I would like to thank Dave Boutillier, Todd Calder, Anjan Chakravartty, Colin Macleod, Mark Migotti, Emer O’Hagan, and two anonymous referees at Dialogue for their helpful comments during the writing of this paper

1 See Margaret Sommerville, “What About the Children?” in Divorcing Marriage: Unveiling the Dangers in Canada’s New Social Experiment, ed. Daniel Cere and Douglas Farrow (Montréal: McGill-Queen’s University Press, 2004), 63–78; The Ethical Imagination: Journeys of the Human Spirit, Massey Lecture Series (Toronto: House of Anansi Press, 2006), ch. 3; “Children’s Human Rights and Unlinking Child-Parent Biological Bonds with Adoption, Same-Sex Marriage and New Reproductive Technologies,” Journal of Family Studies 13 (2007): 179–201.

2 Sommerville (2006), 103.

3 Ibid., 101.

4 See, for example, most of the essays in, Lynn D. Wardle, What’s the Harm?: Does Legalizing Same-Sex Marriage Really Harm Individuals, Families, or Society? (Lanham, MD.: University Press of America, 2008). The critics of same-sex marriage in this volume often appeal to harms to children such as their being denied their entitlement to be “raised by the father and mother that gave them life” (59), the ‘problems’ associated with increased gender nonconformity, and being raised by parents who are promiscuous or who suffer disproportionately from increased mental health disorders and physical health risks. These alleged harms are obviously contentious in terms of being either question-begging or supported by controversial empirical evidence.

5 Sommerville (2007), 181.

6 Note that Somerville has no objection to same-sex civil unions. Her view is that marriage has a special procreative function in a way that civil unions do not. Thus, she advocates for a “separate but equal” way of recognizing opposite-sex versus same-sex relationships, since only the former type of relationship is, on her view, inherently connected to ‘natural’ procreation. See Sommerville (2006), 101–3. The problem is that it is not clear why a secular reader ought to accept a distinction between these institutions as they relate to procreation. See, for example: Jonathan Rauch, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America (New York: Times Books, 2004), ch. 2 and 4; or Evan Wolfson, Why Marriage Matters: America, Equality, and Gay People’s Right to Marry (New York: Simon and Schuster, 2004) ch. 7.

7 Sommerville (2007), 180.

8 Sommerville (2006), 102–3.

9 Sommerville (2004), 72–5. A similar argument is presented by Maggie Gallagher, “What Marriage is For,” The Weekly Standard, August 4/11 (2003).

10 See Keith B. Farquhar, “Termination of the In Loco Parentis Obligation of Child Support,” Canadian Journal of Family Law 9 (1990): 99–130.

11 It is likely that Somerville relies on this presupposition because she believes opposite-sex unions can be specially endorsed as “natural” in terms of the intrinsic properties of human nature. It ought to be obvious, however, that this kind of claim cannot be casually presupposed – it requires extensive argumentation given competing theses in the available literature on human nature and sexual orientation, e.g., Edward Stein, The Mismeasure of Desire: The Science, Theory and Ethics of Sexual Orientation (Oxford: Oxford University Press, 1999).

12 See Sommerville (2007), 180, Sommerville (2004), 68 and Sommerville (2006), 102. Strictly speaking, Somerville claims that marriage is “a compound right: the right to marry and to found a family,” but her aim is presumably not to render her elucidation of the internal parts of marriage self-referential. (A Tim Hortons sandwich combo is a compound item: it is a sandwich, a doughnut, and a drink. It is not a sandwich combo, a doughnut, and a drink.)

13 Sommerville (2007), 188.

14 Ibid., 189.

15 Ibid., 189.

16 If it seems I have also begged this question by drawing analogies with the right to peaceful assembly and the right to communicate with one’s government in a second language, remember that the burden of proof is on Somerville to show that the right to found a family will inevitably be implemented as a positive right whereas I need only raise doubts about this assertion.

17 See, for example: Christine Overall, Ethics and Human Reproduction: A Feminist Analysis (Boston: Allen and Unwin, 1987), 166–80; or Margaret Brazier, “Reproductive Rights: Feminism or Patriarchy?” in John Harris and Søren Holm, eds. The Future of Human Reproduction: Ethics, Choice, and Regulation (Oxford: Oxford University Press, 1998), 66–76. Even the “right to procreative autonomy” advanced by Ronald Dworkin is a prima facie right that can be outweighed by competing social interests – one he does not specifically apply to the issue of access to reproductive technology. See Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (New York: Knopf, 1993).

