Responding to Differing Views:

The Objection from Infertility

Why can infertile couples marry, but not same-sex couples?

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The Objection

One of the chief objections to the conjugal view of marriage is that infertile couples are still considered married. The unifying good of procreation is not available to them, and yet this does not typically render their marriage void. As a society, we fully embrace and celebrate the marriages of infertile couples even though they cannot bear and raise children. Therefore, the argument goes, procreation cannot be the unifying good of a marriage relationship. Another version of the same argument uses elderly couples as the case example — such couples cannot and typically do not procreate, but we nonetheless celebrate their marriages.

This objection typically assumes that it would be onerous, if not downright ridiculous, to deny marriage to infertile couples, and that it is therefore equally ridiculous to deny marriage to any other couple that cannot biologically procreate (such as two men or two women). Those who employ this objection often feel as if they are just trying to keep supporters of traditional marriage intellectually honest and internally consistent. If we are willing to tolerate the marriages of infertile couples, why not that of same-sex couples? And if supporters of traditional marriage are not willing to tolerate the marriages of infertile couples, it just goes to show how the conjugal view of marriage is disconnected from the realities of marriage practice and law.

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Introduction

This article started as a Q/A entry on the Argument from Crucial Distinction, but there are so many ways to respond to the Objection from Infertility that it became an article in and of itself. First of all, this article presumes familiarity with the differences between conjugal and revisionist views of marriage. The Objection from Infertility is an attempt to articulate why the conjugal view of marriage is mistaken. If you are not familiar with these terms, check out The Conjugal vs. the Revisionist Views of Marriage.

Why Might We Recognize the Marriages of Infertile Couples?

(1) The fact that infertility is a loss for married couples simply demonstrates the connection between marriage and procreation.

First of all, the lived experiences of infertile couples advance our claim that marriage is inherently connected to procreation. Girgis, Anderson, and George explain that while childbirth is celebrated in a marital union, infertility is not: “There is no denying what countless infertile couples would be first to admit: Infertility is a loss, a regrettable lack. It makes it impossible for the couple’s union, though marital, to be in a new and quite literal sense embodied.”¹

This does not make the marriages of infertile couples inferior, but infertility is something that is almost universally lamented in a marriage relationship. This would not be so if marriage did not find fruition in child-birth and child-raising in a way that no other relationship does. The point here is that infertility would not be seen as a loss in a marriage relationship quite so acutely if marriage, as a social institution, was not in some way intrinsically connected to procreation.

(2) Procreation can be the unifying good of a marriage relationship even when partners do not successfully procreate.

To exclude infertile couples because they cannot procreate would treat marriage as a means to an end, with marriage being the means and children being the end. This may sound like we are contradicting the argument in this article, but we are not. The conjugal view holds that procreation is the unifying good of a marriage relationship — it does not hold that marriage is only a human good insofar as couples successfully procreate. That is, marriage is union in which the partners coordinate towards the good of procreation; this does not mean that partners are not legitimately married if they do not succeed in the desired end.

Girgis, Anderson, and George use an analogy of a baseball team: a baseball team arranges its activities for the purpose of winning the game, and follows rules set up towards that end. But winning is not the exclusive goal of the team — playing the game can have its own rewards (it’s a fun, healthy pastime that develops character, etc.). Likewise, a marital union has its own rewards and is a social good even when the relationship is not graced by children. But this does not mean that child-bearing and child-raising are not the unifying good of the marriage relationship. Using the baseball analogy, Girgis, Anderson, and George explain:

If nine people do not commit to engage in cooperation order to winning (say, if they only run laps about the field), they do not realize the specific good of playing ball. They are not a true team. And if two or more people do not commit to engage in cooperation even ordered to procreation (coitus), they do not realize the specific good of marriage. Desired or not, achieved or not, procreation and winning each distinguish a practice by shaping some of its activities, activities that give the practice some of its distinctive value.²

That is, if we tinker with the game of baseball so that the good which unites and orders the activities of the team is no longer “winning the game,” we no longer have the game of baseball. Some might argue that this is a novel idea generated specifically to gerrymander the institution of marriage to exclude same-sex couples but include infertile ones. But this is not the case — similar principles apply almost anywhere where there is human practice centered on a unifying good. It is, in fact, so ubiquitous that it goes almost unnoticed.

