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The Right to Family
The family is the fundamental and natural unit of society and requires the full protection of the state. Human rights law upholds the positive right of all peoples to marry and found a family. It upholds the ideal of equal and consenting marriage and tries to guard against abuses which undermine these principles. It is not prescriptive as to the types of families and marriages that are acceptable, recognising tacitly that there are many different forms of social arrangements around the world.
The family unit can be made vulnerable to social, economic, and political pressures. Human rights law seeks to bolster the family unit by specifying state obligations to keep families together and to reunify them when they have become separated e.g. as a result of refugee crises. It insists on maternity rights for mothers to allow time and space for the bond to develop between mother and child. It also prescribes detailed standards for the treatment of children who lack parental care and require state intervention and the provision of foster care or adoption.
(a) Right to marry and found a family
The family is recognised as the most natural and fundamental unit of society and therefore the right of all to marry and found a family is protected in human rights law. Human rights law does not dictate the types of family unit that are deemed acceptable and in the world today there are many diverse forms of families and marriages.
Whether these rights apply to same-sex couples has become a matter of discussion in recent times. Although human rights law does not make explicit reference to this, a number of its provisions concerning the right to marry and have a family, right to equality and non-discrimination etc. can be interpreted to mean that gay and lesbian couples should enjoy the protection of human rights law.
(b) Equal rights of men and women in the family
Human rights law asserts the equal rights and responsibilities of both men and women at marriage, during the marriage and at its dissolution. However, in many countries round the world, women do not have equal status compared to men in marital and family life. Laws and practices governing the status of women in the family often circumscribe their role in the unit and their legal capacity. The status of women is often determined by their relationship to male family members and may affect their rights and entitlements e.g. right to inherit family property. In some countries, women’s rights in various areas e.g. nationality and citizenship are curtailed or denied by law upon entering a marriage.
(c) Right to give full and free consent to marriage
Human rights treaties say that no marriage should be entered into unless consent is freely given by the intending spouses. Forced marriages for economic or cultural reasons continue to be practiced in many countries in the world today. Forced marriage of girls under 18 is an area of particular concern. Child marriage is a human rights violations under a variety of human rights. Studies have shown the health risks and prevalence of domestic violence linked to early marriage. There are a number of human rights campaigns aimed at preventing early and forced marriage of children. States are also required by a 1965 treaty to specify a minimum age for marriage. It does not stipulate a minimum age. Nor does the UN Convention on the Rights of the Child which defines a child as all persons under 18 but allows states to specify their own age limits for different matters under national law.
(d) Right to family planning
This right of individuals to freely determine the number and spacing of their children has been recognised by major UN conferences on population and development in Tehran in 1968 and in Cairo in 1994. However, the right has not been enshrined in a legally binding human rights treaty and the whole issue of family planning remains a controversial one for a variety of reasons: fear of coercive family planning programmes; idea that family planning promotes promiscuity; abortion debate and status of the unborn child.
(e) Rights of children to parental care
The rights of children to parental care are specifically protected in children’s rights treaties and governs the obligations of states to ensure children are not separated from the parents without a due judicial process, and to provide support for the parent and family unit. Provisions governing maternity rights no doubt stem from the basic principle that the fundamental bond between mother and child should be supported. A number of treaties emphasise the need to states to provide extra provision for pregnant women, to allow them maternity leave before and after childbirth which is either paid leave or leave with adequate social security benefits.
Human rights law lays down a number of standards governing the treatment of children who do not have parents and covers such issues as fostering, adoption, inter-country adoption. At the heart of these principles is the need to ensure the best interests of the child are met and to guard against the exploitation and abuse of this especially vulnerable category of children. The duty of parents to ensure provisions are made for children at the dissolution of a marriage is also prescribed.
Where parents and children are residing in different countries, states are obliged to facilitate contacts and deal with requests to enter or leave a state party for the purpose of reunification in a humane and expeditious manner. Such rights are only to be restricted for reasons of national security and public order. This is a particularly important right for refugees and special procedures exist in most countries to reunify refugee parents with their children. Human rights treaties oblige states to take special measures to trace the parents of an unaccompanied refugee child and to reunite them together.
International and Regional Instruments for Protection and Promotion
International legal instruments take the form of a treaty (also called agreement, convention, or protocol) that binds the contracting states to the negotiated terms. When negotiations are completed, the text of a treaty is established as authentic and definitive and is “signed” by the representatives of states. A state can agree to be bound to a treaty in various ways. The most common are ratification or accession. A new treaty is ratified by those states that have negotiated the instrument. A state that has not participated in the negotiations may, at a later stage, accede to the treaty. The treaty enters into force, or becomes valid, when a pre-determined number of states have ratified or acceded to the treaty.
When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others a specific law may be required to give a ratified international treaty the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, change existing laws, or introduce new legislation in order for the treaty to be fully effective on the national territory.
The binding treaties can be used to force governments to respect the treaty provisions that are relevant for the human right to a family. The non-binding instruments, such as declarations and resolutions, can be used in relevant situations to embarrass governments by negative public exposure; governments who care about their international image may consequently adapt their policies. Many international treaties have a mechanism to monitor the implementation of the treaty.
The following international and regional treaties and mechanisms determine standards for the right to family:
Universal Declaration of Human Rights (1948) (article 16)
International Covenant on Economic, Social and Cultural Rights (1966) (article 10)
International Covenant on Civil and Political Rights (1966) (article 23)
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally (1986)
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979) (article 9, 16)
Convention on the Rights of the Child (1989) (article 9, 10, 20, 21, 22)
International Convention on the Protection of the Rights of all Migrants Workers and Members of Their Families
Convention for the Protection of Human Rights and Fundamental Freedoms
European Social Charter (1961) (article 16)
Charter of Fundamental Rights of the European Union (2000) (article 7, 9)
American Convention on Human Rights (1969) (article 17)
Countries which have ratified these international and regional treaties have agreed to meet their obligations under these conventions by inter alia implementing these provisions fully at the national level. States need to adopt appropriate legislative measures and provide judicial remedies which uphold the right to family.
Right to respect for private and family life. A guide on the implementation of article 8 of the European Convention on Human Rights (Council of Europe)
I Now Pronounce You… Same-Sex Marriage Legislation (Gay Lesbian and Straight Network)
Teaching for Human Rights: Pre-school and Grades 1-4 (Ralph Pettman, with Joan Braham, Lynette Johnston, Elke Muzik, Kath Lock, Stephanie O’Laughlin Peters, Diana Smythe)
Teaching for Human Rights: Grades 5-10 (Ralph Pettman, with Colin Henry)
This guide was developed by Asmita Naik.
Copyright © Human Rights Education Associates (HREA), 2003. All rights reserved.