18 Sommerville (2006), 139–40, 146–49 and Sommerville (2007), 180–89.

19 Sommerville (2007), 183–6 and 195–7.

20 It should be noted, however, that being raised by an opposite-sex couple provides no guarantee when it comes to knowing one’s biological origins – not if estimates about the rate of mistaken paternity correctly place it as high as ten percent. This statistic may be exaggerated. (See S. Macintyre and A. Sooman, “Non-Paternity and Prenatal Genetic Screening,” Lancet 338 (1991): 869.) Nevertheless, knowledge of paternal ancestry and its mere presumption are distinct in ways not acknowledged by Somerville. I am indebted to an anonymous referee for this point.

21 For example, in a newspaper article cited by Somerville, the anguish afflicting a donor-conceived adult is introduced in the following way: “Olivia Pratten still remembers the day in Grade 5 when all the students in her class were asked to draw a family tree, showing the names of all their ancestors. ‘Mine was only half full,’ she recalls.” See Chad Skelton, “Searching for Their Genes,” Vancouver Sun, 22 April, 2006, which can be accessed at: http://www2.canada.com/vancouversun/news/observer/story.html?id=f0257a1a-b7d4-4872-a1b2-06747a933fd6. Pratten’s recollection is put forward as evidence of the harm to children caused by their not knowing their genetic origins, but the story can also be interpreted as a cautionary tale regarding the inappropriate social expectations placed on children who might not be traumatized by their not knowing their genetic origins if they were not singled out among their peers in a way that implies inadequacy.

22 Ibid., 184.

23 Strictly speaking, Somerville also refers to Kazuo Ishiguro’s Never Let Me Go (New York: Knopf, 2005) as a fictional work that illustrates the longing that individuals feel when they are denied knowledge of their genetic origins. See Sommerville (2006), 148. This allusion is unfair, however, because the feelings of individuals created for the express purpose of mandatory organ donation are not obviously similar to those of individuals created by less sinister applications of anonymous reproductive technology.

24 The most influential analysis of the non-identity problem is Derek Parfit, Reasons and Persons (Oxford: Oxford University Press, 1984), ch. 16. Examples of the now considerable literature that exists on the topic include Matthew Hanser, “Harming Future People,” Philosophy and Public Affairs 19 (1990): 47–70; Jeff McMahan, “Wrongful Life: Paradoxes in the Morality of Causing People to Exist,” in J. L. Coleman and C. W. Morris (eds.), Rational Commitment and Social Justice (Cambridge: Cambridge University Press, 1998), 208–47; and Alan Buchanan, Dan W. Brock, Norman Daniels, and Daniel Wikler, From Chance to Choice: Genetics and Justice (New York: Cambridge University Press, 2000), ch. 6.

25 See J. David Velleman, “Family History,” Philosophical Papers 34 (2005): 357–78, 364.

26 Ibid.

27 See John Harris, “The Right to Found a Family,” in Rosalind Ladd, ed., Children’s Rights Re-Visioned: Philosophical Readings (Belmont: Wadsworth, 1996), 73–4. For a discussion of a disadvantage that seems considerably more serious than being deprived of part of one’s genetic heritage, one can refer back to Laura Purdy’s prominent analysis of the question of whether it is morally permissible to have a child if one carries a gene for Huntington’s disease. See “Genetics and Reproductive Risk: Can Having Children Be Immoral?” in Bioethics: An Anthology, ed. Peter Singer and Helga Kuhse (Oxford: Wiley-Blackwell, 1999), 123–9.

28 Sommerville (2006), 187–91.

29 Velleman cites evidence suggesting that over fifty percent of persons who were adopted or born using gamete donation seek out their genetic parents, but this is insufficient to establish (a) that this statistics is exclusively reflecting deep feelings of loss or violation rather than curiosity, and (b) that the harm inflicted on those who seek their genetic parents is always so grievous as to reflect a violation of a human right.

30 Sommerville (2007), 182, n. 6.

31 See Susan E. Barrett, “Children of Lesbian Parents: The What, When and How of Talking About Donor Identity,” in Jennifer M. Lehmann, ed., The Gay and Lesbian Marriage and Family Reader: Analyses of Problems and Prospects for the 21st Century (Lincoln, NB: University of Nebraska Press, 2001), 195–208.

32 Ibid., 187 and 198.

33 Ibid., 187. See Jürgen Habermas, The Future of Human Nature (Cambridge, UK: Polity, 2003).

34 For a brief and tactful review of Habermas’s book see Joel Anderson, “Jürgen Habermas, the Future of Human Nature,” Ethics 115 (2005): 816–21. For examples of literature preventing Habermas’s view from being taken as straightforwardly authoritative, see Nicholas Agar, Liberal Eugenics: In Defence of Human Enhancement (Malden, MA: Blackwell, 2005); Jonathan Glover, Choosing Children: Genes, Disability, and Design (Oxford: Oxford University Press, 2006); and John Harris, Enhancing Evolution: The Ethical Case for Making Better People (Princeton: Princeton University Press, 2007).

35 Moreover, Somerville specifies the right to a natural biological heritage as “a right to be conceived from a natural sperm from one identified living adult man and a natural ovum from one identified living adult woman, the man being, and being known as, the biological father of the child and the woman being, and being known as, the biological mother of the child” (Sommerville (2007), 187). This definition of biological heritage is compatible with gamete donation, surrogacy, and other reproductive technologies that involve no genetic manipulation. Transparency regarding the identity of biological parents is required, but as we have seen this is no principled obstacle to same-sex couples founding families.

36 Ibid., 194.

37 Ibid., 195.

38 Ibid., 181.

39 Ibid. The paper to which Somerville refers is Ian Weaver et al., “Epigenetic Programming by Maternal Behavior,” Nature and Neuroscience, 7 (2004): 847–54. The paper examines the epigenetic effects of rat nurturing behaviour on DNA methylation and concludes that rats provided nurturing behaviour in the first week of life are less prone to hypothalamic-pituitary-adrenal responses to stress as adults.

40 Sommerville (2007), 181.

41 The other main conclusion of the Weaver et al. study is that the epigenetic effects at stake are reversible; another point that is missed in Somerville’s summary of the paper as demonstrating that genes are shut off “for life” if mammals are not properly imprinted in early childhood.

42 It is this discrepancy between the burden of proof Somerville applies to opposite-sex couples compared to the “precautionary principle” that she applies to same-sex couples that raises the concern that her view ought to be described as prejudiced or even that she is willfully engaged in discrimination against gay and lesbian citizens. With respect to the latter concern, I believe that Somerville’s character has been unfairly maligned by some of her critics. Ever since the controversy that erupted when she was presented with an honorary degree from Ryerson University in 2006, one tends to encounter depictions of her as someone engaged in willfully promoting hatred against gays and lesbians. As far as I can tell, such depictions are unfair. All evidence suggests that she genuinely supports equal citizenship and political protection for same-sex couples. Nevertheless, I think it is fair to say that her view exhibits prejudice. Regardless of her intentions, the arguments she puts forth are sufficiently weak that it seems reasonable to call a view that relies on these arguments prejudiced in that it prejudges a conclusion about a disadvantaged group before due consideration has been provided. Consider how evidence as speculative as a passing allusion to a single study of rat behaviour would be viewed if offered as evidence that a visible minority in society was ill-equipped to parent effectively. There would be no way an appeal to a precautionary principle would defuse the outrage among academics expecting a more substantial burden of proof to support a conclusion of such political magnitude.

43 Sommerville (2007), 193.

44 This phrase is a summation of a view expressed by Ivan in the early stages of Fyodor Dostoyevsky’s The Brothers Karamazov (New York: Penguin, 2003).

45 For examples of such arguments, see John Corvino, “Homosexuality and the PIB Argument,” Ethics 115 (2005): 501–34; Andrew Sullivan, “Three’s a Crowd,” The New Republic, June 17 (1996); and Jonathan Rauch, “Marrying Somebody,” in Andrew Sullivan, ed., Same-Sex Marriage, Pro and Con: A Reader (New York: Vintage Books, 2004).

46 Sommerville (2007), 192–4.

47 To suggest that polygamous parental relations are legally inevitable if same-sex marriage is sanctioned, Somerville refers to a case in London, Ontario, where a lesbian couple sought to have the genetic father of their child listed as a parent on the birth certificate (i.e., instead of the genetically unrelated woman in the couple adopting the child and thus severing all parental rights of the genetic father). The Ontario Court of Appeal decided in favour of these plaintiffs and ordered that all three of them be listed as parents. Note, however, that (a) this is not a case of polygamous family relations in terms of childrearing, and (b) if the ruling in favour of allowing three persons to be legal parents was partly based on a lack of perceived harm to the child and any broader societal interests, this undercuts Somerville’s slippery slope argument. Her argument requires both that polygamy is legally inevitable and that this legal revision will (unreasonably) occur despite serious prospective harm to children and/or the rest of society.

48 See: Carol Rogerson, “The Child Support Obligation of Step-Parents,” Canadian Journal of Family Law 18 (2001): 9–158.

49 Margaret Sommerville, “Facing up to the Dangers of the Intolerant University: Bird on an Ethics Wire,” Academic Matters (May 2009): 3–7, p. 4.