Seeking an education, for example, is an activity coordinated towards a specific end (learning), but may be considered an intrinsic good even if the ends are not fully realized. A student may not master her multiplication tables, but this doesn’t mean that her school experience wasn’t an educational experience. But we might not consider her experience an educational one if the activities of the day were not at least coordinated towards the good of learning. In such a case, the student would no longer be participating in the institution of education, but in something else altogether (a youth club, a day care, or some other social practice).

Another example is scientific research: the practice of systematically testing truth claims against empirical evidence can be considered an intrinsic human good coordinated towards the pursuit of new knowledge. Such activities constitute a practice wholly distinct from merely counting bacterium colonies in a petrie dish for fun, or preparing to perform a magic show using chemistry (two activities that are similar in form). But the intrinsic good of the practice is not realized only if new discoveries result; rather, it is intrinsically worthy (and still considered scientific research) even if the participants fail to produce any illuminating data.

People engaged in commerce are uniting towards the unifying good of making money or creating value in the world, but this does not mean that people are engaging in commerce only insofar as they successfully make a profit, or that commerce is only a worthwhile pursuit if profit can be guaranteed. The unifying good of an election campaign is to get a candidate elected to public office. If you and your team advertise, solicit votes, participate in debates with other candidates, etc., but you don’t win the seat, you are still engaging in campaigning. This is true even if there never was an expectation of success (as with the recent Ron Paul presidential campaign). We can value the contributions of political campaigns that have no expectation of success for the examples they set and for the values they cultivate. However, holding blank signs, going door to door to sell something, and debating politics with friends do not make a campaign — the activities must at least be coordinated towards getting someone elected to office.

The examples go on. The purpose of hunting is to kill and/or capture an animal. If you carry weapons into the wilderness, stalk prey, take shots at them, etc., but you never bag an animal, you are still engaging in hunting. (Try telling the game warden, when he fines you, “But I never actually hit anything, so I wasn’t hunting!”) But shooting arrows or bullets into a cardboard target on the range is not hunting. Even though the activities may be comparable in some respects, they are not comparable in other respects. Whatever public interests that might warrant requiring a hunting license apply whether or not the hunters bag game, or even intend to — but they do not apply to shooting practice at the range.

The examples we’ve listed mark just a few examples of many. This goes back to Aristotelian thought: the essence of a practice can be defined in terms of its form. While marriage is a form of relationship that is oriented towards procreation, marriage is not identical with procreation. The potential for procreation is what gives reason for fidelity, permanence, and monogamy to be normative (that is, expected of married people), and is thus what makes marriage distinct from other relationships.

(3) Infertile couples can provide a mother and a father to children who do not have them.

In the Argument from Gender Complementarity [Coming Soon] and the Argument from Children’s Welfare [Coming Soon], we argue that the civil marriage provides a social template whereby children have both a father and a mother, and that this is a social good worth promoting. Infertile couples can provide a home to children who do not currently have a father and a mother, and they can thus provide the family that children are naturally entitled to. Same-sex couples cannot provide children with both a father and a mother. So while procreation is the unifying good of a marriage relationship, there are social goods realized by formally acknowledging (and even promoting) the marriages of infertile couples, that are not realized by extending marriage to non-conjugal unions (such as same-sex unions). Girgis, Anderson, and George explain, “Note, too, that legally recognizing infertile opposite-sex unions does nothing to undermine” biological, two-person “opposite-sex parenting as a public ideal.”³

Put simply, if marital norms are good because they provide children with a father and a mother in a stable home, it is not at all intellectually inconsistent to allow infertile couples to marry, but not same-sex couples. In fact, this policy can actually advance the social good of marriage by reinforcing the social ideal in the public conscience.

(4) Screening couples for fertility is invasive in ways that traditional marriage laws are not.

Marriage policy must also be balanced against other policy considerations, such as privacy. Even if we were persuaded that infertile couples do not qualify for marriage, screening couples for infertility is an intolerable invasion of privacy and fertile grounds for abuse of state power. Such an invasion of privacy would violate principles of liberty that we revere in our nation, enshrined in the 4th Amendment of the United States. It would base decisions about what marriages to honor on information that is not (and should not be) a matter of public record. In contrast, simply defining marriage as being between a man and a woman does not invade the privacy of same-sex couples, as it requires absolutely no information that is not already a matter of public record (sex of the partners). To define marriage between a man and a woman minimally acknowledges procreation as the unifying good of the relationship without requiring knowledge about the specific health status of any particular individual or couple, and thus also acknowledges other important legal norms, such as privacy.

