How Heterosexual Marriage Protects Children’s Rights And Best Interests

DOES MARRIAGE NEED A CONSTITUTIONAL DEFINITION?

Presentation to the State of Massachusetts Judiciary Commission
By Louis DeSerres, B.A., M.B.A.

For the first time in over 150 years, the fight for human rights, which has led to the abolition of slavery, the emancipation of women and civil rights for African-Americans, is now in the process of turning backwards. With same sex marriage we are now taking away the fundamental rights of our most vulnerable citizens, children. We are also entering an era where freedom of speech is being challenged.

Many of my comments are directly inspired from the debates in France and in Canada surrounding same-sex marriage. Both countries reached fundamentally different conclusions. While Canada legalized same-sex marriage, France did not. France went even further. It reiterated its prohibitions against adoption and access to medically assisted reproduction for all same sex couples. How could two mature countries reach such different conclusions? Quite simply, France’s laws still favor the best interests of children over adults while Canada does not. France does not recognize minority rights, but Canada’s recent Charter of Rights and Freedoms does. Progressively in Canada, adult homosexual rights have increased in weight to the point where they now trump children’s rights and best interests.

Finally, France has been at the forefront of the worldwide movement to recognize children’s rights. It has signed the 1989 U.N. Convention on the Rights of the Child and has been diligent in implementing its articles. In contrast, while Canada is also a signatory, it has chosen, particularly during the debates on same-sex marriage, to ignore its essential features, leading to same-sex legislation that most probably violates at least two articles of the Convention:

Article 3: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Article 7: Each child “shall have, as far as possible, the right to know and be cared for by his or her parents”. France refers to these as filiative rights.

The French government affirms that children now have rights and “to systematically give preference to adult aspirations over respect for these rights is not possible any more.”

Same-sex marriage is part of a larger set of issues directly affecting children, namely adoption and medically assisted reproduction. One cannot separate these issues, as French parliamentarians discovered from their travels to various countries, “Countries that have opened up marriage to same sex couples have all authorized adoption by these couples and developed systems to assist procreation, including surrogate motherhood, in order to allow these couples to have children.”

Now, how does defining marriage between one man and one woman protect children’s rights and best interests? In summary,

1- Heterosexual marriage provides that a child will know and be raised by his own parents.

2- Research demonstrates conclusively that heterosexual marriage serves children’s best interests.

3- Heterosexual marriage provides the child with a natural network of care and support from his immediate and extended biological family

4- Heterosexual marriage sets the foundation for the child to have the same biological, legal and care giving parents.

5- Heterosexual marriage greatly reduces the risk that children or their constituent parts will become commodities.

6- Heterosexual marriage provides children with a multi-generational sense of identity.

7- Children born from heterosexual parents have access to their own genetic heritage for medical purposes.

8- Constitutionally defining marriage between one man and one woman strengthens the judicial protection accorded to children

9-Allowing court ordered same-sex marriage to prevail creates precedent for further erosion of children’s rights.

10- Heterosexual marriage protects the filiative rights of all children.

11- Defining heterosexual marriage is an absolutely essential first step in protecting children’s rights and best interests.

12- Defining heterosexual marriage is insufficient to ensure adequate protection for children’s rights and best interests.

13- Heterosexual marriage provides a simple and understandable set of norms.

14- Heterosexual marriage naturally protects children from potential discrimination because of the sex of their parents.

Now, for the details:

1- Heterosexual marriage provides that a child will know and be raised by his own parents.

Is there a more natural right for a child than to know and be raised by his own mother and father? When asked by a Canadian legislator about same sex marriage: “surely with this piece of legislation we’re not throwing away anything. Aren’t we extending rights?” Margaret Sommerville, Professor of Law at the McGill Center for Medicine, Ethics and Law answered: “No, you’re absolutely throwing away a child’s right to a mother and a father.” This is already happening in Québec, my home province, where some children now have two mothers listed on their birth certificate and no trace of a father.

