Sometimes you’ll hear same-sex marriage advocates say they know marriage is a good thing, and they simply want to expand it to include same-sex couples. But that’s not possible unless we fundamentally redefine what is commonly understood as marriage. It might surprise you that man-woman marriage is actually at the heart of United Nations documents about the family. Article 23 of the UN International Covenant on Civil and Political Rights declares:
Marriage is a compound right, involving both the right of two adults to commit to a binding union and the right to found a family. Same-sex marriage can only fulfil half of this vision of marriage. The right to "found a family” is problematic for same-sex couples.
While many same-sex couples in the media appear with children, it’s actually pretty uncommon in Australian life. According to the latest available census data, 97% of male same-sex couples and 78% of female same-sex couples are childless. Undoubtedly, some same-sex couples have or want kids, but while children are the norm for heterosexual couples, they are not the norm for same-sex couples and especially not for male same-sex couples. In the 2011 census, the proportion of all children under 25 living in a family with a same-sex couple was 0.1%. “Founding a family” is not what is behind the drive to change the marriage laws for same-sex couples. This is not making any judgment about whether same-sex parents produce equally good outcomes for children as two heterosexual parents. It is simply recognising the fact that children are not a priority for the vast majority of same-sex couples.
In order for same-sex couples to share in marriage, the definition must be changed to remove “founding a family” from the essence of marriage and focus the definition on the rights of a couple. Australian Marriage Equality, for example, argues that, “Marriage equality is about ensuring all couples have access to the one legal institution known as ‘marriage’”.
Marriage has to be redefined because of the pragmatic reality that the overwhelming majority of same-sex couples don’t have children, and because of the biological reality that a same-sex couple can’t have children without involving a third party.
Changing the law on marriage brings lots of changes with it. Many of the laws and customs that currently relate to marriage are there for the benefit of children. Once the meaning of marriage is changed, these children are put at risk if our laws and customs are changed.
For example, there is a societal norm that a couple will often get married to have children. De facto relationships often lead to marriage, because couples recognise that marriage provides a stable long-term relationship for raising a family. In Australia in 2011, 84% of couples were married and 16% were in de facto relationships. The great majority of children are raised by married couples. This just shows that, currently, our society values marriage as the normative pattern for establishing a family and raising children. But if we change the meaning of the institution, so that founding a family is no longer connected with marriage, the way we value children will change.
While most same-sex couples aren’t seeking marriage so that they can found a family, there will be some same-sex couples who’ll want children if we make the change. But a same-sex couple cannot have a child without involving an external party (like a sperm donor or surrogate mother). Typically this child is systematically and intentionally denied the opportunity to be raised by one of their birth parents. This results in many complications and erodes the traditional family structure on which our society is based. For example, what rights does a child have to know their ovum or sperm donor parent and have ongoing contact with them? What are the rights of and long-term impacts upon a donor parent, and how binding should pre-natal contractual arrangements be if (for example) a donor parent changes their mind after the child is born? What are the long-term impacts on the child who is conceived, carried and then relinquished in infancy by a surrogate mother?
While some of these issues may also apply to a heterosexual couple using IVF, there is a key difference. A heterosexual couple using IVF is seeking to overcome a problem in the natural reproductive process. This is not the case for a same-sex couple. They simply cannot create a baby without involving a third party of the opposite sex.
Recognising same-sex relationships as “marriage” legitimates the right of all same-sex couples to equal access to assisted reproductive technology. In the case of male same- sex couples, this must necessarily involve the use of a surrogate womb, which further complicates matters. In most cases, a child of a same-sex couple will be deprived of access to one of their birth parents.
With other issues such as adoption we recognise the importance of children being able to discover their biological parentage. Yet surrogacy and potential changes in the law regarding what constitutes a "parent" (see next page) could make these discoveries far more difficult, if not impossible.
1. For example, a recent Medibank ad selling health insurance said “We offer cover better suited to every kind of family”, and showed 10 different family types, of which three were same-sex families. This is a 300× over-representation of gay families in Australia.
5. Statistics from a custom query on “Relationship in Household” (RLHP) from the Persons and Relationships table of the 2011 Census data.