The right to found a family as a stillborn right to procreate?

Medical Law Review

Volumn 18, Issue 2, 2010, Pages 127-151

  Eijkholt, Marleen ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; ETHICS; EUROPE; HUMAN; LEGAL ASPECT; REPRODUCTIVE RIGHTS;

EUROPE; HUMANS; REPRODUCTIVE RIGHTS;

EID: 77956405693     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwq013     Document Type: Article

References (132)

1. Defining the boundaries of the private versus the public domain seems not just a matter of legal accuracy, but equally an ethical issue.
2. See for example JH Morton, 'The History of the Public/Private Distinction' (1982) 130 University of Pennsylvania Law Review 1423-28.
3. And S Williams, 'Comment: Autonomy and the Public-Private Distinction in Bioethics and Law' (2005) 12 Indiana Journal of Global Legal Studies 483-94.
4. This paper will refrain from providing a definition of the right to procreate, as this falls outside the scope of the paper; the aim of this paper is to show that Article 12 no longer covers the concept of the right to procreate and whether Article 8 could take up the traditional role of Article 12 under the evolved scope of the concept. For the purpose of argument, I will, however, presume that the concept of the right to procreate stands for more than a right to have one's innate capacity to reproduce protected.
5. O O'Neill, Autonomy and Trust in Bioethics (Cambridge University Press, Cambridge 2002) 50.
6. S McLean, 'The Right to Reproduce' in T Campbell and others (eds), Human Rights: From Rhetoric to Reality (Basil Blackwell, Oxford 1986) 103.
7. R Dworkin, Life's Dominion. An Argument about Abortion and Euthanasia (HarperCollins, London 1993) 166-7.
8. R Deech, From IVF to Immortality (OUP, Oxford 2007) 135.
9. See, for example, J Savulescu, 'Procreative Beneficence: Why We Should Select the Best Children' 15 Bioethics (2001) 15, 413-426.
10. J Harris On cloning (Routledge, London 2004).
11. J Harris, 'Is There a Coherent Social Conception of Disability' (2000) 26 Journal of Medical Ethics 95.
12. E Jackson, Regulating Reproduction: Law, Technology and Autonomy (Hart, Oregon 2001).
13. For elaboration on legal origins, see McLean, (n 4) 113.
14. And EE Sutherland, '" Man not included" Single Women, Female Couples and Procreative Freedom in the UK' (2003) 15 Child and Family Law Quarterly 155, 166.
15. As I will show later in this paper, Article 12 has a confined application, and consequently did not offer much protection.
16. This refers to instances where the desire is not to reproduce, for example, in abortion or when using contraceptives.
17. D Statman, 'The Right to Parenthood' (2003) 10 Ethical Perspect 224, 225.
18. A Alghrani and J Harris, 'Reproductive Liberty: Should the Foundation of Families Be Regulated?' (2006) 18 Child and Family Law Quarterly 191, 192.
19. See also M Eijkholt, 'Procreative Autonomy and the Human Fertilisation and Embryology Act 2008: Does a Coherent Conception Underpin UK Law?' (unpublished).
20. J Savulescu, 'Deaf Lesbians, "designer disability" and the future of medicine' (2002) BMJ 771, 772.
21. Dworkin (n 5) 148.
22. JA Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton University Press, Princeton 1994) 30.
23. E Jackson, Regulating Reproduction: Law, Technology and Autonomy (Hart, Oxford 2001) 2.
24. J de Ruiter and EPR Sutorius, 'Manipuleren Met Leven' in HN Juristen-Vereniging (ed), Preadvies (WEJ Tjeenk 1993).
25. (See also Council of Europe.) Progress of Medicine, Biology and Respect for Private and Family Life (Strasbourg, DH-DEV 1991) 8.
26. A Alghrani and J Harris, above n 12, 191-210.
27. M Kortman and others, 'Zwangerschap op oudere leeftijd door middel van eiceldonatie' (2006) 47 Nederlands Tijdschrift Geneeskunde 2591-95.
28. Savulescu, above n 13, 10.
29. O'Neill, above n 3, 54.
30. Y Pearson, 'Storks, Cabbage Patches, and the Right to Procreate' (2007) 4 Bioethical Inquiry 105, 108.
31. H Codd, 'The Slippery Slope to Sperm Smuggling: Prisoners, Artificial Insemination and Human Rights' (2007) Med Law Rev 220, 235.