(5) Fertility testing is sometimes inconclusive, and infertility is not always untreatable.

It is not at all clear that a couple, once declared infertile, will never be able to procreate. While medical professionals have vastly improved their abilities to detect infertility, once detected, infertility is not always untreatable. In addition, couples who were thought to be infertile have often surprised medical professionals by conceiving regardless. There is no guarantee that a man and a woman cannot have children, while there is a guarantee that a man and a man, or a woman and a woman, cannot naturally do so. Thus even if child-birth never happens, a man and a woman can continue to order their lives with the hope and expectation of child-birth. In addition, if children are born, they can provide those children a father and a mother. A same-sex couple can do neither. If procreation is the unifying good of a marriage relationship, then marriage simply requires the potential for biological procreation (no matter how small), something that exists in virtually any male-female sexual relationship.

(6) Letting older couples marry — and treating their unions as marriage — serves procreative interests.

Procreation is the unifying good of marriage, but an important secondary benefit of marriage norms is that they serve to constrain and direct the powers of procreation in ways that serve public interests. While older couples may be infertile, both parties may not be. Men usually do not outlive their fertility, and treating their unions as marriage, even when they as a couple cannot procreate, encourages norms permanence, exclusivity, and monogamy that serve the interests of children. When norms of permanence, exclusivity, and monogamy erode for older men, they are more likely to produce offspring outside marriage and into their old age, increasing the risk of both producing children out of wedlock and producing children who would soon be fatherless.

Thus, public policy may treat the unions of older couples as marriage not as an exception to the procreative norm, but because of the procreative norm. Such a policy fosters the norms by which children are born into stable homes with a married father and mother, and discourages potentially procreative promiscuity in older men. This is why it is not intellectually inconsistent to formalize marriages between older couples while not formalizing marriages between same-sex couples.

(7) Infertile couples can participate in the marital act — which is connected to procreation — while same-sex couples cannot.

In some versions of the conjugal view, the public norms of fidelity and permanence are intrinsically connected to coitus (man-woman vaginal sex), because of its biological connection to conception. Not all may agree, but some versions of the conjugal view argue that marriage partners are obligated to fidelity and permanence not by child-birth, or even conception — these duties begin the moment a man and a woman engage in coitus, the bodily union that biologically leads to new life. Consider: a man and a woman may engage in coitus on their wedding night (an act replete with potential for new life), but do not get pregnant. Do they have no natural obligations to each other? Do those obligations only exist when they finally succeed? Should those who are not infertile, but who simply have not procreated yet, not be bound by norms of fidelity and permanence?

Simply put, in many philosophical traditions, when a man and a woman engage in coitus, they bind themselves to natural duties of fidelity and permanence regardless if conception occurs. Many societal traditions acknowledge obligations of fidelity, exclusivity, and permanence to our sexual partners — obligations that arise from the potential of the act to lead to new life, but which do not depend on the success in doing so. Sexual acts that do not involve the potential for new human life do not give rise to those same duties.

Our laws have historically reflected this: prior to coitus, a married couple could annul their marriage without the inconvenience of divorce, even if they’ve engaged in other sexual acts. That is, long before homosexual activity and same-sex marriage became a matter of public debate, coitus was considered the only act that could consummate a marriage. For example, if a man and a woman got married, and then spent the next engaged in oral sex, but never engaged in coitus, they could still annul their marriage without divorce. This illustrates the way even our laws have historically hinged the norms of fidelity and permanence to coitus — the sexual act that carries with it the potential for conception. From such a perspective, it is not inconsistent to extend those norms to infertile couples but not same-sex couples, as they can participate in the marital act, while same-sex couples cannot. This does not mean that same-sex sexual activity (oral or anal sex) is morally inferior — it just means that, from the conjugal view, because of the lack of potential for conception, the public obligation of fidelity and permanence do not naturally accrue in the same way (even if the partners choose to live out those norms as a matter of personal preference).

(8) The same challenge can be levied against any view of marriage: should revisionists exclude those who aren’t really in love, or emotionally compatible?

