«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, I have argued that the Committee has now implicitly established in Young and X v Colombia the principle that, under the ICCPR, the interest in founding and cultivating interpersonal relationships in lesbian and gay families is no less valuable than the corresponding interest in heterosexual families. The Committee did reach this conclusion in the context of the art 26 guarantee to the equal protection of the law, rather than that of the rights to found a family or to protection for family life. But there is no logical or acceptable way of arguing that one conclusion on whether lesbian and gay families deserve the protection of the ICCPR applies in the context of art 26, and another one in the context of arts 17 and 23. If the text of arts 17 or 23 did exclude lesbian and gay families from the protection provided by those articles (which is what Joslin incorrectly implied with regard to the right to found a family), it would have precluded the Committee from reaching, in Young and X v Colombia, the conclusion that lesbian and gay families are covered by art 26 (at least so long as this is understood to codify no more than the principle that equals should be treated equally). A different view would unacceptably compromise the principle of integrity in the interpretation of the ICCPR. Fortunately, neither in arts 17 and 23 nor elsewhere does the text of the ICCPR preclude the conclusion that the family-related interests of lesbians and gay men, including their interest in parenting, are owed the protection of the Covenant. Inasmuch as Young and X v Colombia are based on the principle that the family-related interests of lesbians and gay men deserve protection under the ICCPR, and since the point of arts 17 and 23 is to provide protection to family-related interests, the ICCPR rights to found a family,104 to protection for the family105 and to family life106 may prove an important tool for promoting the procreative and parental rights of lesbians and gay men. To the extent that arts 17 and 23 are capable of being interpreted in accordance with this principle, their best interpretation is that they do support the moral procreative and parental rights of lesbians and gay men.
Likewise, following Young and X v Colombia, the equality guarantee in art 26 may prove useful in arguing that the interest in parenting of lesbians and gay men deserves the same level of protection accorded by states to that of heterosexuals, even if that level is higher than that required by arts 17 and 23 (as 104 ICCPR, above n 6, art 23(2).
105 Ibid art 23(1).
106 See generally ibid art 23.
Melbourne Journal of International Law [Vol 9 when states provide or tolerate the provision of assisted reproductive technology services).
The realisation of the implications of these two decisions for issues of lesbian and gay parenting may be unnecessarily delayed if the principle that underlies Young’s rationale (that is, that the family-related interests of lesbians and gay men deserve recognition under the ICCPR) is characterised narrowly. According to the narrow characterisation of the rationale of Young and X v Colombia, these decisions have established the principle that the ICCPR requires recognition for the interest in forming and cultivating same-sex sexually intimate adult relationships rather than, more broadly, lesbian and gay family relationships, including parent–child ones. But even narrowly characterised, that principle ultimately seems to lead to the future acceptance of the broader proposition that lesbian and gay families should also be protected under the ICCPR where they include children. Heteronormative approaches to the provisions of international human rights documents have traditionally constrained their potential for serving the rightful interests of lesbians and gay men. However, there is an increasing awareness among the actors in the international human rights field of the moral imperative to realise that potential, including with respect to family rights. In this connection, the Yogyakarta Principles107 enjoin states to protect the right to found a family, including through access to adoption or assisted procreation, without discrimination on the basis of sexual orientation, and to recognise the diversity of family forms.
107 Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (2007) http://www.yogyakartaprinciples.org/ principles_en.htm at 23 May 2008 (‘Yogyakarta Principles’). The Yogyakarta Principles were adopted by a group of distinguished human rights experts. They purport to represent a peremptory statement of international human rights law obligations in relation to sexual
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