Wednesday, September 15, 2010

Why Homosexuals Can Reproduce: In Re Proposition 8 Perry v. Schwarzenegger Dialogue

I'll post excerpts of comments in black and my responses in blue.  I pasted these in from the facebook conversation that's going on- if you'd like to read it raw, check my facebook wall and/or add me as a facebook friend to see the notes comments are attached to.

Andy Westover
3) My understanding of your scenario was that a third party donated a cell, which then had the genetic material of one of the homosexual partners inserted into it, which was then combined with the gamete of the other partner. Boom... a baby is created. Oh the marvels of science.
That still, however, requires that other donor... the third party.
So, the argument was that since a homosexual couple can have a child with the assistance of a third party (like unto an infertile heterosexual couple), they should be given the same privileges (aka marriage - if we are to accept that procreation is part of the accepted definition). That is your argument correct?
So, my response is, that though that is very logical, that seems to be banking on the exception rather than the rule. Of course, some heterosexual couples, if left in an empty bedroom, cannot procreate. However, some (if not most) of them can. Whereas any homosexual couple, left to natural means, is completely incapable of procreating. They need that 3rd party EVERY TIME. They need that test tube, etc. We're not talking about an infertile homosexual couple... this is the rule, not the exception when it comes to the homosexual couple, they cannot procreate without the third party and tech. Whereas with the hetero couple, it is the exception rather than the rule.

That is where your comparison (homosexual couples vs. infertile heterosexual couples) falters. (you may argue that this faltering does not matter legally or otherwise, but that is a separate argument)

The take home message is, any given heterosexual couple (in the aggregate) can *potentially* procreate independently. There is NO potential for ANY homosexual couple to procreate independently/naturally (that 3rd party and all the tech would be needed). Therefore, I think we can argue that a procreation-based definition of marriage can still be supported, since natural procreation can only occur in a heterosexual couple.

3) I think you're misunderstanding two of my scenarios- which is understandable, they're not exactly Biology 100. 2 of the four I've noted require NO third party. Also, I did not argue that heterosexuals as a rule cannot reproduce without a third party. Rather, I argued that a subset of them are just as inherently infertile (they inherited this infertility) as homosexual couples and thus merit exclusion as much as the class of couples that are same-sex on a *potential* to reproduce basis. Also: You make a claim about "natural procreation"- claims from nature are usually flawed (

I "reproduce" my edited arguments here- I realize they're a bit complex, but I think they'll make sense if carefully analyzed, and it's the best way I can think of to address your specific questions:

"I don’t see the logic in your contention about homosexuals not being able to reproduce together.  What is your definition of “reproducing together”?  Since you can’t respond here I will posit what seems a reasonable dictionary definition: “the process of generating new individuals of the same kind from the parents.”  The mechanism of inheritance in sexually reproducing species (and indeed all cellular life) like ours is DNA.  Thus, is not a DNA contribution by both partners (throw in gestation by one of the parents too if you want) sufficient to make them biological parents? Picture partner A of a lesbian couple replacing the nucleus of partner B’s oocyte with her own fertilized nucleus, then either partner gestates the child.  The resulting offspring will be genetically related to both lesbian parents.  The biology here is inescapable.

You’ve also lost me on the third party discussion. If your standard is that bringing in a third party “differentiates these couples from heterosexual unions” and that “there is a difference between reproducing via a third party,” I will make two embryologic counters, each in the alternative, followed by a normative argument.

First counter: Will the usefulness of inherent reliance on a third party as a discriminator fail when the technology advances sufficiently to enable homosexual couples to be the two and only two biological parents of a child? For instance, all the instructions necessary to create a human egg are contained in each somatic cell of an adult male. Given the proper hormone/nutrient/transcription factor cocktail, totipotent cells (which as the name implies can become any type of human tissue) harvested from gay partner A could be stimulated to become eggs. The sperm of partner B could fertilize the eggs from partner A. (Interesting sidenote- this embryo could be either male or female, while the counter situation in lesbians would likely require added proteins [chromosome Y gene products], and could only produce girls).  The embryo could be implanted in a surrogate or, if you think gestation contributes to biological parentage, avoid the third parent by throwing the embryo in an artificial womb [though the device is not yet fully operational, much as the Death Star, many of its constituents are already employed. Three examples: 1) extracorporeal membrane oxygenation (ECMO), a functioning technique and a component of an artificial womb currently used within neonatal intensive care units for very premature infants. 2) Dialysis techniques could remove waste products generated during gestation. 3) Lactated Ringer's solution can be used to replace amniotic fluid] to gestate.  Another scenario: the nucleus of lesbian partner A's gamete could be fused to that of partner B's, the resulting oocyte persuaded that fertilization had occurred, and the zygote implanted in either partner.  Bottom line in all three scenarios? A child with two and only two biological parents of the same sex.

