Put kids' rights ahead of gay marriage

The main question so far in the same-sex marriage debate is: Is it discrimination to exclude same-sex couples? Advocates of same-sex marriage and the courts (except the trial court in British Columbia) have answered yes. The focus of the courts' rulings has necessarily been on the legal question discrimination. But important non-legal questions must also be addressed.

Should marriage be primarily a child-centred institution or an adult-centred one? The answer will decide who takes priority when there is irreconcilable conflict between the best interests of a child and those of adults. A related question is: Should we retain the basic presumption that children are best off being raised by their own biological mother and father, unless some other alternative is clearly justified as in the best interests of a particular child?

Those who believe that marriage should continue to institutionalize and symbolize the inherently procreative capacity between the partners, by definition, view marriage as primarily child-centred. Consistent with that position, while recognizing exceptions, they also believe that the working societal norm should be that children are best off in their own biological family constituted by their mother and father. They oppose same-sex marriage as institutionalizing a contravention of that norm.

Very different values are established by accepting that same-sex couples may bring children into their relationships and by recognizing their doing so as part of the societal norm. The latter would deny that children have a prima facie right to know and be raised in their biological family, rather than such situations being individually justified exceptions to the norm.

Those who believe that marriage is primarily about two adults' commitment to each other, support same-sex marriage. They focus on the identical nature of the commitment between the partners to a same-sex marriage and an opposite-sex one, to establish discrimination in excluding same-sex partners from marriage. This argument for same-sex marriage is primarily adult-centred.

The same is largely true of the arguments of same-sex marriage advocates with respect to bringing children into their relationships. They speak of their rights not to be discriminated against in doing so. When the matter of children's rights and best interests is raised, they justify their stance with arguments that a child is no worse off or even better off with same-sex parents than opposite-sex ones. They reject a child's need for complementarity in parenting the combination of the different kind of parenting given by a mother and a father. (As an aside, that rejection contrasts with the feminist critique of the law, which is based on the profound difference between a male and female approach to law the law needs complementarity, but children do not.)

In short, accepting same-sex marriage necessarily means accepting that the societal institution of marriage is intended primarily for the benefit of the partners to the marriage, and only secondarily for the children born into it. And it means abolishing the norm that children whatever their sexual orientation later proves to be have a prima facie right to know and be raised within their own biological family by their mother and father. Carefully restricted, governed and justified exceptions to this norm, such as adoption, are essential. But abolishing the norm would have far-reaching impact.

For instance, one reason that surrogate motherhood has been so strongly condemned, but adoption accepted, is that surrogate motherhood, unlike the vast majority of adoptions, overtly breaches the societal value that the norm establishes, of parents' in the past, especially mothers' naturally and powerfully bonding to the children born to them.

The new reprogenetic (reproductive and genetic) technologies also raise questions. One response, including by the courts, in rejecting arguments that marriage should be restricted to opposite-sex couples because only they can procreate, is that same-sex couples can now use reproductive technologies to bring children into their marriage. Future possibilities could include making an embryo from two sperm or two ova so that two men or two women, respectively, could have their "own" child. If it is discrimination to exclude same-sex couples from marriage, then surely it would be an even more serious instance of discrimination to prohibit them from reproducing in the only way possible for them as a couple.

If so, could some of the prohibitions in bill C-13 (The Assisted Human Reproduction Act) be constitutionally challenged on discrimination grounds? While the bill does contain a prohibition on cloning, it does not prohibit making an embryo from two ova or two sperm. Notably, it does prohibit discrimination in access to reproductive technologies on the basis of marital status or sexual orientation. Is the bill's prohibition on paying surrogate mothers or gamete donors which establishes the value that human reproduction is "not for sale" inconsistent with this anti-discrimination clause? A recent newspaper story on gay fatherhood featured a single gay man who had a daughter a "gayby" created from his sperm, a "donated" ovum for which he paid, and a gestational surrogate mother who was also paid. That would be prohibited under the new Act.

The central issue in the same-sex marriage debate is whether society needs to maintain an opposite-sex definition of marriage. People on both sides have cast it, however, as a debate about the moral, legal and social acceptability of homosexuality and homosexual relationships. Homosexual people and their relationships are entitled to full respect, including in law, and they are right to seek that. They are wrong, however, to do so by claiming a right of access to marriage.

The debate frames a conflict among the rights of individuals, the needs of society, and the claims and best interests of yet-to-be-born children. It is very difficult for everyone, because our sense of personal identity, our most intimate relationships, and some of our most deeply held values and beliefs are on the line. One ethical essential is that we all act on the basis of real mutual respect.