PHILIP S.

LOTT (5750)
STANFORD E. PURSER (13440)
Assistant Utah Attorneys General
J OHN E. SWALLOW (5802)
Utah Attorney General
160 East 300 South, Sixth Floor
P.O. Box 140856
Salt Lake City, Utah 84114-0856
Telephone: (801) 366-0100
Facsimile: (801) 366-0101
Email: phillott@utah.gov
Email: spurser@utah.gov
Attorneys for Defendants Gary R. Herbert and John E. Swallow

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

DEREK KITCHEN, individually; MOUDI
SBEITY, individually; KAREN ARCHER,
individually; KATE CALL, individually;
LAURIE WOOD, individually; and
KODY PARTRIDGE, individually,

Plaintiffs,

vs.

GARY R. HERBERT, in his official capacity
as Governor of Utah; J OHN SWALLOW, in
his official capacity as Attorney General of
Utah; and SHERRIE SWENSEN, in her
official capacity as Clerk of Salt Lake
County,

Defendants.





APPENDIX IN SUPPORT OF STATE
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT



Civil Case No. 2:13-cv-00217-RJ S

J udge Robert J . Shelby


TABS 35b TO 38a
(703 - 766)
Case 2:13-cv-00217-RJS Document 40 Filed 10/11/13 Page 1 of 74
ii

APPENDIX
TABLE OF CONTENTS

Tab # Description Page

PART ONE
LEGAL MATERIALS

1. Utah Code § 30-1-2

1
2. Utah Code § 30-1-4.1

2
3. Utah Constitution Art. 1, § 29 (Amendment 3)

3
4. H.J .R. 25, J oint Resolution on Marriage (as originally filed)

4
5. H.J .R. 25, J oint Resolution on Marriage (Senate Floor Amendments)

6
6. H.J .R. 25, J oint Resolution on Marriage (final, reflecting Senate amendments)

7
7. Chart: The definition of marriage: State statutory and constitutional
provisions
9
8. Chart: The definition of marriage: State ballot measures

13
9. Chart: The language of State constitutional bans on domestic partnership and
other non-marital unions
18
10. Chart: Court decisions on the marriage issue

23
11. Chart: Pending cases on the marriage issue

25
12. J urisdictional Statement, Baker v. Nelson, No. 71-1027 (U.S. Supreme Court
Feb. 11, 1971)
27
13. Amicus curiae brief of Social Science Professors, Hollingsworth v. Perry, No.
12-144, and United States v. Windsor, No. 12-307 (U.S. Sup. Ct. J anuary
2013)
40
14. Amicus curiae brief of Scholars of History and Related Disciplines,
Hollingsworth v. Perry, No. 12-144 (U.S. Sup. Ct. J anuary 2013)
81
15. [Reserved]


16. [Reserved]



Case 2:13-cv-00217-RJS Document 40 Filed 10/11/13 Page 2 of 74
iii


PART TWO
MATERIALS ON ADJUDICATIVE FACTS

17. Affidavit of William C. Duncan and Exhibit 1 (curriculum vitae)

127
18. Excerpts from Utah Voter Information Pamphlet, General Election,
November 2, 2004
150
19. Vote count on Amendment 3, by county, with totals, and with percentages

155
20. Campaign materials for Amendment 3

156
21. Campaign materials against Amendment 3

171
22. New accounts, press releases, and editorials regarding Amendment 3

183
23. Fund-raising and expenditures in the Amendment 3 campaign

222
24. Affidavit of Dr. J oseph P. Price and Exhibit 1 (curriculum vitae)

223
25. [Reserved]


26. [Reserved]



PART THREE
MATERIALS ON LEGISLATIVE FACTS

27. INSTITUTE FOR AMERICAN VALUES, WHY MARRIAGE MATTERS: THIRTY
CONCLUSIONS FROM THE SOCIAL SCIENCES (3d ed. 2011).
232
28. THE WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN
PRINCIPLES (2008).
280
29. INSTITUTE FOR AMERICAN VALUES, MARRIAGE AND THE LAW: A STATEMENT
OF PRINCIPLES (2006).
318
30. INSTITUTE FOR AMERICAN VALUES (DAN CERE, PRINCIPAL INVESTIGATOR),
THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH
AMERICA (2005).
362
31. INSTITUTE FOR AMERICAN VALUES ET AL. (ELIZABETH MARQUARDT,
PRINCIPAL INVESTIGATOR), THE REVOLUTION IN PARENTHOOD: THE EMERGING
GLOBAL CLASH BETWEEN ADULT RIGHTS AND CHILDREN’S NEEDS (2006).
413
32. COMMISSION ON PARENTHOOD’S FUTURE & INSTITUTE FOR AMERICAN
VALUES (ELIZABETH MARQUARDT, PRINCIPAL INVESTIGATOR), ONE PARENT
OR FIVE: A GLOBAL LOOK AT TODAY’S NEW INTENTIONAL FAMILIES (2011).
457
33. INSTITUTE FOR AMERICAN VALUES (ELIZABETH MARQUARDT, NOVAL D.
GLENN, & KAREN CLARK, CO-INVESTIGATORS), MY DADDY’S NAME IS
DONOR: A NEW STUDY OF YOUNG ADULTS CONCEIVED THROUGH SPERM
DONATION (2010).
529
Case 2:13-cv-00217-RJS Document 40 Filed 10/11/13 Page 3 of 74
iv

34. Margaret Somerville, What About the Children, in DIVORCING MARRIAGE:
UNVEILING THE DANGERS OF CANADA’S NEW SOCIAL EXPERIMENT 63-78
(Daniel Cere & Douglas Farrows eds., 2004).
669
35. Margaret Somerville, Children’s human rights and unlinking child-parent
biological bonds with adoption, same-sex marriage and new reproductive
technologies, 13 J . FAM. STUD. 179-201 (2007).
687
36. Margaret Somerville, Children’s Human Rights to Natural Biological Origins
and Family Structure, 1 INT’L J . J URISPRUDENCE FAM. 35 (2010).
710
37. Don Browning & Elizabeth Marquardt, What About the Children? Liberal
Cautions on Same-Sex Marriage, in THE MEANING OF MARRIAGE: FAMILY,
STATE, MARKET, AND MORALS 173-192 (Robert P. George & J ean Bethke
Elshtain, eds., 2006).
732
38. Maggie Gallagher, (How) Does Marriage Protect Child Well-Being?, in THE
MEANING OF MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 197-212
(Robert P. George & J ean Bethke Elshtain, eds., 2006).
752
39. Seana Sugrue, Soft Despotism and Same-Sex Marriage, in THE MEANING OF
MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 172-96 (Robert P.
George & J ean Bethke Elshtain, eds., 2006).
770
40. THE SOCIOLOGY OF GEORGE SIMMEL 128-32 (Kurt H. Wolff, trans. & ed.,
1950).
797
41. CLAUDE LÉVI-STRAUSS, THE VIEW FROM AFAR 39-42 (J oachim Neugroschel
& Phoebe Hoss trans. 1985)
804
42. G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS 1-3 (1988).

810
43. EDWARD O. LAUMANN ET AL., THE SOCIAL ORGANIZATION OF SEXUALITY:
SEXUAL PRACTICES IN THE UNITED STATES 310-13 (1994).
815
44. CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING
INSTITUTION 7-8 (Kingsley Davis, ed., 1985).
819
45. J AMES Q. WILSON, THE MARRIAGE PROBLEM 40-41, 168-170 (2002).

823
46. BRONISLAW MALINOWSKI, SEX, CULTURE, AND MYTH 10-11 (1962).

831
47. DADDY DEAREST? ACTIVE FATHERHOOD AND PUBLIC POLICY 57 (Kate
Stanley ed., 2005).
834
48. DAVID POPENOE, LIFE WITHOUT FATHER: COMPELLING NEW EVIDENCE THAT
FATHERHOOD AND MARRIAGE ARE INDISPENSABLE FOR THE GOOD OF
CHILDREN AND SOCIETY 139-63 (1996).
837
49. William J . Doherty et al., Responsible Fathering: An Overview and
Conceptual Framework, 60 J . MARRIAGE & FAM. 277-292 (1998).
852
50. KRISTIN ANDERSON MOORE ET AL., MARRIAGE FROM A CHILD’S PERSPECIVE:
HOW DOES FAMILY STRUCTURE AFFECT CHILDREN, AND WHAT CAN WE DO
ABOUT IT?, a Child Trends Research Brief (2002).
868
51. Lawrence B. Finer & Mia R. Zolna, Unintended Pregnancy in the United
States: incidence and disparities, 2006, 84 CONTRACEPTION 478-85 (2011).
876

Case 2:13-cv-00217-RJS Document 40 Filed 10/11/13 Page 4 of 74
v

52. ELIZABETH WILDSMITH ET AL., CHILDBEARING OUTSIDE OF MARRIAGE:
ESTIMATES AND TRENDS IN THE UNITED STATES, a Child Trends Research
Brief (2011).
884
53. SAMUEL W. STURGEON, THE RELATIONSHIP BETWEEN FAMILY STRUCTURE
AND ADOLESCENT SEXUAL ACTIVITY, a familyfacts.org Special Report
(November 2008).
890
54. U.S. Dept. of Health and Human Servs., Administration for Children &
Families, Office of Planning, Research & Evaluation, Distribution of Abuse
and Neglect by Family Characteristics, in FOURTH NATIONAL INCIDENCE
STUDY OF CHILD ABUSE AND NEGLECT (NIS-4)
892
55. Paul R. Amato, The Impact of Family Formation Change on the Cognitive,
Social, and Emotional Well-Being of the Next Generation, 15 THE FUTURE OF
CHILDREN 75-96 (2005).
936
56. Douglas W. Allen, High school graduation rates among children of same-sex
households, 11 Rev. of Econ. Of the Household (published on-line September
26, 2013).
959
57. Mark Regnerus, How different are the adult children of parents who have
same-sex relationships? Findings from the New Family Structures Study, 41
SOCIAL SCIENCE RESEARCH 752-70 (2012).
983
58. Mark Regnerus, Parental same-sex relationships, family instability, and
subsequent life outcomes for adult children: Answering critics of the new
family structures study with additional analyses, 41 SOCIAL SCIENCE
RESEARCH 1367-77 (2012).
1002
59. Loren Marks, Same-sex parenting and children’s outcomes: A closer
examination of the American psychological association’s brief on lesbian and
gay parenting, 41 SOCIAL SCIENCE RESEARCH 735-51 (2012).
1013
60. WILLIAM C. DUNCAN, MISPLACED RELIANCE ON SOCIAL SCIENCE EVIDENCE
IN THE PROPOSITION 8 CASE, Vol. 5, No. 6, an Institute for Marriage and
Public Policy Research Brief (2012).
1030
61. J OHN R. SEARLE, THE CONSTRUCTION OF SOCIAL REALITY 4-5, 27-29, 31-37,
55-57, 59-60, 76-104, 117-120, 227-28 (1995).
1035
62. J OHN R. SEARLE, MAKING THE SOCIAL WORLD: THE STRUCTURE OF HUMAN
CIVILIZATION 6-16, 84-93, 102-08, 143-44 (2010).
1089
63. Douglas Farrow, Why Fight Same-Sex Marriage?, TOUCHSTONE, J an.—Feb.
2012
1121
64. Ross Douthat, Gay Parents and the Marriage Debate, THE NEW YORK TIMES,
J une 11, 2002.
1128
65. INSTITUTE FOR AMERICAN VALUES (BENJ AMIN SCAFIDI, PRINCIPAL
INVESTIGATOR), THE TAXPAYER COSTS OF DIVORCE AND UNWED
CHILDBEARING: FIRST-EVER ESTIMATES FOR THE NATION AND ALL FIFTY
STATES (2008).
1131
66. BEYOND SAME-SEX MARRIAGE: A NEW STRATEGIC VISION FOR ALL OUR
FAMILIES & RELATIONSHIPS (J uly 26, 2006).
1175
67. SHERIF GIRGIS, RYAN T. ANDERSON, AND ROBERT P. GEORGE, WHAT IS
MARRIAGE? MAN AND WOMAN: A DEFENSE 1-2, 6-12, 23-36 (2012).
1202
Case 2:13-cv-00217-RJS Document 40 Filed 10/11/13 Page 5 of 74
vi

