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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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However, it is noteworthy that the reason used by the Committee to justify its view that differential treatment between heterosexual de facto couples and married couples is admissible is that heterosexual couples can freely choose their status by marrying or failing to do so. Further, the Committee underscored that such a choice is not open to same-sex couples where marriage is defined heterosexually. These points suggest that, according to the Committee, whatever benefits are made available to heterosexual couples (even those that apply only as a result of entering marriage) need to apply also to same-sex couples unless a good reason exists to justify differential treatment. But if the benefits have to be equal between same-sex and different-sex (including married) couples, this has to be because lesbians’ and gay men’s interest in founding and cultivating sexually intimate adult relationships is presumptively no less valuable, under the ICCPR, than heterosexual people’s interest in forming and maintaining such relationships. I say ‘presumptively’ because the Committee’s argument does not rule out that in certain cases it may be reasonable not to extend some benefits to same-sex couples which are bestowed upon heterosexual couples. Indeed, the decision perhaps suggests that one of those benefits may be precisely the right to marry (as distinct from the legal consequences of marriage).91 This makes it possible to reconcile Young with Joslin, such that Young may be viewed not to have impacted on the conclusion in Joslin that the right to marry is held exclusively by heterosexual couples. Yet, the recognition that lesbians’ and gay men’s interest in founding and cultivating sexually intimate adult relationships is relevant under the ICCPR, and presumptively as relevant as that

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of heterosexuals, should not be underestimated. That principle could not even implicitly be found in the majority opinion in Joslin. To the extent that that principle has now been formally recognised, and given that the textual and contextual arguments on which Joslin’s conclusion is based are, as explained above, dubious, I would argue that Young and Joslin, far from being consistent, pull in different directions.

This tension reflects the fact that, as regards the recognition of the human rights of lesbians and gay men, international law is still in a transitional phase — the process of discarding its traditionally heteronormative character92 being well underway but still ongoing.93 However, this tension calls for a resolution, for surely an approach to the ICCPR which safeguards its integrity is preferable to one that compromises it. Thus, Young must be viewed as having started to doubt the rationale used in Joslin to restrict the right to marry (and, by implication, the right to found a family) to heterosexual couples. Likewise, Young has implicitly confirmed that same-sex couples can claim the protection of arts 23(1) and 17.

Reaching this conclusion with respect to arts 23 and 17 is not a matter of reading these articles in light of the formal principle of equality contained in art 26 — as if that principle were not already a necessary, if implicit, component of arts 23 and 17.94 It is simply a matter of consistently applying across the ICCPR a proposition that is the answer to a question that has most recently been addressed (if only implicitly) in Young, which happens to have considered it in the context of art 26. That question, which Young has implicitly answered in the affirmative, is whether the reasons which justify protecting heterosexual people’s interest in forming and cultivating sexually intimate adult relationships also apply to lesbians and gay men.

What are the implications of all this for the protection of lesbians’ and gay men’s interest in parenting under the ICCPR? In implicitly doubting the correctness of Joslin, Young’s rationale makes it possible to avoid the implications of that decision with regard to the right to found a family (for instance, that lesbians and gay men have no procreative rights under art 23(2)).

And in implying that same-sex relationships are protected under arts 23(1) and 92 Eric Heinze, ‘Sexual Orientation and International Law: A Study in the Manufacture of Cross-Cultural “Sensitivity”’ (2001) 22 Michigan Journal of International Law 283;

Morgan, above n 87, 208, 218–21; Dianne Otto, ‘Holding Up Half the Sky, But for Whose Benefit? A Critical Analysis of the Fourth World Conference on Women’ (1996) 6 Australian Feminist Law Journal 7, 16, 25; Charlotte Bunch, ‘Foreword’ in Rachel Rosenbloom (ed), Unspoken Rules: Sexual Orientation and Women’s Human Rights (1996) iii; Debra L DeLaet, ‘Don’t Ask, Don’t Tell: Where Is the Protection Against Sexual Orientation Discrimination in International Human Rights Law?’ (1997) 7 Law and Sexuality 31; Douglas Sanders, ‘Getting Lesbian and Gay Issues on the International Human Rights Agenda’ (1996) 18 Human Rights Quarterly 67; Rhoda E Howard-Hassmann, ‘Gay Rights and the Right to a Family: Conflicts between Liberal and Illiberal Belief Systems’ (2001) 23 Human Rights Quarterly 73; Sebastian Maguire, ‘The Human Rights of Sexual Minorities in Africa’ (2004) 35 California Western International Law Journal 1, 32–5.

93 Douglas Sanders, ‘Human Rights and Sexual Orientation in International Law’ (2002) 25 International Journal of Public Administration 13.





94 Each ICCPR article protecting a substantive right implicitly contains, for the purposes of its own subject matter, the formal principle of equality in a form such as this: ‘Relevant legal or policy rules ought to be applied to all the people to whom they apply by virtue of sound moral reasoning as undertaken on the basis of the principles set out in this article’. This point draws on ideas articulated by Westen in the context of equality generally: Westen, above n 33, 65–72, 225–9.

2008]The ICCPR and Procreation and Parenting by Lesbians and Gay Men 17, Young makes it increasingly difficult to resist the conclusion that lesbian and gay families involving children are also protected by these articles.

Admittedly, Young’s recognition that lesbians’ and gay men’s interest in founding and cultivating sexually intimate adult relationships is fully relevant under the ICCPR may not be the same as recognising that under the ICCPR their interest in founding and cultivating parent-child relationships is also fully valued.

Still, Young has laid the groundwork for such recognition, to the extent that both the interest in forming and cultivating sexually intimate adult relationships and the interest in parenting are particular instantiations of a more general interest in forming and cultivating familial relationships.

