Conceptualizing the 'Right' to Avoid Origin Deprivation: International Law and Domestic Implementation

Abstract

As Donnelly has suggested, at the level of domestic implementation, “identity is entitled to protection only where it is an autonomous expression of the rights and values of those who carry it” (214). Although there are no explicit rights to avoid origin deprivation (“genetic non-ancestry”) within international law, a number of related entitlements to access certain aspects of genetic identity do appear to exist. These include such ostensibly justiciable concepts as the right to possess a name or nationality, and the duty upon States to respect “cultural integrity.” Broader, normative principles such as the best interests of the child, equality of treatment and non-discrimination also merit discussion here, given that they are often either embedded in domestic legislation or have provided useful guidance for domestic proceedings.This article will attempt to conceptualize as a basic human right the hypothetical right to avoid origin deprivation. The existence of such a right, or rather the need for such a right to be more fully articulated and more consistently implemented by domestic legal systems, is underpinned by the considerable amount of research highlighting the wide range of harms that can attach to genetic kinlessness. The article will ask also whether such a right might yet be found to carry sufficient weight to “embed” itself as usefully juridical concept within the sphere of domestic child law, especially where private law issues such as family formation, information release, kin contact or welfare paramountcy arise. Arguably, domestic interpretations of many socio-economic entitlements, such as the right to respect for family life, are often almost entirely resource-dependant, and therefore tend to be viewed more as privileges than as fully justiciable human rights. The “right” to receive information or to be afforded socio-cultural heritage protections are key examples (Colliver; and Marks). Particular reference to one closed records jurisdiction (Québec) will be made, where the rights of many adoptees have been almost completely overruled by the use of non-disclosure vetoes, on the basis of protecting the juridically heavier interests of natal parents. This is so despite the enactment of two regional human rights charters ostensibly aimed at the incorporation of basic human rights, and in spite of the scrutiny of the United Nations Committee on the Rights of the Child. UN Committee Country Reports are referred to here, with a view to gauging whether the guidance contained within them might eventually persuade domestic jurists and policy-makers that origin deprivation ought to occur exceptionally rather than normatively as a consequence of social kinship. Essentially, if identity rights in international law engender a corresponding right to “repatriate” with one’s genitors, this raises the possibility that a number of rights infringements might exist in respect of donor anonymity, closed birth records, and non-disclosure vetoes. If one accepts that the “universal protection of relationships with significant others is in fact protection of the distinctness and the uniqueness in the individual,” then it may be difficult to justify the complete loss of genetic connection as a means to enabling social kinship (Ronen 151).

Keywords: genetic ancestry, identity, birth certificate, human rights