32. T Murray, 'What Are Families for? Getting to an Ethics of Reproductive Technology' (2002) 32 Hastings Centre Report 41, 42.
33. M Warnock, 'The Limits of Rights-based Discourse', in J Spencer and A du-Bois-Pedain (eds), Freedom and Responsibility in Reproductive Choice (Hart, Oxford 2006) 3.
34. B Steinbock, Rethinking the Right to Reproduce (Harvard Centre for Population and Development Studies, University at Albany/SUNY [1998]).
35. MK Eriksson, The Right to Marry and to Found a Family: A World-Wide Human Right (Coronet Books, Inc, Philadelphia 1990).
36. The practices of forced sterilisation of the weak-minded were not only practised in Nazi-Germany, but equally in many other countries including the Scandinavian ones.
37. See D Kevles, 'Eugenics and Human Rights', (1999) 319 BMJ 435.
38. E Wicks, Human Rights and Healthcare. (Hart, Oxford 2007) 18.
39. Since Article 12 contains the right to marry as well, part of its historical origins derives from the importance attached to the ability to marry.
40. X and Y v United Kingdom (Application 7229/75) (1977) 12 DR 32 (EComHR). In this case, the Court made it clear that the Article could not be extended to include a right to adopt.
41. See also Section 3 of this paper.
42. The fact that the judgments such as X and Y v the UK (1977) (above n 32) were established in cases of adoption does not seem to hinder an analogous application to cases of reproduction. Nothing in the statement points to a restrictive application.
43. In Frette v France (Application No. 36515/97, February 26 2002), para. 31. Marckx v Belgium (Application 6833/74) (1979) 2 EHRR 330, para. 11.
44. The Consultative Assembly is the second organ of the Council of Europe after the Committee of Ministers, and has been indicated as the Parliamentary Assembly since 1994.
45. Statute of the Council of Europe, http://conventions.coe.int/Treaty/en/Treaties/HTML/001.htm#FN1 [accessed November 26 2009].
46. M Janis and others, European Human Rights Law: Text and Materials (3rd edn OUP, Oxford 2008) 373.
47. Council of Europe. Collected Edition of the Travaux Preparatoires of the European Convention on Human Rights (Nijhoff, the Hague 1985) 96.
48. This contrasts with the concept of the right to procreate, which is often used in non-traditional contexts.
49. For an extended elaboration on the application of Article 12, and in particular the element of the right to found a family, see P van Dijk and others, Theory and Practice of the European Convention on Human Rights (4th edn Intersentia, Antwerp 2006) 4 edn, 853-7.
50. G Lockwood, 'Philosophical Principles in Reproductive Medicine' (1998) 1 Human Fertility 27, 28.
51. Whereas it seems to have been the original intention of the Convention that the Article would only protect married couples, the protection seems to have been extended to non-married couples. The existence of the couple, however, remains required. The Court seems to stick to a traditional interpretation and to hold that the Article at least requires 'a couple'. X v Belgium and Netherlands (Application 6482/14) (1975) 7 DR 75, under the law 2, EComHR, repeated in DiLazarro (Application No. 31924/96) 90-B EComHR. and Dijk and others (n 39) 842. Also Emonet v Switzerland (Application No 39051/03) (2007) 49 EHRR 234, [92].
52. The Court has consistently held that Article 12 applies to a 'man and woman' Rees v United Kingdom (Application 9532/81) (1986) 9 EHRR 56 [50] and Eriksson and Goldschmidt v Sweden (Application14573/89) (1989).
53. Marckx v Belgium (n 34) [67] 'The fact that, in law, the parents of an 'illegitimate' child do not have the same rights as a married couple also constitutes a breach of Article 12 (art. 12) in the opinion of the applicants; they thus appear to construe Article 12 as requiring that all the legal effects attaching to marriage should apply equally to situations that are in certain respects comparable to marriage. The Court cannot accept this reasoning; in company with the Commission, the Court finds that the issue under consideration falls outside the scope of Article 12'. Dijk and others (n 39) 856.
