The right to procreate is not aborted

Medical Law Review

Volumn 16, Issue 2, 2008, Pages 284-293

  Eijkholt, Marleen ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTIFICIAL INSEMINATION; FEMALE; HEALTH CARE DELIVERY; HUMAN; LEGAL ASPECT; MALE; MARRIAGE; NOTE; PRISONER; REPRODUCTIVE RIGHTS; UNITED KINGDOM;

FEMALE; GREAT BRITAIN; HEALTH SERVICES ACCESSIBILITY; HUMANS; INSEMINATION, ARTIFICIAL; INSEMINATION, ARTIFICIAL, HOMOLOGOUS; MALE; MARRIAGE; PRISONERS; REPRODUCTIVE RIGHTS;

EID: 47049100396     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwn011     Document Type: Note

References (66)

1. Evans v. United Kingdom (6339/05) [2007] 1 F.L.R. 1990.
2. Ibid. at [71].
3. The term opportunity to procreate is used by the national authorities in the case of R. (Mellor) v. Secretary of State for the Home Department [2001] 3 W.L.R. 533,
4. as well as by the concurring opinion of Judge Bratza in Dickson v. United Kingdom in the sixth paragraph.
5. The age of the applicant seems to be one of the fundamental differences between the case of Dickson and the case of Mellor, supra n.3.
6. See also Mellor supra n.3, H. Codd. 'The Slippery Slope to Sperm Smuggling: Prisoners, Artificial Insemination and Human Rights' [2007] 15 [2] Med. L. Rev. 234.
7. At [13].
8. Kirk Dickson, Lorraine Dickson v. Premier Prison Service Ltd., Secretary of State for the Home Department [2004] E.W.C.A. Civ. 1477.
9. Dickson v. United Kingdom (2006) 2 F.C.R 1 at [26].
10. Ibid. at [27].
11. Ibid. at [30]. The classification of the obligation as a positive one has been widely contested. The dissenting judges in the fourth Chamber judgment, for example, held that the involvement of the authorities would be so minimal that it could hardly be classified as a positive obligation, but would constitute a negative obligation. See the dissenting opinions of judges Casadevall and Garlicki, third paragraph. The Dicksons had offered to pay for the treatment themselves and the involvement of the prison authorities would be minor. It is equally suggested that the issue before the Court concerned the rejection of the Secretary of State, so that it necessarily concerned a negative obligation; a request for non-interference.
12. See E. Brems, under number '15' (2006) European Human Rights Cases 438 and M. Eijkholt, 'Het recht op procreatie: Voldragen of in statu nascendi?' (2007) Tijdschrift voor Gezondheidsrecht 2-11.
13. Supra n.8 at [31].
14. Ibid. at [33].
15. Ibid. at [35].
16. Ibid. at [38].
17. Ibid. at [39].
18. At [70].
19. At [75].
20. At [76].
21. Ibid.
22. The language of rights has been criticised in respect to the concept of the right to procreate. The criticism questions whether it is possible to establish any corresponding duties to the right to procreate, and which ones these would be. Wall J noted in his first instance judgment in Evans [2003] E.W.H.C 2161 (Fam) at [263]
23. 'The right to found a family through IVF can only, put at its highest, amount to a right to have IVF treatment. Self-evidently it cannot be a right to be treated successfully'. See also E. Sutherland, 'Man not Included - Single Women, Female Couples and Procreative Freedom in the UK' (2003) 15(2) Child and Family Law Quarterly 155-172
24. H. Codd, supra n.5
25. D. Barak-Erez and R. Shapira, 'The Delusion of Symmetric Rights' (1999) 19 Oxford Journal of Legal Studies 305
26. E. Jackson, 'Conception and the Irrelevance of the Welfare Principle' (2002) 65 Med. L. Rev. 202.
27. At [68].
28. See also E.L.H and P.B.H v. The United Kingdom (32568/96 and 32094/96).
29. At [66].
30. At [72] and [78].
31. J. Harris and R. Bennet, 'Reproductive Choice' [2007], in R. Rhodes et al. (eds), The Blackwell Guide to Medical Ethics (Blackwell 2007) at 201-219.
32. Robertson seems to propose that a right to conception can be separated from a right to gestation and labour, and which does not necessarily include an intention to rear the child. J.A. Robertson, 'Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth' (1983) 69 Virginia Law Review 405-465.
