… self-ownership requires a conceptual division between the self as a subject and the self as a physical object. Since women are under-represented as active agents in language, law, political discourse, and the symbolic order generally, ‘self’-ownership for women appears irregular.
Davies and Naffine (2001: 41)
ECHR case law constitutes a vast sea of knowledge that comes with significant legal and political authority in the Member States of the Council of Europe.
The concepts discussed in the first sub-chapter, alliance, consanguinity and filiation, offer anthropological themes under which case law may be grouped and analysed. In contemporary circumstances, ‘alliance’ translates as the act of forming couples and usually living together, possibly getting married or forming a civil union on the way. Consanguinity, or the metaphor of ‘shared blood’ refers to genetic and gestational ties but perhaps instead of slicing it up
Kinship, Gender and Relational Thinking
to genetic and gestational relations, the notion of biological relations might convey the ensemble of the whole process of conceiving a child, pregnancy and childbirth in which not just pregnant women but their intimate partners are party to on the level of everyday life. Relations of filiation are often registered and instituted on the basis of consanguinity, but if we wish to look at what filiation ultimately rests on, it is not shared genetic substance as such but the predetermined form of recognising certain interpersonal relations as valid in relation to the community and State question. Adoption and assisted reproduction provide contexts where relations of filiation are constituted on a more technical level, both legally and biotechnologically.
Debates surrounding the notion of a ‘symbolic order’ of kinship acting as a barrier to legislative changes such as instituting civil unions and marriage for same-sex couples and recognising children born from non-coital forms of reproduction associated with these unions have been played out mainly in France and the French-speaking academic sphere, so they have a certain limited and localised colour to them. However, the link made and the continuum provided by classical anthropological thought and psychoanalytical approaches to modern-day debates concerning what family
‘is’ and may be made up of on the level of persons, sexes, genders and orientations is particularly interesting and provides a mirror to the less
‘intellectualised’ debates in the English-speaking academic world where the notion of a ‘symbolic order’ has rarely been mentioned. Lévi-Straussian (and Lacanian) thinking and its latter applications to these debates over the decades has been criticised by feminist commentators on both sides of the Atlantic for universalist and patriarchal views on the incest taboo and for conceptualising the exchange of women as the threshold of culture. However, as Camille Robcis (2004) points out, ‘founding fathers’ of this particular discourse such as Lévi-Strauss were probably not motivated by great political passions when theorising on this issue and it can be argued that the foundations of this debate provided by this line of thought need not be interpreted as providing normative answers.
Taking stock of the thought of Lévi-Strauss is useful for understanding the theoretical context and the wider meaning of the concept of the ‘symbolic order’ of kinship, referred to in thePacs and ‘mariage pour tous’16 debates, but it is better seen as a product of its time instead of a normative account of what might be the universal ‘anthropological’ characteristics of human families. Certain parallels may be drawn between the French political and legislative arena and a European culture of human rights: in both contexts of discourse and debate, presenting rights-related arguments that refer to divine authority, religious tradition or ‘nature’ would not be seen as convincing, rather very subjective. Scientific, or theoretical arguments, in turn, are evoked in these contexts, but they too come under a variety of guises: statistical
16 ”Marriage for all”, the slogan of the campaign for same-sex marriage in France in the early 2010s. See Robics (2015).
information or outcomes of empirical research, or in the French variety, in a mixture of philosophy, social theory and a certain secular dogma of legal tradition, or a Legendrian ‘anthropological function of law’ to act as the source of reason (see Supiot 2008) in an uncertain and irrational world. A certain quasi-universalism and an illusion of inclusion seems to be a basic tenet in both spheres of political and legal activity. Universalism entails the promise of formal equality, but tends to be blind to the particular, be it gendered individuals, sexual orientation, gender identity or historically moulded social contexts, such as the emergence of non-heterosexual family formation due to the decriminalisation of homosexuality and the popularisation of human rights rhetoric in civil society activism.
In sum, it can be said that both as a political philosophy and a set of legal principles, human rights have moved away from dogmatic doctrine and the conception of such principles as ‘given’. Instead, human rights reside in an intersection of the three latter categories drawn by Dembour (2010):
deliberated, fought for and talked about. In addition, claims for recognition of family formation that forego demands of status (married or unmarried) and gender (male and female) that external views proscribe is an application of the principle of equality built into human rights thinking. The framework of analysis that is applied in the three subsequent chapters of this study places biological, social, legal and gendered relations in the webs of alliance (marriage and démariage), consanguinity (maternity and paternity) and filiation (adoption and assisted reproduction as paths to maternity, paternity and parenthood in general). From the point of view of feminist relational theory this leads to conceiving family relations being relations bestowed upon particular, legal and abstract subjects whose “irreducible differences” (Lacey 1996: 150) are taken into account. This intersection of various forms of family relations between individuals with forms of kinship produces relational subjects in the field of family law.
