How same-sex marriage will protect children's rights

In Ireland’s debate over whether to vote to allow same-sex marriage, children’s rights have surfaced repeatedly. Many advocates of the No side claim a child’s right to a mother and father will be violated by granting same sex couples the right to marry.

Apart from the fact that no-one has the right to create a family, regardless of gender or sexual orientation, it can be argued that marriage equality is in fact good for children’s rights.

The Convention on the Rights of the Child – adopted by Ireland and 192 other states – reflects the importance of the family to children noting in its preamble that a child “should grow up in a family environment, in an atmosphere of happiness, love and understanding”.

The convention refers interchangeably to “parents” and “legal guardians” and makes no reference to marriage or married parents; it does not mention fathers at all and refers to mothers only in the context of pre and postnatal care. Importantly, the term “family” is repeatedly mentioned throughout which adopts an inclusive approach, incorporating a range of family forms.

The convention acknowledges that some children cannot be cared for by their birth or biological parents for a multitude of legitimate reasons (which have nothing to do with the children themselves) and it is implicit that no single family type can fulfil children’s needs.

The convention recognises the right of the child as far as possible to know and be cared for by their parents, but it cannot be used to assert that every child has an absolute right to be raised by them. In international law, the emphasis is on protecting the child’s family relationships, rather than entitling the child to be reared only by their biological mother and father.

The child’s right to identity although important, is distinct and separate from the question of who provides the child with care. What is important to children’s well-being is not simply who their birth parents are, but the quality of the care, support and security that they receive in the here and now. Research increasingly shows that the quality of children’s relationships with their carers is what affects children’s lives and life chances.

That’s not what the evidence says.Aidan Crawley/EPA

Putting children first

The legal protections of marriage set it apart from other forms of relationship recognition, including civil partnership which in Ireland ignores children altogether. Civil marriage is an important commitment, undertaken by those who desire formal, public endorsement of their relationship and it confers important legal protections to the parties.

While it has been deemed legitimate in certain circumstances to treat a married couple differently from an unmarried couple. it is not permissible to discriminate against children on the basis of their parents’ marital status. Although the unjust concept of illegitimacy has been abolished, children in certain non-marital families – including but not limited to children whose parents are a same-sex couple – continue to experience inferior treatment under the law.

It follows, therefore, that rather than undermine children’s interests and rights, the adoption of marriage equality would represent further progress to equalise the position of all children. In particular, it would offer children the benefit of the legal protections that marriage affords regardless of whether it preceded or succeeded their arrival into the relationship. For children, none of these things matters.

If Ireland were a truly child-friendly state we would ensure by law that all children are entitled without discrimination to respect for their family relationships. We would put in place a legal regime that protects children equally regardless of their different circumstances and the diversity of their families and that protects children’s rights regardless of how they were conceived and to whom.

And we would permit those who wish to do so to marry. Separately, we must set the bar high for everyone – regardless of gender or sexual orientation – with the legal responsibility to educate, support, protect and nurture children.

Ursula Kilkelly receives funding from a range of national and international bodies, both government, non-government and philanthropies organisations. She is a member of the Board of Barnardos and of the Law Centre for Children and Young People.