In the face of these biological possibilities, is not the natural possession of all the inheritable material necessary for procreation sufficient to conclude that homosexual couples are inherently capable of reproducing together? Given that the gap between the current situation and the scenario I’ve described is purely technical, is there some articulable reason to wait for that technology to actualize before concluding that homosexual couples possess just as fully as heterosexual couples the essential inherent elements (i.e. the DNA) needed to reproduce together?

Second counter: If my argument that homosexual couples are inherently capable of two and only two parent biological reproduction fails for some reason, I argue in the alternative that to be fair, the standard of inherent reliance on third parties to reproduce must also be applied to infertile heterosexual couples who inherently rely on third parties. You noted that the operative word is "inherently." I would ask for your definition of inherent, which would engender testability. Since you can't respond right now I will again quote a dictionary: "Existing as an essential constituent or characteristic; intrinsic." The most essential biological constituent existing that we know of is DNA. For at least some subset of infertile couples the cause of infertility is an inherited genetic condition (such as two recessive alleles which when combined inhibit meiosis). Because these couples/individuals' third-party reliance was DNA-inher-ited, that reliance is inher-ent. For at the very least that subset of infertile couples whose infertility is inherent they fail to survive your standard. Assuming that my interpretation of "inherent" is reasonable, you must either 1) abandon the reproductive reliance on a third party as a discriminator or 2) abandon the claim of being fair in applying the standard unless you would also exclude this class of heterosexual couples.

Normative: Irrespective of the success of counter 1 or 2, I question the purpose of endeavoring to find reproductive differences on which to pin exclusion of access to marriage. Marriage traditionally is not strictly tied to reproduction. Parties that have undergone a hysterectomy or vasectomy, elderly people incapable of reproduction (I'd point out this infertility is also inherent, as we inherit senescence genetically), emasculated individuals, etc. are all permitted to marry. Thus, excluding homosexual people from the institution must be done on some other basis than reproductive capacity to avoid a conclusion of caprice."

5) So... this leaves us with the exceptions (aka the infertile couples). Since I do not view the infertile couple and the homosexual as parallel situations (as argued above), I don't think it is a real issue.

5) Do you still conclude so after a careful consideration of my "in the alternative" arguments above? I'm likely a little biased toward the logic since I wrote it, but it seems pretty compelling.

Again, the take home message is this:
If I select a heterosexual couple at random, there is a statistical possibility that they can procreate naturally (without the 3rd party, or test-tubes, etc). If natural procreation is part of the definition of marriage, then all heterosexual couples (regardless of fertility - and leaving out all incest and things of the like) should be allowed to be married because of that statistical possibility. In other words, that group is all in without prejudice.

(---You may argue, "but what about the old people?" Sure, if you select randomly from a set of 100+ year old heterosexual couples, they may too have zero statistical potential for procreation. But that group is so small, that it is ridiculous to consider them as their own entire category due to sample size. Thus, they'd be included in the set of all hetero couples.---)

If you zoom out and cover your eyes, sure you can say that there's a statistical possibility that a random heterosexual couple can reproduce. If you'll zoom out, though, given that the majority of people are heterosexual, you could just as easily zoom out one more blip, lump in the homosexual couples, and by the same standard a random couple (including homosexual couples) would have the possibility of reproducing naturally. What is your zoom level standard, and what is the justification for its placement where you put it rather than closer in or farther out?

If you open your eyes, on the other hand, you can look and see whether an inherently infertile couple, an inherently fertile couple, or a homosexual couple stands before you. If you'll look closely enough to distinguish classes, then you'll see the homosexual class of couples and the inherently infertile class of couples- in which instance it's unfair to exclude class 1 but not class 2 on an inherently infertile basis.

As to the old people argument, would you then permit homosexuals to marry as long as only a few of them requested it? It sounds like the new device created to exclude them, since the capacity to reproduce discriminator has failed, operates because there are too many of them that want the exception. If more and more people undergo vasectomies and hysterectomies or wait until they're old to marry, or there's a boom in gerontology ward weddings, will you then begin to exclude them from marriage as well? What's your threshold percentage? Or is it an absolute number? What is the justification for placing it where you do rather than higher or lower? The size of the exception is a candidate discriminator, but a weird one. Perhaps I should applaud the creativity.

If I select a homosexual couple at random, there is no statistical possibility that they can procreate naturally (as defined above). So, again, if natural procreation is part of the definition of marriage, then all homosexual couples are then ruled out. In other words, since there is no possibility to fulfill the procreation criteria, the whole group is out.

I agree that if natural reproductive capacity is the standard, then all the same-sex couples are out.