68. DAVID BLANKENHORN, THE FUTURE OF MARRIAGE 3-4, 11-21, 55, 91-106,
120-25, 171-75, 179-201 (2007).
1227
69. [Reserved]


70. [Reserved]



PART FOUR
CANADIAN AND BRITISH LAW JOURNAL ARTICLES

71. Matthew B. O’Brien, Why Liberal Neutrality Prohibits Same-Sex Marriage:
Rawls, Political Liberalism, and the Family, 1 BRIT. J . AM. L. STUDIES (Issue
2, Summer/Fall 2012, May 1, 2012).
1291
72. F.C. DeCoste, Courting Leviathan: Limited Government and Social Freedom
in Reference Re Same-Sex Marriage, 42 ALTA. L. REV. 1099 (2005).
1352
73. F.C. Decoste, The Halpern Transformation: Same-Sex Marriage, Civil
Society, and the Limits of Liberal Law, 41 ALTA. L. REV. 619 (2003).
1377
74. Monte Neil Stewart, Judicial Redefinition of Marriage, 21 CAN. J . FAM. L. 11
(2004).
1403

Dated this 11
th
day of October, 2013.

J OHN E. SWALLOW
Utah Attorney General

/s/ Philip S. Lott
Philip S. Lott
Stanford E. Purser
Assistant Utah Attorneys General
Attorneys for Defendants Gary R. Herbert
and John Swallow

CERTIFICATE OF SERVICE
I hereby certify that on the 11
th
day of October, 2013, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system which sent notification of such filing to the
following:
Peggy A. Tomsic tomsic@mgplaw.com
J ames E. Magleby magleby@mgplaw.com
J ennifer Fraser Parrish parrish@mgplaw.com
MAGLEBY & GREENWOOD, P.C.
170 South Main Street, Suite 850
Salt Lake City, UT 84101-3605

Case 2:13-cv-00217-RJS Document 40 Filed 10/11/13 Page 6 of 74
vii

Ralph Chamness rchamness@slco.org
Darcy M. Goddard dgoddard@slco.org
Salt Lake County District Attorneys
2001 South State, S3500
Salt Lake City, Utah 84190-1210

