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2021, vol. 55, br. 3, str. 714-750
Prilog raspravi o društvenom priznavanju brakolikih i porodicolikih društvenih pojava
Univerzitet u Beogradu, Učiteljski fakultet, Katedra za filozofiju i društvene nauke

e-adresauros.suvakovic@uf.bg.ac.rs
Projekat:
Ministarstvo prosvete, nauke i tehnološkog razvoja Republike Srbije (institucija: Univerzitet u Beogradu, Učiteljski fakultet) (MPNTR - 451-03-68/2020-14/200138)

Ključne reči: brak; porodica; homoseksualni brak; istopolna zajednica (istopolno građansko partnerstvo); LGBT pokret; LGBT ideologija; sociološko razumevanje pojmova; pravni položaj; socijalni inženjering
Sažetak
U radu se razmatra odnos braka i porodice s jedne strane, i brakolikih i porodicolikih homoseksualnih zajednica kakve su tzv. homoseksualni brak i istopolna zajednica. Uz kraći teorijski uvod i komparativni pregled kako je ovo pitanje uređeno u drugim zemljama, analiziraju se pojedina rešenja iz Predloga Nacrta Zakona o istopolnim zajednicama Srbije (2021). Ukazuje se da nije moguće vršiti izjednačavanje braka i porodice sa istopolnom zajednicom, zato što se sadržaj ovih pojmova supstancijalno razlikuje. Društvo je zainteresovano da štiti brak i porodicu i vodi posebnu brigu o njima, zato što oni vrše izuzetno značajne društvene funkcije, pri čemu bi bez nekih od njih i sam opstanak društva bio doveden u pitanje (funkcija reprodukcije). S druge strane, homoseksualni brakovi i/ili istopolne zajednice ne vrše nikakvu društvenu funkciju, već se formiraju isključivo radi relativno trajnijeg zadovoljenja seksualnih potreba istopolnih partnera. Pošto društvo i država ne štite brak samo zbog toga što se u okviru njega reguliše seksualnost, već zato što se njime legitimišu seksualni odnosi u cilju dobijanja potomstva, to i u slučaju homoseksualnih brakolikih zajednica treba postupiti na identičan način: pravno regulisati isključivo ona prava i obaveze partnera koja proističu iz relativno trajnijeg homoseksualnog partnerstva. Osim toga, imajući u vidu načelo da je pravo svakog čoveka ograničeno pravima drugih ljudi, nije dopustivo da se zaštita prava istopolnih partnera na osnovu trajnijeg održavanja homoseksualnih odnosa pretpostavi zaštiti dečjih prava. Deci su potrebni i otac i majka (idealan uslov), te porodica u kojoj će se ona socijalizovati. U skladu sa tim homoseksualnim brakolikim zajednicama ne može se dopustiti adopcija niti biomedicinski asistirana oplodnja.

Introductory notes

The paper analyzes the concepts of marriage and the family. On the basis of that analysis, they are compared to various marriage-like and family-like social phenomena that attempt to be conceptually equalized with marriage and the family in public and quasi-scientific discourse. The starting point is the hypothesis that it is scientifically and methodologically unacceptable to use identical or very similar terms for essentially quite different concepts, from which those who act in that way derive far-reaching social implications. Moreover, we agree with Marković's conclusion that describing a symbol with the common language words is the safest way of fulfilling the communicability requirements, since "a necessary relationship is established with the objective experience, enabling other people to understand it" (М. Marković, 1994, p. 283), which in turn is the consequence of the fact that meanings of the common language words have formed during long periods of historical course and a multitude of generations using that word/those words to denote a certain concept.

In his Serbian Dictionary, Vuk Stafanović-Karadžić used the term "family" (Serbian archaic. vamilija) to denote a "generation, lineage" (Karadžić, 1818/1987, p. 59). That word was taken from Latin familia in a distorted form, and clearly denotes the existence of a common origin, tie, connection or kinship. In Matica dictionary, there are different words that all synonymously refer to the same concept - family. Namely, the family is defined as a "union consisting of parents, their children and close kinship living with them" (Matica srpska, Matica hrvatska, 1971, p. 729); family as a noun is said to be of Latin origin (Matica srpska, Matica hrvatska, 1976, p. 655), while there is also a definition of family as "a union consisting of parents with children (and other relatives living in the same household" с (Matica srpska, Matica hrvatska, 1969, p. 856). Therefore, there is no doubt that in all terminological versions, the family is a union1 of parents and children, potentially extended with close or distant relatives2. However, there is no doubt that the substrate is the parental couple and their children (italicized by U. Š.), is what Durkheim called "conjugal family" that is formed around the marital dyad. Even our most influential authors give him a credit for that finding because of its "anticipation character" (Milić, 2007, p. 24), considering the tendency of "contraction" of family relationships that became a fully accepted practice almost one century later. Although giving a precise definition of the family is believed to be difficult due to the changes the family has undergone throughout history. Anđelka Milić points to its two constituent elements that have continuously existed: a) joint life and work of a group of people living under the same roof, b) kinship between them3 (Milić, 2007a, p. 414). Contemporary authors, taking into account primarily the family nowadays, determine it as a social group "marked by concurrent and intertwined biological and reproductive, emotional, intimate-partnership, parental, social and financial relations" (Jugović, 2020, p. 189). Here it is noteworthy to perceive a simple fact that a family consists of at least4 the parental couple and their children, so that "heterosexuality in every society is the basis of marriage and the family" (Giddens, 2007, p. 136 ; Ibid in D. Ž. Marković, 2001, p. 386), i.e. a "constituting element" of marriage (Mladenović, 1995, p. 39). This is by no means contradicted by various types of marriage and the family in the past:

  1. All types of group marriage, except for utter promiscuity at the lowest degree of barbarianism. Namely, one of the crucial differences between a man and an animal is socialization of sexuality (i.e. of sexual instinct), which is regulated by social norms (including legal norms, with the emergence of the state). Socialization of sexuality was the first step towards the regulation of reproduction, where an important role is played by the institution of marriage because even at the level of marriage with more than two persons, the "primary relationship is between an individual man and an individual woman, and then among all of them mutually" (Milić, 2007, p. 117, italicized by U. Š.).

