By Paula Gerber
The Convention on the Rights of the Child is a treaty that enjoys almost universal support, having been ratified by 193 countries, including Australia. It provides that in all actions concerning children, the best interests of the child must be a primary consideration.
Contrary to Nicholas Tonti-Filippini’s assertion on this page yesterday, a proper application of the principle of the best interests of the child leads to the incontrovertible conclusion that Australia should legalise same-sex marriage.
The Convention on the Rights of the Child acknowledges that the family is ”the natural environment for the growth and well-being” of children, and should be afforded all necessary protection and assistance. Such protection and assistance applies to all families, not just to Tonti-Filippini’s preferred model of a mother and father with biologically related children.
The fact that same-sex couples in Australia are permitted by law to access reproductive services and foster children clearly demonstrates that our governments are satisfied that same-sex couples make fit and proper parents. It therefore makes no sense for the law to treat children being raised by same-sex couples differently from children being raised by heterosexual couples. Yet the exclusion of same-sex couples from the institution of marriage does just that.
In Australia, marriage is a secular institution (more than 50 per cent of marriages today are performed by civil celebrants) through which society recognises and supports couples and families, and is a form of public acknowledgment of, and respect for, personal bonds. It promotes financial and legal security, psychological stability, and a sense of societal acceptance and support.
Children whose same-sex parents do not enjoy the recognition and support that comes with marriage may suffer psychological harm as a result of the prohibition on their parents marrying. A study published in the prestigious American journal Pediatrics found that marriage increases the ability of couples to provide and care for one another and fosters a nurturing and secure environment for children. In other words, children who are raised by married parents (be they same-sex or opposite-sex) benefit from the legal and social status granted to their parents.
Denying same-sex couples the right to marry subjects the children of such couples to inequities, indignities and insecurities that can flow from being part of a family that is not legally sanctioned by society. A refusal to allow a child’s same-sex parents to marry sends a signal to society that such families are not equal in the eyes of the law, and that it is permissible to treat them differently.
One such family noted in a submission to the Victorian Law Reform Commission that: ”The lack of legal recognition of and support for our families translates, in practice, to some people regarding our families as deficient, and problematic . . . Laws that . . . don’t recognise our families as families make it harder for or more awkward for some people to include us or interact with us and our children, and can make some people feel that they can or should treat us with a lack of respect or as though we are invisible or deficient.”
Anyone who doubts that same-sex marriage promotes the best interest of children need only read the heartfelt words of a 12-year-old child in a Canadian case:
”I would like my family recognised the same way as any other family, not treated differently because both my parents are women . . . It would help if the government and the law recognised that I have two moms. It would help more people to understand. It would make my life easier. I want my family to be accepted and included, just like everybody else’s family.”
There was a time not that long ago when children born of unmarried parents were labelled ”illegitimate” and subjected to social stigma. Let’s not repeat this same mistake, by continuing to treat marriage as an exclusive heterosexual privilege. If legislation is discriminatory – and the Marriage Act is – it signals that it is also acceptable for society to discriminate. As long as the government treats the same-sex parents of children differently, there will be members of society who feel justified in stigmatising and marginalising their children.
If the best interests of the child is the standard that we are to live by – and the fact that Australia has ratified the Convention on the Rights of the Child suggests that it is – then we must legalise same-sex marriage to ensure that society as a whole respects and promotes the rights and welfare of children growing up in same-sex families.
This opinion piece first appeared in the print and online versions of The Age on 7 September 2011.