Business & Human Rights; The Rights of Sperm Donors & Children – Mid-Week Reviews

By John Alizzi and Sam Ryan
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Reviews by John Alizzi and Sam Ryan.

This week’s reviews cover two discussion events – on the relationship between business and human rights, and the balancing act between the rights of sperm donors and donor-conceived children.

 

Business and Human Rights: Guiding Principles

By John Alizzi

This article is part of our August theme, which focuses on the environment and human rights. Read more articles on this theme.

On Monday 16 July, former Legal Advisor to the UN Secretary-General’s Special Representative on Business and Human Rights, Vanessa Zimmerman, spoke about the challenges and capacity of guidance by the UN on human rights standards for businesses. More simply, the talk was a chance to understand how, over the past 10 years, the beginnings of a clear relationship between business and human rights standards has emerged.

The last 10 years have seen a number of companies face serious human rights-related allegations. The physical footprint of mining, oil and gas companies is the most obvious kind

The talk, titled ‘No Small Change: Guiding the United Nations on Business and Human Rights’, was held at the Australian Institute of International Affairs (AAIA) in Melbourne.

The last 10 years have seen a number of companies face serious human rights-related allegations. The physical footprint of mining, oil and gas companies is the most obvious kind. But other examples reveal that violations are “happening all over the world” along “the entire spectrum of internationally recognised human rights”, according to Ms Zimmerman. The role of Vodafone in taking down the mobile phone network during the Arab Spring in Egypt, which affected freedom of expression and privacy, and the implications of ANZ’s provision of project finance in South-East Asia are just two examples.

In general, Ms Zimmerman suggested that the responsibility of business to “do no harm” is very clear, and that the negative impacts of “doing things badly” is increasing, with reputation and stock price both at risk. Beyond that summation, much more can be said of an emerging consensus.

The first major event saw the creation, in 2003, of Draft Norms on business and human rights. The Draft Norms, which would have subjected companies to the same binding duties on states under international law, led to both vehement opposition and strong advocacy. In 2004 the United Nations Commission on Human Right (UNCHR) – now the United Nations Human Rights Council (UNHRC) – refused to accept the divisive and wide-reaching document. In 2005, however, the UN Secretary-General appointed Professor John Ruggie, the Faculty Chair of the Corporate Social Responsibility Initiative (CSRI) at Harvard University’s John F. Kennedy School of Government, to report directly to the UNHRC and the UN Secretary-General on the development of acceptable principles. Coming in the wake of tensions between different stakeholder groups following the divisive Draft Norms, Professor Ruggie’s mandate was therefore to restart the conversation on human rights norms through consultation – a process that spanned six years. For five of those years, Ms Zimmerman assisted.

Three years after being appointed, Professor Ruggie made a single recommendation – the adoption of the “Protect, Respect and Remedy” Framework on business and human rights. The UNHRC unanimously welcomed the Framework, making it a “very significant event”. The Framework consists of three principles:

1. The State Duty to Protect

The duty of states to protect against human rights abuses applies within a particular state’s jurisdiction as well as through the extra-territorial operation of laws vis-à-vis companies acting irresponsibly overseas. As an example of the latter, in 2005 the Australian Federal Police investigated Anvil Mining for complicity in crimes in the Democratic Republic of Congo.

2. The Corporate Responsibility to Respect

Though there are generally no direct “obligations” or “duties” on companies under international law, many companies acknowledge the responsibility to respect – that is, to avoid doing harm. Moreover, many companies commit to policy statements on human rights, and attempt to track and understand human rights impacts (not merely risk assessment in the common sense). These measures are required, under the Framework, from the local fish-and-chip shop to the largest mining companies.

3. Access to Effective Remedy

Finally, the Framework requires rights-compatible internal mechanisms to prevent the escalation of problems, as well as judicial remedies, non-judicial remedies and grievance mechanisms where things do go wrong. As for judicial remedies, the US Supreme Court is currently considering – in the case of Kiobel v Royal Dutch Petroleum Co (Shell) – whether complicity in human rights abuses committed outside the US can lead to compensation under the Alien Tort Claims Act (a rarely-used statute dating from 1789).

… the Guiding Principles have become a global reference point for preventing and addressing risk associated with human rights … even though they are not binding in international law.

In 2011, three years after the Framework was endorsed, Professor Ruggie presented the Guiding Principles on Business and Human Rights, aimed at bringing about the practical implementation of the Framework.

In the very short time since, Ms Zimmerman reports the Guiding Principles have become a global reference point for preventing and addressing risk associated with human rights, for states, business associations and big business, even though they are not binding in international law.

The task of implementing the Framework continues, and is now part of the mandate of the UN Working Group on business and human rights, a group of five that replaced Professor Ruggie this year. The group includes one Australia-based member – Dr Alexandra Guaqueta, a lecturer in the School of International Studies at Flinders University in Adelaide. And, though the working group is not a complaints-handling body, it can receive relevant information.

