Why Canada should re-visit same-sex marriage

Ethicist Margaret Somerville found herself at the centre of a firestorm of controversy in June over her outspoken views on same-sex marriage, which became legal in Canada last year. When she received her fifth honorary doctorate at Ryerson University in Toronto in June, during gay pride week, there were howls of protest over her alleged "homophobia". Here she defends her contention that same-sex marriage is bad for children and bad for society.

As I’ve learnt over the last few months 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 legalising same-sex marriage?" is seen as an inflammatory question. Nevertheless, I believe we – and especially Parliament - must now address it.
Historically, 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 2000 is the most prominent and powerful statement of children’s human rights. Paradoxically, while it establishes children’s human rights to know and be raised in their birth families, as I explain below, legalising same-sex marriage overtly contravenes those same rights.
The general nature of human rights has also been a barrier to recognising 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 fulfil (that is, rights to something which 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, that implemented same-sex marriage, expressly recognises 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 might or might not be the child’s biological parents. The exception to biological parenthood, that 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 recognised 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 recognises 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, preferably their own biological parents, 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 from 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 which is not a clone, whose genetic "mother" and genetic "father" are the same person.
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 recognise 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 foetuses – 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 the founding director of the Centre for Medicine, Ethics and Law at McGill University in Montreal.  Currently she is giving the 2006 Massey Lectures, a prestigious annual event in which leading intellectuals give lectures at venues across the country.


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