«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 ...»
The same observations made in the context of the interaction between art 2(1) (the accessory anti-discrimination guarantee) and art 23(2) also apply to its interaction with arts 17 and 23(1). Article 2(1) does not codify any distinct moral principle which is not already an integral part of each of the substantive ICCPR rights to which art 2(1) applies. As such, it does not allow us to introduce any moral argument to support the legal recognition of lesbians’ and gay men’s parental rights which would not already be relevant under arts 23(1) and 17 taken alone. The function of art 2(1) — aside from its applicability in cases of supererogation — is merely that of reminding us that all those who genuinely qualify as right-holders of a substantive ICCPR right (because they have the relevant interest, whose importance is not outweighed by relevant counter-considerations) are entitled to that right.
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
Article 26 of the ICCPR reads:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
As we already know, the meaning of ‘sex’, for the purposes of art 26, includes sexual orientation. The Committee has argued that art 26 ‘prohibits discrimination in law or in fact in any field regulated and protected by public authorities’.58 The Committee has also clarified that the interpretation of the term ‘discrimination’ would include any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.59 The expression ‘rights and freedoms’, as the Committee uses it in its General Comment, is clearly apt to catch not only procreative and parental rights but also 58 UN Human Rights Committee, General Comment No 18, above n 37, .
59 Ibid 187. In order for a distinction not to run afoul of the prohibition against discrimination, there must be a ‘reasonable and objective justification and a legitimate aim for distinctions that relate to an individual’s characteristics enumerated in article 26’: Borzov v Estonia, UN Human Rights Committee, Communication No 136/2002, UN Doc CCPR/C/81/D/1136/2002 (25 August 2004) [7.3].
Melbourne Journal of International Law [Vol 9 those procreative activities or choices which states may tolerate or recognise even if, strictly speaking, they are not correctly conceptualised as rights.
Although adjudicative bodies applying anti-discrimination guarantees tend to be cautious when facing claims of indirect discrimination,60 the Committee has confirmed that art 26 may also prohibit indirect discrimination.61 This is significant because often laws on reproduction and parenting tend to result in instances of indirect, rather than direct, discrimination on the ground of sexual orientation.62 For instance, in Victoria63 and in South Australian licensed fertility clinics,64 an infertility requirement must be met before one can access all reproductive technology services and, in Western Australia, before one can access in vitro fertilisation.65 Although that requirement applies to everybody, it has a disparate impact on those who are not in heterosexual relationships, because only for heterosexual couples is infertility the standard circumstance determining them to seek the service.
However, note that instances of indirect discrimination on the ground of sexual orientation may also constitute direct discrimination on such grounds as sex or marital status. For example, failing to recognise automatically the parental responsibility of the same-sex partner of a biological mother who conceives through reproductive technology discriminates against the former on the ground of sex, if a similarly positioned married man enjoys parental responsibility — as he does in Australia by virtue of s 60H(1) of the Family Law Act 1975 (Cth).
B Conceptions of Equality and the Relationship between Art 26 and Arts 17 and 23 1 Premise Article 26 is certainly capable of being interpreted to support the conclusion that differential treatment of lesbians and gay men in the spheres of procreation and parenting amounts to prohibited discrimination under that article. As we know, art 23(2) as well as arts 17 and 23(1) are likewise capable, in theory, of supporting the conclusion that the ICCPR protects lesbians’ and gay men’s procreative and parental rights. In practice, however, art 23(2) is encumbered by Joslin, which implies that this article does not protect lesbians’ and gay men’s procreative rights. Likewise, arts 17 and 23(1) are burdened with the ambiguous approach taken by the Committee with regard to the meaning of family, which makes it unclear if lesbians’ and gay men’s parental rights are protected under these articles. Can we then concede that arts 17 and 23 may not protect lesbians’ 60 Robert Wintemute, ‘Filling the Article 14 “Gap”: Government Ratification and Judicial Control of Protocol No 12 ECHR’  European Human Rights Law Review 484, 496–7.
61 See, eg, Simunek v Czech Republic, UN Human Rights Committee, Communication No 516/1992, UN Doc CCPR/C/54/D/516/1992 (19 July 1995) [11.7]; Althammer v Austria, UN Human Rights Committee, Communication No 998/2001, UN Doc CCPR/C/78/D/998/2001 (22 September 2003) [10.2].
62 On the concept of indirect discrimination see Sandra Fredman, ‘Combating Racism with Human Rights: The Right to Equality’ in Sandra Fredman (ed), Discrimination and Human Rights: The Case of Racism (2001) 9, 23–6; Westen, above n 33, 108–13.
63 Infertility Treatment Act 1995 (Vic) s 8.
64 Reproductive Technology (Clinical Practices) Act 1988 (SA) s 13.
65 Human Reproductive Technology Act 1991 (WA) s 23.
2008]The ICCPR and Procreation and Parenting by Lesbians and Gay Men and gay men’s procreative and parental rights, but argue that, at any rate, art 26 does require us to treat lesbian and gay procreation and parenting on a par with heterosexual procreation and parenting?
In particular, note that, unlike art 2(1), art 26 contains a freestanding, or autonomous, equality guarantee.66 This means that the article can be violated independently of any violation of other substantive ICCPR rights.67 From this, one could perhaps conclude that art 26 requires that procreative and parenting options for lesbians and gay men be secured on a basis of equality with heterosexuals regardless of whether it is determined that arts 23 and 17 protect lesbians’ and gay men’s procreative and parental rights. Although this would be a practically useful argument, I shall argue that logic, consistency and integrity forbid us from making such an argument under the conception of equality which is widely accepted as underlying the guarantee contained in art 26. But I shall also explain that, in light of the recent jurisprudence on art 26, this conclusion does not necessarily turn out to be bad news for lesbian and gay parents and prospective parents after all.