The presumption has been that because we let infertile couples marry, the conjugal view of marriage must be false (or at best, internally inconsistent). This does not mean, however, that the revisionist view does not raise the exact same questions. If the unifying good of marriage is personal fulfillment and romantic love, can we guarantee that all prospective marriage partners are actually in love? Can we guarantee that prospective marriage partners are actually emotionally compatible, and that the relationship will actually lead to personal fulfillment? Would we really feel the need to screen couples for emotional attachment and compatibility, in order to consistently hold the revisionist view of marriage? The fact that not all marriages are personally fulfilling does not itself negate the idea that personal fulfillment is the unifying good of marriage. The same is true of the conjugal view — that not all couples successfully procreate does not negate the idea that procreation is the unifying good of marriage. So in this way, the question of infertile couples is a moot point.

(9) The revisionist view has far worse challenges with internal inconsistency.

Further, the Objection from Infertility holds that if the unifying good of marriage is procreation, to be consistent, we must exclude infertile couples. Otherwise, we would be drawing arbitrary lines, including and excluding couples for no good reason. However, the revisionist view suffers this exact same problem, but many times worse. As we explain in the Argument from Crucial Distinction, the conjugal view of marriage provides a non-arbitrary reason for defining marriage as two people, who are man and woman. The revisionist view not only does not provide a non-arbitrary reason for restricting marriage to man and woman, it provides no non-arbitrary reason for restricting marriage to two people, or even to lovers. If intellectual consistency requires that those who hold to the conjugal view exclude infertile couples from marriage (it does not), intellectual consistency requires that those who hold to the revisionist view abandon virtually all restrictions to marriage, opening marriage up to roommates, best friends, business partners, siblings, groups, etc. Any relationship that is mutually fulfilling, in which the partners share the burdens of domestic life, should be candidates for marriage.

(10) Excluding infertile couples from marriage actually endangers marriage norms.

The state has interests in cultivating norms of fidelity, exclusivity, and permanence in marriage relationships, as these stabilize homes and serve the interests of children. If the state were to make it a policy that these norms are only to be encouraged in relationships that actually produce children, this can serve to destabilize families at large. It teaches that as long as adequate birth control is used (effectively rendering the relationship infertile, if not the partners themselves), none of the stabilizing norms of marriage need apply. Abstinence before marriage (increasingly disregarded due to the influence of the revisionist view of marriage) is concretely and empirically tied to stability after marriage. Since research shows that those who are promiscuous prior to marriage are much more likely to violate those norms after marriage, effectively decoupling these norms from the procreative act (coitus), and coupling them only to actual conception instead, endangers these norms at large.

(11) Letting infertile couples marry does not endanger the public understanding of marriage.

Extending marriage to same-sex couples inherently decouples the institution from the unifying good of procreation, and identifies a different unifying good — the personal fulfillment of the marriage partners — as the defining feature of marriage. In contrast, extending marriage to infertile couples does not (necessarily) do this. In short, to the extent that civil law informs the public conscience, acknowledging the marriages of infertile couples does nothing to jeopardize the public’s understanding of what marriage is, nor does it jeopardize the public’s understanding of why fidelity, monogamy, and permanence should be normative. For example, marriage law can help people understand that children are entitled to a father and a mother, that fathers have inherent duties to their children and their mother, that the duties of marriage are intrinsically connected to sexual acts that have the potential for new life, that family is a natural extension and fulfillment of the conjugal act (in a way that it is no other sexual act). Extending marriage to infertile couples does not undermine the public’s understanding of any of those principles. For this reason, charges of inconsistency do not apply.

Conclusion

The Objection from Infertility is usually employed to illustrate the internal inconsistency of the conjugal view of marriage. However, if any one of the above responses could reasonably render the marriages of infertile couples consistent with the conjugal view, imagine what all of them together can do. This should put to rest the idea that the marriages of infertile couples are a threat to the conjugal view, or that they disprove the conjugal view in any way. Of course, which of the above responses one might use depends greatly on the context of the conversation in which the Objection from Infertility is employed.

It is important to remember that this understanding of marriage does not in any way whatsoever require us to believe that homosexual companionships are morally inferior. It just means that they serve different ends, and that the norms of marriage are undermined by including them (in the same way that the norms of marriage would be undermined if we included “friendship” or any other non-conjugal union that does not naturally entail or imply norms of fidelity, monogamy, or permanence), and that the norms of marriage are enhanced by including infertile couples (or, at the very least, not undermined by it). In short, nothing about the perspectives outlined above is motivated by malice towards homosexuals or contempt for the relationships they enjoy.

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References and Further Readings

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