/s/ Philip S. Lott


Case 2:13-cv-00217-RJS Document 40 Filed 10/11/13 Page 7 of 74
Children's human rights and uQlinking child-parent biological bonds
wich state funds, or born into same-sex marriages
which are authorized by che state, rights to state
assistance co know cheir families?
As I have explained previously, legalizing same-
sex marriage, which gives same-sex couples the
right to found a family, overcly contravenes chose
rights of the child set out in the convention, if
the words in che convention are given their usual
meaning, which I propose is the correct interpre-
tation. When the convention was drafted, same-
sex marriage and its impact on children's rights to
know and be reared in their: birth family were not
in contemplation.
It merits noting that the state parties to the
convention have a duty to-implement the rights
of the child that it establishes. It goes without
saying, therefore, chat chere is a duty not to inten-
tionally contravene these rights ·as legalizing same-
sex· marriage necessarily does. Children's human
rights were almost entirely neglected in the court
cases and public and Parliamentary debates that
resulted in Canada's Civil Act, which
legally implemented same-sex marriage. Indeed,
raising the issue was seen as highly inflammatory,
as I can attest from personal experience.
ETHICAL CONSIDERATIONS
So what ethical principles should guide us in
deciding on children's rights in this area?
Consent .••
The only people who 'do not participate volun-
tarily in their creation, and who do not give their
informed consent to . the arrangements agreed
upon, are the children. They are also the ones
most profoundly affected the way in which
they come into being. Ethically, those factors
indicate that when children's 'claims to know
their genetic origins and adults' claims to privacy
conflict, the children should previU.I, that is, their
rights take precedence. Adopted children
and children born from donated sperm, ova or
embryos want to know their biological identity.
. '
20. The Infertility Network is a registered Canadian charity.
(See their letters published in the Infertility Net-
work Newsletters20 in 2005 and 2006). Ethically,
we must ensure that their right to do so is
respected.
The emerging ethical doctrine of 'anticipated
consent' is also important in this context. That
requires us to try to stand in the shoes of the_ per-
son affected by our decision and to as_k: 'Can I
reasonably anticipate that if the person were able
to be asked, they would consent .to-.wpat I want
to do that will affect them?' What'i'htght we rea-
sonably assume that a future child would consent
to.-.if they were able to make their wishes known?
Evidence is starting to come in: 'Donor-con-
ceived adults' describe powerful feelings of loss of
identity through not knowing one or both bio-
logical parents and their wider biological families,
and describe themselves as 'genetic orphans'. ·
They believe society was complicit in a serious
wrong done to them in the way they were con-
ceived and ask, 'How could anyone think they
had the right to do this to me?'
Favour most vulnerable persons .••
The same result is reached in applying the ethical
principle of a preference in favour of the most
vulnerable persons. Children are among the most
vulnerable citizens. Homosexuals are also a vul-
nerable group, but as adults their claims take
second place to children's needs and rights. More-
over, in upholding children's rights we are acting
in the best interests of all children, whether their
sexual orientation later proves to be straight or
gay, and of all citizens, because, at one stage, all
of us are children.
Experimentation on children •.•
The word experiment is a loaded one and should
be used cautiously because of that, but in ethics it
is sometimes appropriate to apply it, in its neutral,
simply descriptive, non-judgmental sense, for the
insights that doing so can provide. Recognition of
same-sex marriage can be seen as an unprecedent-
Volume 13, Issue 2, November 2007 JOURNAL OF FAMILY STUDIES 195
000703
Case 2:13-cv-00217-RJS Document 40 Filed 10/11/13 Page 8 of 74
Margarei: Somerville
ed c:xpcrim.et:tt on children, in general, in terms of
the known and unknown risks and harms it pres-
ents for them by unlinking children from their
biological parents. The ethical guidelines govern-
ing experimentation on human subjects are most
strict with respect to those who either· cannot give
informed consent to their participation or are
members of a vulnerable population. Children
qualify in both categories, so attract the greatest
degree of protection. Consequently, those who
would subject children to such an experiment
must show that they are clearly justified in doing
so. N!J such justification has been presented in the
case of same-sex marriage.
It merits noting here th,at it has been proposed
that women who are egg donors should also be
considered as human medical research subjects in
order to give them the protections they need.
Ethics researChers foUQd that the risks of physical
.discomfort of egg donation were not adequately
disclosed and those of infertility, or even. death,
not mentioned. Likewise, the psychological risks
that exist for egg donors, regardless of whether
the eggs are used for research or to help another
woman conceive, were not considered (Stanford
University Medical Centre, 2005).
Chance differs ethically froin
choice ...
There is also an ethical difference berween a situ-
ation occurring by chance and intentionally
the same situation. Some children con-
ceived natutally..rnafnot be able to identify their
genetic father. But to intentionally create a situa-
tion that makes identifying either or both genetic
parents impossible - and for Parliament and soci-
ety to ensure that is the case, as has happened
with the prohibition in theAHRAct (2004 s. 18
(2), s. 61 (a)(b)) of the disclosure of gamete
donors' identities without their consent is
deeply unethical. We have obligations not to
deliberately create genetic orphans. Obligations
not to impose the deep suffering and loss of iden-
tity that results from loss of a sense of connection
to an individual-human-family past - a sense of
connection to those who gave us life. It is para-
doxical that in an era of sensitivity to individual
human rights and 'intense' individualism, we are
prepared to wipe out for others one of the most
important bases on which we found a sense of
individual identity. ·
Recognize a right to genetic
identity ...
Sandra Walters, a person adopted as a child, now
a lawyer and founder of an adopted pc;rsons' sup-
port group, the Forge Mt Not Society, to whom I
sent. a draft copy of this a_rticle, in her response
puts the case for children's rights to know their
genetic identity far mor7 powerfully than I can.
She writes:
I am glad that you could sense the grief in my
writing [to you]. Adoptees are generally not
permitted to express these emotions [about
their loss of knowledge of and with
their biological parents] as they are seen as
ungrateful, and it is one way that we have been
silenced (not doing today's donor-conceived
adults any favours).
I believe we need to examine the full
c:xteiu of how, as you state in your paper, 'not
knowing their biological origins is harmful to
children'. It is only when the harm is fully
acknowledged that we can look at adoption
and other forms of legal constructs of 'parent-
hood' as an exception to the ideal (children
knowing of and raised by a biological mother
and father), to be resorted to cautiously and
sparingly. There are alternatives to adoption
where the biological parents are physically
incapable of caring for their offspring: kinship
care or guardianship is preferred in many
countries as encouraging the child to remain
connected to her family of origin.
Your use of the term 'genetic orphans' hit
home with me, as it also applies to those of us
who have come out of the closed adoption sys-
tem, with closed records remaining in many
provinces and most states today. As you point
I;,· .t9.6 JOURNAL OF FAMILY STUDIES Volume 13, Issue 2, November 2007
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(
· Children's human rights and unlinking child-parent biological bonds
out in your paper, it is the 'fertility industry'
which is a powerful lobby group which would
seek to trivialize the import of the biological
connection. Documented research is needed to
demonstrate in a noticeable way the story of
pain and loss that we hear every month at the
Forget Me Not Society and which you have
read in letters sent to you (and which is surely
the tip of an enormous iceberg) . . . In mr.
view, there's something wrong if we, as
society. are not learning from our past mis-
. takes. But first we need to acknowledge them
as such; that's a message that I believe needs to
be communicated.
(Personal communication •. wed with permis-
sion of Sandra Walters, May 10, 2005)
Recognize harms and
problems ...
I would like to emphasize a point made by Wal-
ters that constitutes a type of harm to children
that needs to be recognized: Adopted children
must repress their grief about their loss of genetic
i4entity or be seen as ungrateful. Donor-con-
ceived children born through face an even
more complex trade-off in this respect as their
very existence is inextricably entwined with that
grie£ Without the use of donor gametes and.
NRTs and the losses to them that way of coming
into being entails, they would not exist. The the-
ore.tical choice for them (because they. cannot
have such a choice in fact) is existence with the
loss of connection to their genetic family that
entails or non-existence.
'First do no harm' ...
Powerful existential and ethical reasons, such as
those outlined above, concealing biologi-
cal parents' identity condemn the practice even
before we think of practical reasons that lead us
to the same conclusion. As the genetic basis
of medicine rapidly becomes more important,
knowing about one's ancestors and siblings, or
21. Arndt v. Smith (1997) 148 D.L.R. (4th) (S.C.C.).
even other close relations, can be crucial to
our health and well-being. Anonymous data on
sperm and ova donors, given at a certain date,
will be nowhere near as extensive and complete as
what could be learnt at a later time, especially
after those related to us have had children or
grown older. As well, we are becoming increas-
ingly aware, as discussed throughout this article,
of the psychological harm caused to children who
are denied access to their genetic identity -
knowing that identity is integral to a person's
sense of sel£
There is a saying in ethics that 'good facts are
·essential to good ethics'. In a different sense than
the one in which that maxim is usually used (that
we need the facts of any given situation to iden-
tify, analyze and deal with the ethical issues it
raises) making sure that children have all the facrs
about their biological parents is an ethical
requirement.
'Birth rights/non-birth rights' ...
Litigation involving alleged 'birth rights' (or more
accurately, 'rights to non-birth') of children and
their parents, based on novel legal claims, has
increased dramatically in the last fifteen or so
years (Crockin 2005). At the same time as· we are
seeing claims to rights to live one's life with one's
genetic identity intact, we are seeing also an
increasing number of cases claiming damages for
'wrongful life' - a disabled child sues for having
been born alleging that but for the negligence,
usually of a physician or geneticist, he or she
would never have been conceived or would have
been aborted.21 In claims for 'wrongful birth', the
parents claim damages fo.- negligence (for exam-
ple, a failed sterilization or abortion, or negligent
genetic advice), that resulted in the child being
born when it would not have been, giv-
ing rise to their parental obligations to the child,
.especially the additional costs of providing for a
disabled child. In both types of situation the
rights of children in relation to their birth are in
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Case 2:13-cv-00217-RJS Document 40 Filed 10/11/13 Page 10 of 74
c
I
i
\
j
Margaret Somerviiie ·
play, as are. the rights of adults with respect to
reproduction and having control and choice
about the children they do or do not have.
In 'wrongful life' cases the child's allegation ·
that, but for the negligence, she would not have
. been born, raises an existential problem for the
courts, because, if not born, the child would not
be present as a plaintiff. The vast majority of
courts have rejected such claims on the grounds
that life is better than no life - that one is riot
'better-off dead'. But claims by a child for delib-
erately creating her 'genetically disconnected life'
are not subject to the same problem. Moreover,
not only healthcare professionals, but also parents
could be subject to such claims.
CONCLUSION
So what are - or should be- all children's human
rights with respect to their coming into being
and knowledge of their parents? I .believe that,
arguably, the most fundamental human right of
all is the right to born from natural human ori-
gins that have not been tampered with by anyone
else: That the essenCe: of one's very being is natu-
rally human and un-designed. Those fundamen-
tal also include the right to know one's
biological parents and if at all . possible to be
reared by them within one's wider biological fam-
ily. Traditional marriage establishes these rights
for children as the societal norm. .
. Same-sex marriage, which is advocated by its
supporters with the best of intentions towards
adults, will have the effect in law and at the level
of societal norms, values and of set-
ting children adrift genetically. In taking away
children's right to a mother an<;l a father, prefer-
ably their own biological parents, which same-sex
marriage unavoidably does, we, as a society, are
guilty of wiping out affected chil<4en's day to day
experience of their genetic identity through inter.:
actions within their biological family and, with
anonymous gamete donation, their genetic iden-
tity its_elf. These children - and their descendants
- 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.
Experiencing that embedding and the sense of·
it generates, is probably essential for
experiencing an even larger one, described power-
fully by Joseph Conrad in the preface to his book,
Tht Nigger of tht 'Narcissus' {1897). Speaking of
the role of artists he says:
[The artist] appeals to our capacity for delight
and wonder, to the sense of mystery surround-
ing our lives; to our sense of piry, and beauty
and pain ... and to the subtle but invincible
conviction of solidarity that knits together the
loneliness of innumerable hearts, to the soli-
darity in dreams, in joy, in sorrow, in aspira-
tions, in illusions, in hope, in fear which binds
men to each other, which binds together all
humanity - tht dead to the living and the livirzg
to tht unborn.
Having access to knowledge of their extended
biological family is the primary way in which
each person can feel bound to both the dead and
the unborn.
Our most recent experience of people's loss of
genetic identity resulting from deliberate. action
on the part of society is with 'Children born fro.tn
donated gametes using NRTs, but, while only of
25 years' duration, it can provide important les-
sons about loss of genetic identity and of knowl-
