NEWS RELEASE

REPORT CHALLENGES “RIGHT” TO HAVE CHILDREN

There is no unlimited right to have children, according to a study published today (Friday July 11, World Population Day) by the Optimum Population Trust.

Despite the United Nations’ reassertion, for this year’s World Population Day, of the 1968 UN declaration that individuals “have a basic human right to determine freely and responsibly the number and timing of their children”, human rights theory, legal precedent and national and international practice do not back this up, the study argues.

In reality, there is only a far more limited right to “found a family” which itself must be balanced against both one’s duties as a parent and also a series of other rights – belonging to other people, to future generations and to nature, wilderness and non-human species. All these set a limit on the number of children to which people are “entitled”.

“Most of us consider the decision of whether to have children an entirely personal matter,” the paper says. “The thought of others being affected or having a say in the decision strikes us as an interference with our privacy. In reality, it is the most public action - in the sense of influencing the lives of others – most citizens will ever take.”

Is there a “right” to have children? is written by Carter Dillard, an American legal academic specialising in reproductive rights law and a former US Government adviser, and is based on a paper that originally appeared in the Yale Human Rights and Development Law Journal. It describes the notion of a limitless procreative right, a “privacy right free of limiting duties”, as “self-contradictory and illogical”.

Instead of treating procreation as an unlimited private or personal right, he says, we should define it in terms of replacing ourselves, which suggests a “right” to have only one or, some would argue, two children. Beyond this “core” value, the procreative right would have to be balanced against other, wider interests and the public good. Simply wanting a “large family” might not be enough.

Other points include:

*Introducing more people into a finite space increases competition and decreases access to resources. “This is one of the few areas where Thomas Hobbes and John Locke, fathers of modern political theory, agreed: as population grows, so does conflict…”

*The “private” right to have an unlimited number of children is at odds with other people’s rights to enjoy freedom and nature – including the right to be “let [left] alone”. In a 1992 judgement, the US Supreme Court said that “the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life”. The paper argues that the presence of others interferes with the right to be left alone, adding: “Access to wilderness is comparable to what Locke termed ‘natural liberty’ - a freedom outside the sphere of humanity, a right not to be trapped in a world of others’ making.”

*Unfettered procreation “thrusts us into competition with our descendants” who, because of rising numbers, may not be able to enjoy the same right. “Future generations will not thank us for leaving them an overpopulation problem we were afraid to face up to.”

*Despite the rhetoric in “non-binding” sources of international law, such as the 1968 declaration referred to by the UN above, binding sources agree only on the right to found a family and set this against “competing international human rights, such as the right to liberty of movement, choice of residence, continuous improvement of living conditions, environmental hygiene and prevention of disease, all of which limit family size.” It adds: “When the [procreative] right must be applied in concrete circumstances, expansive rhetoric yields to a far more limited vision.” Courts in practice treat procreation “as an interpersonal, non-autonomous act, and they limit its exercise accordingly”.

*China has argued that its one-child policy is perfectly consistent with international law. “It has done so not based simply on notions of state sovereignty, but upon notions of competing rights, and its obligations to protect children and society as a whole from unjustified and destructive behaviour.”

*Current controversies over housing growth, as communities try to protect themselves from the “chaotic effects of expanding populations”, highlight the “elastic” relationship between population and law. As numbers increase, life becomes more “complex”, the scope of law expands and regulation brings a contraction of rights. “The degree to which a person can exercise certain rights is inversely proportional to the number of other people exercising certain rights.”

*Locke argued that parents have a duty to “preserve, nourish, and educate” their children but where a parent will not fulfil that duty but nonetheless procreates at “maximum biological capacity”, others – either individually or through the state – must step in with their own resources. This impinges on their property rights and liberty as well as violating the child’s rights and the parent's duty.

*Only the decision not to have children is a genuinely private act. “Not procreating is personal; procreating is interpersonal.”

The paper argues that through a society-wide process of agreement, internalisation and normalisation – a series of “gentle nudges” rather than “hard shoves”, similar to that involved in seat belt or anti-smoking legislation – a voluntary population policy should be incorporated into law.

“Given that law guides our behaviour, a policy that treats procreation as private is regressive, environmentally damaging and peculiarly anti-social: it teaches us to disregard others and their interests. Until we have policies that reflect the truly public nature of having children, we will encourage irresponsible procreation, and all the harm it causes,” Dillard concludes.

NOTES:

A copy of the OPT briefing is appended and can also be viewed at http://www.optimumpopulation.org/righttoprocreate.briefing.pdf.

An extended OPT abstract with summary, extracts and author biography can be viewed at http://www.optimumpopulation.org/righttoprocreate.extracts.pdf.

A copy of the paper in the Yale Human Rights and Development Law Journal (August 2007, Volume 10), with full notes and references, is viewable at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1089552 .

The theme of this year’s World Population Day is the “right of people to plan their families”. The UN says: “In 1968, world leaders proclaimed that individuals have a basic human right to determine freely and responsibly the number and timing of their children.” See UNFPA.

Media inquiries: Carter Dillard can be contacted on cjd328@nyu.edu or (from UK) 00 1 240 401 4553