  2. The existence of common-law marriages/families, adultery and prostitution, which is particularly manifested at the level of monogamy (see Engels, 1979). Engels explains monogamy by the emergence of a social need to know the child's father, primarily for the purpose of inheritance, indicating (an criticizing) the fact that social practices that "supplemented" monogamy were primarily tolerated by men, but also strictly punished in the case of women. With the emergence of Christianity, marriage and the family assumed the aura of a "sacred secret" protected by the church and then by the state as well. The subsequent development equalized the common-law family in its rights with the marital union, whereas adultery, divorce5 and abortion6 are liberalized to a different extent in different countries

  3. The existence of the societies that "tolerated or openly approved" of male homosexuality in different forms (Giddens, 2005, p. 81, italicized by U. Š.). However, as Giddens himself indicates, it was a type of "sexual instruction" in certain societies, while "those activities were expected to stop when young men got engaged or married" (Giddens, 2005, p. 81). Accordingly, not even the societies taken by Giddens as an illustration based on anthropologic research, encouraged homosexuality, but, on the contrary, they encouraged heterosexuality.

We should also point to the correlation between marriage and the family: a family is started by getting married7 and when a man and a woman are said to be married, it means that they have started a family. Giddens defines marriage as a "socially recognized and permitted relationship between two adults of opposite sex" (Giddens, 2005, p. 187). Still, an additional provision should be added to this definition: social legitimization is not given unreasonably, but it is a type of permission "given by the social community to partners so that they can engage in a sexual act for the purpose of creating progeny" (Milić, 2007, p. 117).

Marriage and the family are historical categories

The allegation from the heading above was supported by Engels a long time ago in his book The Origin of the Family, Private Property and the State, on the basis of Morgan's research. That historicity, of course, means that the forms of marriage and the family have changed with the passage of time in order to fulfil the requirements of an epoch, but that does not mean renouncing the ideas of a heterosexual union that has legitimacy acquired in a certain manner (custom law, the church, the state) and that takes care of its own reproduction, i.e. progeny. Various forms that changed throughout history only confirmed this substrate. Since these are historical categories, it is clear that their content has changed during their very long period of existence8. Nevertheless, just as today no one can conclude in a substantiated manner that the state is an "ossified institution"9, such conclusion by Giddens is not true in the case of marriage and the family (Giddens, 2005, p. 83): the term has remained, but the content has changed!10 On the contrary, it is exactly the opposite: marriage and the family adjust to new epoch-determined social circumstances, without losing their basic substrate11.

This finding is quite important as argumentation for our attitude that various marriage-like and family-like forms, relying on the idea of separating sexuality from reproduction, while being able to satisfy solely sexuality, are neither marriage nor family, but a new phenomenon sui generis (Šuvaković, 2013, p. 169 ; cf. Čović, 2015), which should be particularly explored as such. Separating sexuality from reproduction and marriage (Segalen, 2009, pp. 173-174), as Giddens concludes, has made "sexuality with no content by definition not subordinated to heterosexuality" (Giddens, 2005, p. 82), which consequently led to attempts of substituting marriage and the family with couples and partnerships12 (Giddens, 2005, p. 84). He points out that the family is a social phenomenon that is "most frequently exposed to instrumentalization", while accepting the opinion that it is "the most ideologized concept in sociology"(Tomanović, 2019, p. 302)13. We do not find that the argumentation in favour of the thesis that separating sexuality from reproduction necessarily means the affirmation of homosexuality as a "new" sexual practice; such separation nearly means the satisfaction of a sexual instinct outside marriage (too), whereas that process should not be absolutized. Satisfying the sexuality instinct may be done in different ways, including homosexuality, but not excluding some other forms that have not been socially accepted to this day, which does not mean that they do not exist in practice. "Paedophilia and child pornography are probably the only outbursts of sexual desire that are still, almost unanimously, considered perverse" (Bauman, 2009, p. 73). Is it then proper to ask a question how long these taboos will be in force? Namely, a taboo is based on value and if sexuality is an ultimate value, then it is certain that in a future period of time the very last prohibitions will be removed for the sake of satisfying sexuality14. In addition, if the nature of marriage has substantially changed, reducing it to "pairing" and "unpairing" (Giddens, 2005, p. 84), then it is reasonable to ask a question as to why "pairing" and not "grouping". If there is such regression regarding the question of social regulation of sexuality, then not even these sexual practices are inconceivable15. What does determine a pair and not a group? Christianity. Therefore, we are again in the field of the epoch-determined values that does not have much to do with the "democracy of emotion", used by Giddens to "justify" the social legitimization of homosexuality, which is, in his own words, "equally important to political democracy as the improvement of our living conditions" (Giddens, 2005, p. 87, p. 88 ; cf. Prokić, 2014, pp. 497-498). For the sake of total clarity of the conclusion: for political democracy, the eradication of hunger and the right to the healthy environment are as important as practicing homosexuality?! That is the reason for the emergence of the entire ideology of American higher and middle classes affirming homosexuality (see Antonić, 2014) and connecting sexual orientation of LGBT persons with their human rights based on that type of sexual practice. During her mandate of the US State Secretary, in her speech in the UN seat in Geneva on 6th December 2011, Hilary Clinton included the promotion of the above in the priorities of the American foreign policy. She also announced the instruction to the US embassies all over the world as to how to perform supervision over the protection of such ideology (H. R. Clinton, 2011), or, in fact, how to lobby in the direction of its affirmation16. That fact speaks of the pro-systemic character of the LGBT movement, since serious social conflicts (class, racial) have shifted into the field of sexual-identity ones, just as the idea of "democracy of emotion" and "ossification" of marriage and the family constitutes only fully derived neoliberal intervention in the direction of atomizing the person staying outside the family completely alone, insufficiently protected and deprived of satisfying various needs that were regulated within the family.

So-called same-sex unions are not and cannot be the same as the family and marriage

The attitudes of the US neoliberal elite and government officials accelerated the process of the legal normatization of so-called same-sex unions (or same-sex life partnership). In 1989, Denmark was the first country in the world to legitimize formally the registration of same-sex couples as domestic partners, while in 2000 the Netherlands was the first to allow the conclusion of same-sex marriages by changing the local definition of marriage (Same-Sex Marriage around the World, 2019). By 2020, twenty-nine countries legally recognized homosexual marriage17.

