The UN Convention on the Rights of the Child [1] (UNCRC) recognises the right of a child to know and be cared for by her parents. Ireland goes before the Committee on the Rights of the Child tomorrow and the proper understanding of this right, namely that a child has a right to be raised, where practicable, by her natural parents, should be one of the issues discussed at our appearance. Unfortunately, this will not be the case.
This right is established by several articles of the UNCRC. Our newly passed Children and Family Relationships Act directly violates it.
Article 9(3) of the UNCRC states, “State parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”
Article 7(1) of the Convention states that, as far as practicable, a child has a right “to know and be cared for by his or her parents”.
And Article 18 obliges States to “use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child”.
The overwhelming majority of the liberal NGOs try to minimise this right in order to protect their expansive understanding of adult reproductive liberty (which includes virtually unrestricted access to donor assisted human reproduction and surrogacy).
These NGOs argue that the term “parents” in the UNCRC has not set meaning and can refer to any combination of intending parents just as easily as it can refer to the child’s biological parents. This argument fails.
As a matter of international law, in order to interpret a treaty regard must first be had to the ordinary meaning of particular terms. The ordinary meaning of “parents” is mother and father. Context is also important for treaty interpretation. The particular context of the aforementioned articles confirms the ordinary meaning of the term is in use: repeated reference is made to “both” parents. On top of this, the preparatory documents of the UNCRC confirm that State delegates to the drafting understood the term in its ordinary sense.
The UN Committee on the Rights of the Child has affirmed part of the right in question. In a series of concluding observations concerning countries like Norway, Switzerland, and the United Kingdom, the Committee has recognised that, in the specific contexts of adoption and donor assisted human reproduction, a child has the right to know their natural parents.
But so far the Committee has not followed through on its logic and acknowledged that Article 7(1) of the UNCRC also concerns the right of children to “be cared for” by their natural parents. This right is violated through the State-sanctioning of donor assisted human reproduction. In the short term it is highly unlikely that the Committee will so acknowledge the full scope of the right in question – UN Committees are generally very slow to criticise the expansion of adult reproductive autonomy, even when it conflicts with children’s rights.
The case of Article 7(1) of the UNCRC is just one example where international human rights law has yet to be fully recognised by Committees established to monitor its implementation.
Ireland very much minimised the right of a child to know and be cared for by her parents last year by passing the Children and Family Relationships Act (which was constitutionally reinforced by the passage of the marriage referendum).
The Act gives children conceived via egg and/or sperm donation a right to know their natural parents once they turn 18, by which time their childhood is over. In and itself that violates the right of a child to know her parents. The right to be cared for by her biological parents is even more directly erased by the Act.
The implication of the rights found in the UNCRC is, of course, that egg and sperm donation should be prohibited entirely as the practice quite obviously violates the right of a child, where practicable, to know and to be cared by her natural parents.