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Article Excerpt
[Throughout the world, domestic legal systems fail to secure adequate procreative and parenting opportunities for lesbians and gay men. This article looks at the possibilities offered by United Nations human rights law as a source of the obligation to provide lesbians and gay men interested in procreation and parenting with adequate legal protections. It argues that the International Covenant on Civil and Political Rights ('ICCPR ') has the potential for promoting the full recognition of lesbians' and gay men's procreative and parental rights (such as the right to use medically unassisted alternative insemination and the right to have one's relationship with one's child for example, the child born to one's same-sex partner legally recognised). It also argues that the ICCPR has the potential to allow lesbians and gay men to obtain any additional level of protection for their procreative or parenting interests which a given state may accord to heterosexual people (such as where it provides them with access to assisted reproductive technology services). While arguing that the Human Rights Committee's case law has so far largely contained this potential, the article draws attention to the implications of more recent decisions (Young v Australia and X v Colombia) and argues that they appear to have paved the way for realising that potential in the near future. The discussion draws extensively on the case law of the Human Rights Committee, but is largely jurisprudential in its analytical approach.]
CONTENTS I Introduction II Procreation and Art 23(2) of the ICCPR A The Relevance of Art 23(2) to the Issue of Procreative Rights B Is the Right to Found a Family Conditional on Marriage? C Do Lesbians and Gay Men Hold the Right to Found a Family? D Does it Make a Difference if Art 23(2) is Read in Conjunction with Art 2(1) of the ICCPR? E If Art 23(2) juncto Art 2(1) Covers Procreative Opportunities Not Covered by Art 23(2) Taken Alone, Can They Be Denied to Lesbians and Gay Men Even If They Are Provided to Heterosexuals? III Parenting and Arts 23(l) and 17 of the ICCPR A The Relevance of Arts 23(1) and 17 to the Issue of Parental Rights B Are Lesbian and Gay Families Covered by Arts 23(1) and 17? C Does It Make a Difference if Arts 23(1) and 17 Are Read in conjunction with Art 2(1) of the ICCPR? IV The Interest in Parenting and Art 26 of the ICCPR A The Relevance of Art 26 to Lesbians' and Gay Men's Procreative Rights, Parental Rights, and More Broadly to Their Interest in Parenting B Conceptions of Equality and the Relationship between Art 26 and Arts 17 and 23 1 Premise 2 Value-Driven Approaches to Art 26 3 The Formal Principle of Equality (a) Relationship Between Art 26 and Arts 17 and 23 (b) Young v Australia and X v Colombia V Conclusion
1 INTRODUCTION
A wealth of studies have shown that lesbian and gay parenting does not harm children, and that lesbian and gay-parented children do not significantly differ from those raised by heterosexuals. (1) Nevertheless, legal systems around the world are still far from securing adequate procreative and parenting opportunities for lesbians and gay men. Australia is an example: some of its jurisdictions criminalise insemination at home (whether across the blanket (2) or when the sperm used is not the woman's husband's (3)); some restrict access to reproductive technology services to infertile women or infertile heterosexual couples; (4) and some fail adequately to recognise parent child relationships in lesbian and gay families. (5) The goal of this article is to establish whether international human rights law supports, and what its potential is for supporting, the legal recognition of lesbians' and gay men's procreative and parental rights, as well as, more broadly, the recognition of their interest in parenting on a par with that of heterosexuals. The International Covenant on Civil and Political Rights' ('ICCPR') (6) will be the focus of the analysis, specifically the rights to found a family (art 23(2)), to protection given to the family and to family life (arts 23(1) and 17), as well as the rights to nondiscrimination and equality (arts 2(1) and 26).
The discussion will draw extensively on the case law of the United Nations Human Rights Committee, but will be largely jurisprudential in its analytical approach.
II PROCREATION AND ART 23(2) OF THE ICCPR
A The Relevance of Art 23(2) to the Issue of Procreative Rights
Article 23(2) of the ICCPR protects the right to found a family in these terms: 'The right of men and women of marriageable age to marry and to found a family shall be recognized'.
The right to found a family provides a conceptually attractive means for the promotion of lesbians' and gay men's procreative opportunities. As the legal literature on China's one child policy makes clear, it is uncontroversial that the core of the right to found a family is procreation. (7) The Human Rights Committee itself, in its General Comment on art 23, stated that 'the right to found a family implies, in principle, the possibility to procreate'. (8) Some commentators have argued that this includes, at least for different-sex couples, the right to use reproductive technologies, subject to those prohibitions necessary to protect the rights of others. (9)
Additionally, as far as the complaints and monitoring mechanisms offered by international human rights law are concerned, the right to found a family provides optimal opportunities to address gay and lesbian procreation as an issue of human rights, at least in countries that are a party to the Optional Protocol on individual complaints. (10)
B Is the Right to Found a Family Conditional on Marriage?