Same-sex unions are actually a euphemism for same-sex marriage. They are also called civil unions, registered partnerships or domestic partnerships. The number of the countries that have recognized them exceeds the number of the countries that have recognized homosexual marriage, but in the majority of the countries that have recognized homosexual marriage, it was preceded by the legal recognition of homosexual marriage-like unions. The difference between such unions and homosexual marriage may be only terminological (e.g. in the case of Andorra) to substantial, when such unions cannot adopt children (e.g. Czech Republic, Portugal, Switzerland18). This is how some of these countries resolved the general question of common-law unions. Namely, Portugal has recognized common-law unions (unido de facto), which may be both heterosexual and homosexual, but the latter cannot adopt children. In Italy, the law on civil unions (unioni civili) was adopted in 2016 - the so-called 'Cirinna's Law' on the same-sex union and/or cohabitation of two gay men or two lesbian women that recognizes the rights that can to the greatest extent be equalized to those acquired in the marital union, but not the right to parenthood or origin (or the adoption of the child of the other [partner] or adoption of other children)" (Naldini, Solera, 2020, p. 15). However, France has recognized homosexual marriage, while providing two additional forms of marriage-like unions: а) civil solidarity pact (pacte civil de solidarité, PACS), which looks like marriage by the partners' rights, but does not enable the establishment of relations with children or creating family ties. It is a type of civil agreement between partners who may be heterosexual or homosexual, and producing the effects on social rights and rights to income, property, partner housing, tax matters etc. However, in these cases there is no family pension, based on the civil solidarity pact it is not possible to obtain a residence permit for France; this pact creates a regime of separate property of the partners; inheritance can be testamentary, and some other solutions are stipulated for mutual protection that can be regulated by amending the content of the specific pact by the couple (Service-Public, 2021); b) de facto cohabitation (de facto cohabitation) is a form of heterosexual or homosexual partnership that recognizes the existence of their life union, which may be verified by the relevant city authority or about which they may make a formal statement themselves (Notaires de France, 2021).

Speaking of former Yugoslav republics, Slovenia (2005; Partnership Law, 2016) and Montenegro (Same-Sex Life Partnership Act of RM, 2020) have adopted laws on same-sex life partnership regulating their property and other civil rights, but they differently treat the matter of adoption. In 2014, Croatia amended its Law on Same-Sex Life Partnership from 2003 and allowed "partnership care", thus equalizing marriage with the same-sex life partnership in all segments (Same-Sex Life Partnership Act of the Republic of Croatia, 2014; see Petrašević, Duić, Bujan, 2017), while in 2021 the Administrative Court in Zagreb made a decision explicitly permitting children adoption based on "non-discrimination". In its own law, Slovenia prohibited children adoption and declared the partners in a partnership union (partnerska zveza) unfit for biomedically supported insemination, no matter whether their partnership union is formally registered or not (Article 2, Paragraph 3; Article 3, Paragraph 4 of the Partnership Law of the Republic of Slovenia, 2016). The Montenegrin law is not specific about this matter although it stipulates, just as the Proposal Draft of the Law on Same-Sex Unions in Serbia (2021), that "everyday decisions about the child can also be made by the partner who is not the child's parent, with the consent of the partner who is the child's parent", thus recognizing certain elements of parental rights without formal adoption (Article 53 of the Same-Sex Life Partnership Act of the Republic of Montenegro, 2020). Northern Macedonia, Bosnia and Herzegovina, and Serbia have not adopted such regulations (yet), although a serious attempt in that respect has been made in Serbia. Generally speaking, there is substantial opposition of the Christian Church (both Orthodox and Roman Catholic) to the recognition of homosexual "marriage" and/or same-sex unions, so the equalization proceeded with difficulty in those countries under the significant influence of the church, while in some case the authorities allowed courts to ensure certain rights in order to avoid conflicts with the Church, but also with the public opinion. That was the case with children adoption in Croatia, while the law stipulating that right in Slovenia was rejected in the referendum.

In 2021, there was an attempt to adopt the Law on Same-Sex Unions19 in 2021, similar to the one adopted in other former Yugoslav republics. The Proposal Draft was prepared (Proposal Draft, 2021) and sent for a public debate, but the debate had extremely negative effects so that the adoption of the law postponed, while the President of the Republic gave a statement that he would not sign it in case it was adopted because it is contrary to Article 62 of the Constitution of the Republic of Serbia that recognizes marriage as a union of a man and a woman (Vučić, 2021 ; see: Constitution of the Republic of Serbia, 2006). In this way, the matter was left out from the agenda for a period of time.

What is contentious regarding the willingness to enact this law and its content? First of all, willingness is the least contentious. There is no dispute that in the societies there is a certain number of people who maintain longer-standing homosexual relationships and have the need to exercise certain rights on that basis. The existence of homosexuality is definitely not good from the aspect of a collective social interest, but it cannot be denied either. However, it does not need to be affirmed. Therefore, the rights derived from the length of maintaining a homosexual relationship with the same partner are acceptable; endangering other people's rights (the rights of the majority of the population) is unacceptable. The advocates of the solutions stipulated by the Proposal Draft will definitely dispute the fact that someone's rights are threatened. However, it is not true.

Distinguishing and legalizing a "registered" from an "unregistered" same-sex union - analogously to a marital and extramarital union - the Proposal Draft defines them as a "union of family life of two persons of the same sex" (Article 2, the Proposal Draft, 2021). It is here that we already encounter a problem: the family is started through marriage (or through common-law marriage), but both marriage and common-law marriage are, according to the normative definition from the Constitution of Serbia (Article 62, Paragraph 2, Constitution of the Republic of Serbia, 2006) and the Family Law of Serbia (Articles 3 and 4 of the Family Law of the Republic of Serbia), as well as in the traditional sociological understanding of this concept are - heterosexual. Apart from marital partners, the family also includes children. The Proposal Draft insists that family life and the family are constituted through concluding a same-sex union, while varying case and adjective forms as many as 14 times in the text of the law! If we take into account the enclosed Justification of the Proposal Draft, that number reaches as many 46 times. The idea that by concluding a same-sex union "family life" is started, actually says in other words that marriage is started.

