«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 ...»
2008]The ICCPR and Procreation and Parenting by Lesbians and Gay Men 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
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, 17 Nowak, above n 9, 413 (including fn 26).
18 Francis Jacobs and Robin White, The European Covenant on Human Rights (2nd ed, 1996) 33.
19 Rebecca J Cook, ‘International Protection of Women’s Reproductive Rights’ (1992) 24 New York University Journal of International Law and Politics 645, 700.
20 Gesetz zum Schutze des Deutschen Blutes und der Deutschen Ehre 1935 (Ger);
Reichsbürgergesetz 1935 (Ger) (collectively, ‘Nuremburg Laws 1935’).
21 UN Human Rights Committee, Communication No 902/1999, UN Doc CCPR/C/75/D/902/1999 (30 July 2002) (‘Joslin’).
22 Ibid [8.2].
Melbourne Journal of International Law [Vol 9 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 unassisted, but this remains unclear) they have an ICCPR right to use it only if they enter, and only as the members of, a heterosexual relationship. Similarly, lesbians and gay men could, presumably, successfully invoke art 23(2) against, say, compulsory sterilisation, but Joslin implies that they could do so in their capacity as potential future procreators in heterosexual relationships rather than as potential lesbian and gay procreators.
The ratio decidendi of Joslin is open to challenge. As Wintemute noted in the context of art 12 of the ECHR, art 23(2) of the ICCPR does not say that men and women have to marry each other.25 Furthermore, the uniformity and consistency in the interpretation of the gender requirements of the right to marry had already begun to break down at the time the Committee’s views were being formulated.
On the one hand, the Netherlands had by that time fully recognised same-sex marriage.26 On the other hand, the European Court of Human Rights had modified, in Goodwin v United Kingdom,27 its long-standing approach whereby only people of opposite biological birth-sex have the right to marry under art 12 of the ECHR.28 Here I assume that the unspecified authorities which, according to Joslin, had ‘consistently and uniformly’29 understood the expression ‘men and women’ as limiting the right to marry to heterosexual marriage, were those referred to by the respondent member state — namely, member states, the European Court of Human Rights and academic commentary.30 However, for as long as the Committee holds on to its views in Joslin, the implication seems to 23 Nowak, above n 9, 413.
24 Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd ed, 2004) 609–10.
25 Robert Wintemute, Sexual Orientation and Human Rights: The United States Constitution, the European Convention, and the Canadian Charter (1995) 129.
26 Wet van 21 december 2000 tot wijziging van Boek 1 van het Burgerlijk Wetboek in verband met de openstelling van het huwelijk voor personen van hetzelfde geslacht (Ned).
27 (2002) VI Eur Court HR 1 (post-operative transsexuals have the right to marry a person of their opposite post-operative sex under the ECHR: –).
28 Rees v United Kingdom (1986) 106 Eur Court HR (ser A) 1; Cossey v United Kingdom (1990) 184 Eur Court HR (ser A) 1; Sheffield and Horsham v United Kingdom (1998) V Eur Court HR 2011.
29 Joslin, UN Human Rights Committee, Communication No 902/1999, UN Doc CCPR/C/75/D/902/1999 (30 July 2002) [8.2].
30 Ibid [4.3]–[4.4].
2008]The ICCPR and Procreation and Parenting by Lesbians and Gay Men be that the right to found a family is not held by anybody other than heterosexual couples, whether married or not.31 D Does it Make a Difference if Art 23(2) is Read in Conjunction with Art 2(1) of the ICCPR?
Can one reach a different conclusion by reading art 23(2) in conjunction with the non-discrimination guarantee in art 2(1) of the ICCPR? Article 2(1) provides that states parties shall ‘respect and … ensure … the rights recognized in the present Covenant, without distinction of any kind, such as … sex’. The Human Rights Committee has clarified that ‘sex’ for the purposes of art 2(1) (as well as art 26) includes ‘sexual orientation’.32 Thus, art 2(1) ensures the entitlement to ICCPR human rights without unjustifiable distinctions based on sexual orientation.
Unfortunately, if certain arguments can be successfully used to rationalise a certain conclusion when a claim is considered exclusively under art 23(2), they can be used in the same way when a claim is considered under art 2(1) in conjunction with art 23(2). Invoking the anti-discrimination principle contained in art 2(1) does not allow us to introduce any moral argument to make the case in support of the right of lesbians and gay men to found a family which would not have already been relevant under art 23(2) taken alone.33 If, as Joslin implies, the families whose foundation art 23(2) protects are families in a heteronormative sense (art 23(2) analysis), then it cannot be unreasonable under the ICCPR to distinguish between lesbian or gay families and heterosexual families in the context of the right to found a family (art 2(1) juncto art 23(2) analysis).