2- Research demonstrates conclusively that heterosexual marriage serves children’s best interests.

There is no such evidence for same-sex marriage. The French National Assembly Commission was presented with “research on children raised by same sex couples concluding the absence of any ill effects on the children. Their scientific nature and the representation of the samples of the populations studied were broadly criticized and contested during the hearings… the lack of objectivity in this area was flagrant.” One presumes that the very best research would have been presented. These conclusions are consistent with other studies here in the U.S..

It is incumbent upon legislators to ensure that children are protected. We buy the safest car seats for our children. We require that drug companies prove the safety of new drugs; we recall baby strollers when even just a small number of children get hurt. In its Report on the Family and the Rights of Children, The French National Assembly Commission endorses the statement of an expert witness: “inasmuch as there is absolutely no reason to doubt the educative and emotional qualities of homosexual parents, we do not yet know all the effects on the construction of the adopted child’s psychological identity. As long as there is uncertainty, however small, is it not in the best interest of the child to apply the precautionary principle, as is done in other domains?”

Margaret Sommerville further explains from an ethical perspective: “There are obligations on society not to create genetic orphans, which is what we would be doing. I think we have to recognize a right to natural genetic origins and genetic identity. We have to recognize the full scope of the harms we do and the ethical problems, and first we have to be activated by a principle that’s called non-maleficence–first do no harm. “

3- Heterosexual marriage provides the child with a natural network of care and support from his immediate and extended biological family, including parents, brothers and sisters, aunts and uncles, grandparents, etc..

In a world where increasing numbers of parents divorce their own children, France favors the permanent nature of biological filiation over fleeting emotions and unstable relationships. Same-sex marriage is not grounded on the biological ties, as William Eskridge explains, same-sex marriage: “involves the reconfiguration of family-de-emphasizing blood, gender, and kinship ties and emphasizing the value of interpersonal commitment.

In our legal culture the linchpin of family law has been the marriage between a man and a woman who have children through procreative sex. Gay experience with “families we choose” delinks family from gender, blood, and kinship. Gay families of choice are relatively ungendered, raise children that are biologically unrelated to one or both parents, and often form no more than a shadowy connection between the larger kinship groups.”

4- Heterosexual marriage sets the foundation for the child to have the same biological, legal and care giving parents.

Same-sex marriage does not. Furthermore, same-sex marriage cannot be isolated from adoption and medically assisted reproduction. Medically assisted reproduction opens the door to the breakdown between the three dimensions of parenting: the biological (progenitor), the judicial (parental authority) and the social (day to day care). For example, because gay men cannot reproduce naturally, they must rely on a surrogate mother. France has prohibited all surrogacy for many years.

When asked to reconsider it, the recent National Assembly report maintains this prohibition because “revisiting those values would amount to denying the bond that grows between mother and child during pregnancy and opening the door to a wide range of abuses. In California, for instance, the birth of a child might involve as many as five people: a sperm donor, an egg donor, a gestator and the couple who are the legal parents.” Thus, taking a child away from the mother that nurtured him for nine months creates an emotional discontinuity for the child and weakens his sense of security.

5- Heterosexual marriage greatly reduces the risk that children or their constituent parts will become commodities.

Same-sex marriage increases those risks as it creates a new market for assisted reproduction, adding to the demand for sperm, eggs, surrogate mothers and adopted children. This leads to the commoditization of human life where some of the participants have little regard for the rights of children. This is similar to the bygone era when slaves were traded as property. For example, France rejects surrogate motherhood for these reasons: “Preserving the prohibition on surrogate motherhood is justified … for two crucial reasons based on the protection of human dignity: first, the fact that the human body cannot be made available for trade; and second, the fact that filiation also cannot be made available for trade.”

In Canada, giving eggs is legal but selling them is strictly forbidden by law and subject to substantial penalties. Early in 2006, a Montréal investigative reporter revealed that he had located six women offering eggs and who, over the course of discussions, were demanding payments of up to $10,000.

