Gay rights, children's rights
Opinion by Margaret Somerville, founding director of the McGill Centre for Medicine, Ethics and Law; author of 'The Ethical Canary: Science, Society, and the Human Spirit'
National Post, July 14, 2005.
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.
Absent new legislation, current trends suggest that any prohibition on such technologies is likely to be challenged as unconstitutional under the Charter of Rights and Freedoms. For instance, some gay male couples plan to challenge the ban on payment to surrogate mothers enacted in the AHR Act of 2004 as a discriminatory infringement of their right to found a family. The Act's bans on cloning and payment for gametes might be challenged on the same basis.
Until now, unfortunately, the impact of NRTs on children born through their use has been largely ignored: It has been readily assumed there were no major ethical problems in creating children from donated gametes, and that opposition was almost entirely based on religious beliefs.
That is changing dramatically now that the first cohort of people born through the use of NRTs is reaching adulthood. These "donor conceived adults" describe powerful feelings of loss of identity arising from their ignorance of their parents' identity, and describe themselves as "genetic orphans."
Ethically, it is one thing to respect people's right to privacy and
self-determination, especially in an area as intimate as reproduction. It is quite another matter for society to become complicit in intentionally depriving children of their rights with respect to their biological family. In order to mitigate the harms that can be avoided, a statement of children's rights must be legislated.
These 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.)
Knowing the identity of one's close biological relatives is central to forming our individual human identity, developing our capacity to relate to others, and the quest to find meaning in life. Children have the right to know "where they came from" genetically and to come from natural, untampered with biological origins. Ignorance of one's natural family is painful enough. We can only imagine how much damage would be done to children born from artificial gametes constructed through biotechnology.