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?
Article 2(1) ‘can be violated only in conjunction with some other (substantive) provision of the Covenant’, this being its so-called ‘accessory’ 31 If it is not first established that the interest in parenting is important enough to ground procreative rights for lesbians and gay men under art 23(2), it may be difficult to secure protection for such moral rights in the context of other potentially relevant international human rights law provisions. For example, to the extent that alternative insemination can be characterised as a result of scientific progress, art 15 of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), which protects the right to enjoy the benefits of scientific progress, may be relevant to lesbians’ and gay men’s moral right to use this procedure: ICESCR, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976). However, because scientific progress is not beneficial in itself, the right to benefit from the applications of scientific progress is probably not justified by an interest in using technology per se (which would make the right altogether indiscriminate).
Rather, it is presumably justified severally by a variety of sufficiently important interests which the use of technology is apt to satisfy, such as the interest in being healthy or the interest in parenting. But if the latter interest is not considered important enough, in the context of international human rights law, to establish a right to use alternative insemination under art 23(2) of the ICCPR, it would be hard to justify the proposition that it can establish such a right under the more generic rubric of art 15 of the ICESCR.
32 Toonen v Australia, UN Human Rights Committee, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (4 April 1994) [8.7].
33 See Peter Westen, Speaking of Equality: An Analysis of the Rhetorical Force of ‘Equality’ in Moral and Legal Discourse (1990) 69–72.
Melbourne Journal of International Law [Vol 9 character.34 However, it has been argued that ‘[a]ccessoriness does not … mean that art 2 can be violated only when some other provision of the Covenant has been violated independently’.35 On this view, the non-discrimination principle of art 2(1) applies to the measures that states may decide to take when they act in supererogatory ways, that is, when they act in order to provide greater protection for a Covenant right than the ICCPR strictly mandates. For the purposes of this discussion I shall assume that this view is correct, although the Human Rights Committee, unlike the European Court of Human Rights,36 has adopted it neither explicitly nor implicitly.37 Does it follow that art 23(2) juncto art 2(1) requires states to provide lesbians and gay men at least with those procreative opportunities (such as access to assisted reproductive technology services, as distinct from medically unassisted alternative insemination) which states accord to heterosexuals probably not as a matter of art 23(2) obligations, but rather as a matter of supererogation?
The performance of supererogatory activities can logically be discriminatory within the meaning of art 2(1) juncto the substantive right only with respect to those categories of people who are entitled to the substantive right in the first place — that is, to benefit from the obligations which the article containing the substantive right, taken alone, requires states to perform. If the art 23(2) rights are not enjoyed by lesbians and gay men in the first place (as Joslin implies), denying lesbians and gay men procreative opportunities which states make available only as a matter of supererogation cannot logically amount to prohibited discrimination within the meaning of art 2(1) juncto art 23(2).
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 Lesbians and gay men interested in parenting need not only the procreative opportunities to do so, but also the law’s support when it comes to recognising their relationship with the children they raise. In other words, parental rights are the necessary complement of procreative rights: protection for both is required in order to genuinely make parenting a viable option. Just as art 23(2) of the ICCPR (the right to found a family) is relevant to the issue of procreative rights, arts 23(1) and 17 are relevant to the issue of parental rights. The relationship between arts 23(1) and 17 has been described as one of ‘close interaction’,38 and it has been noted that ‘most cases regarding family rights have concerned violations, or 34 Nowak, above n 9, 34.
35 Ibid 35.
36 See generally Robert Wintemute, ‘“Within the Ambit”: How Big Is the “Gap” in Article 14 European Convention on Human Rights?’  European Human Rights Law Review 367.
37 See UN Human Rights Committee, General Comment No 18: Non-Discrimination, 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) 185.
38 Raija Hanski and Martin Scheinin, Leading Cases of the Human Rights Committee (2003) 226.
2008]The ICCPR and Procreation and Parenting by Lesbians and Gay Men
exonerations, of States under both articles’.39 These articles read:
1. No one shall be subjected to arbitrary or unlawful interference with his … family...
2. Everyone has the right to the protection of the law against such interference or attacks. … Article 23
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.