Weakening the rights of children

Sure, adults deserve to have their fundamental human rights protected. But why don't we set the same standard for their children?

Scandinavian countries have high rates of parenting outside marriage. Living together, or cohabitation, is socially acceptable. In countries like Sweden and Denmark, marriage and cohabitation have become practically indistinguishable, although defacto couples with children actually dissolve their relationship at two to three times the rate of married parents. In Denmark, around 45 per cent of births take place outside marriage.

In the United States, there is less cohabitation, and more marriage, but the marriages have a higher failure rate. The end result is that in both the US and Denmark, family breakdown is high and many children do not live with both biological parents.

An interesting approach to this modern problem comes from Dr David Blankenhorn, from the Institute of American Values. In a recent address to the Danish Institute for Human Rights, he used the language of human rights, as it applies to marriage and the family. Looked at from the point of a child, the picture is not so good: as adults assert their rights, children may suffer.

Dr Blankenhorn said that the global human rights revolution, which largely stems from the 1948 Universal Declaration of Human Rights, is radically transforming the way we think about ourselves as individuals, as citizens, and even as family members. The results are mixed, he said, with the human rights revolution producing problems as well as successes. But overall, he sees it leading to more freedom and a more universal respect for human dignity.

Rights and obligations
There is a tendency, even a temptation, said Blankenhorn “to treat each specific right as if it stands alone, in splendid isolation and reigning in absolute mastery, conveniently disconnected from other rights that may conflict with it.”

He said that rights can be disconnected from an overriding system of values that allows us to understand rights in relation to duties and obligations. “The obvious danger in this take-your-pick, cafeteria-style, essentially decontextualised approach to human rights is that each right, in its isolated supremacy, tends to get expressed in absolutist, totalising terms”. Americans, he said, are particularly prone to this temptation.

From the viewpoint of the institution of marriage and the family, Blankenhorn pointed to two basic human rights. “The first is the right to marry and to found a family – a right that was formally articulated in Europe as early as the 12th Century in Christian canon law, and a right that is enunciated explicitly in both the Universal Declaration of Human Rights and the Charter of Rights of the European Union.”

The second right is the right of the child, as far as possible, to know and to be raised by his or her own two biological parents, except when it is contrary to the best interests of the child. He said this is clearly implied in the Universal Declaration of Human Rights when it insists that the family is the natural and fundamental group unit of society. It is explicitly spelled out in the UN Convention on the Rights of the Child.

“The right to marry and to found a family” as the Universal Charter puts it, is a compound right, according to Blankenhorn: “the institution of marriage is intrinsically connected to the institution of parenthood and to the values, norms, and social expectations connected to bearing and raising offspring.”

Far-reaching implications
But in the US, and in many Western countries, this basic human right is being re-conceptualised and expanded in ways that will have far-reaching implications for society. The essence of this, he said, “is that all persons have the right to form the families that they choose and to bear children in the way that they choose.”

Three distinct trends are behind this development, he said. The first is the rapid scientific development of assisted reproductive technologies, such as the sale or donation of sperm or eggs; surrogacy and other developments on the horizon.

The second is in the area of family law, where there has been a steady lessening, and in some cases nearly the full elimination, of the distinctions between married and unmarried persons in the eyes of the law. The third trend, also in the area of family law, is the establishment of equal marriage rights for homosexual and lesbian couples.

“To a significant degree, these three trends hang together. They largely complement and reinforce one another. They are all defended by proponents who depend almost entirely on the language of human rights. The essential rights claim is that modern individuals have the right to form families of their own choosing and bear children in the way that they wish, without restriction or interference from society, and with the full support of available medical and scientific technologies.”

Dr Blankenhorn cited a number of developments in different countries. Two contradictory moves in Canada may be amongst the most amazing. Under Canadian law, it is now the right of an adopted child to know the identity of his or her biological parents. But in the case of donor-conceived children, it is a federal crime to reveal to the child the identity of his or her biological parents.

Furthermore, the federal government, in its policy of equal marriage rights for homosexual and lesbian couples, proposes to remove the term “natural parent” from all Canadian laws, and replace it with the term “legal parent”.

Personal autonomy
This social change carries with it a number of important likely consequences for families and society, said Blankenhorn. These include an increase in personal freedom and autonomy, greater recognition of the rights and dignity of homosexuals and lesbians, a weakening of marriage as a pro-child social institution, and direct strides towards the marketisation and commodification of human reproduction. Each of these likely consequences, he said, deserves serious consideration.

One consequence is a fundamental redefinition of what it means to be a parent, and how we decide who are a child’s parents. “Specifically, I am referring to the phenomenon of erasing the biological basis of parenthood from law and replacing it with the idea of the state-defined legal parent. This erasure not only represents a dramatic transfer of power from private life to the state, but is also, I believe, contrary to the best interests of children.”

The right of the child to know his or her own two natural parents is just as much a right, said Blankenhorn, as the right of the adult to marry and found a family. “As a sociological matter, we know that, for children, biological parents matter. The social science evidence on this point is overwhelming.”

This results in a clear case of rights in conflict.  Making one right stronger almost necessarily means making the other weaker. Dr. Blankenhorn said there should be some development of the rights of children with respect to marriage and the family, and put forward four propositions.

(1) Every child has the right, in so far as society can make it possible, to know and be raised by its two natural biological parents, except when it is contrary to the child’s best interests. The implication of this right is that society should recognize and support the institution of marriage, since marriage is our only social institution that seeks fully to unite, in the persons of the spouses, the biological, social, and legal dimensions of parenthood. The great good and goal of marriage is to give to each child the gift of the two persons who brought the child into the world. For this reason, marriage is society’s most pro-child social institution and probably ultimately society’s single most important protector and guarantor of the rights of children.

(2) Every child has the right to a natural biological heritage, defined as the union of the father’s sperm and the mother’s egg. Society should typically refrain from actions that would efface or deny the child’s natural biological heritage.

(3) Every child has the right to know his or her biological origins. Individuals and society should typically refrain from creating genetic orphans, or children who do not and can not know their natural origins.

(4) Children have the right to be heard. Today, the rights claims of adults tend to come through loud and clear. Children’s voices are much harder to hear.

To illustrate this last point, Dr. Blankenhorn read out a poignant letter from an Australian, Narelle Grech. She describes herself as “a 22-year-old donor-conceived adult”. In her letter she goes on to say “we are bargaining and trading human beings here as though they are items on supermarket shelves! Creating donor-conceived people who all of these consenting adults know will be unable to trace their biological mothers is, to me, ignorant and cruel.”

Ms. Grech speaks of the possibility of half-siblings she will never know, and writes “How dare someone take away someone else’s freedom to know themselves? It is one of the most de-humanising experiences I have had to face in my life. To look in the mirror on a day to day basis and question so much is one of the worst feelings.”

Gerald Mercer is editor of the Australian magazine Social Action.