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«TO WHAT EXTENT DOES THE ICCPR SUPPORT PROCREATION AND PARENTING BY LESBIANS AND GAY MEN? The ICCPR and Procreation and Parenting by Lesbians and Gay ...»

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TO WHAT EXTENT DOES THE ICCPR SUPPORT

PROCREATION AND PARENTING BY LESBIANS AND

GAY MEN?

The ICCPR and Procreation and Parenting by Lesbians and Gay Men

ALEARDO ZANGHELLINI*

[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?.................. 5 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(1) and 17 of the ICCPR

A The Relevance of Arts 23(1) and 17 to the Issue of Parental Rights............ 8 B Are Lesbian and Gay Families Covered by Arts 23(1) and 17?................. 10 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.............. 17 (b) Young v Australia and X v Colombia

V Conclusion

I 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 blanket2 or when the sperm used is not the woman’s husband’s3); 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).

1 See Cheryl A Parks, ‘Lesbian Parenthood: A Review of the Literature’ (1998) 68 American Journal of Orthopsychiatry 376; Susan Golombok and Julie Mooney-Somers ‘Children of Lesbian Mothers: From the 1970s to the New Millennium’ (2000) 15 Sexual and Relationship Therapy 121; Carlos A Ball, ‘Lesbian and Gay Families: Gender Nonconformity and the Implications of Difference’ (2003) 31 Capital University Law Review 691, 695–697 (summarising the overview provided by Ellen C Perrin, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents (American Academy of Pediatrics Report, 2002)); Clare Murray, ‘Same-Sex Families: Outcomes for Children and Parents’ (2004) 34 Family Law 136; Jenni Millbank, ‘From Here to Maternity: A Review of the Research on Lesbian and Gay Families’ (2003) 38 Australian Journal of Social Issues





541. While some of these studies have been criticised as methodologically flawed by conservative scholars, they do represent by far the most ‘objective’ knowledge we have to date on lesbian and gay parenting. See generally Aleardo Zanghellini, ‘Scientific Positivism and the Controversy over Research into Lesbian and Gay Parenting’ (2007) 4(3) Sexuality Research and Social Policy 100.

2 Human Reproductive Technology Act 1991 (WA) ss 6, 28.

3 Infertility Treatment Act 1995 (Vic) s 7.

4 Infertility Treatment Act 1995 (Vic) s 8; Reproductive Technology (Clinical Practices) Act 1988 (SA) s 13 (as affected, respectively, by McBain v Victoria (2000) 99 FCR 116 and Pearce v South Australian Health Commission (1996) 66 SASR 486).

5 See, eg, Family Law Act 1975 (Cth) s 60H, purporting, but effectively failing (given the provision’s complexity and the controversy on its interpretation: Re Mark (2004) 31 Fam LR 162, 166–9), to identify the parents of (and hence, under s 61C, the holders of parental responsibility for) children born following fertilisation procedures. See generally Jenni

Millbank, ‘The Recognition of Lesbian and Gay Families in Australian Law — Part 2:

Children’ (2006) 34 Federal Law Review 205.

6 Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

2008]The ICCPR and Procreation and Parenting by Lesbians and Gay Men 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.

–  –  –

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 7 See, eg, Hannah A Saona, ‘The Protection of Reproductive Rights under International Law:

The Bush Administration’s Policy Shift and China’s Family Planning Practices’ (2004) 13 Pacific Rim Law and Policy Journal 229, 253–4; Barbara Stark, ‘Crazy Jane Talks With the Bishop: Abortion in China, Germany, South Africa and International Human Rights Law’ (2003) 12 Texas Journal of Women and the Law 287, 310–11.

8 UN Human Rights Committee, General Comment No 19: Protection of the Family, the Right to Marriage and Equality of the Spouses (Art 23), as contained in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/Gen/1/Rev.8 (8 May 2006) 188.

9 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) 413–14. See also Stephen P Marks, ‘Tying Prometheus Down: The International Law of Human Genetic Manipulation’ (2002) 3 Chicago Journal of International Law 115, 133. Cf Katarina Tomasevsky, ‘European Approaches to Enhancing Reproductive Freedom’ (1995) 44 American University Law Review 1037, 1040–1.

10 Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 302 (entered into force 23 March 1976).

11 Aumeeruddy-Cziffra v Mauritius, UN Human Rights Committee, Communication No 35/1978, supp 40, UN Doc A/36/40 (2 May 1978) [6.2(e)], [9.2(a)].

Melbourne Journal of International Law [Vol 9 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 préparatoires 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 12 Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 2 June 1952).

Article 12 states that ‘[m]en and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right’.

13 Nowak, above n 9, 413 arguing that in the ECHR ‘the connection between the two rights stems from a common phrase (“this right”, “ce droit”) that is missing in the Covenant’.

14 Ibid.

15 Goodwin v United Kingdom (2002) VI Eur Court HR 1, [98].

16 Maja Kirilova Eriksson, The Right to Marry and to Found a Family: A World-Wide Human Right (1990) 139.



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