Problems arise, however, when one examines the Committee's jurisprudence on art 23(2). Indeed, the Human Rights Committee's jurisprudence specifically on the right to found a family is practically nonexistent. The Committee, to the extent that it has considered the right to found a family at all, has done so in a context where this right figured essentially as an appendage to the right to marry. (11)
This poses a first problem. Given that the right to marry and the right to found a family are found in the same ICCPR provision, and given that the Committee has not yet considered and found a violation of the right to found a family apart from the right to marry, could the right to found a family be dependent on marriage? If art 23(2) protects only the right to found marriage-based families, then it is of little use for the purposes of the present discussion, as we are not concerned with establishing procreative rights for lesbians and gay men which are conditional upon their entering into (same- or different-sex) marriage.
Fortunately, the view that the right to found a family also covers non-marital families seems more plausible. The Human Rights Committee has not expressed any opinion on the subject of whether the right to found a family is held only by married couples (or individuals who intend to marry). However, it has been convincingly argued that neither a textual nor a contextual interpretation of art 23(2) supports the view that only married couples have the right to found a family. In particular, Nowak has compared the text of the ICCPR right to found a family with its regional equivalent in the European context--art 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ('ECHR'). (12) He found it significant that the former is less supportive than the latter of the proposition that marriage and the right to found a family are inseparable. (13) Furthermore, he has noted that the ICCPR right to found a family must be understood 'in the overall context of a provision guaranteeing comprehensive, institutional protection to the family in all of its various cultural forms'. (14)
It is also noteworthy that in examining art 12 of the ECHR, the European Court of Human Rights denied that there is such a connection between the right to marry and the right to found a family as to make procreation a condition of the former right. (15) Admittedly, saying that the wish or physical capacity to procreate (without third party assistance) is not a prerequisite to the right to marry is different from saying that marriage is not a prerequisite to the right to found a family (and it is the latter proposition that is relevant to our discussion). However, the Court's willingness to read the right to marry and to found a family disjunctively opens up the opportunity to argue that the right to found a family, as protected by international human rights documents, is not held exclusively by people who marry or intend to marry. As applied to the ICCPR, this argument is strengthened by the observation that, as just noted, art 12 of the ECHR could support more easily than art 23(2) of the ICCPR the view that marriage and the right to found a family are indeed inseparable.
While some have argued that the travaux preparatoires of the ICCPR may indicate that the right to found a family protected by art 23 is held only by married people, (16) preparatory work has been used by others to argue exactly the opposite. (17) Further, '[p]reparatory work is notoriously unreliable as a general guide to treaty interpretation'. (18) In fact, one need not even proclaim oneself a non-originalist in order to argue that the right to found a family contained in art 23 is not held exclusively by married people. Rebecca Cook has noted that 'the recognition of the right to marry and to found a family is a reaction against Nazi racial and reproductive policies'. (19) These policies prevented people not only from forming interracial marital relationships, but also interracial relationships established outside marriage. (20) Thus, the best view seems to be that the inclusion of art 23(2) in the ICCPR was also intended to afford protection to non-marital familial relationships.
C Do Lesbians and Gay Men Hold the Right to Found a Family?
In the previous section I argued that the right to found a family should not be read as being conditional on marriage or on the intention to marry. If it were, the usefulness of the right would be severely restricted for my purposes, which are to construct an art 23(2)-based argument to support the procreative rights of lesbians and gay men regardless of their ability or desire to marry. The fact that the right to marry and the right to found a family are contained in the same provision of the ICCPR, however, is the source of another problem. This stems from the Committee's views in the decision Joslin v New Zealand. (21) In discussing whether art 23(2) accords a right to access same-sex marriage, the Committee noted:
Given the existence of a specific provision in the Covenant on the right to marriage, any claim that this right has been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term 'men and women', rather than 'every human being', 'everyone' and 'all persons'. Use of the term 'men and women', rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other. (22)
For our present purposes, the problem is not that the Human Rights Committee has denied that people have a human right to marry people of their own sex. Rather, it is that in doing so the Committee indirectly confirmed also that, under the ICCPR, lesbians and gay men (as well as heterosexuals wishing to be single parents) have no right to found a family. This is because it is very improbable that one understanding of 'men and women of marriageable age' applies with regard to the right to marry and another to the right to found a family. Indeed, even before Joslin, Nowak had argued that only heterosexual couples have the art 23(2) right to found a family precisely on the basis of the textual circumstances used by the Committee in Joslin to deny that art 23(2) accords a right to access same-sex marriage. (23)
Thus the implication of Joslin seems to be that lesbians and gay men do not enjoy the protection of the right to found a family qua lesbians and gay men. (24) By this I mean that Joslin implies that the art 23(2) rights are enjoyed by lesbians and gay men only in the form that least matters to them. They have the right to marry heterosexually. They have the right to found a family through heterosexual intercourse. And if alternative insemination is covered by art 23(2) (I think it should be, at least if medically...
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