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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*1

[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

IThe Relevance of Art 23(2) to the Issue of Procreative Rights 2

IThe Relevance of Arts 23(1) and 17 to the Issue of Parental Rights 7

IIThe Relevance of Art 26 to Lesbians’ and Gay Men’s Procreative Rights, Parental Rights, and More Broadly to Their Interest in Parenting 12

APremise 13

1Relationship Between Art 26 and Arts 17 and 23 16



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.2 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 blanket3 or when the sperm used is not the woman’s husband’s4); some restrict access to reproductive technology services to infertile women or infertile heterosexual couples;5 and some fail adequately to recognise parent–child relationships in lesbian and gay families.6 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’)7 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). 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.

Procreation and Art 23(2) of the ICCPR




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