2 Value-Driven Approaches to Art 26 In this section I argue that if we take what Sandra Fredman has called a ‘value-driven approach’68 to the equality guarantee contained in art 26, we can perhaps turn a blind eye to whatever arts 23 and 17 may be deemed to tell us on the degree of respect owed to lesbians’ and gay men’s interest in parenting. This would allow us to argue that art 26 requires protection for lesbians’ and gay men’s procreation and parenting on a par with heterosexuals even if we were to conclude that arts 17 and 23 do not protect lesbians’ and gay men’s procreative and parental rights. However, it is not yet clear that the Human Rights Committee supports a value-driven approach to art 26.
A ‘value-driven approach’ to art 26 would try to give meaning to the vague notion of equality by identifying broad values which are understood as the aims of the equality guarantee. In her analysis of value-driven approaches to equality guarantees, Fredman notes that, from an examination of legislative and judicial
practices in several jurisdictions, ‘[t]hree intertwined themes can be discerned’:
‘individual dignity and worth’, ‘participation in society’ and ‘redress[ing] historical disadvantage’.69 If art 26 is understood as a provision serving this kind of purpose, it could be used to make a number of different equality-based arguments aimed at securing procreative options and parental rights for lesbians and gay men. We could argue, for example, that one of the mandates of art 26 is that action be taken to remedy lesbian and gay inequality of power. According to Cooper, everybody has a moral entitlement to participate, on a basis of equality with other people, in shaping their environment and world.70 This tenet, together with the idea that 66 Danning v The Netherlands, UN Human Rights Committee, Communication No 180/1984, UN Doc CCPR/C/29/D/180/1984 (9 April 1987) [12.1]–[12.4].
67 UN Human Rights Committee, General Comment No 18, above n 37.
68 Fredman, above n 62, 21.
69 Ibid 21–2.
70 Davina Cooper, Challenging Diversity: Rethinking Equality and the Value of Difference (2004) 77–83.
Melbourne Journal of International Law [Vol 9 ‘the good society is one not based on structures of domination and exploitation’,71 constitutes the driving idea behind what she identifies as the immediate focus of political action — namely, undoing such categories as sexuality to the extent that they work as organising principles of inequality, that is, to the extent that they make ‘people’s capacity to exercise power unequal’.72 Sexual identity categories (for example, homosexual or heterosexual) work precisely as such a principle,73 so that their destabilisation is crucial to lesbian and gay empowerment; and a way of achieving that destabilisation is precisely by making laws and policies on reproduction and parenting more lesbian and gay-affirmative. On this basis, it could be argued that — regardless of whether or not procreative and parental rights for lesbians and gay men can be established as fundamental rights under arts 17 and 23 — art 26 requires that lesbians and gay men have an opportunity to procreate and parent which is genuinely equal to that of heterosexuals. This is because of the importance of the aim of undoing sexual identity categories, which is in turn justified by the principle of equality of power.
Another possible argument in support of lesbian and gay procreation and parenting that could be made by taking a value-driven approach to art 26 would be along the following lines: rather than Cooper’s ‘equality of power’, the equality principle contained in art 26 reflects the principle of ‘equal concern’ in a Dworkinian sense. Dworkin has argued that the best interpretation of the principle that governments should show equal concern for their citizens requires them to make people equal in the resources they own.74 Equality of resources means, in this sense, providing each person with a bundle of resources such that nobody envies anybody else’s bundle. This involves setting up an economic market (intended ‘mainly as an analytical device but also, to a certain extent, as an actual political institution’75) allowing ‘that the true measure of the social resources devoted to the life of one person … [be] fixed by asking how important, in fact, that resource is for others’.76 Since the value of resources is a function of people’s plans and projects, which in turn depend on what people are free to do with resources, the freer people are, the fairer the distribution of resources will be.77 In particular, strong protection will have to be accorded to those freedoms, including family rights (along with rights to conscience, expression, etc), which allow people to form and review their projects and preferences.78 It follows that — whether or not lesbians’ and gay men’s procreative and parenting aspirations deserve recognition for their intrinsic value under arts 17 and 23 — protection for lesbians’ and gay men’s procreation and parenting is required under art 26 because it is instrumental to realising the fairness of resource distribution. This is in turn necessary to give effect to 71 Ibid 88.
73 William B Turner, A Genealogy of Queer Theory (2000) 32–3.
74 Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (2000) 3, 65–119.
75 Ibid 66.
76 Ibid 70.
77 Ibid 147–52.
78 Ibid 59–60.
2008]The ICCPR and Procreation and Parenting by Lesbians and Gay Men equality of resources, which is the goal underlying the principle of equal concern contained in art 26.
Whatever the moral urgency of principles such as equality of power and equality of resources, art 26 can work as a framework for the articulation of arguments based on these or similar principles only if it is accepted that a value-driven approach should be taken to it. But it is not clear that the Committee is yet prepared to take an uncompromisingly value-driven approach to art 26. But for a single statement made in the context of art 3,79 any indication that ‘equality’ in the ICCPR stands for ‘dignity’, ‘equal concern’ or similar values is vague at best. The vocabulary of ‘stigma’, ‘stereotype’, ‘subordination’, ‘dignity’, ‘equal concern’, ‘equal power’, etc, is all but absent from the Committee’s jurisprudence on art 26. Nor does the General Comment on Non-Discrimination expand on the aims of the equality guarantee in these or analogous terms.
The strongest indication that the Committee may in the future take a value-driven approach to art 26 is perhaps a recent decision in two cases in which the claimants argued that preference for males in succession to titles of nobility discriminated on the ground of sex.80 A majority of the Committee
declared the complaints inadmissible. It argued that: