The fortunes of the main branches of American social conservatism are rapidly diverging. On the one hand, we are riding a wave of pro-life legislation sweeping across the nation. Dozens of pro-life laws have been passed in the states in just the past few years, and pro-life sentiment, especially among young people, is hovering around an all-time high. On the other hand, in the wake of United States v. Windsor, it seems that every week another state’s definition of marriage is being overturned by state or federal courts. Our cultural consensus in favor of the traditional definition of marriage has collapsed — most precipitously among young people.
Thus, a class of conservatives has arisen, again largely made up of young people, who are pro-life but who also support same-sex marriage. Some members of this cohort even argue that pro-lifers specifically, for reasons strategic and principled, ought to support same-sex marriage. The claim implicit in this activism is that the unmooring of marriage from its original meaning and purpose will have no effect — or will have even a positive effect — on our ability to build a culture where unborn life is respected.
This claim is more hopeful than realistic. Regardless of one’s position on the definition of marriage (and how that definition ought to be reflected in the law), one must affirm at least this: The concepts of marriage and childbearing are intricately tied up with each other. For instance, as long as marriage exists, data about out-of-wedlock childbearing will be a marker of social health. We value the stability of marriages at least in part because the institution is widely accepted to be a primary locus (if no longer the sole acceptable locus) of childrearing.
We should expect, then, that adjustments in the legal and cultural position of marriage would have an impact on our legal and cultural orientation toward childbearing and toward children themselves. And of course this has been the case, as even a brief visit to Family Court would demonstrate. When Ryan T. Anderson of the Heritage Foundation asserted on Piers Morgan’s short-lived CNN program that marriage is primarily about the good of children, the studio audience lustily booed. Without idealizing the past, we can say that our marriage culture has been fraying for some time, and the impact on how we view children has been heavy.
There’s every reason to think that the most drastic shift in marriage’s legal status since no-fault divorce — the elimination of the criterion of sexual complementarity — will have similarly broad consequences. Redefining marriage in this way, in a manner different in kind and in magnitude from every other change to the institution, redefines parenthood itself. If the equality sought through marriage is to mean anything robust, it must mean that same-sex couples can be considered legal parents in the same way opposite-sex couples can. More than that, it must mean that same-sex couples can have children of their own in the same way opposite-sex couples can.
“Of their own” is a crucial qualifier. My discussion of parenting rights in this essay is not about the right to adopt, and the various criteria of fitness that qualify that right. Rather, I am discussing the concept of parenting from birth a child who has genetic material from at least one legal parent, an experience available to opposite-sex couples since the beginning of the species — which same-sex marriage implies must now be, as far as technology will allow, available also to same-sex couples.
The law has begun to recognize this implication. In the recent New York case of Wendy G-M. v. Erin G-M., a female same-sex couple underwent artificial insemination, resulting in the birth of a child to one of the women. The question before the court, occasioned by the couple’s divorce proceedings, was whether the non-biological partner is a legal parent of the child. Even though a crucial document indicating that both parties consented to the artificial insemination was deemed invalid due to an oversight, the New York court applied the common-law presumption of paternity in marriage: “The pervasive and powerful common law presumptions that link both spouses in a marriage to a child born of the marriage — the presumption of legitimacy within a marriage and the presumption of a spouse’s consent to artificial insemination — apply to this couple.” Biology, it seems, provides little resistance against the march of progress.
In the age of assisted reproductive technology (ART), same-sex marriage detaches childbearing from biology in a way unlike anything our culture has seen. To be sure, whether through technological intervention or infant adoption, newborns have been assigned legal parents other than their biological parents for quite some time. But these parents have always stood as placeholders for (or reminders of) the unavoidable fact that children have a mother and a father. (Even uncommon single-parent adoptions, such as in the Oscar-winning film Juno, point to this biological fact in that they are considered to be suboptimal — that is, incomplete representations of a biological whole.) Assigning same-sex legal parents at birth, on the other hand, is an explicit denial of the idea that biology and procreation ought to have anything to do with each other.
On this view, a newborn is naturally tied to no one. (Under surrogacy contracts, the child is legally separated at birth from the woman who carried him.) He enters the world more like a bespoke suit than a person, belonging to whoever laid a claim on him by ordering him into being. This view of children has always been implicit in ART, but same-sex marriage enshrines it in the law by delivering the coup de grâce to the idea that childbearing and childrearing should reflect biology.
Most important of all, in the legal and cultural order ushered in by same-sex marriage and ART, children become the object of rights rather than the subject of rights. We will speak and think in terms of having a right to children rather than the rights of children. Now, a “right to children” is conceptually incoherent — the uncertainty involved in even the most advanced reproductive technology makes it comparable to a farmer’s “right to a bountiful harvest” — but this is nevertheless the cultural lesson the emerging legal regime will teach.
This is not a fantastical dystopian prediction; it is implied directly in the existing broad cultural acceptance of ART and the rapidly developing acceptance of same-sex marriage. Same-sex marriage’s implication that the bearing and rearing of children can be neatly separated from the biology of children leaves us with no ground on which to object to any person’s or group’s satisfaction of the desire to have children of their own. The “right to children” may not be legally actionable, but it will be culturally binding. Any policy that seeks to circumscribe the availability of ART — that is, the availability to individuals and groups of children of their own — will be viscerally opposed, using rights talk.
This cultural posture toward children is not compatible with the culture the pro-life movement strives to bring about. A truly pro-life culture with respect to abortion — that is, a culture that places the welcoming of nascent, vulnerable human life at the center of its political, economic, and social considerations — cannot emerge from a society that views children as instrumental to the happiness and fulfillment of adults rather than as valuable in themselves. Children’s worth, like that of consumer products, will be dependent on those whose desires they are fulfilling. Dignity must be either inherent or contingent; it cannot be both.
The pro-life movement very well may continue to achieve life-saving legal and political successes. Every day the science of medical imaging demonstrates in greater clarity the humanity of the unborn. This development alone will continue to give the pro-life argument deep emotional resonance, even with those lacking the commensurate moral intuitions.
However, the prevailing attitudes that I have sketched will prevent those legislative reforms from gaining a cultural foothold. The pro-life movement will continue to be able to singe the edges of the abortion-industrial complex, but it will be unable to completely excise the malignancy. The law, especially within the bounds of Roe v. Wade, can effect only a sporadic and temporary remission; a cure requires the culture as an enthusiastic co-belligerent.
But it is precisely this essential alliance that is denied to the pro-life cause by the redefinition of marriage, in concert with the ubiquity of assisted reproductive technology. The only pro-life position that is compatible with same-sex-marriage advocacy is a limited conviction that favors some abortion-restricting legislation but is agnostic about building a culture that reinforces the law. This position, while satisfactory to some, does not reflect the proper long-term aims of the pro-life movement or the moral revulsion at abortion that has rightly motivated it.
For more than 40 years the pro-life movement has fought the idea that a living child can be reduced to a choice. The movement must understand that this idea — child as consumer choice — is exactly what is at stake in the redefinition of marriage.
— Brandon McGinley writes from Pittsburgh, where he works for the Pennsylvania Family Institute.