Marriage and procreation

“How can you say that marriage is about procreation, when plenty of married couples can’t, won’t or don’t have children (and plenty of unmarried couples or individuals do)?”

This is a point often made in the current debate about same sex marriage – generally with an air of aphoristic finality, as if declaiming a truism that only an utter fool (or bigot) could deny. The emphasis on marriage’s link with procreation, it is implied (or, often, stated explicitly), is thus a post hoc rationalisation cobbled together by those who wish to exclude same-sex couples arbitrarily from an institution that is really just about two people loving one another and seeking mutual happiness.

The first point I’d make in response to that argument is that you could easily rephrase it as:

How can you say that marriage is about two people loving one another and seeking mutual happiness, when plenty of married couples are miserably unhappy and unloving?

In other words, the outcome of particular marriages shouldn’t be confused with the purposes of marriage – and of the state’s recognition and regulation of marriage.

The second (and more substantial) point is well expressed by David Novak in an essay on the ABC Religion & Ethics site. Novak quotes Prof Martha Nussbaum, a supporter of same-sex marriage, who writes that:

marriage … supports several distinct aspects of human life: sexual relations, friendship and companionship, love, conversation, procreation and child rearing, and mutual responsibility.

Novak divides these purposes into two categories. The first is what Prof Nussbaum calls the “expressive”, and Novak calls the “private”, purposes of marriage: “sexual relations, friendship and companionship, love, conversation, … and mutual responsibility”. The second is “procreation and child rearing”, which Novak argues is the only aspect of marriage in which the state has any valid interest. After all (as supporters of cohabitation outside marriage have been telling us for decades), why should it be any concern of the state with whom, and how, I engage in “sexual relations, friendship and companionship, love, conversation, … and mutual responsibility”? However, the state, and society as a whole, does have more of an interest in the procreation and rearing of children.

Novak then goes on to address the objection quoted at the start of this post:

But, if marriage’s sole public reason is procreation, and coincidentally being responsible for those whom a couple has procreated, then why has marriage never been “limited … to the fertile, or even to those of an age to be fertile,” as Nussbaum puts it?

I would answer that objection by citing the old legal principle: de minimis non curat lex, which could be translated loosely as “the law is only made for what usually obtains.”

The fact is, the majority of people who marry are fertile and are of an age to be fertile. And how could we reasonably establish a criterion to determine who is fertile and who is not? Moreover, in an age when new reproductive technologies are enabling persons heretofore assumed to be sterile to become parents, almost no one can be presumed to be incurably infertile.

Even if a couple does decide between themselves from the outset not to have children, that is their private agreement which in no way impinges upon the public reason for marriage per se.

The question is whether the inherently non-procreative nature of same-sex relationships makes “marriage” an inappropriate word for them, given their capacity for “sexual relations, friendship and companionship, love, conversation, … mutual responsibility” and, yes, the raising of children. In other words, is “marriage” the word we use for “a loving relationship, recognised and endorsed by the state, between two consenting adults”, or is it the word we use specifically for “the union with procreative potential”, pre-dating both church and state, and the exclusive property of neither?

Now, that’s something that it’s possible to have a debate about. But what’s not possible (though some people are trying very hard to make it so) is to say that the existence of childless married couples makes the linking of marriage and procreation a self-evident absurdity.

19 thoughts on “Marriage and procreation

  1. Still leaves the issue of unmarried parents though. The state has a valid concern with families (which Hegel suggests along with civil society and the state form the structure in which people are formed). The state has no valid concern with marriages qua marriages based on the argument above.

    So where does that leave us?

    1. Hi Cathy: well, there are some who’d argue that the state should get out of the marriage game altogether (though I’m not one of them).

      But as for the state’s interest in the family vs its interest in marriage per se, I think the point is that marriage has been the institution or state of life which has been seen as the primary context for raising children. It makes sense for the state to recognise that rather than inventing its own arrangements for regulating parenthood and the family – though, of course, that is precisely what the growth in unmarried parents has required it to do, with what might politely be described as mixed results.

      Certainly the experience of seeing an unmarried couple (with children) of our acquaintance split up recently, and the lack of legal recourse that the mother has compared with if they had been married, has highlighted the problems of thinking that raising children doesn’t need an “institutional” background to it, and can just be a private arrangement between two individuals who consent to live together for the time being.

      1. I agree that there is a need for a structure within which to raise children (I think the question of procreation is a separate one). I’d be primarily interested in that – how can it be done?

