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

well as inheritance, property disposition, custody and control of children, visitation rights,
and decision-making for incompetent patients.
These various regimes have grave impacts on the rights and sexual health of marriage
partners, and are often gender-specific in their discriminatory effect. Many legal regimes
governing entry and exit from marriage operate so that often women are not only denied
bodily autonomy but also face conditions which undermine their sexual health: when they are
coerced into marriage, or are compelled by custom or law when widowed to re-marry, or
conversely when law or custom allows them to be shunned or otherwise socially ostracized
after divorce or widow-hood. In places where sexual activity outside of marriage is strongly
stigmatized, widowed or divorced women who are constrained from marriage may in effect
be excluded from the ability to enjoy sexual relations in the future.
Of particular importance to health are marriage regimes which treat married women as legal
minors or dissolve their rights into the rights and privileges of the male spouse, particularly
those regimes which disallow women access to healthcare services (through requiring male or
spousal consent); which bar in law or in practice prosecution or other intervention against an
abusive spouse, including for coercive sex; or which restrict widows or divorced women from
equal powers over property, inheritance, or control or decisions over children, etc. 181
On a different note, constitutional or family law provisions that recognize or deny access to
marriage to same sex couples not only heavily condition the way the state regulates sexuality
and sexual life (see above, section 1), but also may either deny or grant specific health-related
benefits based on marital status. In many countries, marriage defines the entitlement to a
wide range of social rights and benefits; excluding same-sex partners from health benefits or
other legal entitlements deprives them of services and conditions essential to the highest
attainable standards of health because of relationship status or sexual orientation. 182
Moreover, health and rights analyses increasingly highlight the need for recognition of
alternative forms of family, as these varied forms of family provide important economic
resources and social support to many people. States must ensure that access to appropriate
services, as well as conditions of equality, security and freedom necessary for health for all
members of the family, are available to all kinds of families. Families formed outside of
marital or other intimate partner relationships, such as when a grandparent or other kin cares
for children of their extended family, need recognition and support, including appropriate
authority to make decisions in the child’s best interest, and access to the means to ensure their
sexual health and freedom from abuse.
Because single women are often in this caregiver role in alternative families, sex-based
discrimination against the caregiver has negative effects on the well-being of children. Samesex
couples who are raising children and whose relationship is not recognized as a marriage
also fall into this concern for alternative families. Conversely, persons in alternative families
who face domestic violence or sexual exploitation (as when members of extended families
work as domestics, e.g.) also need to be recognized as persons deserving of legal
181 [from S. Fabeni, 5-2009 Concept paper for WHO]
182 Notably, some state regimes allocating social benefits conditional to marriage may also deny unmarried,
cohabiting heterosexual partners access to benefits; others accept unmarried cohabiting heterosexual partners as
akin to spouses (if meeting other conditions such as duration of cohabitation) for the purpose of benefits. Such
disparate treatment—particularly in regard to pensions, access to housing and other conditions for health-- have
been determined to be discriminatory. (see§§§ international human rights and Young v Australia)
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