It is argued in this study that the notion of ‘relational subjects’ acts as a nodal idea of trying to make sense of what the collision of human rights thinking and family law in this particular historical juncture is producing. In this schema, structure refers to the existing status of subjects, be it male, female, married or unmarried, for example. In these structures, which somewhat vary between different States and relevant legislation, kinship and family are understood as systems or institutions where subjects may inhabit certain symbolic positions of wife, husband, mother, father, daughter, son, sister and brother according to their gender and/or marital status. In the context of defending a traditional view of family, structure and symbolic positions are usually defended as natural, immutable and perhaps transcendental. Agency, then, may be of individual kind on the micro-level of everyday life or of a politicised kind and channelled through political activism, advocacy and/or academic debate, which is often inspired by identity politics, namely feminist and LGBT (lesbian, gay, bisexual and transgender) perspectives. In the context of a pluralist view of family, various reforms of
Kinship, Gender and Relational Thinking
family law and policy are advocated for in order to make e.g. marriage or recognition of parent-child relations more flexible and less bound in gender or presumed heterosexuality. The dichotomies of structure and agency, status and identities or traditional and pluralist views of family may be broadened with a relational analysis of family formation in contemporary Europe, which may take the significance of relations between individuals as its starting point.
A gender-sensitive relational analysis may also escape the pitfall of formal gender-neutrality turning into gender-blindness. After all, as may be learned from the ‘structuralist social contract’ (Robcis 2013), gender is an inescapable category and distinction both on physical and social levels and built into human society as one of the main relations structuring social life par excellence.
2 CONCEPT OF FAMILY IN
INTERNATIONAL HUMAN RIGHTS LAW
For both sides of the debate, at issue is not only the question of which relations of desire ought to be legitimated by the state, but of who may desire the state, who may desire the state’s desire.
Judith Butler (2002: 22)
How does the concept of family relate to thinking about human rights? What is written in international human rights documents and treaties concerning family and marriage? What kind of implications does this have for the protection of vulnerable categories of people such as women, children and minorities? In short, to what kind of a family do human beings have a ‘right’
in the realm of human rights law? These are some of the questions that need to be addressed before embarking upon an analysis of how family relations have been defined and conceived in the case law of the European Court of Human Rights. At first sight, one might wonder whether family relations have anything to do with human rights at all. Human rights may be understood in a fairly narrow, politically liberal way pertaining to individual civil and political rights and the protection of individual liberties in the public sphere.
The Universal Declaration of Human Rights from 1948, a resolution adopted by the General Assembly of the United Nations is the founding document of a
“culture of human rights” (Hastrup 2001, 2003) emerging after the Second World War. Its content has acted as an inspiration for international human rights treaties within the United Nations and regional human rights systems such as the Council of Europe. The Universal Declaration contains a
“definition” of family and a confirmation of the right to marry in one of its Articles (Article 16), and some of the other Articles in it provide support for mainly economic and social rights concerning family life.
The UDHR is widely read, commented on and circulated also today even though almost seventy years have passed since it was adopted by the General Assembly of the United Nations on 10th December 1948 (the International Day of Human Rights). However, from the point of view of international law its status is somewhat ambivalent: legally it is a mere declaration and thus not officially binding on the States that adopted it. On the other hand, it is often argued to represent customary international law and thus to act as an influential document of legal authority (see e.g. Adolphe 2006: 370). Together with the International Covenant on Civil and Political Rights (ICCPR, adopted in 1966) and the International Covenant on Economic, Social and Cultural Rights (ICESCR, adopted in 1966), it forms the International Bill of Human Rights, which is the core of global human rights law within the United Nations.
From these documents, the ICCPR and the ICESCR are binding in international law, as most States in the world have ratified them, making them
Concept of Family in International Human Rights Law
part of their international obligations. Later on, the United Nations has come up with specific international treaties on the rights of vulnerable categories of people, such as women (Convention on the Elimination of All Forms of Discrimination Against Women, CEDAW, adopted in 1979) and children (Convention of the Rights of the Child, CRC, adopted in 1989).
In this chapter I wish to find out where the formulations of the Universal Declaration of Human Rights concerning family as the “natural and fundamental” unit of society emanate from. According to these sources, to what extent is family a public form of organising household relations and to what extent is it protected by privacy, both as an institution and as an entity of social life tying people together in a web of close personal relations? Is it an institution that exists to protect intimate and affective relations within the private sphere, or an institution that exists to make people act and desire in the way the State wishes them to do?1 In this chapter, I will give a brief look into the drafting history of Article 16 of the Universal Declaration of Human Rights and especially the “natural and fundamental” (see Article 16(3) UDHR) character of family as a concept and institution, comparing it to documents and sources that display similar phraseology. The history of political and philosophical thought on the pre-political and pre-legal essence of human pairing and reproduction goes of course much further in history. The main aim in this chapter is to find out where the wording of the definition of family in the Universal Declaration has come from, as it is so widely disseminated, quoted, marvelled upon and argued with also today in academic research, popularised human rights education and advocacy. I argue that this is often done by taking these words at commonsensical value, detached from the ensemble of its original context, language and the philosophical and doctrinal tones it conveys. Indeed, Article 16 of the UDHR and many other human rights documents and treaties are used to argue both for and against changes in how family is understood today, showing that they are words that are hoped to
“make things happen” according to the “discourse” school of human rights (see Dembour 2006, 2010).