Only because of the public opposition, constitutional and legal norms, and the attitude of traditional religious communities in Serbia, the euphemism - same-sex union is used.

First of all, if the aim of marriage is reproduction, as it has always been considered in the sociology of the family - and that is why it is a legally protected sexual relationship - it is clear that something like that is not possible in same-sex unions and homosexual marriages. The laws of biology are unrelenting in that respect. The only possible thing in what is considered a marriage substrate is the satisfaction of (homo)sexual needs of partners. However, heterosexual needs are not protected for their sake either, but for the sake of "creating progeny" (Milić, 2007, p. 117). Accordingly, the key requirement for the creation of marriage - having children is not fulfilled either in the case of same-sex unions or in the case of homosexual marriage. Neither marriage nor the family can derive from such relationships.

The "product" of marriage (or common-law marriage) is the creation of kinship - first, of a blood relationship between parents and their children, and then, directly and indirectly, of patrilineal and matrilineal relations between children and other relatives. It is clear that the so-called "homosexual marriage" or "same-sex union" cannot create blood relations. Besides the blood relationship, marriage (even the one with no children, for any reason) always creates an in-law relationship. It is custom-based and regulated. An in-law relationship in same-sex unions (or in "homosexual marriage") is almost inconceivable in Serbia, and probably in many other parts of the world as well, although the proponent of the Proposal Draft acts as if it is possible, and regulates it in relation to such unions. Why is an in-law relationship inconceivable? Namely, it is based on customs, while same-sex unions are not customary in the traditional way of life, but a product of social engineering (Šuvaković, 2014). Therefore, the only kind of "relationship" that can be created through such unions is the legal one between partners. Some other forms of legal relationships are certainly possible, if permitted by the lawmaker, e.g. adoptive relationship or even some forms of "unrelated families" (see Mladenović, Panov, 2003, p. 65). As we have already stated, the enactment of the law on same-sex unions (same-sex life partnership) is, as a rule, followed by the law on homosexual marriage or the interpretation of the law on same-sex unions (same-sex life parnetrship) that, mostly citing the principle of non-discrimination20, permitted child adoption. Regarding "unrelated families", they could be permitted to these unions pursuant to Article 54 of the Proposal Draft regulating the "rights from the domain of social and children's protection".

The essential family function is socialization. Who is socialized? Children. Neither a same-sex union nor homosexual marriage can create a family with children in a natural manner. As we have already explained, biology prevents them from having children in such type of a relationship (not outside it, but that is another issue). Since they cannot children in a natural way, it is clear that this family function is omitted in their case.

It is indisputable that these unions can perform, apart from the sexual function, the economic function as well, in the same manner as in marriage and the family.

The proponent of the Proposal Draft ignores all this and equalizes same-sex unions"with the family, even resorting to sarcasm in the Justification, saying that "on the contrary, the family is strengthened as an institution by providing legal stability and advantages of family life to a larger number of people". This is an obvious thesis replacement because a sex couple is declared to be a family! As we have shown, the foundation of this union is the satisfaction of partners' sexual needs in a certain manner, and not reproduction, creation of family relationships, socialization, as the main functions of the family. Through empirical data the fact is also confirmed that even where homosexual "marriage" and/or same-sex unions are recognized, they last shorter and are more often broken up, which is explained by Antonić as higher promiscuity, particularly among male homosexuals (Antonić, 2014, pp. 173-174), while the authors advocating the legalization of these unions explain it as a consequence of the "privileges" enjoyed by married couples (Mrščević, 2009, p. 82). Furthermore, in the Justification the proponent also claims that same-sex unions are the "legal recognition of 'otherness', i.e. the legalized right to being different, the right not only to the tolerated 'otherness', but also 'otherness' that is legally actively protected". This is nothing else but the distortion of facts and an ideological mantra that is repeated ever since the emergence of this initiative. How can something same (sex) be a symbol of otherness? The term itself clearly indicates that they are not recognized any otherness or dissimilarity, but there is an attempt to recognize them the same, while claiming the exact opposite for the purpose of deception. In general, the Proposal Draft of the Law on Same-Sex Unions is full of inconsistencies, which is not surprising since it tries or, in fact, create, the phenomena as the result of the most direct social engineering. For example, there is a provision that "gender identity should be respected" (Article 4, Paragraph 2, Proposal Draft, 2021), while Article 9 of the Proposal Draft stipulates that a same-sex union cannot be concluded if partners are of "different sex". How is gender identity respected in that case ? Are two partners of different sex unable to feel that they are of the same gender? There are theoreticians in sociology who believe that sex and gender are not the same, and that gender is formed by socialization and culture. "Gender is related to socially constructed concepts of masculinity and femininity; it is not necessarily the product of someone's biological sex" (Giddens, 2007, p. 117). Moreover, the problem also arises in relation to transsexual persons, since the Proposal Draft stipulates that concluding this union is an obstacle if partners are "of different sex". Which sex will be taken into account in that case as grounds for decision-making: the one written in the birth certificate or the other one, changed through medical assistance? And will that union cease to exist by the medically performed sex change?

Why does the family enjoy social protection?

"Family, mother, single parent and child enjoy special protection in the Republic of Serbia, in compliance with the law" (Article 66, Paragraph 1 of the Constitution of the Republic of Serbia, 2006). "The family enjoys special protection of the state" (Article 2, Paragraph 1 of the Family Law of the Republic of Serbia, 2005). Both in the text of its Constitution and its Family Law, Serbia has chosen to provide special protection to the family. Such option is not specific only to us, but appears in comparative constitutionality in a larger number of constitutional texts after World War Two (see Mladenović, Panov, 2003, p. 66). A question arises why the state chooses to provide special protection only to one social group - the family, and not any other social group, e.g. fan groups, fishermen etc.