edge about and contact with one's biological
parents. The same is true with respect to our
much more long-standing experience with adop-
tion. The conspiracy_ of silence that has surround-
ed adoption and is now being broken, provides
an equally strong message to the identical effect.
Donor-conceived and adopted children tell us
that they wonder: Do I have siblings or cousins?
Who are they? What are they like? Are they 'like
me'? What could I learn about myself from them?
That raises the issue of how our blood relatives
help each of us to establish our human identity.
As far .as we know, humans are the only
animals where experiencing genetic relationship is
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c
Children's human rights and unlinking child-parent biological bonds
integral· to their sense of themselves. What we
know of the effects of eliminating that experience,
is that doing so is frequently harmful to children,
biological parents, families and society. It is rrue
that sometimes unlinking children from their
biological parents is unavoidable and the least
harmful option available. But to set out to create
such situations, and for society to be complicit in
facilitating them, is unethical. The difference is
easily understood by comparing adoption when
that results from an .accidental pregnancy and is
seen to be in the 'best interests' of the child, and
surrogate motherhood where the intention in
becoming pregnant is to give away the child, that
is, to separate the child from his or her biological
mother. Society rightly allows and facilitates
adoption, where it is justified, and just as rightly
prohibits surrogacy and penalizes the people
in any aspect of it. . ·
NRTs challenge children's rights to natural
biological origins and to know and experience
their genetic family and heritage in their lives.
Including same-sex marriage in the legal insti-
. tution of marri!lge augments that challenge.
Through same-sex marriage we are formally
severing the genetic ties between children and
their parents and, thereby, their extended bio-
logical/genetic family of siblings and other blood
relations, and institutionalizing that severance at
a societal level. In doing that, we take away the
rights of all children {not just those brought up
by same-sex couples) to know and experience
their genetic heritage in their lives and withdraw
society's recognition of its importance to them,
their wider family and society itsel£ It is because
of this change that same-sex marriage advocates
are wrong when they claim, as they often do,
that same-sex marriage does not affect opposite-
sex Marriage is the institution that has
been used by societies for thousands of years to
establish fundamental human rights of children.
Same-sex marriage eliminates these rights for all
children.
As explained, because the right to marry inc-
ludes the right to found a family, same-sex mar-
riage also puts in jeopardy children's rights to
natural genetic origins, which is arguably the
most serious risk of all in light of the un-
precedented powers over humat"l: reproduction
introduced with NRTs. It's true that these
technologies could also be used by opposite-sex
couples, but legal prohibitions on their doing so
are less likely to be classified as discrimination,
and therefore invalid, than in the case of same-sex
married couples none of whom can reproduce
naturally.
If marriage involved only adults there is no
good reason to oppose same-sex marriage. But for
the sake of children, marriage should remain the
union of one man and one woman.
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1 1:\'TL. J. FAM. 35 (2010)
CIIILDREN'S HUMAN RIGHTS TO NATliRAL BIOLOGICAL
ORIGINS AND FAMILY STRUCTURE; SOl\IERVILLE,
MARGARET
CHILDREN'S HUMAN RIGHTS TO
NATURAL BIOLOGICAL ORIGINS AND FAMILY STRUCTURE
Margaret Somervill/
ABSTRACT
Over the millennia of human history, the idea that children- at least those
born into a marriage-had rights with respect to their biological parents
was taken for granted and reflected in law and public policy. But with
same-sex marriage, which gives same-sex spouses the right to found a
family, that is no longer the case.
Likewise, children's rights with respect to their biological origins were
not an issue when there was no technoscience that could be used to
manipulate or change those origins: a baby could only be conceived in
1
AM, FRSC, A.u.A. (pharm.) (Adel.), LL.B. (hons.) (Syd.), D.C.L. (McGill).
Samuel Gale Professor of Law, Professor in the Faculty of Medicine and the
Founding Director of the Centre for Medicine, Ethics and Law at McGill University.
The author is indebted to Professor Scott FitzGibbon of Boston College Law School
for many insightful suggestions for improvement of this text and for careful editing. I
also thank my McGill University colleague, Professor Michael Meaney, Ph.D., for
reviewing the discussion of epigenetics in the section on children's right to be reared
within their own biological families. As a biologist and a leader in the area of
environmental epigenetics, his review focused on the biological sciences basis of
those passages, and did not extend to an endorsement of any social or legal
conclusions drawn on that basis.
1
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vivo through sexual reproduction. But with assisted human reproductive
technologies (ARTs) and genetic technologies, that, too, is no longer the
case.
So, in light of these new realities, what are our obligations, as societies,
to children with respect to their biological origins and biological families?
What protections do children need and deserve?
I propose that the most fundamental human right of all is a child's right
to be born from natural human biological origins and that children also
have human rights with respect to knowing who their biological parents
and families are, and that these rights must be recognized. Children also
have a right to be reared within their biological families and to have a
mother and a father, unless an exception can be justified as being in the
'best interests' of a particular child.
The connection among adoption, the use of new reproductive
technologies, and same-sex marriage is that they all unlink child-parent
biological bonds. Each context raises one or more of three important
issues: children's right to know the identities of their biological parents;
children's right to both a mother and a father, preferably their own
biological parents; and children's right to come into being with genetic
origins that have not been tampered with; that is, 'designing' our children
should be prohibited.
Such 'designing' would result in losses with implications far beyond
those persons directly affected and far beyond the present time. It would
undermine the rights to equality and freedom of future generations.
Because the liberty and equality of all citizens is at the heart of democratic
societal institutions and of the values that democratic societies promote, to
create people who are neither free nor equal undermines those institutions
and values. In short, not to prohibit 'designer children' would undermine
the very foundations of our Western democratic societies.
INTRODUCTION
Some old and new phenomena-adoption is old, assisted reproductive and
genetic technologies and same-sex marriage are new-have recently
thrown the issue of children's rights with respect to their biological
origins, biological families, and family structure into the public policy
spotlight and public square debate.
2
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Adoption has long given rise to concerns as to children's rights with
respect to their biological families. Early in the twentieth century,
societally condoned sperm donation presented a similar challenge. In the
last thirty years, assisted reproductive technologies (ARTs) and genetic
technologies have brought, and will continue to bring, unprecedented
challenges. And, most recently, same-sex marriage has done so.
The connection among these contexts is that they all unlink child-
parent biological bonds.
2
Each context raises one or more of three
important issues: children's right to come into being with genetic origins
that have not been tampered with; children's right to know the identities
of their biological parents; and children's right to both a mother and a
father, preferably their own biological parents.
Over the millennia of human history, the idea that children- at least
those born into a marriage-had rights with respect to their biological
parents was taken for granted and reflected in law and public policy. And
children's rights with respect to their biological origins were not an issue
when there was no technoscience that could be used to manipulate or
change those origins: a baby could only be conceived in vivo through
sexual reproduction. But with ARTs that is no longer the case.
What, ethically, do we owe children whose lives result from the use of
ARTs? So far, we have largely failed to address this question. Our ethical
focus on ARTs has been almost entirely on adults' right to access these
technologies so as to found a family. But as the first cohort of children
born as a result of their use reaches adulthood and connect with one
another through the Internet, they are changing our focus. We are now
asking, what are their rights with respect to their biological origins and
biological families? And what are our obligations as a society to these
children? What protections do they need and deserve?
In this article, I propose that the most fundamental human right of all is
a child's right to be born from natural biological origins, that children
have human rights with respect to their biological parents and families,
and that these rights must be recognized. The articulation of human rights
.,
- Margaret Somerville, Children 's Rights and Unlinking Child-Parent
Biological Bonds with Adoption, Same-Sex Marriage and New Reproductive
Technologies, 13 J. F AM. STUD. 179 (2007).
3
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is an ongoing process. Children must move from being the 'voiceless
citizens' to becoming the new kids on the human rights block, and
nowhere is that more important than with respect to rights regarding their
biological origins and biological families.
I. CHILDREN'S RIGHT TO BE BORN FROM NATURAL BIOLOGICAL
ORIGINS
In the more than twenty-five years since Louise Brown, the first 'test-tube
baby', ushered in the brave new world opened up by ARTs, advances in
the technologies have made more and more previously impossible
interventions possible. Those 'advances' make it necessary to formulate
new rights for children in relation to their biological origins that would
have been unimaginable until very recently.
A child's right to be conceived with a natural biological heritage is the
most fundamental human right and should be recognized in law.
3
Children
have a right to be conceived from untampered-with biological origins, a
right to be conceived from a natural sperm from one identified, living,
adult man and a natural ovum from one identified, living, adult woman.
Society should not be complicit in-that is, should not approve or fund-
any procedure for the creation of a child, unless the procedure is
consistent with the child's right to a natural biological heritage.
The addition of the words man and woman in defining the right to a
natural biological heritage, rather than simply referring to sperm and
ovum, as would be more common, is not superfluous. It is theoretically
possible to create an embryo with the genetic heritage of two women or
two men, including by making a sperm or ovum from one of the adult's
stem cells and using a natural gamete from the other person, or perhaps by
using two ova or maybe by making an 'ovum' from an enucleated egg
fused with a sperm and fertilizing it with another sperm. The word natural
excludes opposite-sex couples from using this technology to make an
3
MARGARET SOMERVILLE, THE ETHICAL IMAGINATION: JOURNEYS OF THE
HUMAN SPIRIT 95-156 (2006); Margaret Somerville, The Importance of a
Basic Presumption of Respect for the Natural, 13 SACRED WEB: A J. OF
TRADITION AND MODERNITY 113 (2004).
4
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artificial sperm from an infertile man or artificial ovum from an infertile
woman.
The requirement that the gametes come from adults preempts the use
of gametes from aborted fetuses; it prevents children being born whose
biological parent was never born. And the requirement that the donors be
living excludes the use of gametes for postmortem conception. The right
to bear children should not include the right to deny children at least the
chance, when being conceived, of meeting their biological parents.
Conceiving children with gametes from a dead donor, as an Australian
court authorized,
4
denies them this opportunity. In that case, as is so often
true, the judge considered only the rights and wishes of the adults
involved.
II. 'DESIGNER CHILDREN' AND SOCIETAL VALUES AND
INSTITUTIONS
A topic linked to the previous one of a right to come from untampered-
with human origins, is the ethical acceptability of the enhancement of
one's children using genetic technologies. The central question raised is
whether or not this offends human dignity, whether of the child as an
individual or of humans in general. Some commentators argue it does and
others that it does not. I will not explore, here, however, the extensive
literature on the ethics of designing our children by genetically altering
them, whether for the better or the worse- when they are embryos.
Rather, I want just to mention some important philosophically based
objections to doing that, which have not been widely discussed.
Because creating 'designer children' involves genetic manipulation of
human embryos, it destroys the essence of their humanness and,
ultimately, the essence of the humanness of all of us.
5
Genetic
manipulation interferes with the intrinsic being of a person-with their
4
Richard Kerjab, Wife Gets Sperm of Dead Husband, THE AUSTRALIAN,
December 21,2005, at 3.
5
MARGARET SOMERVILLE, supra, notes 2 and 3.
5
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very 'self. As philosopher Seren Kierkegaard put it, designed persons are
not free to fully become themselves, which is the essence of freedom.
6
The power to fully become oneself requires that the person has non-
contingent origins. People need to have a sense that they can go back and
start again to remake or actualize their very selves, and, in order to have
that, they must not be preprogrammed or designed by another. German
philosopher Jiirgen Habermas
7
agrees that designed persons no longer can
own themselves, as they must do in order to make their beings and their
lives fully their own. Lacking self-ownership, people are not fully free.
They are deprived of the liberty that comes from the fact that no one has
interfered with the essence of their being. This lack of interference means
their genetic makeup has come into existence through chance, and that it
do so in that way is a necessary condition for such liberty. Moreover,
because these children are not equal to the designer, they are deprived of
equality.
This loss of liberty and equality affects the humanness of all of us
because, first, we would all be complicit in such manipulation by not
prohibiting it. And second, as Habermas explains, because tampering with
