Saturday, 23 November 2013

Times: Three gay herrings
Thursday, November 14, 2013, 00:01 by Ranier Fsadni

Several commentators have expressed surprise – in some cases, profound disappointment – at the lack of vigorous debate over the Civil Union Bill, which will give homosexual couples rights equal to those of married couples.

What strikes me, however, is how the people who are speaking up against gay unions keep missing the key point where debate and further public reflection might make some real difference.

Instead, three red herrings keep being raised.

The first is whether Labour lied by promising civil unions when it meant, effectively, gay marriage. It was certainly economical with the truth. But it didn’t lie.

The meaning of ‘civil union’ lies in its use.

There are several jurisdictions where civil unions have the same status as marriage. In legal practice, ‘civil union’ has no fixed meaning.

Politicians who promise it need to be pressed on what they mean. But journalists failed at their job of getting politicians to clarify the issue. Blame, if you must, the media, not the politicians.

The second red herring is the claim that the Civil Union Bill will dramatically change the concept of civil marriage. No, culturally the concept has already changed.

The change in law will simply ratify the notion now dominant in society, which privileges companionship and no longer sees procreation or permanence as essential to marriage. To attempt to block gay marriage on the basis of protecting an older notion of marriage is to try to shut the stable door long after the horse has bolted.

The third red herring concerns adoption. Children’s welfare is no red herring. But the way adoption is being discussed is clouding up the issues.

Objectors say that more studies of gay adoption are needed. True, the only thing we can say with certainty is that there’s nothing obviously harmful to children simply because they are adopted by gay couples.

Right now, however, no study can be definitive. The sample of gay adopting parents is too small and the number of variables (wealth, ethnicity, region, educational attainment, etc.) too large.

It took some 30 years to establish, statistically, the consequences of marital breakups for children, irrespective of all the variables. Therefore, when someone urges a pause for studies on gay adoption to be conducted, what is really meant is a moratorium that lasts a generation. Anything shorter won’t make a difference.

Meanwhile, as a precautionary measure to safeguard children who might otherwise be adopted by gay couples, it is useless. The children will still be adopted: legally by individuals but, socially, they will be raised by a couple, as already happens now.
Debate and further public reflection might make some real difference

In the circumstances, the only thing to be achieved by preventing adoption will be legal uncertainty. Should (say) a child’s adoptive lesbian mother die, the other adult in the household will not have an automatic claim to custody over the child – despite the fact that, in practice though not at law, she is the child’s other social parent.

It has yet to be explained how such uncertainty – which could lead to the child losing, in one fell swoop, the two adults who raised it – could benefit the child.

While attention is being diverted by these red herrings, another issue remains largely undiscussed. It concerns the relationship of gay unions to the IVF law.

The issue concerns what the State will assume with respect to children who are born to individuals while they are already within a gay union.

Will the other adult in the relationship be assumed to be the other parent, with care and custody of the child?

Such an assumption is automatically made for heterosexual couples. A husband is assumed to be the father of any children born of his wife.

For the State to raise doubts about paternity would be for it to invade the privacy of the couple and to raise suspicions where none are warranted.

But what if a gay man returns from abroad – from a jurisdiction that, unlike Malta, permits surrogacy – with a child whose father he is?

Will the State automatically recognise his gay partner as the other parent?

The case is not straightforwardly analogous to heterosexual cases. It requires no invasion of privacy and raises no unwarranted suspicions to state that the second adult, in a gay couple, cannot be a biological parent.

Moreover, if the State recognises the other partner as the legal parent, it embarks on a clash course with the IFV law, which currently prohibits sperm and egg donation and surrogacy; indeed, makes them a crime.

It’s one thing for the State not to poke its nose into who seeks such services elsewhere.

It is another for the State to become complicit in a process where such services have evidently been procured. (In principle, a lesbian couple might both be biologically involved – and in practice sometimes are – but to claim this, the women need to ask the Stateto recognise a process that it considers unlawful.)

The Civil Union Bill itself is unspecific on what State policy will be. But the politicians must surely have made up their minds already.

Instead of wasting time on red herrings, isn’t this a matter where we need to know what the politicians think? Now. So that we can make up our own minds on the full implications of the Civil Union Bill?

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