54. Jacobs and White, The European Convention on Human Rights (4th edn OUP, Oxford 2006) 252.
55. P., C. and S. v The United Kingdom (2002) (Application no. 56547/00) European Court on Human Rights, para. 142.
56. The Commission did foresee that Article 12 could apply to founding a family by adoption, such as in X v the Netherlands (1980) (Application No. 8896/80), but it consistently held that Article 12 does not contain a right to adopt, and relies on Article 8 for the rest of such claims. See for example E.B v France (Application 43546/02) (2008) 47 EHRR 509.
57. In the case of Goodwin v UK (Application No. 28957/95, July 11 2002) [80] and [100], the Court held that Article 12 had to be interpreted more flexibly for the right to marry. It reasoned that the determination of gender criteria would no longer be determined by biological criteria. Moreover, it held that the ability to found a family was not required as a condition for a right to marry. (It must be noted that the Court did not determine the opposite; that founding a family could be a right outside of life in a couple or in a married situation.) See also Johnston v Ireland (Application 9697/82) (1986) 9 EHRR 203.
58. X v Belgium and the Netherlands and Di Lazzaro (1997) (n 41).
59. In Goodwin v UK (2002), the Court seemed to insist that Article 12 could only apply to couples of the opposite gender [100] (n 42).
60. Also P., C. and S. v The United Kingdom (43) [142].
61. The Court has ruled that restrictions in national laws may not impinge on the essence of the right, but it is not clear how valuable this is. The essence of Article 12 remains very vague. Rees v United Kingdom (1986) (n 42). Also, for example, in the recent case of Emonet (n 41), the core of the right seems to have been at stake, but the appeal was dismissed. Since the Swiss legislation did not recognise the parties' relationship as a formal couple, they could not claim the right to found a family. See also Dijk (n 39) 842.
62. Dickson v United Kingdom (Application No 44362/04)(2006) 44 EHRR 419 [41].
63. S.H. and others v Austria (Application No. 57813/00, November 15 2007).
64. Sijakova and Others v The Former Yugoslav Republic (Application No. 67914/01, March 6 2003).
65. The Government concluded that a claim under Article 12 had to be rejected, since the restriction was not disproportional and did not 'impair the very essence of the right to found a family'. Nevertheless, the Government did not apply for a dismissal of the Article. See also under number 5 in the S.H. and Others (n 51).
66. Sijakova and others (n 52) was declared inadmissible. Nevertheless, the Court officially refers to it the judgement of the fourth Chamber.
67. Or as in Sijakova and others, the claim to have a grandchild (n 52).
68. Especially in S.H. and others (n 51) the right to beget a child seems to be the core issue.
69. The decision in the case of S.H and others (n 51) could be enlightening in this respect. The complaint relates to the prohibition of the legislation to use these forms of assisted conception. If the Court would envisage a change of the legislation, would such a change then be seen as a positive obligation so to facilitate the conception by those who need assistance, or would it be seen as a negative interference; the legislation interfering with an ultimately personal decision so that it should actually refrain from involvement.
70. It is fixed case law of the Court to require leaving the core of the right intact. Rees (n 42) [50].
71. Wicks (n 29) 162.
72. Dickson v The United Kingdom (2007) 46 EHHR 927 [76].
73. A Mowbray, Cases and Materials on the European Convention on Human Rights (2nd edn OUP, Oxford 2007).
74. Jacobs and White (n 43) and Deech (n 6) 5.
75. Evans v The United Kingdom (2007) EHRR 728 [71].
76. See for example S Grover, 'Gender Bias in Judicial Decisions Concerning IVF and Embryo Implantation: Evans v The United Kingdom (Grand Chamber of the European Court of Human Rights) as a Case in Point' (2007) 3 Original Law Review, 86-98.
77. C Morris, 'Evans v United Kingdom: Paradigms of Parenting' (2007) 70 Modern Law Review 979-100.
78. L Zucca, 'Evans v United Kingdom: Frozen Embryos and Conflicting Rights' (2007) 11 The Edinburgh Law Review 446-9.
79. Dickson (n 64).
80. Codd (n 24).
81. And M Eijkholt 'Case Commentary: The Right to Procreate Is not Aborted' (2008) 16 Med Law Rev 284.
82. The Secretary of State offered, for example, the public confidence in the penal system and the absence of the parent for a long period of time as public interests. See Dickson (n 64) [74-76].