some people's origins destroys a necessary condition for establishing a
moral base for a secular society-that all people must be free from others'
interference in their intrinsic being if they are to have the capacity to take
part in the human interaction from which a shared morality arises.
8
The injustice of one generation imposing its will over another
generation (if the first generation designs its own children) would also
result in other losses that have implications far beyond those people
directly interfered with and the present time. The use of these
technologies by one generation challenges the basic human rights of
equality and freedom of future generations. And because the liberty and
equality of all citizens is at the heart of democratic societal institutions
and of the values which democratic societies promote, to create people
who are neither free nor equal undermines those institutions and values. In
6
S0REN KIERKEGAARD, EITHER/OR, PART 2 (Howard V. Hong & Edna H. Hong, eds.
& trans.) In 4 KIERKEGAARD'S WRITINGS (Howard V. Hong, ed., 1987), as cited in
Habermas, infra, note 7, at 5-11.
7
JORGEN HABERMAS, THE FUTURE OF HUMAN NATURE, 53- 66 (2003).
8 /d.
6
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short, not prohibiting 'designer children' undermines the very foundations
of our Western democratic societies.
Ill. CHILDREN'S RIGHTS AND DONOR CONCEPTION
We must explore two lines of enquiry in relation to children's rights and
donor conception: Is donor conception ethically acceptable? And, if so,
under what conditions, in particular, do children have a right to know the
identities of their gamete donors?
Is Donor Conception Ethically Acceptable?
Many people have come to see gamete donation and donor conception as
acceptable for opposite-sex couples who do not regard it as immoral. But,
as I discuss below, some donor-conceived people adamantly disagree.
Whether it should be available to same-sex couples or single women is a
much more contentious issue. It merits noting in this regard that some
sperm banks report that more than half of the women who use their
services are single.
9
It's also worth noting that the use of artificial
insemination can be reduced by prohibiting the sale of sperm or
preventing the donors from remaining anonymous. Many men would
refuse to donate if they would not be compensated or if their paternity
might become known.
The emphasis in the ethical and legal analysis of the use of ARTs,
including donor conception, has been on the rights and wishes of the
adults involved - for instance, the gamete donors or prospective
"parents". Some donor-conceived people strongly object to this approach.
They argue that the rights and well-being of children born through the use
of these technologies must be central to decision-making, which could
mean that some of these technologies should not be used at all ..
9
Jessica Yadegaran, No Mr. Right? More Women Start Families via Artificial
Insemination, CONTRA COSTA TIMES, August 16, 2010, available at
http://www. parentcentral.ca/parentlbab iespregnancy/pregnancy/article/848516--no-
rnr-right-more-women-start-families-via-artificial-insemination (accessed October 1,
2010).
7
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The impact of ARTs, including donor conception, on children born
through their use, other than that on their physical health, has been largely
ignored; it has been readily assumed that no major ethical or other
problems arise in creating children from donated gametes, and that
opposition to the creation of these children is almost entirely based on
religious beliefs. Such assumptions have been dramatically challenged in
the last few years as the people in the first cohort born through the use of
these technologies reach adulthood, become activists, and call for change.
They describe powerful feelings of loss of identity through not knowing
one or both biological parents and their wider biological families, and
describe themselves as 'genetic orphans' .
10
They ask, 'How could anyone
think they had the right to do this to me?'
It merits keeping in mind in this discussion that we are speaking of a
very large number of people who could believe they have been harmed in
these ways. Although precise numbers do not exist, it's estimated that in
the United States, alone, 30,000 to 60,000 children are born each year
through sperm donation
11
and, in 2005, about 6,000 babies were born
from ova donation.
12
It is also not irrelevant to this discussion that in
America the fertility industry brings in $3.3 billion annually.
13
A common strategy used to dismiss the arguments against donor
conception is that there is no 'proof that donor-conceived persons, either
as children or later, as adults, are harmed in any important way. Studies
carried out on young donor-conceived children, who declare themselves
perfectly happy with their parents and families, are often put forward as
evidence that no harm is caused. In contrast, donor-conceived adults'
claims of identity confusion, loss of connection to half their genetic kin,
psychological distress, and so on, tend to be dismissed as anecdotal and
irrelevant, and they are challenged to prove empirically the harm done to
them.
10
See Chad Skelton, Searc/zingfor Their Genes: Family Ties, VANCOUVER
SUN, April 22, 2006.
11
ELIZABETH MARQUARDT, NOR VAL D. GLENN & KAREN CLARK, MY
DADDY'S NAME IS DONOR 5, Institute for American Values (2010),
available at http:/ /www.familyscholars.org/assets/Donor _FINAL. pdf
12
/d., at 17.
13
/d., at.5.
8
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But that is to ask the impossible. Sociology is not hard science, and
qualitative research can indeed be a valid way to proceed. In addition, it's
very difficult to find a large random sample of donor-conceived people:
most parents never tell their children about their origins. Moreover, this
secrecy is itself likely to cause harm o many donor-conceived people, but
it is impossible to study that either.
Studies on young donor-conceived children, which purport to show
there is no harm, do not capture harms experienced only later. For
instance, in early adulthood, when we are forming a mature self-identity,
knowing our origins and biological family helps us to find that identity.
14
The ethical doctrine of anticipated consent is relevant in deciding what
we owe ethically to children brought into being through ARTs, including
donor conception. Anticipated consent requires that when a person
seriously affected by a decision cannot give consent, we must ask whether
we can reasonably anticipate they would consent if able to do so. If not,
it's unethical to proceed. So, ethically, we must listen to what donor-
conceived adults are saying about gamete donation to decide whether we
can anticipate consent to it.
They-like adopted children-tell us of their profound sense of loss of
genetic identity and connection. They wonder: Do I have siblings or
cousins? Who are they? What are they like? Are they 'like me'? What
could I learn about myself from them? These questions raise the issue of
how our blood relatives help each of us to establish our human identity.
15
Humans identify closely with their close genetic families, and it seems
that we also identify with traits in our family members that we like (we try
to develop the same traits in ourselves), and that we dislike (we vow not
to be like that-the positive power of negative identification).
16
In short,
14
See David J. Vellaman, Family History, 34 PHIL. PAPERS 357 (2005).
15
See generally T. Freeman, V. Jadva, W. Kramer & S. Golombok, Gamete
Donation: Parents' Experiences of Searching for their Child's Donor Siblings and
Donor, 1 HUMAN REPRODUCTION 1 (2009), especially at pages 7-9, where it is
reported that children were usually positively affected by meeting siblings and that
close bonding often resulted. Available at http://www.oxfordjournals.org/eshre/press-
release/freepdf/den469 .pdf (accessed September 10, 201 0).
16
David J. Vellaman, supra, note 14; ELIZABETH MARQUARDT ET AL.,
supra, note 11.
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from what many donor-conceived adults tell us we cannot anticipate
consent to anonymous gamete donation--or, indeed, to gamete donation
itself.
Two stories concerning the donation of gametes that raise additional
questions have appeared recently in the media. One related that a 'virtual'
sperm and egg bank is being established that will only accept offers to
donate from 'beautiful' people. Internet polling will determine who is
sufficiently beautiful. The goal-informed by the principle that 'everyone
deserves a beautiful child' -is to enable 'ugly' people to have beautiful
children.
17
If we tack on surrogate motherhood to this 'service', a person
could order a custom-made child and collect it nine months later.
The other story reported that New Zealand will possibly allow 'double
donation'; that is, would-be parents would be able to use both donated ova
and sperm to create embryos (a practice that is not legally prohibited,
although still fairly uncommon, in Canada). As Diane Allen of the
Infertility Network argues, this 'cannot be construed as any form of
infertility "treatment", but, rather, the deliberate manufacture of babies to
meet consumer demand'.
18
Donor conception may be a completely avoidable human tragedy in the
making, one for which we might be holding a truth and reconciliation
commission at some future date, when offspring ask, as some are already
doing, 'How could you have done this to us? How could you have
allowed this to happen?'
Is donor conception the twenty-first century version of the wrongs we
now recognize we did to some children in the twentieth century? Are we
repeating in a new context and in new ways the terrible errors and grave
injustices that occurred with Australia's 'stolen generation' of aboriginal
children, the United Kingdom's 'home children' sent to Canada and other
British Commonwealth countries, and the 'scoop' of native children from
17
Dating Site Creates Online Sperm and Egg Bank, NEWSWEEK, available at
http://www .newsweek.com/b logs/techtonic-shifts/20 1 0/06/21/dating-si te-creates-
online-sperm-and-egg-bank.html (accessed September 30, 2010). The dating site is
BeautifulPeople.com
18
Personal email communication from Diane Allen, Infertility Network, to Margaret
Somerville, June 28, 2010.
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reserves into Canadian residential schools and white adoptive homes, all
of which deliberately separated children from their biological families?
In all these instances, our intentions were, just as our intentions are at
present in regards to donor conception, to 'do good'. In donor conception,
however, we primarily intend to 'do good' to the adults who want a child,
rather than to the child; whereas in the instances of the other historical
wrongs I have mentioned, the perpetrators sometimes acted out of the
belief -although a grossly mistaken belief-that their policies were good
for the children. As an old human-rights axiom warns, an unalloyed
intention to 'do good' has its dangers: 'Nowhere are human rights more
threatened than when we act purporting to do only good' . Our desire to do
good can blind us to the risks and harms that are involved. Is that true of
gamete donation?
An argument that is used to support donor conception is that the child
would not exist otherwise and, therefore, should not complain. One young
donor-conceived woman, confronted with this argument, responded, 'If I
were the result of rape, I would still be glad to be alive, but that doesn't
mean I or anyone else should approve of rape'.
Children 's Right to Know the Identities of their Biological Parents
If, however, the practice of donor conception continues, what are our
obligations to people conceived in this way with respect to giving them
access to information about their biological origins?
It is one matter for children not to know their genetic identities as a
result of unintended circumstances. It is quite another matter to
deliberately destroy children's links to their biological parents, and
especially for society to be complicit in this destruction. It is now being
widely recognized that adopted children have the right to know who their
biological parents are whenever possible, and legislation establishing that
right has become the norm. The same right is increasingly being accorded
to children born through gamete donation. For instance, the United
11
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Kingdom has passed laws giving children conceived after April 1, 2005,
this right at 18 years of age.
19
Ethics, human rights, and international law
20
- as well as con-
siderations such as the health and well-being of adopted and donor-
conceived children-all require that children have access to information
regarding their biological parents. And it is not just these children who
have this right, but their descendants as well. Children deprived of
knowledge of their genetic identities- and their descendants- are harmed
physically and psychologically.
If donor conception continues, respect for children's rights in these
regards requires that the law prohibit anonymous sperm and ova donation,
establish a donor registry, and recognize children's rights to know the
identities of their biological parents and, thereby, their own biological
identities.
Adoption is our longest-standing experience of dealing with a situation
where children have been intentionally disconnected from their biological
parents and, often, did not know and could not find out who their
biological parents and relatives were. In the past, adoption records were
permanently sealed. We now recognize that as being harmful to the
adopted person and potentially to the birth family, and unethical. Yet
donor-conceived Canadians do not know who at least one of their
biological parents is, because donors in Canada are allowed to remain
anonymous, which is no longer the case in a growing list of countries
19
Human Fertilisation and Embryology Act, ch. 22, § 24 (2008), amending§ 31 of
the 1990 Act, by adding section 31ZA. The act provides that donor-conceived people
conceived after April 1, 2005, when they reach 16 years old, are able to apply to the
HFEA to receive the non-identifYing information that their donor provided (all
information given by the donor except for his or her name and last-known address).
Donor-conceived people conceived after April 1, 2005, when they reach 18 years old,
are able to apply to find the information their donor provided, including identifYing
information. Note that it is only non-identifying donor information that can be
provided at age 16. In order to get identifying information, donor-conceived people
have to wait until they are 18.
2
° Convention on the Rights of the Child, GAOR 44/25, annex, 44 U.N. GAOR
Supp. (No. 49) at 167, U.N. Doc. N44/49 (1989), entered into force Sept. 2, 1990,
available at http://www 1.urnn.edu/humanrts/instree/k2crc.htm
12
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(including Britain, Australia, and New Zealand, among many others
21
).
That also is unethical and, if we continue with gamete donation, it must be
changed.
Adoptive parents were once advised by 'professionals'- as the parents
of donor-conceived children have been and still often are-not to tell their
children of their origins; they were told that secrecy was best. This, too,
should be changed, not least because people excluded from a secret that
relates to them in some major way often sense that they are being
excluded. Their not knowing what the secret is creates a situation of
doubt, which can be very difficult for them to cope with psychologically.
Moreover, such secrets can damage-sometimes even destroy- family
relationships once they come to light, as most inevitably do, often in
traumatic situations (for example, divorce or death).
Adoptive parents were also told that children were a blank slate, that
they would be just fine and would not experience loss because of their
adoptive family loving them, really 'wanting them', 'going through so
much to get them', and so on. For many adopted children, even those who
deeply love their adoptive parents, this has not proven to be true, as is also
the case for some donor-conceived children. Now, prospective adoptive
parents are counselled during the home-study process to expect and accept
this sense ofloss as normal.
Birth parents were told-as gamete donors are today-that it was in
their own best interests to 'put it behind them and get on with their lives',
that their relinquished children would be just fine, that they were doing a
'wonderful, selfless' thing in helping people become parents who couldn't
otherwise do so. But this 'moving on' was not always possible for the
birth parents, as is also true for some gamete donors.
The Ethical Way Forward
I suggest that the first step in dealing, ethically, with the issues I have
identified in this section, and with other related issues, is to place the
future child, and the child's human rights and our obligations as a society
to him or her, at the centre of the decision-making as to what should be
21
MARQUARDT ET AL., supra, note 11, at 77.
13
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required, allowed, or prohibited-that is, what we must, may, or must not
do, respectively-in the use of assisted human reproduction technologies,
including gamete donation.
The child cannot tell us what he or she would consent to, but other
people conceived in these ways can. As I've explained already, we must
listen to them in order to apply the ethical doctrine of 'anticipated
consent'; that is, if we cannot reasonably assume that someone affected by
our decision, who is not present, would consent if present, it is not ethical
to proceed.
The 'precautionary principle', currently most commonly used in
environmental ethics, might also help: we should exercise wise ethical
restraint-prudence-until we are reasonably certain that it is safe and
ethical to act. And that safety goes beyond assessing only physical harm
to the future child. It also includes taking into account existential harm to
him or her, and risk and harm to our societal values and ethics.
What impact, especially on important values on which we found our
shared societal ethics, would wanting only beautiful children have on our
concept of unconditional parental love? Hitherto, we have believed we
love our children simply because they are our children. Does the selection
and purchase of gametes to conceive a child make the child into an object
or thing, rather than a person? How will the child feel knowing that a
genetic parent sold what is (as one donor-conceived woman put it) 'the
essence of my life for $25 to a total stranger, and then walked away
without a second look back? What kind of a man sells himself and his
child so cheaply and so easily?' Is there something gravely ethically
wrong with the commercialization of the miracle of the passing on of
human life? Canadians decided there was, and that leads to yet another
recent donor-conception news story.
In 2005, the Canadian Parliament enacted the Assisted Human
Reproduction Act that made it a criminal offence to buy or sell gametes or
embryos.
22
Assisted Human Reproduction Canada-the agency that was
established to oversee the implementation of this statute-has just been
challenged with allegations it is failing to fulfill its obligations by not
22
Assisted Human Reproduction Act, ch. 2, § 7 (2004).
14
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seeking prosecution of those who take part in the continuing sale of sperm
and ova in Canada.
23
IV. CHILDREN'S RIGHT TO BE REARED WITHIN THEIR OWN
BIOLOGICAL FAMILIES
The general norm or default position in Western societies has long been
that parents have obligations to care for their biological children, at least
those born into a marriage. In more recent times those obligations have
extended to all their biological children. That means that children have
correlative rights with respect to their biological parents and family
structure. As adoption law impliedly recognizes, a child has a right to be
in contact with his or her biological parents within a family structure-
that is, to be reared by their biological mother and father within their
genetic family-unless an exception is unavoidable in the 'best interests'
of a particular child. In short, adoption can be viewed as a default
position where neither the biological mother nor father is capable of
adequately parenting the child.
It might be objected that there is no magic in biological matching. It
might also be supposed that genetically controlled development and
environmentally determined development run on entirely different tracks,
so that the suitability of a couple to parent a particular child can be
determined with little reference (except perhaps in exceptional cases such
as those presented by special-needs children) to the genetic structure of
the child, and still less reference to some sort of matching between the
genetic structure of the couple and that of the child. This conclusion might
have been unchallenged orthodoxy until recently. However, scientific
research is giving us possible clues to the contrary. This research indicates
that when we mess around with Nature in the context of human
reproduction, we may have no idea of all the implications of what we are
doing. Let me briefly refer to just two examples.
23
Tom Blackwell, Third Board Member Quits Fertility Industry Watchdog,
NATIONAL POST. t-.·1ay 31 , 2010. ami/able at http://www.nationalpost.com/news/
story.html?id=3094251 #ixzz 117Fa VOxL (accessed October 1, 201 0).
15
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Research is showing that smell can indicate whether an opposite-sex
partner is more or less genetically compatible in relation to reproduction:
women who are not pregnant find the smell of men who are
'immunologically dissimilar' from them- that is, men who are likely to
have genomes different from their own- more attractive than the smell of
men with similar genomes. Genetic difference between the parents
increases the likelihood of more immunologically robust offspring?
4
Such
studies raise interesting questions about the desirability of having parents
who have selected one another the old-fashioned way, rather than
through the impersonal mechanisms of artificial insemination by donor or
ovum donation. They also raise questions about the advisability of women
who are taking oral contraceptives, which affect pheromones and the
sense of smell, selecting partners for marriage or with whom to reproduce.
And a breakthrough in a new field of scientific research called
'epigenetics',
25
which investigates the interaction of genes and environ-
ment, breaches the barrier between environment and genetics by revealing
24
Suma Jacob, Martha K. McClintock, Bethanne Zelano & Carole Ober, Paternally
Inherited HLA Alleles Are Associated with Women's Choice of Male Odor, 30
NATURE GENETICS 175 (2002); Karl Grammer, Bernhard Fink & Nick Neave,
Human Pheromones and Sex:ual Attraction, 118 EUR. J. OBSTETRICS & GYNECOLOGY
& REPRODUCTIVE BIOLOGY 135 (2005).
15
'Epigenetics refers to functionally relevant modifications to the genome that do not
involve a change in nucleotide sequence. Such modifications include chemical marks
that regulate the transcription of the genome. There is now evidence that
environmental events can directly modify the epigenetic state of the genome. Thus
studies with rodent models suggest that during both early development and in adult
life, environmental signals can activate intracellular pathways that directly remodel
the 'epigenome', leading to changes in gene expression and neural function. These
studies define a biological basis for the interplay between environmental signals and
the genome in the regulation of individual differences in behavior, cognition, and
physiology'. Tie-Yuan Zhang & Michael J. Meaney, Epigenetics and the
Environmental Regulation of the Genome and Its Function, 61 ANN. REv. PSYCH.
439 (2010), available at http://www.annualreviews.org/doi/abs/10.1146/
annurev.psych.60.11 0707.163625?url_ ver=Z39.88-2003&rfr _ dat=cr_pub%
3Dncbi.nlm. nih.gov&rfr_ id=ori%3Arid%3Acrossref.org&jouma1Code=psych
(accessed September 12, 2010).
16
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that some genes are imprinted-'activated' - by parenting practices
26
and
other environmental factors (and that epigenetic changes can be a passed
on to future generations, including through the behaviour of the parents).
It may emerge, therefore, that the optimal parenting practices for a
child depend in part on that child's genetic inheritance-the child's
genome or DNA/RNA-and its amenability to activation by one or
another set of parenting practices. Good parenting for one child might be
mediocre parenting or worse for another depending on their genomes. A
further insight that might emerge is that parenting practices themselves
are in part a product of genetics and epigenetics, and that biological
parents may be more likely to be matched by nature in such a way as to
lead their parenting behavior to be optimal for their own biological
offspring. Confirmation of these possible outcomes must await further
research.
27
I hasten to add that in articulating these possibilities I am not
endorsing 'genetic reductionism', the claim that we humans are nothing
more than the functioning of our genes or 'gene machines'.
This new knowledge also gives rise to questions about criteria for
adoption. It raises the question whether there should be a presumption,
subject to an exception, where an exception would be in the 'best
interests' of a particular child, that children should be adopted by couples
comprised of a man and a woman.
26
Ian C. G. Weaver, Nadia Cervoni, Fances A. Champagne, Ana C.
D' Alessio, Shakti Sharma, Jonathan R. Secki, Sergiy Dymov, Moshe Szyf,
& Michael J. Meaney, Epigenetic Programming by Maternal Behavior. 7
NATURE NEUROSCIENCE 847 (2004), available at
http://www .nature.com/neuro/joumal!v7 /n8/full/nn 127 6.html (accessed
September 11, 2010). The extensive debate which has ensued from this
well-known study is reviewed in Lizzie Buchen, Neuroscience: In their
nurture, 467 NATURE 146 (20 10), available at http://www.nature.com/news/
2010/100908/full/467146a.html?s=news_rss&utm_source=feedbumer&utm
_ medium=feed&utm _ campaign=Feed%3A +news%2Frss%2Fmost_recent+(
NatureNews+-+Most+recent+articles)#B3 (accessed September 11, 2010).
27
I am indebted to Professor Scott FitzGibbon for suggesting the arguments related
to epigenetics presented here.
17
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V. CHILDREN'S RIGHT TO BOTH A MOTHER AND A FATHER
And that enquiry brings us to the issue of same-sex marriage, which has
been legalized in Canada
28
and some other countries. Under both article
16 of the U.N.'s Universal Declaration of Human Rights
29
and domestic
law, marriage is a compound right: the right to marry and to found a
family.
Giving same-sex couples the right to found a family unlinks
parenthood from biology. In doing so, it unavoidably takes away all
children's right-not just those brought into same-sex marriages-to both
a mother and a father and their right to know and be reared within their
own biological family. It does so because marriage can no longer establish
as the norm the natural, inherently procreative relationship between a man
and a woman and the rights of children that flow from that norm: in
particular, the right of children to both a mother and a father who are their
own biological parents, unless an exception is justified as in the 'best
interests' of a particular child, as in adoption.
The primary rule becomes that a child's parents are who the law says
they are, and they may or may not be the child's biological parents.
30
That
is, the exception to biological parenthood, which used to be allowed
through adoption law, becomes the norm. In other words, same-sex
marriage radically changes the primary basis of parenthood from natural
28
Civil Marriage Act, R.S.C. 2005, ch.33.
29
Universal Declaration of Human Rights, GAOR 217A (III), U.N. Doc. N810
(1948), adopted December 10, 1948, available in the University of Minnesota Human
Rights Library: http:// wwwl.umn.edu/ humanrts/instreelbludhr.htm (accessed
September 11, 2010). Article 16(1) provides: 'Men and women of full age, without
any limitation due to race, nationality or religion, have the right to marry and to
found a family'.
30
See the very recent British Columbia White Paper on Family Act Reform,
available at http://www.ag.gov.bc.ca/legislation/pdf/Family-Law-White-Paper.pdf
See also Todd Coyne, New BC family law could legalize having three parents,
VANCOUVER SUN, July 19, 2010, available at http://www. vancouversun.com/life/
family+could+legalize+having+three+parents/3297731/story.html
18
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or biological parenthood to legal (and social) parenthood as the Canadian
Civil Marriage Act expressly legislates.
31
That change has major impact
on the societal norms, symbols, and values associated with parenthood.
The same issue of children's right to both a mother and a father is
raised by society's involvement in intentionally creating single-parent
households, for example, by funding single women's access to artificial
insemination, which has been discussed above.
Same-sex marriage advocates argue that children don't need both a
mother and a father, and 'genderless parenting' is just as good as, or even
better than, opposite-sex parenting, because in the case of same-sex
couples, all children are wanted children. Research is showing, however,
that men and women parent differently
2
and, as I've already explained,
other research in epigenetics shows that certain genes in young mammals
are activated by parental behaviour. Science may well show us that
complementarity in parenting (having both a mother and a father) does
matter for children's well-being in ways we have not previously
understood. In short, mothers and fathers parent differently and, therefore,
it would seem, confer different benefits on the child.
Two further considerations also need to be taken into account. They
both rest on one prominent school of child-development thought which
emphasizes that children develop through a process of 'modelling' .
33
31
Civil Marriage Act, supra, n. 38, Consequential Amendments§§ 5-15. For
example, the amendment to the Income Tax Act states: 'The amendments to sections
56.1 and 60.1 of the Act replace the existing term 'natural parent' with the term
'legal parent' to ensure that support amounts paid under a court order or written