As to the future, Ms Zimmerman expects developments in the area of business and human rights to include a domestic permeation of the Guiding Principles down to smaller companies, and, at the international level, the possibility of a UN Convention (similar to the Convention against Corruption) that would be binding on companies.

For more on developments in and reports on business and human rights go to the Business & Human Rights Resource Centre.

Acknowledgement: I thank Ms Zimmerman for agreeing to suspend Catham House Rule for the purpose of the review.

Progressive Law Netword

Reforming the Law – The Rights of Donors and Donor-Conceived People

By Sam Ryan

Men who donated sperm in Victoria prior to 1988 did so with an assurance of anonymity. The laws have since changed twice – those conceived between 1988 and 1997 have a right to information only if the donor consented, and those conceived after 1998 have an absolute right to access information.

In March 2012, the Victorian Parliamentary Law Reform Committee recommended retrospective changes to the law, granting all three groups the same rights, allowing everyone access to information about their biological fathers.

… should the rights of children conceived prior to 1988, rights that were overlooked at the time, be restored, in order to offer the same sense of identity most of us take for granted?

On Thursday 19 July the Progressive Law Network presented a panel discussion on the issue, posing the question as to whether this retrospective law was fair and reasonable.

The progressive changes to the system demonstrate that conventional wisdom on the issue has changed, but does that justify retrospective legislation repealing the rights granted to donors almost 25 years ago? As pointed out on the night by Associate Professor Justin Oakely, of the Centre for Human Bioethics at Monash University, many donors may not have given their sperm if that guarantee of anonymity had not been provided.

Alternatively, should the rights of children conceived prior to 1988, rights that were overlooked at the time, be restored, in order to offer the same sense of identity most of us take for granted?

Oakley, who supports the reform, also cited the words of David Velleman on family identity:

“My father, my mother and my brother show me, by way of family resemblance, what I’m like. And for information about what I’m like as a person, they are the closest thing to a mirror that I can find.”

He did, however, acknowledge that many criticise this view for “exaggerating the importance of narrative and genetic connection.” Is the emphasis placed on genetic parenthood merely a cultural concept without special significance?

Myf Cummerford was conceived through artificial insemination, and spoke passionately about what finding her biological father meant to her. Born in 1980, she was not told until she was 20, during an argument with her mother who was in the process of an acrimonious divorce. Her world collapsed. Not knowing who your father is, she said, has “very real inter-generational ramifications, not just for our understanding of who we are, but for our health.”

“Even though we live in a culture that places great value on heredity, whether it be for health concerns or family mythology, donor-conceived people, it seems, are deemed exempt from the need to know their own ancestry,” Cummerford said.

She set about re-piecing together her identity.

“From the moment I discovered I was donor-conceived I knew I wanted to find out more about the man whose donation enabled my existence. He was always more than a mere donor to me,” Cummerford revealed. “He was not my dad, but he was my biological father.”
She never wished to impose on him or his family, nor did she expect contact, but she refused to accept that she was not entitled to know who he was.

The promises of more than 20 years ago were perhaps made, and accepted, on a basis of ignorance or misunderstanding.

As it happened, with the help of a newspaper story and a little luck, Myf did find her biological father. She also discovered she has at least seven additional siblings. Three are also donor-conceived, and she believes she is unlikely to ever know them, as they may not even be aware of how they were conceived. Complementing the anonymity agreement, many parents were encouraged to keep the secret. Additionally, revealing such information is not easy when there is little for the child to follow up on. This has meant that often the truth has came out – as it did in Myf Cummerford’s case – in already difficult situations.

State Member for Brunswick, and Deputy Chair of the Parliamentary Law Reform Committee, Jane Garrett, said that while it is “a tough area legally and a tough area emotionally,” her views had changed through the process of consideration, from a legal-based perspective, to a human-based one. In the end, it was the fundamental impact of identity that swayed opinion through the committee’s hearings.

In fact, according to both Cummerford and Garrett, there are more donors seeking information about their biological children than the other way around.

Oakley pointed out that it is, in his view, more an ethical than a legal argument. The promises of more than 20 years ago were perhaps made, and accepted, on a basis of ignorance or misunderstanding.

In fact, according to both Cummerford and Garrett, there are more donors seeking information about their biological children than the other way around. This is likely due to the fact many of the children do not know they were conceived via artificial insemination. It is also unclear how many donor-conceived people there are in Victoria. As it stands, even where both parties wish to find out more about each other they are often unable to do so.

Should the government accept the recommendations of the committee, Victoria would be breaking new ground, nationally and internationally. In this way, it could also lead the way on progressive reform.

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