family, they avoid this problem.)

The Civil Marriage Act 2005, which implemented same-sex marriage, expressly recognizes this radical change in the nature of parenthood by replacing the term "natural parent," in federal legislation, with "legal parent." That changes the basic presumption on which parenthood is founded from natural or biological parenthood to legal or social parenthood.

That change, in turn, takes away children's rights regarding their biological parents. The primary rule becomes that a child's parents are who the law says they are, who may or may not be the child's biological parents. The exception to biological parenthood, which used to be allowed for through adoption law, becomes the norm.

And who might the law see as parents? Once parenthood is unlinked from biological bonds there is no inherent reason that a child should not have three or more parents. Precisely that is being argued in a case now in the Ontario Court of Appeal. A lesbian couple and the biological father of the child of one of the women all want to be registered as parents on the child's birth certificate as legally recognized parents.

Might it be more ethical to include the biological parents on the birth certificate together with an additional parent or parents if the law recognizes them as such, than not to do so? Should including the biological parents be required by law?

Same-sex marriage advocates argue that children don't need both a mother and a father, and "genderless parenting" is just as good. Research is showing, however, that men and women parent differently and that certain genes in young mammals are activated by parental behaviour (epigenetics -- the interaction of genes and environment). At the least, an ethical precautionary principle means those arguing same-sex families are just as good for children should have the burden of proof.

And what might the future hold?

As well as cloning, new reproductive technologies could include making gametes (sperm and ova) from adult stem cells and an embryo from the gametes, or making an embryo from two ova or two sperm, so two men or two women could have their "own genetically shared" baby; or making an embryo with more than two genetic parents or one that is not a clone, whose genetic "mother" and genetic "father" are the same person.v So what are -- or should be -- all children's basic rights with respect to their parents and coming into being?

One way to address this question is to ask: What might we reasonably assume that a future child would consent to if they were able to make their wishes known? Evidence is starting to come in: "Donor-conceived adults" describe powerful feelings of loss of identity through not knowing one or both biological parents and their wider biological families, and describe themselves as "genetic orphans." They believe society was complicit in a serious wrong done to them in the way they were conceived and ask, "How could anyone think they had the right to do this to me?"

We now need to recognize in law what, traditionally, we have simply assumed: that children's fundamental human rights include knowing who their biological parents are and if at all possible being reared by them, and being conceived with a natural biological heritage -- untampered with biological origins -- in particular, a right to be conceived from an untampered-with sperm from one, living, adult, identified man and an untampered-with ovum from one, living, adult, identified woman.

The word "adult" excludes the use of gametes from aborted fetuses -- the birth of a child whose mother or father was never born. That the donor be living excludes post-mortem conception.

Any prohibition on using avant-garde technologies is likely to be challenged by same-sex couples as wrongful discrimination in relation to their right to found a family, just as excluding them from marriage was found to do. Gay male couples may challenge the ban on payment to surrogate mothers in the Assisted Human Reproduction Act 2004 and, likewise, infertile opposite-sex and same-sex couples the act's bans on cloning and payment for gametes.

I suggest that Parliament needs to revisit same-sex marriage with a concept of children's human rights in mind. It might come to the same conclusion as before. But, then again, it might not.

Margaret Somerville is founding director of the McGill Centre for Medicine, Ethics and Law.

The Ottawa Citizen 2006

Same-sex marriage