agreement involving both opposite-sex and same-sex couples and their children will
be recognized equally in federal law' (emphasis added).
32
See, for example, Gordon et al., Oxytocin and the Development of
Parenting in Humans, 68 BIOLOGICAL PSYCHIATRY 377 (2010), in which the
author identifies disparate parenting conduct, which is a function of
oxytocins
33
Gareth B. Matthews, Concept Formation and Moral Development. In
PHILOSOPHICAL PERSPECTIVES ON DEVELOPMENTAL PSYCHOLOGY 175, at 185
(James Russell ed., 1987) ( 'A young child is able to latch onto the moral kind,
bravery, or lying, by grasping central paradigms of that kind .... Moral development
is ... something much more complicated than simple concept displacement. It is:
enlarging the stock of paradigms ... developing better and better definitions of
19
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The first consideration is that a boy needs an adult male parent on
whom to model himself and a girl an adult female parent; a same-sex
couple will, therefore, fall short with either the male or the female
children. The second consideration looks to the relationship between the
parents: children benefit when they can model their own relationships
with the opposite sex, in later life, on the relationship conducted by their
34
parents.
One argument against same-sex marriage raised in the Canadian court
cases was that same-sex couples could not found a family naturally and,
therefore, marriage was not an appropriate way to publicly recognize their
committed relationship. The Court of Appeal of Ontario
35
responded,
however, that these couples could use reproductive technologies to found
a family. The common thread between same-sex marriage and repro-
ductive technologies is that both disconnect procreation from sexual
intimacy between two humans: same-sex marriage involves sexual
intimacy with no possibility of procreation; reproductive technologies
involve procreation with no sexual intimacy.
The debate on legalizing same-sex marriage in Canada focused almost
entirely on adults and their right not to be discriminated against on the
basis of their sexual orientation. The conflicting claims, rights, and needs
of children were barely mentioned. It's worth noting that legally
recognizing civil unions, unlike the recognition of same-sex marriage,
whatever it is that these paradigms exemplify; appreciating better the relation
between straightforward instances of the kind and close relatives; and learning to
adjudicate competing claims from different moral kinds ... '. ). See also Lawrence J.
Walker, Karl H. Hennig & Tobias Krettenauer, Parent and Peer Contexts for
Children's Moral Reasoning Development, 71 CHILD DEV. 1033, 1047 (2000)
(reporting that both parents and peers 'have a role to play'). See generally A.
Bandura, Social Cognitive Theory: An Agentic Perspective, 52 ANN. REV. PSYCHOL.
1 (2001).
34
Scott FitzGibbon, Procreative Justice and the Recognition of Marriage. In FAMILY
LAW IN THE 21ST CENTURY, pp.1 006 (M. Obi & K. Niijima, eds., 2007), available at
http://lawdigitalcommons.bc.edu/lsfp/208; Scott FitzGibbon, The Principles of
Justice in Procreative Affiliations, in WHAT'S THE HARM? DOES LEGALIZING SAME-
SEX MARRIAGE REALLY HARM INDIVIDUALS, F AM ILlES OR SOCIETY? pp. 125-54
(Lynn Wardle, ed., 2008).
35
Halpern v. Canada (Attorney General), 225 D.L.R. (4th) 529 (2003).
20
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does not negate children's right to both a mother and a father, because it
does not include the right to found a family. For that reason, I believe it
represents the most ethical compromise between respect for the rights of
homosexual people not to be discriminated against and the rights of
children with respect to their biological families.
VI. CONCLUSION
All these rights of children are of the same basic ethical nature-
obligations of non-malfeasance, that is, obligations to first do no harm.
Consequently, as a society, we have obligations to ensure respect for these
rights of children. It is one matter, ethically, not to interfere with people's
rights of privacy and self-determination, especially in an area as intimate
and personal as reproduction. It is quite another matter for society to
become complicit in intentionally depriving children of their right to
know and have contact with their biological parents and wider family, or
their right to be born from natural biological origins. When society
approves or funds procedures that breach these rights of children and,
arguably, when it fails to protect such rights of children-for instance, by
failing to enact protective legislation-society becomes complicit in the
breaches of rights that ensue.
Those obligations extend also to future generations. We should clearly
recognize that any genetic procedure that will tum out to be harmful to the
future child or to a future generation, or contrary to their interests, is
morally unacceptable and should be prohibited.
Knowing who our close biological relatives are and relating to them is
central to how we form our human identities, relate to others and the
world, and find meaning in life.
Children-and their descendants- who don't know their genetic
origins cannot sense themselves as embedded in a web of people, past,
present, and 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 who experience genetic relationships as integral to their
sense of themselves. We are learning now that eliminating that experience
is harmful to children, biological parents, families, and society. We can
only imagine how much more damage might be done to a child born not
21
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from the union of a man's natural sperm and a woman's natural ovum, but
from 'gametes' constructed through biotechnology.
To summarize, at the very least, children's human rights with respect
to their biological origins are:
(1) for the child's origins to be natural and untampered-with;
(2) for the child to know the identity of the progenitors of those
origins; and
(3) unless the contrary is unavoidable in the 'best interests' of a
particular child, for the child to be in contact with those progenitors within
a family structure-that is, to be reared by their biological mother and
father within their genetic family.
. . . "Children's Human Rights to Natural Biological Origins and
Family Structure", HeinOnline IJJF library 2011,
http:/ /heinonline.org/HOL/Page?handle=hein.joumals/ijjfl &id= 1 &collect
ion=joumals; (2011) 1 International Journal of the Jurisprudence of the
Family, 35-54.
22
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Liberal Cautions on Same-Sex Marriage 179
a city. This factionalism could be eliminated, he believed, if the city required
elite men to have offspring with women who were held in common, then hav-
ing state nurses raise the infants with neither parents nor children knowing
their biological ties with one another. In such a state, Plato believed that
everyone would "apply the terms 'mine' and 'not mine' in the same way to
the same thing" --especially to children, thereby undercutting the divisive
f
· 1A
consequences o nepotism.
Aristotle, however, believed that Plato was wrong. In developing his case,
we see Aristotle's theory of kin altruism amplified even more fully. He wrote,
Whereas in a state having women and children in common, love will be
watery; and the father will certainly not say "my son," or the son "my
father." As a little sweet wine mingled with a great deal of water is impercep-
tible in the mixture, so, in this sort of community, the idea of relationship
which is based upon these names will be lost; there is no reason why the
so-called father should care about the son, or the son about the father, or
brothers about one another. Of the two qualities which chiefly inspire regard
and affection-that a thing is your own and that it is your only one--neither
can exist in such a state as this.
19
Aristotle believed that such a society would water down and undermine
parental recognition and investment. Furthermore, he believed it would
unleash violence because people will no longer "be afraid of committing
any crimes by reason of consanguinity."
20
The great Roman Catholic theologian Thomas Aquinas synthesized Aristo-
tle's insights on kin altruism with the theology of creation from Judaism and
Christianity. He developed a double language on marriage that was simulta-
neously philosophical and religious, secular and sacred, naturalistic and sac-
ramental. It constituted the core ideas supporting one of the most powerful
theories of the relation of family to the state that is available, i.e., subsidiarity
theory as it functions in Roman Catholic social teachings and the secular fam-
ily law of several modern nations, most notably Germany.
Aquinas called marriage in its primordial form an "office of nature." It was
a matter of natural reason and natural law that both children and adults flour-
ish better if supported by the power of marriage to integrate procreation, the
socialization of children, love and commitment, and the regulation of sexual
desire.
21
At this level marriage could be illuminated by the natural law, espe-
cially that aspect of it that identifies those natural inclinations that are further
guided by interventions of "the free will" and "acts of virtue."
22
But marriage
for Aquinas also was revealed in scripture, specifically the Genesis account
of creation. In the "Supplement" to the Summa Theologica, he quotes
~ a t t h e w 29:4, "Have ye not read that He Who made man from the beginning
lllade them male and female,'" a verse which itself refers back to Genesis 1:27.
Nearby he refers to Genesis 2:21 and claims that from the foundations of Cre-
ation and before the emergence of sin among humans, God //fashioned a help-
mate for man out of his rib."
23
This implies what the full Genesis passage
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Liberal Cautions on Same-Sex Marriage 185
lo
ok and deny the injustice forced on these children. They are required
to over
d
. ··de their time and affections between two homes or to lose contact with
to t\1 . f h h . .
. mother or father, too often m the name o t e appmess of the1r parents.
thetr h f h h · · f d"
hile some divorces are necessary, t e act t at t e maJonty o tvorces end
W -conflict marriages reinforces this question as one of social justice.
as no-fault divorce in with no regard for the
hildren's needs, the Goodndge deCISIOn that legahzed same-sex marriage
Massachusetts brushes aside the now-large body of social-science data that
dicate that children raised by their married biological do better, on
U:erage, than those raised by single parents or stepparents."
1
Although data
a ets are not sufficiently large to demonstrate anything definitive about the
:trengths or weaknesses of same-sex couples for child-rearing, our society's
experience with other alternative forms that these families
will not, on average, be able to reduphcate the mvestments and consolida-
tions of marriage built on the energies of kin altruism, the consolidation of
which has been in the past the primary goal of marriage.
52
To disregard the
needs of children, the traditions that have understood these needs, and con-
temporary social-science evidence offends natural justice. That is, this whole-
sale dismissal offends both what is fair and what contributes to human
flourishing by meeting the unique needs of the individuals in question. If
our earlier summary of the disconnections introduced by modernizations into
the field of generativity is correct, the legalization of same-sex marriage
would not be just one more example of the drift, but the culmination that
finally shifts the institutional logic of marriage and further marginalizes chil-
dren from its basic meaning.
Third, the legalization of same-sex marriage is not only unjust to children, it
is unjust to a wide range of other human arrangements that attempt to meet
the dependency needs of the vulnerable, including those who are old, ill, or
disabled. The feminist legal scholar Martha Fineman has observed that
same-sex marriage extends the protections of marriage to one type of sexual
family while excluding nonsexual arrangements organized around the care
of dependents. These examples include single parents with children, brother
caring for ailing brother, daughter taking care of aging mother, friend caring
for dying neighbor, and more.
53
She believes that the forces of modernity have
so radically transformed society that the "sexual family"-whether married
or unmarried, gay or straight-should in the name of justice be delegalized.s
4
The benefits traditionally associated with marriage should now be distributed
actual caregivers and their dependents. Although Fineman has no preju-
dtce against homosexual couples, it is real and grave dependency that she
wants to draw attention to and protect. She does not believe that the robust
benefits that once went to marriage should go to the many able-bodied
heterosexual and homosexual couples who are healthy, employed, and have
few actual dependency needs. She thinks the new, thin, affectionate-sexual
relationships at the heart of the legal norms intended by Goodridge and
Rauch should be protected, at best, by privately drawn legal contracts-not
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10 Marriage
12. Daniel Cere, Redefining Marriage and Family: Trends in North American Juris-
·udence 24 (Family Law Project, Harvard University 2003).
13. This position is often associated with the organizations called Focus on the
nnily and Promise Keepers. See James Dobson, Dr. Dobson Answers Your Ques-
JilS about Marriage and Sexuality iii, 65-71 (Tyndale House Publishers 1974); James
obson and Gary Bauer, Children at Risk 156 (Word Publishing 1990); Tony Evans,
Man and His Integrity, Se-ven Promises <:fa Promise Keeper 73 (Focus on the Family
ublishing 1994).
14. Martha Fineman, The Illusion of Equality (The University of Chicago Press
:191); Martha Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth
entury Tragedies (Routledge 1994).
15. Jonathan Rauch, Gay Marriage: Why It is Good for Gays, Good for Straights, and
:ood for America (Henry Holt and Company, 2004).
16. Martin Daly and Margo Wilson, The Euolutionary Psychology of Marriage and
>ivorce, The Ties that Bind 91-110 (Aldine De Gruyter 2000).
17. Aristotle, Politics, in The Basic Words of Aristotle Bk. I, ii (Random House
941).
18. Plato, The Republic (New York: Basic Books, 1968).
19. Aristotle, supra n. 17, at Bk. I, ii.
20. Id.
21. Thomas Aquinas, Supplement, Summa Theologica III Q. 41, A. 1 (T. and
·. Washbourne 1917).
22. ld.
23. ld. at Q. 42, A 3.
24. For a discussion of how metaphors of characterizing the ultimate context of
xperience unwittingly pervade the social sciences, see Don Browning, Religious
7wught and the Modern Psychologies (Fortress Press 1987, 2004).
25. Aquinas, supra n. 21 at Q. 41, A. 1.
26. ld.
27. Id.
28. For a summary of these four conditions as they can be found in the litera-
ure of evolutionary psychology, see Don Browning et al., From Culture Wars to
Ground: Religion and the American Family Debate 111-114 (Westminster
ohn Knox 1997, 2000). See also Don Browning, Marriage and Modernization: How
;Jobalization Threatens Marriage and What to Do about It 109-111 (Wm. B. Eerdmans