The answer to this question will first be sought from the lawmaker. The Justification for the necessity of enacting the current Family Law of Serbia (Proposal of the Family Law of Serbia, 2005, p. 100) states unambiguously:

"Family-related matters are very important in a catalogue of matters of legal policy in general. In economical, educational, social and emotional way - as well as in many other ways - the family structure and family relations affect the society. The satisfaction of the basic necessity in every individual's life - the necessity for human contact and formation of the man as a human being - cannot be conceived without the family. In that way, the family is related to the society and the individual more and better than any other social group" (Proposal of the Family Law of Serbia, 2005, p. 100).

In short, the lawmaker has established that the family "more and better than any other social group" (italicized by U. Š.) constitutes a relationship between the individual and the society, and that is realized in above-listed and other ways. In any case, this attitude to the family also constitutes Serbia's international obligation, since the Convention on the Rights of the Child, adopted by the UN General Assembly in 1989, in its preamble acknowledges that the States Parties are convinced that "the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community" (UN Human Rights, 1989).

Sociologically seen, the family is a primary and multifunctional social group. Within it, different social functions are performed, and at least some of the functions we have already listed are historically most successfully and in the best interest of the society performed within the family: reproduction, socialization and creation of family relationships.

The first function ensures the biological continuation of humanity and thus of each specific nation and society. That is why the Constitution of the Republic of Serbia stipulates that "the Republic of Serbia shall encourage the parents to decide to have children and assist them in this matter" (Article 63, Paragraph 2, Constitution of the Republic of Serbia, 2006). This constitutional provision indicates the importance attributed to parenthood and procreation that cannot be realized in family-like homosexual unions. In that context, theoreticians also indicate that reproduction is a measuring element of human progress. There is progress in “the society with the increasing production of people, i.e. the increasing number of people...” (Lukić, 1995, p. 349). Therefore, without human reproduction there is no human (i.e. social) progress either. Indeed, let us imagine a society in which everyone would be homosexual. Its existence would be limited by the length of life of the current generations since there would be no reproduction. In a relatively short period of time, such society would come to an end.

Although today there are institutions for institutional socializations, the primary socialization is most successfully performed within the family. That is understandable too: family upbringing is performed on the conditions of love and emotions between children and parents. The family is not an "impersonal", alienated institution, bureaucratically same to everyone, but a union that is dedicated to the child born within it. The child grows up in relation to his/her parent models – mother and father. All attempts to replace these terms by impersonal and alienated first parent and second parent are an open assault against the family, its values and children's right. Mom is neither the first nor the second parent; it is the woman who gave birth and breast-fed her child (Latin mamma – breast). It is certainly possible to substitute breastfeeding with different options available nowadays, but natural mother's milk is the best nutrition for the child. Of course, it is also possible for a family to consist only of the spouses who do not become fathers and mothers. There are various reasons for it: from biological inability to a conscientious decision about not desiring children, which can be seen as nothing but a form of totally expressed, selfish individualism (cf. Bauman, 2009, pp. 58-61).21 However, those who want children but are unable to have them, can adopt them. The starting point here is also the attitude that for children it is best to grow up in the family environment. That is why it is stipulated that "the state shall be under the obligation to provide adequate protection in the family environment to child without parental care whenever it is possible" (italicized by U. Š., Article 6, Paragraph 6 of the Family Law of the Republic of Serbia). It is further stipulated that adopters can be spouses or common-law partners, i.e. "a spouse or a common-law partner of the child's parent" and, only exceptionally, this right may be conferred to a person living alone, with a special approval by the relevant minister (Article 101 of the Family Law of the Republic of Serbia). Since both the family and common-marriage unions in Serbia are by definition heterosexual, it is clear that the lawmaker believed that for children's growing up and personality socialization is optimal if children grow up in an environment that structurally imitates the natural family.

Finally, through creating the family, blood relations are developed (as well as those imitating them based on the adoptive relations), including other types of relationships, which connect people on more solid foundations, creating and expanding groups of relatives. It is in periods of crisis, such as the current situation caused by the COVID-19 pandemic, that the family has once again assumed some of the functions of institutional socialization (see Pejević, Fehratović, 2021), while other studies have shown the changes occurring in family practices that have already been modified towards greater egalitarianism within the family, greater participation of the father/husband (common-law male partner) in doing housework and in children upbringing (Čikić, Bilinović Rajačić, 2020). Reviving kinship ties and intensifying relations with relatives has been observed earlier too, particularly in crisis-stricken societies.

„The importance of kinship relations in East European countries is greater if a country is poorer. These family networks and relations provide, just as in the West, the identity, the sense of continuity in the unsteady world, and emotionality; what is more, it is also basic material support to the kinship line. Here the family plays its full role of a bastion and a defence wall... towards the state with an unsteady democracy and a very low budget” (Segalen, 2009, p. 481).

Increasing family solidarity and strengthening relations in a broader circle of kinship in the times of crisis actually point to the importance of the family as a union, in Tënnies's perception of this concept. In the highly individualized neoliberal world, it is difficult to find a social group with such level of solidarity and soundness of mutual relationships as in the case of the family. That fact, from the perspective of the society, contributes to its stabilization, whereas this used to be much more important in the past than in modernity, when Euro-American families are contracted to the parental couple with children.

Therefore, the answer to the question from the heading is: the society should particularly protect the family because it performs irreplaceable functions that are in the best social interest: the biological reproduction function, the function of young generation socialization, and the function of establishing and extending kinship relations. No other social group performs the functions of such relevance to the society as a whole. Enjoying special social protection, the family is simultaneously a "partner" of the society: by performing its functions, particularly the socialization one, it acts in a pro-systemic manner, because children's upbringing occurs in line with the existing moral norms and applicable social and cultural patterns.

Every man's right is limited by other people's rights. Children are people too!

In the text so far, in our opinion, a serious question stands out and needs to be discussed. It is the comparison between the legitimization of the rights of homosexual unions (marriage, same-sex unions, same-sex life partnerships) and children's rights.