Since Young, then, the chances have increased that the following arguments will eventually become law under the ICCPR: first, that art 23(2) protects lesbians’ and gay men’s procreative rights, such as the right to use alternative insemination at home; secondly, that arts 17 and 23(1) protect their parental rights over the children they raise; and thirdly, that under art 26, access to reproductive technologies, where available in a certain state, should be available to lesbians and gay men on a par with heterosexuals. In short, Young may be viewed to have paved the way for the eventual inclusion of the interest in parenting of lesbians and gay men under all relevant provisions of the ICCPR.

Significantly, all the main points established in Young have been reaffirmed in the more recent case X v Colombia,95 concerning the denial of survivor’s pension benefits to the same-sex partner of a deceased man in circumstances where a survivor in an unmarried heterosexual relationship would have enjoyed the benefits. The Committee stated that differential treatment between unmarried heterosexual couples and unmarried same-sex couples could not be justified on the basis of the arguments advanced by Colombia,96 which included the contention that same-sex couples were not ‘familes’, unlike unmarried heterosexual couples.97 Although the Committee did not expressly say that same-sex couples are families, the rejection of Colombia’s arguments still amounts to an endorsement of the proposition that the reasons justifying the provision of legal protection to unmarried heterosexual familial units apply also to same-sex couples. The Committee also underscored the significance of the fact that it was not open to same-sex couples to marry in Colombia.98 This, as in Young, implies a more radical claim than the principle on which ostensibly the decision is based (that where the law provides benefits to unmarried heterosexual couples it should extend them to unmarried same-sex couples). That claim is that where there is an avenue for heterosexual couples to enjoy legal protection as a family unit (marriage), some avenue must also be made available for same-sex couples to attract legal protection. Again, the implicit premise underlying such a claim is that the reasons justifying protecting heterosexual family units also apply to same-sex ones; or, to put it differently, that the interest in founding and cultivating sexually intimate same-sex relationships is no less valuable than that in founding and cultivating sexually intimate different-sex relationships.

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V CONCLUSION

It is important to secure adequate procreative and parenting options for lesbians and gay men under the rights to found a family, to protection for the family, and to family life, as other provisions of the ICCPR may offer only a second-best alternative means of securing such options. Consider, in particular, the right to be protected from unlawful and arbitrary interferences with one’s home and private life.99 Given that, as Wintemute has argued in the context of the ECHR, this right is ‘the most likely to serve as a residual guarantee of “liberty”’,100 it might be thought to provide an attractive means to seek protection for the procreative rights of lesbians and gay men (such as home insemination).

I do not wish to deny that there would be important practical advantages to thus obtaining legal protection for lesbians’ and gay men’s procreative rights.

But the right to home and privacy remains a discursively unsatisfactory foundation on which to base claims to such protection to the extent that it depoliticises such claims. The potential that affirming procreative rights has for disrupting the construction of lesbian and gay identity as non-familial and anti-family101 risks being unnecessarily contained by the privacy connotation that procreative rights would receive if established under the right to home and private life. We may concede too much to heteronormative and homophobic ways of thinking when we accept that the standard procreative practice of lesbians and gay men (home insemination) is protected under the ICCPR only to the extent that providing otherwise would unnecessarily interfere with the integrity of private life, rather than as part of the right to found a family.

Admittedly, the notion of ‘privacy’ in international human rights law has partly evolved to involve not so much ‘questions of disclosure or nondisclosure but … the right to choose certain intimate aspects of one’s life, free of government regulation’.102 This circumstance may temper to some extent the significance of the conclusion reached at the end of the previous paragraph.

However, even this redefined notion of privacy — referring as it does to the idea of individual moral autonomy vis-à-vis state tolerance and neutrality — remains a less than satisfactory basis to assert lesbian and gay procreative rights.

Asserting procreative rights under the right to privacy conjures up the image of society turning a blind eye to the making of the relevant individual decisions, or, if you will, engaging in a ‘suspension of judgement’. Asserting procreative rights under the right to found a family, on the contrary, suggests that societal recognition can be exacted for the relevant choices because of their goodness.103 99 ICCPR, above n 6, art 17.

100 Wintemute, above n 25, 97.

101 See generally Cheshire Calhoun, Feminism, the Family and the Politics of the Closet:

Lesbian and Gay Displacement (2000) on this construction.

102 Mark W Janis, Richard S Kay and Anthony W Bradley, European Human Rights Law: Text and Materials (2nd ed, 2000) 278. See also Coeriel v The Netherlands, Human Rights Committee Communication No 453/1991, UN Doc CCPR/C/52/D/453/1991 (9 December 1994) [10.2].

103 See Jenni Millbank, ‘Gender, Sex and Visibility in Refugee Claims on the Basis of Sexual Orientation’ (2003) 18 Georgetown Immigration Law Journal 71, 109–10; Wayne Morgan, ‘Identifying Evil for What It Is: Tasmania, Sexual Perversity and the United Nations’ (1994) 19 Melbourne University Law Review 740, 751–4.

2008]The ICCPR and Procreation and Parenting by Lesbians and Gay Men The human rights to found a family, to protection for the family and to family life contained in arts 23 and 17 of the ICCPR respectively seem the best candidates for the task of promoting lesbians’ and gay men’s procreative and parental rights. An isolated look at the approach taken by the Human Rights Committee to arts 17 and 23 may initially suggest otherwise. In particular, from the Committee’s approach to art 23(2), it is relatively clear that the procreative rights of lesbians and gay men qua lesbians and gay men are not protected under the ICCPR. And from the Committee’s approach to arts 17 and 23(1), it is unclear whether their parental rights are protected, at least to the extent that the individuals concerned wish to create parenting configurations which deviate from those well-established in the heterosexual context: one mother and one father or single mothers.



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