29. Aquinas, Supplement, Summa Theologica, Ill, at 41.
30. Aquinas, Summa Theologica, II-II, at Q. 10, A. 12.
31. Rerum Novarum, in Proclaiming Justice and Peace: Papal Documents from
<.erum Novarum through Centisimus Amws, at para. 11 and 12 (Michael Walsh &
kian Davies eds., Twenty-Third Publications); Pius XI, Casti Connubii (The Barry
lail Corporation 1931); and Pius XI, Quadragesimo Anno, The Papal Encyclicals
McGrath 1981 ).
32. Mary Midgley, Beast and Man (Cornell University Press 1978).
33. Jean Porter, Natural and Divine Law (Saint Paul University Press 1999).
T
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9
(How} Does Marriage
Protect Child Well-Being?
Maggie Gallagher
M
ARJUAGE IS A UNIVERSAL HUMAN INSTITUTI ON. Virtually ev-
ery known human society has some form of marriage.
1
While
the norms of marriage in different cultures vary considerably,
marriage always has something to do with creating a public (not pri-
vate) sexual union between a man and woman so that socially-valued
children have both a mother and a father, and so that society has the
next generation it needs.
As Margo Wilson and Martin Daly put it recendy: "Marriage is
a universal social institution, albeit with myriad variations in social
and cultural details. A review of the cross-culrural diversity in marital
arrangements reveals certain common themes: some degree of mutual
obligation between husband and wife, a right of sexual access (often
but not necessarily exclusive), and expectation that the relationships
will persist (although not necessarily for a lifetime), some cooperative
investment in offspring, and some sort of recognition of the status of
the couples' children. The marital alliance is fundamentally a reproduc-
tive alliance. "
2
Why does the marriage idea arise again and again in widely varying
societies? Here is the most likely reason: because sexual relationships
I97
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MAGGIE GALLAGHER
between men and women create children. Every society must find some
way to regulate these relationships, to channel some portion of the
erotic energies of men and women attracted to the opposite sex into
the kind of sexual union where (a) childbearing is acceptable because
(b) children and society's interests are protected. Does marriage con-
tinue to play an important role in protecting children in the modern
context and if so how?
This paper does not attempt to explain whether and how same-sex
marriage will reduce child well-being or injure marriage.
3
My goal is
more modest: it is to (1) review the social science evidence on whether
married mothers and fathers are important to child well-being; (2)
review the claim that the social science literature on gay parenting
contradicts the claim that children do best when raised by their own
married mother and fathers; and (3) draw some inferences from this
evidence about how and when marriage protects child well-being, based
on current social science evidence.
I. DOES MARRIAGE PROTECT CHILD WELL-BEING?
Do mothers and fathers matter for kids or in the contemporary context
are all kinds of family forms equally protective of child well-being?
In the last thirty years, thousands of studies evaluating the conse-
quences of marriage for children and society have been conducted in
various disciplines (psychology, sociology, economics, and medicine). In
virtually every way that social scientists know how to measure, children
do better, on average, when their parents get and stay married (provided
those marriages are not high-conflict or violent). By contrast, every
major social pathology that can trouble an American child happens
more often when his or her parents are not joined by marriage: more
poverty, dependency, child abuse, domestic violence, substance abuse,
suicide, depression, mental illness, infant mortality, physical illness,
education failure, high school dropouts, sexually transmitted diseases,
and early unwed childbearing, and later on, divorce.
4
Twelve leading family scholars recently summarized the vast re-
search literature this way: "Marriage is an important social good associ- ..
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(How) Does Marriage Protect Child We/1-Beingr I99
ated with an impressively broad array of positive outcomes for children
and adults alike. "
5
Among their conclusions:
• Marriage increases the likelihood that children enjoy warm, close
relationships with parents.
• Cohabitation is not the functional equivalent of marriage.
• Children raised outside of intact married homes are more likely to
divorce or become unwed parents themselves.
• Marriage reduces child poverty.
• Divorce increases the risk of school failure for children, and reduces
rhe likelihood that they will graduate from college and achieve high
starus jobs.
• Children in intact married homes are healthier, on average, than
children in other family forms.
• Babies born to married parents have sharply lower rates of infant
mortality.
• Children from intact married homes have lower rates of substance
abuse.
• Divorce increases rates of mental illness and distress in children,
including the risk of suicide.
• Boys and young men from intact married homes are less likely to
commit crimes.
• Married women are less likely to experience domestic violence than
cohabiting and dating women.
• Children raised outside of intact marriages are more likely to be
victims of both sexual and physical child abuse.
They conclude, "Marriage is more than a private emotional relation-
ship. It is also a social good. Not every person can or should marry. And
not every child raised outside of marriage is damaged as a result. But
communities where good-enough marriages are common have better
outcomes for children, women, and men than do communities suffering
from high rates of divorce, unmarried childbearing, and high-conflict
or violent marriages. "
6
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200 MAGGIE GALLAGHER
Recent analyses by mainstream child research organizations con-
firm this emerging scholarly consensus that family structure matters.
For example:
• A Child Trends research brief summed up the scholarly consensus
thus: "Research clearly demonstrates that family structure matters
for children, and the family structure that helps the most is a fam-
ily headed by two biological parents in a low-conflict marriage.
Children in single-parent families, children born to unmarried
mothers, and children in stepfamilies or cohabiting relationships
face higher risks of poor outcomes .... There is thus value for
children in promoting strong, stable marriages between biological
parents."
7
• A Center for Law and Social Policy Brief concludes, "Research
indicates that, on average, children who grow up in families with
both their biological parents in a low-conflict marriage are better
off in a number of ways than children who grow up in single-, step-,
or cohabiting-parent households."
8
While scholars continue to disagree about the size of the marital
advantage and the mechanisms by which it is conferred/ the weight of
social science evidence strongly supports the idea that family structure
matters and that the family structure that is most protective of child
well-being is the intact, biological, married family.
II. THE SOCIAL SCIENCE OF GAY PARENTING
Most of the preceding research on family structure, however, does not
directly compare children in intact married homes with children raised
from birth by same-sex couples. Thus the powerful new social science
consensus on family structure is on a collision course with a separate
emerging consensus from a related field: the social science literature
on sexual orientation and parenting.
Judith Stacey summed up this new challenge to the social science
consensus on family structure in testimony before the U.S. Senate:
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{How) Does Marriage Protect Child Well-Being? 201
"The research shows that what places children at risk is not fatherless-
ness, but the absence of economic and social resources that a qualified
second parent can provide, whether male or female .... Moreover, the
research on children raised by lesbian and gay parents demonstrates
that these children do as well if not better than children raised by het-
erosexual parents. Specifically, the research demonstrates that children
of same-sex couples are as emotionally healthy and socially adjusted
and at least as educationally and socially successful as children raised
by heterosexual parents."
10
Other researchers, including at least two prominent professional
associations, have made similar claims.
11
Advocates for same-sex mar-
riage often rely on these studies to assert that scientific evidence shows
that married mothers and fathers hold no advantages for children. As
Mary Bonauto, counsel for the plaintiffs in the Massachusetts mar-
riage litigation, wrote in the Summer 2003 edition of Human Rights,
"[C]hild-rearing experts in the American Academy of Pediatrics, the
American Psychiatric Association, and the American Psychological
Association insist that the love and commitment of two parents is most
critical for children-not the parents' sex or sexual orientation."
12
Similarly Evan Wolfson, head of Freedom to Marry, asserted re-
cently, "[T]here is no evidence to support the offensive proposition
that only one size of family must fit all. Most studies-including the
ones that [Maggie] Gallagher relies on-reflect the common sense that
what counts is not the family structure, but the quality of dedication,
commitment, self-sacrifice, and love in the household."
13
For many people the question of how children fare when raised by
same-sex couples is at the heart of the gay marriage debate. My own
views on how same-sex marriage will hurt marriage as a social institu-
tion have been developed elsewhere.
14
I take up here the social science
evidence on gay parenting for a different (if related) purpose.
Several decades of public and scholarly debate has established a
broad consensus on the importance of married mothers and fathers
for child well-being. There is only one outstanding scholarly body of
evidence challenging this hard-won consensus that the intact, married
family consisting of a mother and father is the "ideal" family form for
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(How) Does Marriage Protect Child Well-Being? 203
• Few long-term studies. Most of the studies conducted to date focus
on static or short-term measures of child development. Few or none
follow children of unisex parents to adulthood.
But perhaps the most serious methodological critique of these studies,
at least with reference to the family structure debate, is this:
• The vast majority of these studies compare single lesbian mothers to
single heterosexual mothers. As sociologist Charlotte Patterson, a
leading researcher on gay and lesbian parenting, summed up as of
zooo, "[M]ost studies have compared children in divorced lesbian
mother- headed families with children in divorced heterosexual
mother-headed families."
19
Moreover, even within this literature, some research finds that al-
though sexual orientation "per se, is not associated with negative out-
comes, father absence is. For example, Golombok, Tasker, and Murray
(1997)2° compared a snowball sample of thirty children with lesbian
moms to forty-one children living with opposite-sex couples and forty-
two single heterosexual single mother families. Families experiencing
economic hardship were excluded. Lesbian families had significantly
higher social class: 28 percent of heterosexual families were in manual
labor compared to 3 percent of lesbian families. Nonetheless, "Children
in father-absent families perceived themselves to be less cognitively
competent and less physically competent than children in father-pres-
ent families, with no differences between children in lesbian and single
heterosexual families."
21
Most of the gay parenting literature thus compares children in some
fatherless families to children in other fatherless family forms. The
results may be relevant for some legal policy debates (such as custody
disputes) but are not designed to shed light on family structure per se,
and cannot credibly be used to contradict the current weight of social
science: family structure matters, and the family structure that is most
protective of child well-being is the intact, married biological family.
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(How) Does Marriage Protect Child Well-Being? 205
For the most part, the legal duties and obligations of parents have
been severed from marital status (in part by the Supreme Court deci-
sions abolishing"legitimacy" as a legal category).
28
In theory, unmarried
fathers have exactly the same legal support obligatio.ns to their children
as married fathers, as well as the same rights to care and custody of
their children. Moreover, marriage as a legal institution is more likely
to give rise to financial penalties for spouses than financial benefits,
primarily through tax and welfare policies.
29
So a realistic appraisal of how marriage matters to children's welfare
divides into two key questions: (1) How does the existence of marriage
as a legal and social institution increase the likelihood a child will be
raised by his own mother and father? (z) How and why are children
better off if their biological parents marry rather than cohabit?
Let me suggest two main mechanisms: First, marriage as a legal and
social institution substantially reduces the likelihood that children will
be conceived in a home without a committed father. Marriage produces
important "selection" effects in terms of who becomes a parent, at what
time oflife, and with what partner. Second, marriage may increase the
likelihood that a particular child's parents will stay together in one
family unit rather than separate.
Increasing the likelihood of committed fathers
Almost every child conceived and born to a married couple will begin
life with both her mother and her father already committed to caring
for her and raising her together. The majoriry of children born outside
of marriage do not begin life with this advantage.
30
Moreover, as time
passes, the majority of children raised outside of intact marriages do
not have a close, warm relationship with their father.
31
Moreover, for young men and women attracted to the opposite sex,
avoiding an out of wedlock pregnancy or birth is difficult. Regardless
of what we think of the options morally speaking, the logical possibili-
ties single men and women face are: sterilization, surgical abortion,
ruthlessly contraception,
32
confining sexual relationships to engaged
partnerships or other romantic partners who will probably marry in
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(How) Does Marriage Protect Child Well-Being? 207
Marriage as a legal, shared, public norm helps reduce the likeli-
hood that children are born to fathers who are not committed to them
or to their mother. The pledge of sexual fiddity in marriage has an
important side benefit for children. It reduces the likelihood that the
emotional, psychological, spirirual, and financial resources of fathers
will be subdivided across many mothers and households, making effec-
tive fatherhood difficult if not impossible.
Conscientious social scientists invest considerable effort in try-
ing to control for "selection effects" in evaluating the consequences of
marriage. This is necessary and appropriate to answer the question:
Would the children of this particular couple be better off if we could
persuade that couple to marry? But as important as that question may
be, focusing on it exclusively may obscure rather than reveal the prime
mechanism through which a marriage culture protects children.
For marriage, as a social institution, is designed to create huge
selection effects in who has children with whom. A marriage culture
asks young people to consider with what kind of person they wish to
have children. The kind of qualities that make for an enduring mate,
someone that you are likely to want to keep around for the rest of your
life, are likely to be quite different from the kind of qualities that are
sufficiently attractive for less enduring relationships. The kind of man
who is "good enough" for a Sarurday night date, or even for a cohabiting
relationship, is often very different from the kind of man one envisions
as a life-long mate.
The long-term horizons of marriage help focus attention of young
people on the kind of qualities that make for a good mother or father:
dependable, responsible, reliable, committed; marriage as a social and
legal instirution allows men and women to signal to one another when
that person has arrived on the scene. 3
4
Keeping parents together
Marriage reduces the likelihood that parents will part. Even biological
cohabiting parents are more likely to separate than married parents.
35
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{How) Does Marriage Protect Child Well-Being? 209
children (at least of all the family structures that have been well-srud-
ied), but it does not tell us as clearly why or how.
Many of the features that make marriage better for children might
be expected to apply to remarried families or cohabiting and same-sex
families as well. Two adults in the home means twice the manpower
available for parenting tasks: two potential breadwinners, and two po-
tential nurturers, educators and discipliners as well. Economies of scale
mean that two adults providing for children can live more cheaply (and
thus have more money available to the family) than rwo parents or
partners who maintain separate households. The decline in commit-
ment to sex roles and sex role ideology suggests to many Americans
that two fathers or two mothers can do all the things that a mother
and father might do in raising children together.
What then is it about married mothers and fathers raising children
together that matters? From the social science evidence on this ques-
tion, two great possibilities suggest themselves: gender and genes.
Marriage brings together the two sexes, male and female, in the
only kind of sexual union that can give children their own mother and
father in a single family. In general, outside of intact marriages, rela-
tively few children have committed and dependable fathers.
How does gender matter?
One theory of how and why marriage matters, is that fathers and moth-
ers parent differently, in ways that complement one another and boost
child well-being. There is evidence that mothers' and fathers' parenting
styles differ in reasonably systematic ways, although the evidence of
the causal relationship of such differences to child well-being is not as
well-established.
39
But a "task-oriented" vision of how fathers matter to their children
may be missing a deeper point. Men and women do differ and tend at
least to parent somewhat differently; when men and women are parents
together, these differences may become even more apparent as each
person "specialius" in the aspects of parenting most congenial.
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