        As I see it, the current situation is that the “legal entity known as marriage” is largely decoupled from “the partnership to raise children”, let alone “a procreative union”. I think that is so regardless of the incoherence of any arguments used saying it *should* be the case 🙂

      2. It’s undoubtedly the case that our society has, over the past century, weakened very considerably the links between sex, marriage, procreation and raising children. I’m not sure that’s been a positive development, but it’s undoubtedly happened (maybe not as much as sometimes claimed, though).

        But it’s also more than just a “should” argument. As I’ve observed before, the procreative purpose of marriage is embedded in the legal definition of marriage under English law. It’s those who argue for the formalising of the “decoupling” who are making arguments about what marriage “should” be and “should” be changed into.

        Now, maybe the time has come to change the legal definition of marriage to remove procreation from its scope. I think that would be a bad idea, but I’d rather that it were done honestly and openly, as part of a full reassessment of what the law of marriage should look like in the 21st century – rather than as an unannounced consequence of an ad hoc piece of politicised tinkering.

        (Actually, scratch that. I’m pretty sure that the current generation of politicians are the very last people on earth we want to engage in a root-and-branch review of marriage. Maybe politicised tinkering is the least of various evils. 😉 )

  2. “How can you say that marriage is about procreation, when plenty of married couples can’t, won’t or don’t have children (and plenty of unmarried couples or individuals do)
    How does an individual manage this? Last I heard is that it takes two. The two being made up of one of each gender. NOT two male, or two female.
    Just think, we could be like China where only one child per family is permitted.

  3. So, in the light of the above, my response is that the State should get out of the Marriage business, but not out of the Civil Union business. One could further postulate common-law civil unions. Applying rights and responsibilities could be derived from existing statutes in contract law, where a contract is deemed to exist by virtue of oral agreement and/or actions.

  4. Problem with the “miserable and unloving” analogy is that if a heterosexual couple declared in advance that they intended NOT to love each other, that would be a moral argument for NOT getting married, wouldn’t it? It’s in the vows, usually.

    Yet if a couple announce that they intend never to have children, they still get married, and it is still recognized as valid.

    1. It may be a good reason not to get married, but it wouldn’t invalidate the marriage.

      So I think the analogy holds: the private intentions of those involved (and let’s face it, the hypothetical you pose is, regrettably, far from hypothetical) do not alter the public purposes.

  5. It’s not obvious to me that “mutual responsibility” isn’t a public purpose of marriage. Couldn’t we see this as the idea that, if spouses take a certain responsibility for each other’s well-being, they’re less likely as individuals to become dependent on society/the state? And don’t we in general think that people forming stable households tends to have beneficial social effects?

    1. Well, in that case, shouldn’t we extend civil marriage to (say) siblings or friends who live together? Why should they miss out on the benefits of marriage, such as reduced tax when one of them dies, and so on, given that they are providing many of the same benefits of mutual support, responsibility, reduced dependency, and household stability?

  6. “In other words, is “marriage” the word we use for “a loving relationship, recognised and endorsed by the state, between two consenting adults”, or is it the word we use specifically for “the union with procreative potential”, pre-dating both church and state, and the exclusive property of neither?”

    I think you’re either giving too much power to tradition, or dictionaries.

    Words exist for our use, and we can (and do) change them to fit our needs. And continuing to do something one way just because our ancestors did is not a good reason to do so.

    ‘Marriage’ is a word used both by the federal government and by several religions. The government, being a secular one, need not follow the definition the religions use. And the government is free to alter a definition, or in this case merely add to it, to better serve the people. That is what is happening and will happen here.

    1. You keep bringing religion into this. I’m not altogether sure why.

      As for the “words mean what I want them to mean, nothing more, nothing less” approach: well, yes, we are free to change the meanings of words. But in that case, let’s be honest that that’s what we’re doing: that we are changing marriage, not merely “extending” it or “opening it up” to a wider range of couples.

      1. “But in that case, let’s be honest that that’s what we’re doing: that we are changing marriage”

        If marriage will be exactly the same for the vast majority, I don’t see how calling it a full-on change makes sense.

      2. The subjective experience of marriage won’t change, but the nature of marriage as an institution will change. (Cf. Alastair Roberts’ post here.)

        Of course, as Alastair points out, pretty much all the arguments advanced in favour of SSM are based on marriage as being about the subjective experience of the individual married couple, rather than on the purposes of marriage as a social institution. (Though in fairness, Cameron’s “I’m pro-SSM because I’m a Conservative” comes closer to the latter.)

  7. Life giving, in the context of marriage, means so much more than pro-creative sex. It means nurturing, protecting, loving. Because of this, I’d say many non-childbearing couples, and same-sex couples are capable of being life giving. Capable of marriage. I hope you don’t mind me re-blogging your thoughts?

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