Is being a mother a fundamental human right?

A week or so ago, Liz Jones wrote an article in the Daily Mail about stealing sperm from her husband in her desperate desire to get pregnant. She was stealing sperm from him, because although married, he didn’t want to have a baby but she did. Leaving aside the debate about why one might think that sperm theft, it did raise an interesting issue about what some women think about motherhood and their right to it. Last week, Grazia (I’m sorry, I read it again) ran a yes/no debate regarding the issue. Unfortunately, I managed to recycle my copy before I could note down the columnists involved, but I did note that the columnist arguing the ‘yes’ position ended her argument with the assertion that basically she thought deception was acceptable because ‘being a mother was a fundamental human right’ which, the column implied, was being denied to her.

Now, when I raised this with my husband, he thought I was being silly and that obviously it was such a ridiculous statement that it wasn’t worth taking seriously. But, it is something that I think some women believe, so I wanted to think about it some more.

Fundamental human rights, according to Wikipedia (which in itself is quoting from an academic paper published on a human rights website) “are “commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being.” Human rights are thus conceived as universal (applicable everywhere) and egalitarian (the same for everyone)”. They are enshrined by various national and international laws, depending on country. In England and Wales, they are set out in the Human Rights Act 1998.

Substantive, or fundamental, human rights are generally defined as:

  • the right to life
  • freedom from torture
  • freedom from slavery
  • right to a fair trial
  • freedom of speech
  • freedom of thought, conscience and religion

The nearest I could find to ‘the right to motherhood’ are reproductive rights, which are not defined as a fundamental human right but legal rights which are in discussion. Reproductive rights are defined as legal rights which “rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. They also include the right of all to make decisions concerning reproduction free of discrimination, coercion and violence.” (WHO) These rights are usually referred to in relation to discussions regarding abortion, genital mutilation, contraception, education and making choices free from violence, coercion and discrimination.

In short, and without making this a lengthy and academic discourse on human rights, I just cannot see how motherhood can be applied equally to everyone. After all, by definition, only females can be mothers. I also cannot see how motherhood can be a right, even if restricted as only to women, as how does that leave women who can’t or choose not to have children. But the thing that concerns me most is that the columnist was implying that a women’s desire to have children should be prioritised above the partner’s wish to *not* have a child. That is, making a choice for the male, using coercion, which is directly in contrast with the male’s right to his reproductive rights, in that he should be free to make reproductive choices free from coercion.

I think the phrase is perhaps trotted out with little thought, by women desperate to have children. But, I really don’t think that it is a right, even if we agree that motherhood is perhaps not a fundamental ‘human right’. I agree that each person should be free to make their own decisions, and if that leads a single woman to a sperm bank then so be it, but, to become pregnant at the expense of someone else’s rights, doesn’t seem an arguable position to me.

Or maybe I should stop reading Grazia.

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5 comments

  1. downtomysoul · · Reply

    No.

    This area of law was (may still be) the focus of my law degree.

    I may raise the ire of more strident feminists but I strongly disagree that there is a right to a child. From a human rights perspective (which is interesting given that a lot of people, not just women, claiming the right to a child do so on the basis of human rights).

    I dare anyone to watch this: http://www.hbo.com/documentaries/google-baby/index.html
    and not be concerned for the interests of the women being used here and the children created.

    Likewise my concern is that in asserting this supposed right, the actual legally recognised rights of others are being negated, primarily the child’s. ie. right to identity, right to know their parents (not necessarily to have a mother and a father, even though that is a biological certainty) etc…
    Rose v Secretary of State for Health and the HFEA [2002] EWHC 1593 has a good discussion, recognising some of those rights and how they are impacted.

    It is my reading of the various laws, that there is a right to conceive a child/become a mother/parent if you can do so without intervention (which you refer to above as reproductive rights) but if you can not do so, there is no right to a child. You may be privileged to access services to enable motherhood/parenthood but these are not a right.

  2. You raise excellent points, especially those of the child, which I had not considered. Or, rather, I had, just had not written about above. I guess I was keeping to the specific situation of the married couple where one party does and one party doesn’t want a child.

    Thank you also for pointing out the case of Rose. I will read it, as this is an area I am fascinated by. I see that it’s a E&W high court case – do those carry weight in Australia, or are you studying E&W law? My law school dissertation was also on rights, the right to life, but I focuses exclusively on end of life issues. That seems a long time ago now, back in 2004.

  3. downtomysoul · · Reply

    There is also this: http://www.canadiandonoroffspring.ca/index.html if you are interested.

    The EWHC has no direct weight here but the findings can be persuasive and have been referred to (for that specific case). Particularly because of the current lack of legal authority in the area and also because Australian law is still very much the same as English law.

    Rose was an important case, well worth a read.

  4. downtomysoul · · Reply

    I should add that these cases aren’t re right to a child but specific to what I was talking about in my first comment re the child’s rights to identity etc.

  5. One more case FYI (just decided) more specific to your post.

    http://eclj.org/Releases/Read.aspx?GUID=c4489520-527f-439b-8fcd-54254510cfa9

    OK, I’ll stop now :-)

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