Wow, this took way too long. Enjoy

Oh, I enjoyed. :)
Leland Faux: Brad, thanks for your comments. I think you bring up some good points and I'm not really sure if I have a good answer to some of your questions but I would like to respond:

1. Certainly my argument does require some thought about what to do ...with the exception (i.e.: allowing non-reproducing heterosexual marriages). I've been grappling with this issue for some time and I regret to say that I don't have a very concrete answer. I definitely think that its a choice between two unattractive alternatives. On the one hand, eliminating the exception will surely be unpopular with a lot of people; on the other hand, a fair application of the exception does seem to require that it be equally applied to all parties who want to form spousal relationships. Ultimately, I do lean towards getting rid of the exception on the basis that its elimination does a better job of sending a message to the world that we need to be thinking about the interest of children more than we do now.

I would still remove children from abusive parent, or an otherwise unfit parent.

I don't contend against adoption because I see adoption as a great substitute for biological parentage. In other words, adoption is a great solution to the problem of what to do with children who are brought into this world who are not going to be raised by their biological parents.

Finally, I'm not going to go so far as to say that I will lay down my resistance to homosexual marriage if homosexual couples can be the sole biological creators of a child. I assume that children are better off with a female mother and a male father. I realize that that assumption can be verified or discredited by various studies, so admittedly my personal religious beliefs push me in that direction. This being said, however, because the child would be able to know and develop a relationship with its biological creators, it would seem more fair to the child. And for that reason, I would find it less objectionable.

@Leland- thanks for your thoughtful comments.

 1) I can also see the difficulty in deciding what to do with the exceptions. I agree that from a perspective such as yours it's a choice between two unattractive alternatives. It is also candid to state your assumption (opposite gender couples parent better than same gender) and note that the assumption could be shown to be either a poor or a robust predictor based on study-produced evidence.

2) Agreed.
2) Cool.

3) I think you are exactly right here. Society will continue to resist changes in the real (in my view) definition of marriage-- which is "the formation of the spousal relationship for the purpose of procreating and raising children." Children have an inherent interest in the relationship of their parents and in their relationship to their parents. Unless and until society respects that interest, I think there will always be unrest about the meaning of marriage and family. Granted, it is difficult, or rather impossible, to know the all the societal consequences of allowing homosexual marriage.

3) It sounds like you espouse a marriage definition quite different from the legal one. That's fine and I'd say defensible. Additionally, I agree that "Children have an inherent interest in the relationship of their parents and in their relationship to their parents." I also agree that " it is difficult, or rather impossible, to know the all the societal consequences of allowing homosexual marriage." Of course, that inability to know future consequences neither supports opposition nor embrace of homosexual marriage, since the societal consequences could also be overwhelmingly beneficial.

4) I'm not aware of a federal definition of marriage as it pertains to the Constitution. Please let me know if I am mistaken. The most direct case of which I am aware is Loving v. Virginia. In that case, the Supreme Court a 14th amendment right to marriage as the right to decide whether to marry and who to marry. But even in this finding was rooted in the Court's holding that Virginia's antimiscegenation law was unlawful and invidious racial discrimination intended to promote white supremacy. This "whether and who" standard is what would create the Constitutional "floor" of the right to marry. This standard gives the states broad discretion in regulating marriage on grounds other than on racially discriminatory ones. If this were not so, the "whether and who" standard would Constitutionally trump virtually every state marriage regulation. For instance, suppose an individual wants to marry (the "whether" standard) a person who is already married (the "who" standard) but the state has regulated against polygamist marriages. If the individual has the Constitutional right to this "whether and who" choice, the state is powerless to prevent this marriage and is, in fact, obligated to allow it. So the question is, if states lack broad power to regulate marriage, how broad is an individual's right to determine what marriage is?

Anyway, you don't have to feel obligated to respond to this stuff and maybe I'll visit with you at school sometime. Also, thanks in general for your posts. I think you are an insightful person--particularly in regards to your last one about Christ as judge and advocate. I think you're right about that one. Thanks.

4) Hmmm- I'm not sure yet how to respond to this one. It is a similar thought experiment to the one Dan advanced. It would seem that if the Loving holding was limited to the choice of "whether and who" within the particular state's definition of marriage, then the state discretion is limited but still quite broad. If the Loving holding is not limited to the arena of the state's construct of marriage, then it would seem state discretion is much more limited, as it would be constrained by the federal judiciary's interpretation of the scope of "whether and who." It seems the former would be counter to traditional constitutional jurisprudence (which guarantees a "floor" of rights independent of state law. Plus the state could still construe marriage in a way that mandates whether and who, effectively rendering that limitation meaningless), but I'll have to think on this one a bit more.

Thanks for the affirmation on my insights, and I'd be glad to chat either in person or like we're doing now on Fb. As you're probably aware, I've written abundantly on many topics on my blog ( if you'd like to browse the titles for subjects that appeal to you, I would welcome and invite and appreciate your thoughtful responses and criticisms.

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