This question arises for two reasons: general-social and specific-children ones. In the first respect, legalization, legitimization, and in particular promotion of homosexuality and unions based on it cause direct harm to the general-social interest – creating progeny. This is especially important in the societies with a long-term stabilized low rate of fertility, of 1.8 children per woman (Rašević, 2018, p. 27). This is the case with the Serbian society which has had a continuously negative natural growth since 1992: in 1992 – 6,598 people, and in 2017 reaching as many as 38.8 thousand people (Penev, Predojević Despić, 2019, p. 1185, p. 1186).22 The researchers point to the possibility of this rate declining ever further, and as the causes of this trend since 2000 they mark "the strengthening of individualism, an aspiration towards self-realization, modified family, different partner relations (italicized by U. Š.), insistence on the quality of life and the quality of child's life and, on the other hand, a developed aspiration towards consumption and spare time" (Rašević, 2018, p. 31). Accordingly, it is clear that harm is done to social interest by protecting those sexual relationships that are not and cannot be aimed at having children.

Another and a much more complex problem is the request to allow any form of taking care of children to same-sex unions. If in the name of human rights the recognition is requested of the right to sexual unions of same-sex persons, then in the name of those very rights, there must also be protection of the rights of the child that may only be treated in such type of unions. As children in these unions cannot be born in a natural way, they must be adopted. The problem is in the following: if a lesbian couple adopts a child, that child will have three mothers (two adoptive ones and one natural mother who gave birth to him/her) and one father; if this couple opts for artificial insemination, the future child is deprived of the right to know who his/her father is (since in those situations paternity cannot be determined). On the other hand, if it is a gay couple, the child will have three fathers (the two adoptive ones and one birth father) and one (birth) mother! This is already enough to understand that the child is placed into an unnatural situation. In addition, the above-mentioned Convention on the Rights of the Child in its preamble immediately insists that "the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding (UN Human Rights, 1989), and it is unambiguously clear that a homosexual union cannot be considered a "family environment", no matter how much that specific couple has and shows emotions towards the child. This is also true because it is emphasized that the family is a "natural environment for the growth and well-being of all its members and particularly children (italicized by U. Š.)". No type of marriage-like and family-like homosexual union can constitute a natural environment for children, at least for biological reasons. One of the child's rights is to know who his or her parents are (Article 7, UN Human Rights, 1989), regardless of the child's age (Article 59, Paragraph 1 of the Family Law of the Republic of Serbia). Even when a family adopts a child, it establishes legally defined parental relations and, as a rule, tries to prevent the child from discovering his or her biological parents. How can the child exercise that right in a situation when it is obvious that the adopters only imitate parents and when, at least to the same extent as the adoptive families, they are unwilling to let the child find out about his or her biological parents? Certainly, it is possible to have the situation when one biological parent of the child has entered a marriage-like homosexual union and now his "partner" wants to adopt a child. In that case, we also have the situation in which the child has one extra parent. Namely, there will always be a natural, birth parent, while it is realistic to assume that his former spouse/partner who entered a form of marriage-like homosexual union will not be willing to cooperate with the child's biological parent or willing to enable the child's relationship with that parent, which once again violates the child's rights (Article 9, Paragraph 3 of the UN Human Rights, 1989; Article 61, Paragraph 1 of the Family Law of the Republic of Serbia). The Proposal Draft of the Law on Same-Sex Unions of Serbia even stipulates that "everyday decisions about the child living with the parent in a same-sex union can also be made by the partner who is not the child's parent, with the consent of the partner who is the child's parent and in the child's best interests" (Article 37, Paragraph 2, Proposal Draft, 2021). In that way he, de facto, acquires the elements of parental rights even without formal adoption, despite the fact that the child's biological parent is alive and known to the child!

A separate question is "having a child" with the mediation of surrogate mothers. Serbian regulations are clear in that respect: in the event of biomedically assisted conception, mother of child is the woman who gave birth to the child, and in the event of a donor egg, "the donor's maternity may not be established" (Article 57 of the Family Law of the Republic of Serbia). In this situation, mother's husband or common-law partner shall be considered the father of child, provided he has granted written consent to the procedure of biomedically-assisted fertilization, while in the event of a donor's semen cells, the donor's paternity may not be established (Article 58 of the Family Law of the Republic of Serbia). These solutions are important because they prevent trading with childbirth, which equally contentious from the moral aspect as child trafficking. Furthermore, a surrogate mother also transfers part of her genetic material to the child so that she, despite being willing to be pregnant with the child conceived by artificial combination of someone else's female eggs and male semen – without her participation in it – still affects the foetus developing in her. In these situations, the child has at least two mothers: the one who gave birth to him or her, and the one who paid the former woman to give birth to the child and give the child to her. The situation would be the same if a gay couple was allowed to engage a woman as a surrogate mother for the purpose of "procreation". The child will never find out about his/her biological mother and that is again the violation of the child's rights guaranteed by the Convention (Article 7, UN Human Rights, 1989) and the Constitution of Serbia (Article 64, Paragraph 2 of the Constitution of the Republic of of Serbia, 2006).

Finally, it is clear that socialization and upbringing of children cannot proceed in the same manner in the family and in family-like homosexual unions, and that the results of their occurrence in the environment that does not look like a family environment cannot be identical to those in family. Antonić (2014, pp. 88-93) gives an overview of a number of empirical studies that support the thesis about the social environment having a substantial influence on the child's future sexual orientation, i.e. that sexual orientation is not an exclusive result of biological predestination. A question arises as to what social interest is. To socialize the child in the best environment possible for him or her – the family, or at the expense of the child's right to socialization in a natural environment in which the function is performed – the family, such activity allows family-like homosexual unions that cannot perform such function in compliance with the natural order, and only for the sake of exercising their "right" (which is actually not a right) not to be discriminated regarding child care? There is no dilemma as to what answer to this question is correct.

"It is not only a matter of prejudice to feel that a motherless or fatherless child is deprived of a specific constituent of love and care, and it that this cannot leave a certain trace on the child's psychological condition and social perspectives… Father and mother, or male and female parts of the couple, raise children in different yet complementary ways" (Antonić, 2014, p. 139).

Towards the conclusion

The matter of homosexual marriage and homosexual unions is an ideologically imposed matter. The cause should be sought in the need of the American liberal establishment to open up a debate about the matter that does not threaten the order (at least not on a short-term or long-term basis), avoiding it where it is dangerous to the capitalist system (social stratification, racial, religious and ethnic discrimination etc.). On the other hand, classifying this in the agenda of "human rights", traditional societies are destabilized because the unions and/or institutions existing for millennia are brought to question. This constitutes the clash not only with the majority public opinion trends in those societies, but also an open assault on the values promoted by Christianity for a little more than two millennia.