6- Heterosexual marriage provides children with a multi-generational sense of identity.

In testimony to Canadian parliamentarians, Margaret Sommerville explained: “In conclusion, children and their descendants who don’t know their genetic origin cannot sense themselves as embedded in a web of people past, present, and in the future through whom they can trace the thread of life’s passage down the generations to them. As far as we know, humans are the only animals where experiencing a genetic relationship is integral to their sense of themselves. We do know the effect of eliminating this experience–which we do know through reproductive technologies and adoption–is harmful to children, to biological parents, to families, and to society.

Same-sex marriage puts in jeopardy the rights of children to know and experience their genetic heritage in their lives and withdraws society’s recognition of its importance to them, their wider family, and society itself. Finally, same-sex marriage also opens up the wider, unprecedented question of what is ethically required in terms of respect for the mode of transmission of human life.”

7- Children born from heterosexual parents have access to their own genetic heritage for medical purposes.

Most children born from same-sex unions do not. Genetic research is constantly expanding the usefulness of this information.

8- Constitutionally defining marriage between one man and one woman strengthens the judicial protection accorded to children, without it, children are inadequately protected.

A brief history of how same sex marriage was adopted in Canada illustrates. The Canadian Charter of Rights and Freedoms (a constitutional document) was adopted in 1982 to protect individual rights and minorities. Woefully, children, the most vulnerable group in society, were ignored. This was not an omission by design or malevolence, but simply because it was considered a given that children would always benefit from the protection of the law.

Later, sexual orientation was added by the courts to the list of groups needing protection. Today, sexual orientation, which the framers of the Charter specifically refused to include, now trumps children’s rights. When judges ruled that gays and lesbians were discriminated against because they were prevented from marrying, they focused on adults’ Charter implied rights. The Supreme Court did not even mention children in its judgment. In so doing, the courts, and now Parliament, have failed to protect children. Unless children’s right to a father and a mother is affirmed by legislators, same-sex marriage will erase it.

9-Allowing court ordered same-sex marriage to prevail creates precedent for further erosion of children’s rights.

Passage of same-sex marriage legislation simply reaffirms court decisions by judges who do not seem to have the tools required to adequately defend the rights of children when confronted with the equality rights of adults. This only reinforces the notion that children have no right to both a father and a mother, no say in the matter, and that their best interests carry little weight. Aren’t these denials of human rights similar to those that inspired abolitionists, suffragettes and civil rights leaders in the past? (In Canada, bowing to political pressure, the federal government even refused to appeal court decisions mandating same sex marriage to the Supreme Court of Canada.)

Furthermore, as the Canadian Parliament was debating the issue of same-sex marriage, the government was forcefully denying that this could lead to the legalization of polygamy since polygamy was a criminal offense (yet rarely if ever enforced). At the same time, it was secretly evaluating if passage of same sex legislation could lead to its eventual legalization. The published report later confirmed that it would be very difficult to prevent successful challenges to laws prohibiting polygamy and that polygamy would probably be legalized.

10- Heterosexual marriage protects the filiative rights of all children.

Same-sex marriage legislation jeopardizes them for all children. After the courts imposed same-sex marriage in Canada, Parliament adopted formal legislation making it applicable across Canada. In order to do so, it had to change the definition of parent from (biological) parent to legal parent for all children. According to the Institute for Marriage, Law and Culture, this erasure of the biological link to the child’s parent affects all children, not just those in same-sex relationships.

11- Defining heterosexual marriage is an absolutely essential first step in protecting children’s rights and best interests.

Furthermore, a preamble to a constitutional amendment could reinforce children’s rights if it states that heterosexual marriage is the only institution that can guarantee the right of the child to know and be raised by his/her natural parents. Interestingly, because courts in France have resisted same-sex marriage, the French National Assembly did not see the necessity of enshrining a formal definition of marriage. In Canada, that is clearly not the case.

12- Defining heterosexual marriage is insufficient to ensure adequate protection for children’s rights and best interests.

