17
75.
In both inter-American and international case law, these attributes of the human person
have been labeled as the right to privacy. This right to privacy guarantees that each individual has a
sphere into which no one can intrude, a zone of activity which is wholly one’s own.68
76.
Applying the above standards to the instant case, the Commission considers that the
decision of the couples –the alleged victims- to have biological children is within the most intimate
sphere of their private and family life. Furthermore, the way in which couples arrive at that decision is
part of a person’s autonomy and identity, both as an individual and as a partner. It is therefore
protected under Article 11 of the American Convention.
b.
Considerations regarding the scope of Article 17 of the American Convention
77.
As for the right to raise a family, Article 17(2) of the American Convention provides
that the “right of men and women of marriageable age to marry and to raise a family shall be
recognized, if they meet the conditions required by domestic laws, insofar as such conditions do not
affect the principle of nondiscrimination established in this Convention.” 69
78.
The IACHR has written that Article 17 of the American Convention recognizes the
central role of the family and family life in the individual’s existence and society in general. It is a
right so basic to the Convention that it is considered to be non-derogable even in extreme
circumstances. 70 Article 17(1) of the American Convention provides that “[t]he family is the natural
and fundamental group unit of society and is entitled to protection by society and the state.”
79.
The right to found a family is upheld in a number of international human rights
instruments. The Universal Declaration of Human Rights also recognizes the right to protection of
the family. Article 16(1) provides that men and women have the right to marry and found a family;
Article 16(3) provides that the family is the natural and fundamental group unit of society and is
entitled to protection by society and the State. The International Covenant on Civil and Political
Rights also recognizes the right of men and women of marriageable age to marry and to found a
family. 71
80.
Citing the European Court of Human Rights, the IACHR has previously observed that
the right to found a family is subject to certain conditions of natural law, although the limitations
thereby introduced must not be so restrictive “that the very essence of the right is impaired.” 72
81.
The United Nations Human Rights Committee has written that the right to found a
family implies, in principle, the possibility to procreate and live together. It observed that when
States parties adopt family planning policies, they should be compatible with the provisions of the
Covenant and should, in particular, not be discriminatory or compulsory. 73
68
IACHR, X and Y v. Argentina, Report No. 38/96, Case 10,506, October 15, 1996, par. 91.
IACHR, Report No. 25/04, Petition 12,361, Admissibility, Ana Victoria Sánchez Villalobos et al., Costa Rica,
March 11, 2004.
69
70
IACHR, X and Y v. Argentina, Report No. 38/96, Case 10,506, October 15, 1996, par. 96.
71
Article 23(2) of the International Covenant on Civil and Political Rights.
72
IACHR, María Elena Morales de Sierra v Guatemala, Report No. 4/01, Case 11,625, January 19, 2001, par. 40;
European Court of Human Rights, Rees v. The United Kingdom, Ser. A No. 106, October 17, 1986, par. 50.
73
United Nations, Human Rights Committee, General Comment No. 19, Article 23 (Thirty-ninth session, 1990),
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.
HRI/GEN/1/Rev.1 at 28 (1994) par. 5.