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

physical characteristics (virginity tests, which may be privately administered but tolerated by
the state) are unjustified interferences with privacy and impede core rights to bodily integrity.
Categorical exclusion from marriage on these or other grounds linked to health and physical
characteristics (disability, for example) violates principles of non-discrimination. 177 Other
laws which allow persons to be coerced into marriage by abuse or disadvantage, such as
when an accused or convicted rapist is absolved by marriage to his victim, should be seen to
violate non-discrimination rights as well as being harmful to the personal well-being of the
coerced person.
The focus on legally meaningful consent of adults as the basis of marriage has important
implications for the rights and health of adolescents and young women in particular, as 18
years is now the internationally agreed upon minimum age for marriage. 178 Early marriage
has been linked to early childbearing, with increased rates of morbidity and maternal death
for young women and girls. In addition, married young women lose access to resources,
including education, health services, and mobility. 179 Using law as a tool for rights and health,
states are working toward the elimination of child marriage, with best practices coupling law
reform, registration of births and other administrative changes with outreach and strong legal,
social and health supports for young married girls and women.
Moreover, while marriage is a key site for sexual activity for many people, rights and health
protections must extend to consensual sexual conduct before or outside of marriage (see
criminalization of consensual sexual conduct, above). In addition, procreative sex and
reproduction are not limited to married couples, with implications for the rights and health of
both parents and children born outside of marriage. (See below for discussion of rights of
children).
Increasingly, it is clear that a rights and health approach to marriage invalidates constructions
of marriage that require sexual activity between spouses as a matter of proprietary right.
Obligatory or coerced sex in marriage has many negative health consequences including
unprotected and unsafe sex, unwanted pregnancy and HIV transmission, with implications for
mental as well as physical health. [see marital rape in §5 on violence]. Rights and healthbased
approaches support the trend toward laws supporting consensual sexual activity within
marriage, 180 which is linked with each partner’s ability to negotiate for and use condoms;
have access to and the means to use comprehensive family planning, and access to
comprehensive and accurate sexual health information.
A wide range of laws may regulate marriage in any given country: family, personal status,
and criminal laws, as well as health regulations and customary laws. In addition, an
extensive set of legal rights may depend on marital status, such as rights to immigration,
social security, healthcare, insurance rights, and access to confidential medical records, as
177 Advocacy of mandatory premarital HIV-testing as a way of protecting women’s health and rights in marriage
is misplaced; interventions are better directed to supporting women’s full and free decision to marry, or when
and under what conditions to have sex within marriage.
178 See the discussion of CEDAW and CRC at International section ; See also “ Early Marriage, Child
Spouses”, Innocenti Centre Digest, No. 7 (2001) and WHO reports/in public health literature review
179 WHO reports, Innocenti Centre Digest, above et al
180 These include laws such as marital rape laws, equality between women and men and laws providing for
services for married women seeking to exercise their rights to speech, association, property etc. See WHO VAW
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