For instance, France refuses to legalize same-sex adoption because it is a back door to circumventing laws meant to protect the filiative rights of children. For example, same-sex couples could circumvent French prohibitions against medically assisted reproduction by traveling to another country, coming back with a child, and then having the non-biological parent adopt the child. Therefore, unless the state adopts a coherent set of laws protecting children, children will not be adequately protected.

It would be like building a fortress with half the walls missing. From up front, the fortress might appear unassailable, but a cursory tour would reveal easy alternatives. The absence of restrictions on same sex adoptions and medically assisted reproduction for same-sex couples can also lead to forcing the issue on same-sex marriage: if it walks like a duck and quacks like a duck, then it must be a duck. This is pretty well what happened in Québec when judges imposed same-sex marriage after highlighting that Québec’s civil unions resembled marriage in almost every feature.

13- Heterosexual marriage provides a simple and understandable set of norms.

France explains: “Family law, notably concerning filiation (the fact of being the child of certain parents), has been subject to profound reforms that have turned family configurations upside down. In this regards, (the province of) Québec has developed a distinctive inventiveness in setting up a system of filiation without equal in its complexity.” Rather, France believes that laws should not simply validate changing mores but should set norms in order to “allow individuals to build their lives around stable, sure and understandable criteria.”

With regards to adoption, the French report expresses concern about the “uncontrollable multiplication of filial links created as adults change partners over time, thus confusing children.” How does a child explain who his parents are if even legislators have difficulty in understanding the system? Same-sex marriage imposes additional confusion for the child, and many parents!

14- Heterosexual marriage naturally protects children from potential discrimination because of the sex of their parents.

When same-sex couples decide to have a child, either through medically assisted reproduction or adoption, they create a new minority, their own children, who are prevented from having both a mother and a father. They then turn around and ask that their children to be protected from potential discrimination because of their unique family situation. This would require all of society to be transformed, an uncertain proposition at best.

The January 25, 2006 Report on the Family and the Rights of Children to the French National Assembly approaches the issue from another perspective. It stresses that children represent the future of society and that they “must not suffer from conditions imposed upon them by adults”. In effect, it is these children’s own parents who have created this situation in the first place. The report adds: “The best interests of the child must prevail over adult freedoms… even including the lifestyle choices of parents”.

At the start of my presentation, I made a reference to challenges to freedom of speech. Let me cite four events – three from Canada and one from Europe – to illustrate my point.

1- In Canada, Dr. Chris Kempling, a school counselor was suspended by his employer after he wrote a letter in a local newspaper explaining his professionnally based opposition to same-sex marriage. The issue went to court and he lost. His appeal to the Supreme Court of Canada was rejected.

2- Dr. Grant Hill, an elected Member of the Canadian Parliament, former opposition leader, had his license as a medical doctor challenged after he made medically-justifiable statements that homosexual practices posed health risks for homosexuals. He won and was able to keep his license.

3- During Senate hearings on same-sex marriage legislation last summer, Dr. John Patrick, another medical doctor, shared his experience and opposition to same sex marriage and was rebuked by a senator and told: “you are part of the problem!” (I trust American legislators are more respectful).

4- Finally, the European Parliament recently embarked on an anti-homophobia campaign, specifically targeting Poland because of its refusal to allow same-sex marriage. Although this is not strictly a free speech issue, it sets the groundwork for future limitations as has happened in Canada, using the full force of the state.

* * *
APPENDIX:

Report on the Family and the Rights of Children
French National Assembly, January 25, 2006
Executive summary (2 pages)

Marriage: Why the Charter is Failing Children (in Canada)
Louis DeSerres (2 pages)

Marriage: Adult Rights or Children’s Rights
Preserve Marriage Canada (1 page)

Homosexuality Trumps Free Speech And Religion in Canada
A summary, NARTH (2 pages)

Redefining Marriage? A Case for Caution
Daniel Cere, McGill University
Feb. 12, 2003 (15 pages)

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