83. The Court established a violation of Article 8 in conjunction with Article 14 on April 1 2010. S.H. and Others (Application No 57813/00, April 1 2010).
84. S.H. and Others (n 51) The Court declares the complaint admissible as it 'violated their rights under Article 8 of the Convention, read alone [emphasis added] and in conjunction with Article 14'.
85. See number 2, last paragraph.
86. This is remarkable since the right to found a family is Article 12, and not Article 8.
87. th paragraph under heading 2 under heading of 'the law'.
88. See under number 5 of the judgment.
89. Dickson (n 64) [86].
90. See the dissenting opinion of Judge Mularoni in E.B. (n 47).
91. This section will not provide a definition of the right to procreate. The right is an opaque analytic tool that does not lend itself to clarification in this analysis. It suffices to establish that the right to procreate these days stands for more than a right to have one's innate capacity to reproduce protected.
92. See also M Eijkholt, 'Conceiving a New Right to Procreate', in.
93. Murray (n 25).
94. The case refers here to the case of Pretty v UK (Application No. 2346/02) [2002] 2 FLR 45.
95. See Dickson (n 64) [71].
96. See Dijk and others (n 39) 66.
97. J Boivin and G Pennings, 'Parenthood Should Be Regarded as a Right' (2005) Arch Dis Child 784.
98. X v Belgium and the Netherlands (n 41).
99. Positive obligations are norms that require active interference of the government to establish the conditions in which a specific right can be exercised.
100. Any other positive obligation than a financial one, or an obligation to provide the service, is harder to imagine. An obligation to provide for, for example, a partner required for conception is unthinkable.
101. The possibility of Article 8 having 'positive effects' can be shown by cases as early as Rees (n 42).
102. In Evans (n 66), the notion of 'respect' caused the grounds for appeal to disappear. According to the Court, it was up to the Government to decide whether or not to formulate legislation, and equally to decide which elements herein to regulate or not to regulate. The Court required only that the regulation would be made carefully. Seemingly, this attitude implies that as the considerations were careful, the outcome did not matter; there was no direct right to be upheld but only respect. The contents of the regulations would be irrelevant; carefully made regulation would always show respect.
103. Even though two gametes (of two different persons) are required in order to reproduce, and arguably reproduction therefore is not a private matter, the notion of 'family privacy' seems to obviate this drawback. This remark does not take reproductive cloning into account.
104. LE Kalkman-Bogerd. 'Artikel 8 en 12 in verband met kunstmatige voortplanting en draagmoederschap', in JKM Gevers (ed), Het EVRM en de gezondheidszorg (Ars Aequi Libri, Nijmegen 1994) 122.
105. In R (on the application of Countryside Alliance and others and others (appellants)) v Her Majesty's Attorney General and another (Respondents) [2007] ([UKHL] - 52) House of Lords widely elaborated on the scope of 'private life' of Article 8 ECHR. Lord Roger of Earlsferry seems to set out here a distinction between 'private private acts' and 'public private acts'. In the latter category, the act has a direct influence on the public domain, so that it can hardly be a private matter. Accordingly, in the above examples, the question whether the involvement of the surrogate or fertility clinic would classify as a public-private act or as a private-private act could depend on the way in which the surrogate would be 'recruited', and the fertility clinic 'paid' for. However, whether the ECHR would follow a similar categorisation is unclear. The Court held in Niemietz v Germany (1992) 16 EHRR 97, 11, that respect for private life also comprises, to some extent, a right to establish and develop relationships with other human beings and so extended the Article outside the 'inner circle'. Yet, where the exact boundaries lie between public and private acts, the 'inner circle' and the outside world, the ECHR has not yet defined.
106. See Section IV.
107. Deech (n 6) 137.
108. C Bateup, 'Can Reproductive Rights Be "Human" Rights? Some Thoughts on the Inclusion of Women's Rights in Mainstream Human Rights Discourse' (2000) 6 Australian Journal of Human Rights 33.
109. Although Bateup refers to a reluctant attitude of the Government in respect to negative procreation: 'by basing a woman's right to abortion upon the right to privacy and the notion of the private sphere, it is possible to avoid any duty to ensure that women can, as a practical matter, have access to abortion services', there seems to be no good reason why this statement could not be extended to the context of this paper: positive procreation.
