Another day, another threat to Western civilisation. Maggie Gallagher believes same-sex marriage is wrong because marriage should be about procreation, and same-sex couples can’t procreate. John Howard believes same-sex marriage is wrong because same-sex couples will soon be able to procreate. Both arguments depend on conservative delusions about marriage and a narrow vision of what it means to be human.
Scientific developments and the same-sex marriage debate
Reading Maggie Gallagher’s pathetic attempt to state her case against same-sex marriage over at The Volokh Conspiracy, I came across the following intriguing comment from John H[oward]:
Don’t be fools, do not avoid the issue of same-sex procreation technology. It is real and it isn’t going away.
You are deceitful bastards, aren’t you? You know you want SSP to arrive, but you refuse to list it on any of your bullet points as an equal right that same-sex couples must have access to. You just hope no one notices.
Prove that you are capable of arguing for SSP if you want SSP. Don’t try to sneak it past us. Don’t hide your demand. If you insist on it, put it at the tope [sic] of your list of things you demand, and let us discuss it.
If you don’t insist on it, then accept Civil Unions that don’t grant procreation rights.
Turns out Howard has a website and a blog ‘dedicated to enacting the proposal by the President’s Council on Bioethics that we “prohibit attempts to conceive a child by any means other than the union of egg and sperm” ’. Howard thinks that same-sex marriage is a legal precondition for same-sex procreation among humans, a medical possibility he believes to be only years away.
Same-sex procreation is unknown in mammals, but Howard refers to two recent scientific developments as evidence that suggest that gay couples may soon be able to produce offspring inheriting genetic material from both partners. In April 2004 we learnt that Japanese scientists had produced two live mice using genetic materials from females only. They achieved this by hindering genetic imprinting (the process in which certain alleles are suppressed during or after oogenesis in favour of the parallel alleles from the male sperm). One of these mice, Kaguya, now has children of her own. See Tomohiro Kono et al. ( 2004), ‘Birth of Parthogenetic Mice that Can Develop to Adulthood’, Nature 428 (22 April): 860–4, DOI: 10.1038/nature02402. (If you don’t have a subscription, or would like a layman’s description, I recommend the news releases from Nature, the National Geographic News, and the BBC News.) The researchers were sceptical about the possibility of applying their technique to humans. Then in June 2005 ‘Sheffield researchers told a European fertility conference they had shown embryonic stem cells could develop into the earliest stages of eggs and sperm’. This was reported as a future alternative to sperm and egg donorship.
What hidden agenda?
I see no evidence to support Howard’s allegation that same-sex procreation is the real objective of same-sex marriage. Howard cites two gay interest journalists about the potential of these recent scientific developments for same-sex procreation: Kathy Belge in About.com’s Lesbian Life and Hannah Seligson in Gay City News. But neither connects the issue with same-sex marriage. Howard can point to only one gay rights group who make ‘strong claims for procreation rights’. That’s Causes in Common, an initiative of the Lesbian, Gay, Bisexual & Transgender Community Center in New York City to create a working alliance of LGBT liberation activists and reproductive rights activists. Far from wanting no restrictions on reproductive rights (as Howard claims), Causes in Common only campaigns for access to safe reproductive technologies. Moreover, Causes in Common is concerned with protecting sexual and reproductive rights regardless of marital status, not with campaigning for the recognition of gay marriage. Given this dearth of evidence, perhaps the reasons advocates give for allowing same-sex marriage are the reasons they want same-sex marriage?
Crucial to Howard’s case against same-sex marriage is his theory that marriage is legally required for procreation and that the right to procreate is required for a legal marriage. In his FAQ Howard suggests that ‘[t]he true sine qua non of marriage — all marriages everywhere and throughout history — is the right to procreate together: Without the right to procreate, it is not marriage.’ In response to the uncomfortable fact that people procreate outside of marriage all the time, he points out that fornication is still on the Massachusetts statute book: ‘sexual intercourse is legal only with a marriage license’. He even wants to see laws against sex outside marriage enforced! Sadly, Howard does not have an equal opportunity approach to all old laws:
Q: What about those cousin marriages in those states that prohibit first-cousins from marrying, but will allow them to if they can prove they are infertile? …
Those laws date back before IVF and fertility treatments blew away the old notions of infertility. Essentially, those states gave cousins the right to marry because they knew they would not be able to exercise it. Now there is no way to know that, and those states probably do not make ‘infertility’ exceptions anymore.
Howard misses the obvious inference that the right to procreate has not, always and everywhere, been intrinsic to a legal marriage. The right to marry despite inability to procreate is more broadly recognised, and is enshrined in Catholic canon law: ‘sterility neither forbids nor invalidates a marriage’ (canon 1098). The Netherlands (2001), Belgium (2003), Spain (2005), and Canada (2005) have all legalised gay marriage with full rights, while many other jurisdictions have recognised civil partnerships that do not explicitly differ from marriage in terms of lacking the right to procreate. Howard, of course, wants to see Goodridge v. Department of Public Health (798 NE2d 941 (2003) ), which effectively legalised gay marriage in Massachusetts, overturned. In an interesting comment on Goodridge, Jamal Greene highlights the importance of Turner v. Safley (482 U.S. 78 (1987) ), an earlier case that could have supported the court’s decision:
The Turner Court had to evaluate whether prisoners — prisoners! — with no procreative justification still have a fundamental right to marry, and it held unanimously that they do. The case demonstrates, therefore, that marriage is fundamental under the U.S. Constitution not because it provides a setting for heterosexual procreation but because it solemnizes a social relationship that individuals regard as fundamentally important.
