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Children’s human rights and unlinking child–parent biological bonds with adoption, same-sex marriage and new reproductive technologies

Abstract The link between same-sex marriage, adoption and new reproductive technologies (NRTs) is that all of them unlink the child–parent biological bond. This article explores some of the implications of that unlinking for children’s human rights. Two unprecedented developments – that of new reproductive technologies and the legalization of same-sex marriage in some jurisdictions – especially in combination, pose unprecedented challenges to children’s fundamental human rights with respect to their biological origins (their very coming into being); their rights to knowledge of these origins; their rights to be reared within their immediate and wider biological families; and their rights to a parent of each sex. Yet, in Canada, including in the courts and Parliament, almost all of the public debate that resulted in the legalization of same-sex marriage failed to consider its impact on children’s human rights. Marriage is a compound right: the right to marry and to found a family. That means marriage functions at the societal level to establish and institutionalize not only one adult’s relationship to another adult, but also those adults’ relationship to the children born to them. Over millennia marriage has institutionalized natural parenthood and the mutual rights and duties with respect to parents and children that flow from that. Same-sex marriage changes the nature of marriage and, in doing so, the nature of parenthood and, with that, children’s rights. Giving same-sex couples the right to found a family, as same-sex marriage automatically does, unlinks parenthood from biology. In other words, it radically changes the primary basis of parenthood from natural or biological parenthood to legal (and social) parenthood. Same-sex marriage breaks, at the institutional level, the automatic link between biological and legal parenthood established by traditional marriage. That has major impact on the societal norms, symbols and values associated with parenthood. The nature and extent of the resulting change might not be readily apparent at first glance, because some impacts will be more distant, less direct and outside the immediate context of same-sex marriage. I propose that the most fundamental human right of every person is the right to be born from natural human origins that have not been tampered with by anyone else. Children’s human rights also include the right to know their biological parents and, if at all possible, to be reared by them within their immediate and wider biological family. If marriage involved only adults there is no good reason to oppose same-sex marriage. But, for the sake of children, I propose that marriage should remain the union of one man and one woman. If, however, same-sex marriage is legalized, we must specifically enact legislation setting out children’s human rights with respect to their biological origins and families.