110. Kalkman-Bogerd (n 94) 68.
111. The wide range of possible exceptions to the Article is also a result of the doctrine of the margin of appreciation under Article 8. For an elaboration on this topic, see P van Dijk and GJH van Hoof, Theory and practice of the European Convention on Human Rights (3rd edn Kluwer Law International, the Hague 1998) 82-95.
112. The dissenting judges criticise that the Court fails to consider many of the important public interests that contraindicate upholding of the private interests, such as the absence of the father in an important part of the child's youth and the violent history of Dickson. See dissenting Judges Wildhaber and colleagues in Dickson (n 64).
113. Pearson (n 23) 110.
114. Murray (n 25) 42.
115. Also T Bayne and A Kolers, Parenthood and Procreation (Stanford Encyclopaedia 2006).
116. Murray (n 25) 42.
117. Dijk et al. (n 39).
118. Arguably, allocation policies are just a matter of scarcity that rights are confronted with and have no influence upon its meaning. However, when we consider that a claim for help would not be met in a long-lasting couple relationship to conceive a second child, whereas someone who changed partners would each time have a new right to found a family, such interpretation of the Article would have discriminatory consequences.
119. JA Robertson, 'Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth' (1983) 69 Virginia Law Review 405-65.
120. Dijk and others (n 39) 234. For example, we could see such interpretations in the case of J.S v Denmark (application No. 1287/61, 4 October 1962) European Commission of Human Rights or in Dickson (n 64). In the former case, a man complained before the Court that his wife had herself sterilised without his consent. He unsuccessfully argued that his right to found a family was infringed, as he could no longer found a family with her. This latter judgment seems to imply that the couple should at least have been allowed the opportunity to access AI treatment. The ability to procreate would be part of their rights.
121. Eijkholt (n 82).
122. Interestingly, we can also see the opposite question and ask whether the right to found a family is the same as the right to procreate. Whereas the right to found a family seems to include a right to gestate (the whole process towards birth and the establishment of the family would be included in the concept), it is questionable whether the right to procreate includes a right to gestate. The right to procreate, seems in first instance, to be cut loose from the outcome so that the result, a family, is not always endeavoured.
123. Lotz holds that distinguishing procreative reasons is unjustified M Lotz, 'Procreative Reasons-Relevance: On the Moral Significance of Why We Have Children' (2008) 22 Bioethics 1.
124. We see that aspects of self-determination may be relevant in issues concerning the (im)possibility to found a family, but also as an underpinning choice, for example, for the characteristics of the child.
125. Steinbock (n 27) 23.
126. Boivin (n 87) 784.
127. Some have argued that the intention to rear a child is the essence of the right to procreate. That is to say that the importance of anyone for the right is expressed in the right to rear a child. It is even said that without the intention to rear the child one has a reduced right to procreate. See O'Neill, above n 3. The question why anyone would want to procreate without having an intention to raise the child is responded to by arguing that reasons could lie in having a choice, for an individual's identity and as it is an original and basic condition for having a genetically related child. M Eijkholt (82) 110, and Robertson (n 108) 408.
128. J Ellin, Contemporary Issues in Biomedical Ethics (The Human Press, Inc, Clifton 1978) 135, 135.
129. See Pearson (n 23) and Murray (n 104) 42.
130. It must be noted that point 2 here deals with the moral context and moral responsibility that could, arguably, come with founding a family by the person who procreates. Where I comment on the self-centredness of Article 8, I thus refer to a moral attitude. This implies that I do not yet deal with the exceptions in Article 8.2. These exceptions are more relevant on a political level. They will be subject of discussions in point 3.
131. The prima facie adjective is chosen to highlight that Article 8 does allow public interests to interfere with the right. These are provided for in paragraph 2. However, these limitation criteria are posed as an exception to the rule, so that they are only a hindsight justification for the breach.
132. We can see an example of this in Emonet (n 41) [92]. The couple was not allowed a right to adopt under Article 12, since the national legislation did not confer such right in the given circumstances. Admittedly, this comment has two sides. Here I argue that in order to establish the essence of the right, there is the possibility to take account of the public interests when defining its core. See for the critical side of this comment paragraph III, holding that Article 12 allows a wide range of exceptions. This comment applies where the core of the right is not established.