Johanna Westeson - The ICHRP

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 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.
The human rights-based focus on equal, free, and full consent for all persons, female and
male, to decide if, when, and with whom to enter into or dissolve marriage has important
consequences for sexual health. Marriage partners have equal rights to determine their
voluntary sexual conduct in marriage, and should have the means to act on their decisions,
including through access to medical services and with the support of the law. 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 establishing equality between men and women in
marriage may require affirmative actions by the state. 274 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.
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 the health of
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, as well as access to the
means to ensure the child’s sexual health and freedom from abuse.
This chapter addresses aspects of state regulation of marriage and family which have
implications on sexual health. These include state recognition of different kinds of
relationships, whether same-sex marriage, registered partnership, or cohabitation; access to
adoption and artificial reproduction technologies; termination of marriage; forced
marriage; adultery; polygamy; testing and conditions placed on marriage; and incest.
274 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.
Last visited 29 March 2010.
98