Proponents for same-sex marriage tend to base their arguments on the notions of equality and non-discrimination; if heterosexual couples can chose to marry then gay couples should have that same choice.
Opponents of same-sex marriage tend to base their arguments on history and religion; marriage has traditionally been between a man and a woman and should remain that way, and God only sanctions heterosexual unions.
What has been largely missing from the same-sex marriage debate is a consideration of the rights of children.
Same-sex couples, particularly lesbian couples, are having children in increasing numbers, with Senator Penny Wong and her partner Sophie Allouache being the latest high profile couple to embark on motherhood. Indeed, the number of lesbians who have decided to become parents is becoming so common that it has been given the name ‘Gayby boom’.
Society facilitates same-sex couples becoming parents by allowing them to access reproductive services and also to foster children. The only pathway to parenthood that is still not completely open to same-sex couples is adoption, but there are signs that this too is changing. For example, in late 2010, New South Wales amended the Adoption Act 2000 to allow same-sex couples to be eligible to adopt children.
If, as a society, we are willing to assist same-sex couples to become parents, it makes sense that we would also do all that we can to ensure that children raised in same-sex families are not disadvantaged or discriminated against on the basis of their parents’ sexual orientation. Yet by denying same-sex couples the right to marry, we are doing just that.
A recent study by Lixia Qu and Ruth Weston of the Australian Institute of Family Studies analysed data collected on almost 5000 children across Australia, from the time the children were 4-5 years old until they were 8-9 years old. The researchers found that children whose parents were married are more mentally and socially developed than children whose parents are not married. Given these findings, how can we justify denying marriage to any couple who wants to make such a commitment?
Researchers from Monash University’s Faculty of Law are investigating the extent to which the United Nations Convention on the Rights of the Child [CROC] can be used to support arguments in favour of same-sex marriage. Australia has ratified CROC, thereby agreeing to implement its provisions. One of the fundamental principles on which CROC is based is that decisions concerning children should be made with the best interests of the child as a primary consideration.
My colleague Dr Adiva Sifris and I are undertaking research into whether applying the ‘best interests of the child’ principle to the same-sex marriage debate, leads to the conclusion that same-sex marriage should be legalised, and a failure to do so constitutes a breach of the human rights of children in same-sex families.
Dr Paula Gerber is a senior lecture in the Faculty of Law at Monash University and Deputy Director of the Castan Centre for Human Rights Law. She is co-editor of Current Trends in the Regulation of Same-sex Relationships (2010) Federation Press and co-author of ‘Same-sex Marriage in Australia: A Battleground for Equality’ (2011) 25(2) Australian Journal of Family Law 96.