GAY RIGHTS, CHILDREN'S RIGHTS: Margaret Somerville

As its advocates claim, same-sex marriage will be a powerful public statement against the discrimination suffered by homosexuals. But it will also affect the fundamental rights of children, a vulnerable group of Canadians with no power to protect themselves at the ballot box. So let me try to speak for them, and put forward the case that accepting same-sex marriage requires that we enact new legislation to protect children's rights.

When limited to the union of a man and a woman, marriage establishes, as the norm, children's right to an identified biological mother and father, and to be reared by them, unless there are good reasons to the contrary. Same-sex marriage, in disconnecting marriage from procreation, compromises this right for all children, not just those brought into same-sex marriages. The new law, Bill C-38, implements that change by redefining parenthood from natural parenthood to legal parenthood -- from an institution defined by biology, to one defined solely by law.

New reproductive technologies (NRTs) raise difficulties in relation to children's rights. Opposite-sex couples have used these technologies since their inception, but as an exceptional intervention to treat infertility, not as the norm. The focus that same-sex marriage has placed on these technologies has alerted us to previously unrecognized ethical issues -- since same-sex couples can be expected to resort to them as a matter of course.

One issue is children's rights to know their parents and, thereby, their own biological identity. Legislation establishing the right of adopted children to know the identity of their biological parents is becoming common in Canada; internationally, the same right is increasingly being accorded to children born through gamete donation (sperm or egg). But in Canada, the Assisted Human Reproduction Act 2004 (AHR Act) prohibits disclosure without the donor's consent. In Quebec, where the province's Civil Code recognizes same-sex couples' "projects involving assisted procreation," and two women can be the parents listed on a birth certificate, the identity of the biological father is not even recorded.

A second issue is children's rights to be born from the union of one natural, unmodified ovum and one natural, unmodified sperm. Technological possibilities on the horizon include making embryos from two ova or two sperm and making gametes from adult stem cells, thus allowing a same-sex couple to have their own "shared baby" -- and even to further fiddle with the genetic makeup of that baby. ...

[Children's] rights should include: (1) The right to be conceived with a natural biological heritage -- that is, to have unmodified biological origins -- in particular, to be conceived from a natural sperm from one identified man and a natural ovum from one identified woman; and (2) the right to know the identity of one's biological parents. (I leave aside here the ethics of society's involvement in intentionally breaching a child's right to both a mother and a father -- which obviously conflicts in a more fundamental way with the concept of same-sex marriage.)

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posted by Eve at 3:22 PM VOTE

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