Needless to say, since the LGBT movement has acquired the right of the citizenship in one part of the world, its other requirements cannot be completely ignored, particularly because there is a clear knowledge about the existence of people with a homosexual orientation. That is why the resolution of this matter should be approached quite scrupulously, while protecting the rights of all, and not only of some citizens.

In that respect, we advocate the opinion that there can be no essential revision of the concepts of marriage and the family. Heterosexuality is their essential characteristic, while the family is the most natural union in which children are socialized. What is referred to as homosexual marriage or same-sex union (same-sex life partnership) cannot be equalized in the rights deriving from family life and marriage, simply because they are essentially different from them: they rely on homosexual relationships; they are created solely for the purpose of satisfying (homo)sexual needs of two persons; they cannot perform the reproduction function, and that is why they are unfit for the performance of a socialization function – all these being characteristic of marriage and the family. Therefore, these are new phenomena sui generis and should be perceived as such.

Moreover, in line with the principle that every man's rights are limited by other people's rights, children's rights must also be considered. Sexual unions that cannot perform the reproductive function at the same time cannot be suitable for children adoption or biomedically assisted insemination. Children have nothing to find in such types of unions. The argument that there are heterosexual marital (or common-law) couples with no children is not worthwhile because in the case when heterosexual couples adopt children, they can convincingly imitate a natural family relationship. It is not the case with homosexual unions.

There is no social interest whatsoever in protecting marriage and the family in the same way as homosexual marriage-like and family-like unions. Marriage and the family perform extremely important social functions (from the regulation of sexual intercourse, through reproduction and socialization to pro-systemic stabilization and establishment of blood and other kinship relations), which is not the case with the latter: they have no social function except for satisfying their own sexual needs. If they satisfy those needs in the same manner on a relatively longer-term basis, it will be necessary to find a model that would guarantee their corresponding rights and obligations in compliance with that fact.