Turner v. Safley thus flatly contradicts Howard’s claim that ‘we don’t give marriage licenses to couples that are prohibited from procreating together’.
Test tube babies are not like toasters
Howard provides no answer to the question of why legislation limiting the use of reproductive technologies cannot apply equally to different- and same-sex married couples, without infringing on either’s notional right to procreate. This gaping hole in his argument seems to arise because, although Howard makes some play out of the medical dangers of these technologies (‘I feel that the risks to the child are far too great’), neither health risks nor the usual ‘pro-life’ doubts that arise when medicine interferes with human embryos appear to be at the root of his objection to same-sex procreation. Howard opines:
Even if it were someday safe for two women or two men to have a baby together, we should still prohibit it for cultural/societal/human reasons. People should be created equal, the same way, with a mother and a father. Since we are all just one sex, it is good that the two sexes need each other to cooperate to create a new life, which again is just one sex, again needing to come together with the other sex to reproduce. Sexual reproduction connects us to the rest of humanity not just vertically through our children, but horizontally, through our need for the other sex. Being impossibly created in a laborotory [sic] would connect us more to the products of technology and consumerism. We’d empathize with toasters.
What can I say? This argument is so misguided it’s not even wrong. What is the word ‘impossibly’ doing there? How can Howard ignore the overwhelming evidence that we are not ‘all just one sex’? Intersex people testify to the fact that sex is non-binary.
Even more importantly, Howard’s understanding of human equality seems utterly vacuous. Theological insistence on human equality in God’s creation, under His purpose, and before His judgement made a major contribution to modern notions of human equality and rights: a contribution that has perhaps not yet been philosophically replaced (see Jeremy Waldron (2002), God, Locke and Equality (Cambridge: Cambridge University Press) ). Hence the Declaration of Independence: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’ How does conception with sperm from an adult man and an egg from an adult woman give any force to the notion of human equality? Where has it been adopted as a mainstream principle of human equality? Would Howard not have classed Adam and Eve as human? Why would human beings conceived a different way deserve different rights? Howard may say that human beings conceived in a lab are the equivalent of toasters, but his own stated concern for the health and safety of such human beings shows that even he cares about human beings regardless of their mode of production.
For all their differences, Howard is mining similar reactionary psycho-sexual fears to Gallagher, who writes:
Every society needs some social institution that channels the swirling erotic energies of young men and women towards each other, and towards generativity both in the negative sense (avoiding unwed childbearing) and the positive sense (encouraging babies). You need some way to tell men (and women) that fathers matter. …
Sex makes babies. Society needs babies. Babies need mothers and fathers. This is the heart of marriage as a universal human idea.
Similarly, in another place, Howard objects to the use of ‘the term “fully human” about individuals … as though people do not need a complimentary person of the other sex to fully represent the species, and fully flower their own body’s potential.’ Since Howard apparently isn’t married, I suppose he isn’t fully human either? Howard quotes approvingly from an essay by Nancy L. Jones of The Center for Bioethics and Human Dignity, a Christian think-tank:
Fortunately, the early commentaries on the Japanese achievement [Kono et al. 2004] all suggest that attempts to create a human embryo from two eggs would be a crazy way for humans to reproduce. It is tragic, though, that the main support for this assertion hinges on the health consequences for these manipulated embryos and/or a lack of availability of human eggs. While we certainly wish to protect the health of unborn children and are opposed to possible exploitation of women as egg donors, these reasons totally ignore the importance of holding sacred the sexual union between a man and woman. If Kaguya’s mode of creation were to be extrapolated to humans, the very basis of our society would be shattered — opening nearly endless possibilities for overcoming the normal reproductive barriers for mammals that requires both male and female genetic contributions.
Partible paternity
Given popular close-mindedness and the discriminatory notions of human nature propagated by radical reactionaries like Howard, it is hazardous to derive a fundamental right to one father and one mother from the fact that the children in Western societies seek out their biological origins by tracking down birth parents and donors of sperm or eggs, or close the door on reproductive technologies because of ‘the growing chorus of donor conceived adults who want to save other people from being conceived the way they were’. Other cultures have entirely different views on the matter. For example, among the native peoples of the South American lowlands it is commonly believed that children can have more than one biological father. Some believe ‘that a child is a sort of spermic quilt, and that the multiple ejaculates of different men make for better and sturdier children than the discharge of one fellow alone can’ (Natalie Angier (1999), Woman: An Intimate Geography (Boston: Houghton Mifflin), 383). Take anthropological reports of the Barí of the Maracaibo basin (Stephen Beckerman et al. (1998), ‘The Barí Partible Paternity Project: Preliminary Results’, Current Anthropology, 39/1 (February): 164–7):
Life-history interviews with elderly Barí reveal that most women, in precontact times, took one or more lovers during at least one of their pregnancies. In the great majority of cases, the married woman stated that she took a lover only after she was pregnant. Their husbands were usually aware of the lovers, and there is no evidence that the husbands objected. When a woman gave birth, she typically named all the men who had intercourse with her during the pregnancy. One of the women attending the birth then returned to the longhouse and announced to each of these men, ‘You have a child.’ These secondary fathers had recognized obligations to the child. Importantly, they were supposed to provide gifts of fish and game.
The anthropologists discovered that, probably because of these nutritional supplements, Barí children with secondary fathers were substantially more likely to survive. So marriage in the narrow senses espoused by Howard and Gallagher is not a human universal, and at least some societies do better without it.
