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PAVEL BUREŠ
CYIL 6 ȍ2015Ȏ
Biologically, the process of procreation can be started and realized only by two
members
48
of society of opposite sex.
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While procreation is biologically more attached
to women, procreative rights cover both sexes. However, the biological difference is
mirrored also in human rights international norms, where women are considered
as vulnerable persons with respect to their reproductive quality. This is explicitly
mentioned in the CEDAW Convention Art. 12
50
and the General Comments No.14
to the ICESCR on Art. 12 of the Covenant – the right to the highest attainable
standard of health.
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This difference has also been confirmed by the approach of
the ECtHR. In the Evans case,
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the Court held that a frozen embryo can be used
only if both parties (partners) consent. Its judgment was based especially on a non-
discriminatory approach to both partners with regard to their decisions to become
a parent in the genetic sense.
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On the other hand, for example in the case of home
birth issues, only women’s reproductive rights are taken into consideration.
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In this article, focus is directed especially to the very character of reproductive
rights and their interconnection with the concept of human dignity. Thus, we are
focusing on procreation and issues related directly to it, and we are skipping soft
matters concerned with e.g. reproductive health education. In this regard, procreative
(or the hard core of reproductive) rights are strictly linked to three basic human rights,
what we can call bearing rights – the right to life, the prohibition of torture and
inhuman and degrading treatment and the right to family private life. Concerning
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In the case of artificial reproductive techniques and surrogacy particularly, it is difficult to comprehend
the question of whether to count the surrogate mother (to this two members) or to exclude her, as she
is only a “surrogate mother” – what the French people call mère porteuse – carrying mother.
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The term
gender
was previously used in this context. Nowadays it has acquired a quite new meaning.
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Access to health care services, including family planning, appropriate services in connection with
pregnancy, confinement and the post-natal period, granting free services where necessary, as well
as adequate nutrition during pregnancy and lactation. The CEDAW Art. 12 was clarified by the
Committee EDAW in its General Recommendation No. 24 (20th session, 1999) on women and health
issues.
51
See: ICESCR, GC n°14, E/C.12/2000/4, 11 August 2000, para. 21. … Promotion of women’s right
to health; Policies to provide access to a full range of high quality and affordable health care, including
sexual and reproductive services; The realization of women’s right to health requires the removal of all
barriers interfering with access to health services, education and information, including in the area of
sexual and reproductive health. It is also important to undertake preventive, promotive and remedial
action to shield women from the impact of harmful traditional cultural practices and norms that deny
them their full reproductive rights.
52
Grand Chamber judgment in Evans v. United Kingdom, (Application no. 6339/05), 10 April 2007,
paras. 83-92.
53
In more detail, Cohen speaks about a bundle of rights, differentiating the right not to be a genetic
parent, the right not to be a legal parent, and the right not to be a gestational parent. See COHEN,
Glenn. The Constitution and the Rights Not to Procreate. Harvard Public LawWorking Paper No. 08-
30 p. 1135-1196.
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If in these issues, it seems to be very logical, if we compare frozen embryo cases, on one hand, and
abortion cases on the other, the logic is less understandable.