SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

3. STATE REGULATION OF MARRIAGE AND FAMILY AS IT IS RELEVANT
TO SEXUALITY AND SEXUAL HEALTH
International human rights standards note the fundamental right to ‘marry and found a
family’ and reiterate the centrality of the family as a core unit of society. 174 Marriage is an
important institution in many societies, although in practice its structure is diverse. While
marriage can be the basis of family, it is increasingly recognized that marriage is not the only
basis of family; moreover, families can take many forms. 175 And while both marriage and
family are important institutions, persons wishing not to marry or found a family must be
acknowledged as full participants in society and entitled to full rights, including sexual rights.
While marriage and family are often treated as linked institutions in both law and in many
social and religious systems, they also need to be considered separately to assess fully their
impacts on the sexual health and rights of all affected persons, including parent(s), children,
and guardians. Marriage and family law play a major role in promoting or restricting the
health and rights, including sexual health, of many people, both married and unmarried, and
their children and other dependents. In addition, marriage regulations may promote or be
detrimental to physical, emotional or social well-being of the spouses.
In contemporary rights terms, marriage can be generally understood as a voluntary union
which creates specific bonds of legal rights and responsibilities, and which, as a consensual
union, can also be dissolved by a decision of either partner with due process and respect for
the rights of the partners. Importantly, under rights principles, the legal bonds of marriage
are created through contracts made by persons endowed by law with equal powers of “free
and full consent” to enter marriage.
In human rights, the focus on equal, free and full consent for all persons, female, male and
transgender, to decide if, when, and with whom to enter into, or dissolve marriage as an
aspect of their dignity and rights, has important consequences for sexual health. Marriage
partners have equal rights to determine their sexual conduct in marriage, and should have the
means to act on their decisions, including through access to services and with the support of
the law, for voluntary sexual conduct. Equality of rights in marriage is an especially
important aspect of rights for the sexual health of women, and it is important to note that
equality between men and women in marriage may require affirmative actions by the state 176 .
The equal right of women and men to control their fertility, therefore ,underscores the
importance of laws that promote access to sexual and reproductive health information and
services; women’s and men’s right to access and use family planning, and rights to legal and
other remedies for any abuses that may occur within marriage and on its dissolution.
A health and rights approach has implications for state practices (de jure or de facto) that
exclude adults from marriage or conversely allow persons to be coerced into marriage.
Mandatory, pre-marital health tests (to determine HIV status, for example) or other tests of
174 UDHR article 16; ICESCR article 10, ICCPR article 23, CRC Preamble, CRPD article 23.
175 Cite to ICPD and other supports for alternative forms of family.
176 CEDAW, for example, notes the importance of temporary special measures to ensure substantive equality
between men and women, noting that equality does not mean identical treatment in many areas of public and
private life, See, General Recommendation 25, UN Committee on the Elimination of Discrimination Against
Women (CEDAW), CEDAW General Recommendation No. 25: Article 4, Paragraph 1, of the Convention
(Temporary Special Measures), 2004, available at: http://www.unhcr.org/refworld/docid/453882a7e0.html
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