33. The concept of the right to procreate is thus ambiguous. It is not uncommon to refer to the concept only when there is an intention to have a child. In other understandings, the right to procreate is a right to procreative autonomy: The right of people to control their own role in reproduction, and thereby it would equally cover the choice for contraception (a right not to procreate). R. Dworkin, Life's Dominion. An Argument about Abortion and Euthanasia (HarperCollins Publishers 1993).
34. See also A. Alghrani and J. Harris, 'Reproductive liberty: Should the foundation of families be regulated?' (2006) 18(2) Child and Family Law Quarterly 191-210.
35. Concurring opinion Bratza, fifth paragraph.
36. Several references derive a right to procreate, or a right to reproductive autonomy, primarily from Article 12. E. Jackson, 'Conception and the Irrelevance of the Welfare Principle' (2002) 65 Med. L. R 202
37. O. O'Neill, Autonomy and Trust in Bioethics (Cambridge University Press 2002)
38. Alghrani and Harris, supra n.21
39. Sutherland, supra n.28.
40. Frette v. France (36515/97) [2003] 2 F.C.R 39 at [31].
41. Marckx v. Belgium (6833/74) [1979] 2 E.H.R.R. 330 at [32].
42. Emonet and Others v. Switzerland (39051/03) at [92]
43. Sijakova and Others v. The Former Yugoslav Republic (67914/01)
44. and P.v. Dijk et al., Theory and Practice of the European Convention on Human Rights (Intersentia 2006) at 856.
45. X v. Belgium and Netherlands (6482/14) [1975] 7 D.R 75 and repeated in the case of Di Lazzaro v. l'Italy (31924/96).
46. See dissenting opinion of Judge Mularoni, fourth paragraph, in E.B v. France (46546/02).
47. Ibid. at [41].
48. Judge Mularoni upholds that Article 8 has not yet expanded to the right to found a family. He explains the application of Article 8 to the Dickson case on grounds that it concerned 'the decision to have a biological child'.
49. S. McLean, 'Women, Rights and Reproduction', in S. McLean (ed.), Legal Issues in Human Reproduction (Aldershot 1990)
50. O'Neill, supra n. 30
51. See also R. Deech, From IVF to Immortality (Oxford University Press 2007) at 137.
52. This follows a contrario from the consideration that would be parents could not be prevented to attempt to conceive a child where an applicant was at liberty and could have taken care of any child.
53. See joint dissenting opinions of judges Wildhaber, Zupančič, Jungwiert, Gyulumyan and Meyer, ninth paragraph.
54. At [78].
55. Ibid. In the case of Evans, the Grand Chamber equally afforded the state a wide margin of appreciation, despite the intimate matter at stake. In Evans, the Court justified this by arguing that the case concerned moral and ethical issues.
56. A good example thereof is found in the case of Evans v. United Kingdom, supra n.1, where the State was left a wide margin of appreciation. This margin had the effect that the State was free to determine either or not to establish a policy, and furthermore when it decided to regulate the issue, the State was free to determine how the policy would regulate the matter. Any guarantees for the individual on basis of Article 8 thus seemed absent.
57. At [70]
58. Airey v. Ireland (6289/73) [1979] 2 E.H.R.R. 305.
59. See joint dissenting opinions of judges Wildhaber, Zupančič, Jungwiert, Gyulumyan and Meyer, seventh paragraph.
60. Ibid.
61. At [76].
62. The definition of 'family' under Article 8 is broad. It seems to apply to families of various constitutions. See M. Janis et al., European Human Rights Law: Text and Materials (Oxford University Press 2008).
63. See also n.33 and 34 for case law indicating that marital state may be relevant for the application of Article 12. The judgment in Emonet v. France seems to provide that the protection of founding a family cannot be guaranteed for couples of a constitution that are not recognised by national legislation. Furthermore, whereas there is a certain flexibility towards the gender aspect within the Article and its hetero-sexual orientation, these criteria seem not yet completely overcome.
64. See the cases of Christine Goodwin v. UK (28957/95)
65. and E.B. op. cit. note 35. In relation to Article 8, however, these concerns seem irrelevant.
66. Codd, supra n.5 at [235]