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This submission has been posted as part of a blog series that seeks to profile the newly created NNHRR Working Group on Economic, Social, and Cultural Rights blog series, its vision and plans, and to highlight the expertise of its members, showcasing their research and/or contributions to ESCR. 

By: Zora Geertsema

Introduction

Family is, for most, the first place where one encounters the concept of care.

Since, a considerable amount of care work takes place within the family, protecting the right to family life under International Human Rights Law (IHRL) plays a fundamental role when discussing the centrality of care in society, and States’ obligations regarding this.

A right to protection of the family and family life, under key human rights conventions such as the International Covenant on Economic Social and Cultural Rights (ICESCR) or the European Convention on Human Rights (ECHR), protects individuals’ right to live together and develop family relationships normally. The right imposes an obligation for States to facilitate these family relationships and to recognise them as the foundation of society. The focus of the right to family life is often the topic of ‘privacy’. Individuals are entitled to maintain private family relationships.

However, the position of the family in society and the demands that come with family life, often have different implications for men and for women. For example, women within the family continue to carry the primary responsibility for childcare and domestic work. When not acknowledged, these gendered implications within the family could create different outcomes for women compared to men, such as fewer job opportunities and lower pay.

This post examines to what extent the right to family life takes into account the different roles and experiences of men and women within the family and explores how effectively this right promotes the protection of women’s rights in the family context.

The right to family life and its approach to gender equality

When evaluating the right to family life under IHRL, different courts and institutions appear to prioritise gender equality and the reconciliation of work obligations and family life.

In 2016 the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) stated in their concluding observations on the implementation of the ICESCR in the United Kingdom of Great Britain and Northern Ireland, that the existing system of shared parental leave in the Member State (MS) did not result in the increasing participation of men in childcare responsibilities. Therefore, the UNCESCR recommended that the UK modify its existing system of shared parental leave to promote the equal sharing of childcare responsibilities between men and women.

The Court of Justice of the European Union (CJEU) has also addressed the issue of parental leave policies promoting gender (in)equality. For example in the case of Roca Alvarez and the case of Maïsterellis. In these cases, EU MS, Spain, and Greece made a distinction based on gender under national law, when granting access to the individual right to paid parental leave to working parents. This individual right to paid parental leave was made contingent on the employment of mothers under both legislations. The CJEU ruled this to be contrary to the principle of equal treatment for men and women as regards access to employment, vocational training, promotion, and working conditions within the meaning of Council Directive 76/207/EEC and to the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation within the meaning of Recast Equal Treatment Directive 2006/54. The CJEU stated that the national laws perpetuated a traditional division of the roles of men and women within the family and made the role of men subsidiary to women when it came to parental duties.

This legal analysis thus, demonstrates how IHRL challenged national law and policy that perpetuate gendered parental duties. The interests of women in the assessed legal evidence are ,therefore, protected to the extent that laws and policies that perpetuated traditional roles and responsibilities of women as caretakers, mothers and wives are considered contradictory to the right to family life under IHRL.

The socioeconomic impact of family life on women

The legal analysis above, on how different States implement shared parental leave policies shows an approach to the right to family life where women’s rights are primarily considered in relation to how traditional gender roles are structured. Nonetheless, the assessed legal evidence does not explicitly address the unequal context in which women within the family exist. Where, for example, female headed households are most likely to be poor, and women experience a substantially larger decline in household income and increased dependence on social welfare benefits after divorce, death etc., compared to men.

Recently, a complaint was made to the European Committee of Social Rights (ECSR), by the Confederación Sindical ELA against Spain. Part of the complaint alleged a violation of Article 27 of the European Social Charter (ESC) on the right of workers with family responsibilities to equal opportunities and treatment. The national legislation, in this case, denied a right to receive both parental and birth leave benefits to single parent families. The complaint alleged a violation of Article 27 of the ESC, citing the law’s unfavourable impact on women. Thus, according to the complaint, through discriminating single parent families, the law indirectly discriminates against women by denying single-parent families that are headed by women, benefits that would enable them to better care for their child and engage in employment.

Although the ECSR has not yet published a decision on this, a recent domestic ruling in a court in the Muricia region in Spain has addressed this situation. The court granted a single mother 16 additional weeks of parental leave, for her partner were she to have one. The court thus, acknowledged the unfavourable position created by the Spanish system for a single mother by denying her care benefits despite her disproportionate amount of family obligations, and took positive action to ensure she was unburdened.

This legal analysis clarifies that the often-disproportionate impact of family life and family obligations on women and their socioeconomic situation needs to be explicitly addressed by IHRL, for the right to family life to become beneficial for women.

Conclusion

This post sets out to provide a foundation for researching the function of the right to family life in protecting women’s rights.

First, a brief legal analysis establishes an approach to the right to family life in relation to the challenge it poses to traditional gender roles for men and women. The legal analysis illustrates that both the CJEU and the UNCESCR have challenged national legislation of member states that perpetuated traditional gender roles and responsibilities, causing men to be in subordinate positions to women when wanting to take care of their child.

In a second legal analysis, the post exemplifies, how national law is challenged under IHRL, for indirectly disregarding the disproportionate responsibility many women carry for family obligations and the impact this had on their socioeconomic situation. This demonstrates that the right to family life can play a role in protecting the rights of women, beyond focusing on restructuring traditional gender roles within family life. The right to family life, can also be functional in recognising and compensating for the unfavourable impact family life often has on the socioeconomic situation of women.

Bio:

Zora Geertsema is a PhD candidate in International and European Law at the Open Universiteit. Her research focuses on the Dutch social domain laws and the right to care of women and girls in the Netherlands, using a law political economy and feminist analysis.