It’s about children’s rights, not sexual orientation

Let’s clarify the issues in the same-sex marriage debate

Margaret Somerville | Sep 28 2016 | comment

It seems that the only issue in relation to same-sex marriage on which politicians can agree is that the debate which would surround a plebiscite must be civilized and mutually respectful. To have any chance of achieving that “tone”, we need first to identify what the issues are and where we disagree.

Homosexuality is not the issue in the debate. Sexual orientation is not a “lifestyle choice” as some opponents of same-sex marriage argue. Whatever its origins, which is scientifically uncertain, it is an innate way of being and a matter of personal morality, not one attracting public or legal disapproval or disrespect. Discrimination on the basis of sexual orientation is a grievous wrong and must be prevented. And committed same-sex couples have the right to the same financial, legal and interpersonal protections as do committed opposite-sex couples.

Rather, because marriage is a compound right affecting both adults and children – the right to marry and the right to found a family – children’s rights are the central issue in the debate. That means we must answer the following questions:

Do we believe that marriage consists of an amalgam of biology and culture, that it’s a cultural institution affirming and supporting a biological reality, the naturally procreative relationship between one man and one woman, for the protection and benefit of the children born of that union?

And do we believe that children have a right to a mother and a father and, if at all possible, to know and be reared by their own biological parents within their natural family?

If we answer “yes” to these two questions we should disagree with same-sex marriage. If we answer “no”, we will probably support it.

Because the right to marry carries the right to found a family, the same-sex marriage debate is not, as most people have been led to believe, just about the equality claims of homosexual people. It’s at least equally, and more importantly, about the fundamental rights of children in relation to their parents and family structure. It’s about whether we should change the societal norm that children should know and be reared by their biological parents.

Advocates of same-sex marriage argue this norm has already changed. They point out that many children do not live in a home headed by both a mother and father and that adopted children are not reared by their biological parents. But these are exceptions to the norm and are almost always unintended consequences at the time the child is conceived. Same-sex marriage would make such situations both part of the norm and intended consequences for the child.

The strongest argument in favour of same-sex marriage is that its recognition would do much to counteract discrimination and the horrible treatment of homosexual people in the past and, in some countries, the present. That’s true, but taking away children’s rights with same-sex marriage is not the way we should address this wrong.

If marriage involved only adults, we should all agree with same-sex marriage. But when, as in same-sex marriage, we are faced with a conflict between children’s rights and adults’ claims, ethically we should choose in favour of the weakest, most in need, most vulnerable persons. That means choosing what is best for children.

Opposition leader Bill Shorten has argued that same-sex marriage is needed to benefit children in households headed by same-sex couples. His focusing decisions about same-sex marriage on what is best for children is to be welcomed. But avoiding harm to the rights of children in general that changing the traditional, opposite-sex-partners definition of marriage would entail, outweighs the claims of children in households headed by same-sex couples.

The LGBTIQ lobby has promoted its case largely through “no difference” arguments: There is no difference between a man and a woman – “gender neutrality”; there’s no difference between an opposite sex couple and a same sex one because in both cases love is the couple’s bond and marriage is just a public recognition of that love; there is no difference between a child having a mother and a father and having two mothers or two fathers, again, because love is all that counts.

Without question, love is important for children, but we are learning that other factors, such as complementarity in parenting between a mother and a father, are also important, even possibly because of epigenetic effects – different genes are activated (imprinted) by the different parenting behaviour of a man compared with a woman. All children, including those who will be homosexual, need both a mother and a father.

Yet another consideration favouring children’s rights to be reared in their natural family is that almost all of us want to connect with our genetic heritage – to know through whom life travelled to us and to experience what that knowledge means, including in forming our own unique identity. The popularity of ancestry websites and now DNA testing to trace our very distant ethnic origins attest to that. This curiosity or longing may be inherent: a baby lamb or penguin can find its own mother in a flock of seemingly identical adults.

Many people have accepted the pro same-sex marriage argument that it is discrimination to restrict marriage to opposite sex couples. Same-sex marriage advocates operationalize this stance by automatically equating being against same-sex marriage with discrimination, that is, by eliminating the possibility of being anti-discrimination on the basis of sexual orientation and anti-same-sex marriage, which is my own stance.

Those opposing same-sex marriage are also automatically labelled as homophobic, bigots and guilty of hate speech – a “label derogatorily and dismiss the person and their arguments without addressing those arguments” strategy. People rightly recoil from acting in ways that would constitute such conduct or even just attract those labels and self-censor and remain silent as a result.

Flow on effects from legalizing same-sex marriage are particularly serious in relation to access to assisted human reproduction, especially reproductive technologies. If, as it seems will be possible, two men or two women could have their own genetically shared baby would we accept that? Some gay activists in Canada, where same-sex marriage is legal, are arguing it would be a breach of their right to found a family that marriage gives them to prohibit this. Likewise, with restrictions on or prohibition of paid surrogate motherhood. But, as is true in relation to reproductive technology decision-making in general, we must shift the focus from its being centred almost entirely on what adults want to be child centred. In using these technologies, what must we not do to children or do to protect them?

In short, taking away children’s rights with same-sex marriage is not the way we should address the wrongs done to homosexual people, because the harms to children’s rights outweigh the benefits to same-sex couples and the LGBTIQ community. Those of us who take this position should, however, do so with moral regret, that is, although we believe it is ethically required, regret for the pain and hurt it causes to same-sex couples, such as we saw in the anguish Senator Tim Wilson manifested in his maiden speech in the Senate, who want marriage to be available to them.

Margaret Somerville is Professor of Bioethics in the School of Medicine at The University of Notre Dame Australia and is affiliated with the Institute for Ethics and Society, also at Notre Dame. She was previously Professor of Law, Professor in the Faculty of Medicine, and Founding Director of the Centre for Medicine, Ethics and Law at McGill University, Montreal.

The focus in the same-sex marriage debate is nearly always on rights allegedly denied to gays and lesbians. What about the rights of children? This is the question that is brushed aside.

But as Margaret Somerville argues in today's lead feature, "when, as in same-sex marriage, we are faced with a conflict between children’s rights and adults’ claims, ethically we should choose in favour of the weakest, most in need, most vulnerable persons. That means choosing what is best for children." An excellent discussion.