Is there a human right to have children?

27 April 2017

Is there a human right to have children?  Or a right to have biological children?

The International Covenant on Civil And Political Rights -- and the Universal Declaration of Human Rights on which it was based -- recognise a "right to found a family" (UDHR art 16; ICCPR art 23).  What does that mean?

The UN Human Rights Committee, which is a body of experts given the highest authority to interpret the above-named Covenant, offers some guidance:

"The right to found a family implies, in principle, the possibility to procreate and live together.

"When States parties adopt family planning policies, they should be compatible with the provisions of the Covenant and should, in particular, not be discriminatory or compulsory."  (HRC General Comment No. 19, 1990; emphasis added)

The drafters of the UDHR (1940s) and the ICCPR (1960s) -- and this authoritative interpretation dating from 1990 -- appear to have thought of the right to found a family as a freedom, rather than an entitlement to have children.

I wonder what the Committee would say now, in the light of galloping developments in assisted reproduction?  If we cannot have children due to infertility, do we have a right to govt assistance to found a family?  To publicly-funded IVF?  To use donor gametes or a surrogate?

That a government is willing to permit or even pay for something does not mean it's a right -- in Australia, we taxpayers fund all sorts of things that are not human rights (fireworks, anyone?) -- but something which is a right imposes obligations on governments.

A court case in Singapore last month pushes the envelope: it concerns a fertility clinic that mistakenly fertilised a woman's egg with the wrong sperm.  (Not only the wrong man, but a man of a different ethnicity ...)  This brief analysis by Dr Megan Allyse from Stanford Uni faculty of medicine is interesting reading.

A final reflection on the potential implications from Dr Todd Kuiken of the Genetic Engineering and Society Center at North Carolina State University:

"Whether we're related to our kids, the court found, is highly valued in society — it is, after all, the reason so many people spend so much time and money on IVF procedures in the first place.

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Does this [judgement] mean that adopted children are more or less valuable?  You can imagine a divorce scenario in which child support is determined by what percentage of genes a parent shares with the child ...