Endnotes

1We accept that it is proper to say that it is a union (Golubović, 1981) since those are the closest relationships in which emotions are an important factor, while definitely we can also speak of a group and, naturally, from the perspective of law, an institution.
2By different lines of kinship.
3Speaking of kinship, we cannot question the fact that its main form is blood relationship. Legal kinship in earlier periods of human history, of course, did not even exist.
4Here we take into account the possibility of an “extended” family with other relatives.
5Giddens makes a logical error non sequitur when taking his own great aunt as an example – her marriage lasted more than six decades and she admitted “having been deeply miserable with him [her husband, added by U. Š.] all that time. There was no way out in her era” (Giddens, 2005, p. 90). First of all, it does not necessarily mean that every marriage or even the majority of them will be unhappy or insufficiently happy in their marital life. Moreover, the development of this institution is the greatest part of the world led to the possibility of its dissolution (divorce), which gave legitimacy to the idea of democracy of emotion or emotion management, leaving the possibility of leaving the no longer desired union. In the end, the author of this text may testify about marital practice duo to having grandparents who were married for more than half a century. On the eve of their jubilee (“golden anniversary”), they asked their children to put a notification about it and their congratulations in the oldest Serbian (and Balkan) daily newspaper Politika. Therefore, they were happy in their marriage and were even proud of it and wanted everyone to hear about it.
6In January 2021, an extremely conservative law on the prohibition of an abortion came into force in Poland, except for the case when a woman’s life is in danger and when her pregnancy is the consequence of her being raped. See: https://www.slobodnaevropa.org/a/31073642.html. In September 2021, the US federal state of Texas adopted a conservative law prohibiting an abortion after 6 weeks of pregnancy, where the criterion was the possibility of hearing the fetus’s heartbeats with the aid of medical devices. See: https://www.bbc.com/serbian/lat/svet-58423745. One day prior to the law enactment, this led to an 87-year-old doctor perform as many as 67 abortions during 17 hours of uninterrupted work in a Texas clinic. See: https://www.b92.net/
7In modernity, of course, there are common-law unions, for whose recognition it is most important that it is a “longer-standing life union of a woman and a man” (Article 4, Paragraph 1 of the Family Law of the Republic of Serbia), with no other obstacle to their existence (e.g. if one of these common-law partners is already married and has a family, it is not a common-law family, but adultery).
8As it is the case, for example, with the state that throughout its existence has assumed the performance of different functions, had different forms, manifestations etc.
9Although at some moments of the “turboglobalization” process it seemed that the process of overcoming the states was underway, their “de-sovereignization” and the emergence of supra-state creations that would take over the state functions with the passage of time, the world crises in the first decade of the 21st century, including the current COVID-19 pandemic, have restored the importance and role of sovereign states in their resolution (see, e.g. Marković Savić, 2020). Namely, the supra-state creations (such as the EU) have proved to be incompetent even in the role of problem-solving entities (Sjursen, 2012, p. 507)
10The research conducted in Serbia indicates that there are no “relevant generational shifts in marital patterns, behaviour and values” (Bobić, 2010, p. 143). “Serbia is specific for its high universality of marriage, relatively rare divorces, substantial participation of extended families, extremely rare cohabitations – succinctly, very slow changes in behaviour in this domain” (Petrović, 2011, p. 73)
11Here we would like to emphasize that Euro-American marriage and family are not and have not been accepted globally as the only possible type.
12However, they are easily dissolved because their essence is made of a loose basis (partners’ affective relationship) (Milivojević, 2014, p. 244)
13Many concepts have certainly been ideologized, and a question arises about how to measure which one has been ideologized “most”. It probably depends on the time in which the concept is observed. For example we would probably rather conclude that the concept of kinship as a result of the cultural influence is completely ideologized, because, according to such understanding, it is the result of exclusively social engineering, while the family also has its biological substrate.
14According to the research, the median age of having the first sexual experience among young people in Serbia is 16 (Batut, 2009, p. 18), while Roma girls have their first sexual experience mostly at the same age when they get married. “At the age of 15, 12.4% Roma girls are married, while by the age of 18, as many as 45.9% of them are married” (Ombudsman, 2017, p. 52). In both cases that is the children’s age group, since a child is “every human being who is not yet eighteen years old” (UN Human Rights, 1989, Article 1). Therefore, we can agree that pedophilia is the subject of criminal prosecution and public condemnation, that it is considered perverse, but it is the fact that the age of the first sexual experience is going down to the children’s age and that it is not socially condemned unless it involves a violent act.
15On the contrary, they are conceivable and applied by “swingers” and the only difference is that they do not have their own “parades”.
16Historically speaking, in the territory of Yugoslavia, since 1977 homosexuality has been decriminalized in Croatia, Slovenia, Montenegro and Vojvodina (because after the adoption of the 1975 Constitution of the Socialist Federal Republic of Yugoslavia, all republics and autonomous provinces had their own criminal codes), and since 1994 in other parts of Serbia. At the 13th Congress of the League of Communists of Yugoslavia in 1986, dramaturgist Jovan Ćirilov publicly requested the decriminalization of this sexual practice in the entire territory of Yugoslavia.
17Argentina (2010), Australia (2017), Austria (2019), Belgium (2003), Brazil (2013), Greenland (2015), Denmark (2012, including the Faroe Islands 2017), Ecuador (2019), England and Wales (2013), Iceland (2010), Ireland (2015), South African Republic (2006), Canada (2005), Colombia (2016), Costa Rica (2020), Luxembourg (2014), Malta (2017), Mexico (2015, according to the decision of the Supreme Court),Germany (2017), New Zealand (2013), Norway (2008), the USA (2015), Northern Ireland (2019), Portugal (2010), Taiwan (2019), Uruguay (2013), Finland (2015), France (2013), the Netherlands (2000), Sweden (2009), Scotland (2014), and Spain (2005). Therefore, this type of marriage has been recognized in 11 EU member-states (West Europe, Benelux and Scandinavia), the USA, the UK, Canada and the countries on which they cannot exert influence – in total 28 internationally recognized countries (e.g. Taiwan is a constituent part of the People’s Republic of China, while England, Wales, Scotland and Northern Ireland are within the UK) (Same-Sex Marriage around the World, 2019). It can be seen that as many as 19 countries plus Taiwan did that after US State Secretary Hilary Rodham Clinton advocated action directed at their legalization.
18However, in the referendum in September 2021, the Swiss changed their attitude citing the motto “same marriage for all” and approved the law that also allowed child adoption and artificial insemination of lesbian couples. See https://www.b92.net/info/vesti
19Interestingly, this Proposal Draft appeared at the moment when there was no influential political party on the political scene that has the advocation for this type of marriage-like unions on its agenda. “Except for the Socialist Party of Serbia, whose attitude is not explicit, but it mentions the affirmation of LGBT population rights, and consequently the rights in the domain of family policy, the parties accept the family as a union of a man and a woman and their children” (Šuvaković, 2020, p. 55). If we compare this attitude from the Declaration of the Socialist Party of Serbia “Vision of Serbia 2020” (2014) with the warning expressed by Professor Radoš Smiljković, in 1991 at the Council for Theoretical Work of the Head Committee of the then ruling Socialist Party of Serbia, pointing as early as that time to the ideological basis and activities of the LGBT movement and its important lobbying influence in political and other spheres of he society, we can see a substantial change in the theoretical and program orientation of the Socialist Party. Such change is characteristic of the programs of other socialist and social-democratic parties, primarily in Europe, in particular those “third-way parties”, but it is impossible to avoid the question as to whether it is the only essential difference from the program principles of the right wig. Giddens claims that “homosexuals are able to raise children just as heterosexuals” (Giddens, 1999, p. 92). Other influential parties, e.g. the Serbian Progressive Party and Aleksandar Šapić’s SPAS that in the meantime merged with the Progressives, as well as United Serbia led by Dragan Marković Palma, the coalition partner of the Socialist Party, do not have a dilemma about the fact that the family is a union of a man and a woman and their children. Perhaps the explanation for this Proposal Draft should be sought in the fact that its proponent is Minister Gordana Čomić, former member of the Democratic Party, whose parliamentary list did not exceed the 3% census and ensure its presence in the Parliament, but she was still appointed the Minister for Human and Minority Rights and Social Dialogue. She probably thinks that, since she has no electoral legitimacy, she is not obliged by any political agenda of the Government. Moreover, let us remember that in the previous convocation of the Parliament, in March 2019, MP Čedomir Jovanović submitted the Draft Law on Registered Same-Sex Unions. His parliamentary list did not manage to enter the Parliament in the most recent parliamentary election either. The efforts of the politicians with no democratic legitimacy regarding the adoption of this regulation is a signal to us that real initiators of its adoption are influential foreign centres of power that impose their will and interests wherever it is possible, realizing the neoliberal ideology in the essence of this initiative. They promote the neoliberal ideology that is in the essence of this initiative, in this case through the LGBT movement and its lobbyists. That is why it is not surprising to see a great similarity between the texts of legal decisions in Croatia and Montenegro and the Proposal Draft that is in the process of discussion in Serbia.
20This is completely wrong understanding of the concept of discrimination, in fact consciously wrong in order to achieve the set goal: equalization of homosexual unions (regardless of the term used to denote them) with marriage and the family. That is possible I situations when in the same legal situations it is proceeded in legally different manners. Since the proponents themselves (although not essentially, as we have already said) distinguish same-sex unions from marriage, it is clear that there can be no discrimination in question because one legal institute ensures one type of rights, and the other – a different type of rights.
21“In our time, children are the ‘greatest treasure‘ – they are no longer a source of economic benefits, but of huge expenses” (Giddens, 1999, str. 93)
22“There are visible disparities at work, the feminization of cities and the masculization of villages. There is an increasing number of persons who do not get married or have children in their fertility period. Villages are becoming empty and, apart from the elderly, there is an increasing number of unmarried men in them” (Mitrović, 2018, str. 20).

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O članku

jezik rada: srpski, engleski
vrsta rada: izvorni naučni članak
DOI: 10.5937/socpreg55-34108
primljen: 23.09.2021.
prihvaćen: 28.09.2021.
objavljen u SCIndeksu: 29.10.2021.
metod recenzije: dvostruko anoniman
Creative Commons License 4.0

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