REPROHEALTHLAW Updates — March 2017

March 29, 2017

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS:
Caso I.V. v. Bolivia,   Sentencia de 30  Noviembre de 2016 (Excepciones Preliminares, Fondo, Reparaciones y Costas) Corte InterAmericana de Derechos Humanos [Inter-American Court of Human Rights]Decision 2016 in SpanishCase summary by Christina Zampas.  Amicus Curiae brief by Ciara O’Connell, Diana Guarnizo-Peralta and Cesar Rodriguez-Garavito in English.   Report on the Merits (2014) in English

Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others [2016] Petition 250 of 2015 (High Court of Kenya Constitutional and Human Rights Division).  [Official collection of Kenyans’ HIV data halted, as “unconstitutional”]  Decision onlineComment from Jurist Blog.

[Kenya] Martin C.   v. Republic, Criminal Appeal No. 32 of 2015, April 26, 2016 (High Court of Kenya, at Malindi).  [sexual relationship between adult man of 23 and girl of 14 is not “defilement” because she sought it.  Prisoner released.]  Decision online.  {Summary by Godfrey Kangaude forthcoming on this blog.}

[South Africa] Dwenga and Others v Surgeon-General of the South African Military Health Services and Others [2014] ZAGPPHC 727, Case No. 40844/2013, the High Court at North Gauteng. [against discrimination toward HIV+ employees in the military.]  Summary for Legal Grounds III.    Decision online.

[South Africa] Gary Shane Allpass v Mooikloof Estates (Pty) Ltd. [2011], Case No. JS178/09, a Labour Court of South Africa.  [wrongful dismissal of HIV-positive employee].  Summary for Legal Grounds III.   Decision online.

CALLS:

Calls for Papers, Special Issue on “Gender and the Rise of the Global Right,” in Signs: Journal of Women in Culture and Society. Submit by September 15, 2017,  Detailed call for papers.

Callls for Applications, “Health Rights Litigation Intensive” June 26-30, 2017, one-week summer course at the O’Neill Institute for National and Global Health Law, at Georgetown University Law Center, Washington DC, USA.  Apply by April 10, 2017.  HR Litigation course info.

Gender Justice Uncovered awards 2017, is collecting the best and worst court decisions from 2016.  Nominate your best or worst case here in English.  Nomina tu caso ya  en Espanol.

RESOURCES

Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens, Pennsylvania Studies in Human Rights Series, University of Pennsylvania Press, 2014. 
New 20% discount code: PH70.  Now in paperback (March 2017), 
Table of Contents.    Introduction online at SSRN.  Table of Cases online (Spanish and English, with links to court decisions.   ¡Ahora en español! El aborto en el derecho transnacional (CIDE/FCE, 2016)  folleto con sumario 

Brazilian Supreme Court abortion ruling – I-CONnect blog symposium of scholarly comments from five perspectives:  Rebecca J. Cook and Bernard M. Dickens, Chao-ju Chen; Grégor Puppinck; Debora Diniz and Christine Ricardo; and Rachel Rebouché. 5 perspectives on Brazilian abortion ruling.

Brazilian dossier on “Gênero, Raça e Pobreza: a abordagem de múltiplas identidades pelo Direito” [Gender, Race and Poverty: The Multiple Identities Approach to Law] Revista FGV Direito 22(2015), ed. Marta Machado, online here.  includes articles in Portuguese or English with abstracts in both languages, about: domestic violence laws, CEDAW, maternity in prison, and research in prisons (by D. Diniz), and abortion, i.e.:
—[South Africa, abortion] “Claiming and Defending Abortion Rights in South Africa” / Reivindicando e defendendo o direito ao aborto na África do Sul” by Cathi Albertyn, Revista FGV Direito 22 (2015): 429-454   English article with Portuguese abstract.

US-focused news, resources, and legal developments are available on Repro Rights Prof Blog.  View or subscribe.

JOBS

Links to other employers in the field of Reproductive and Sexual Health Law are online here

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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


South African rulings uphold rights of HIV+ employees

March 29, 2017

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), now an LL.D. candidate with the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for composing and/or editing summaries of 54 recent African court decisions for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, published in 2017 by Pretoria University Law Press (PULP).  All three volumes in the series are freely available in print or electronic form.

Two of the court decisions summarized in Legal Grounds III clearly upheld the rights of HIV-positive persons against discrimination, including  unjust dismissal, and exclusion from certain job opportunities.

Gary Shane Allpass v Mooikloof Estates (Pty) Ltd. [2011], Case No. JS178/09, a Labour Court of South Africa upheld the rights to equality and non-discrimination of HIV-positive persons in the workplace.  The Court ruled that a horse-riding instructor’s dismissal from employment for HIV-positivity was automatically unfair in terms of Section 187(1)(f) of the Labour Relations Act, 66 of 1995, because the reason for dismissal was his  HIV status, and was not justifiable on any other ground.   Summary for Legal Grounds III.   Decision online.

Dwenga and Others v Surgeon-General of the South African Military Health Services and Others [2014] ZAGPPHC 727, Case No. 40844/2013, the High Court at North Gauteng  reinforced an earlier ruling against discrimination toward HIV+ individuals employed by the military.  The South African National Defence Force had violated its own policies, and was unable to provide any evidence to suggest that the requisite health required for the positions sought by the Applicants could not be achieved by a person infected with HIV.  Summary for Legal Grounds III.    Decision online.

As Godfrey Kangaude emphasized regarding the Dwenga case: “Discriminatory attitudes and practices against persons with HIV are still prevalent in our societies, despite the progress that many countries have made in terms of putting in place public policies to curb these forms of discrimination. Having legislation in place or even a court decision is sometimes not enough incentive, even for public institutions such as the army, to end discriminatory practices. The Court commented that public institutions should be exemplary in complying with constitutional norms and standards, such as respect and protection of the rights of persons living with HIV. (Legal Grounds III, page 188)

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Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts (Pretoria University Law Press (PULP), 2017) covers decisions from 2008 to 2016.   228 pages, 54 case summaries, onlineFlyer with Table of Contents.

Legal Grounds I and Legal Grounds II (Center for Reproductive Rights, 2005 and 2010) are online here.
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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   For Program publications and resources, see our website, online here.     TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


I.V. v. Bolivia decision: Forced sterilization is based on harmful gender stereotypes

March 29, 2017

Many thanks to Christina Zampas, a Reproductive and Sexual Health Law Fellow at the University of Toronto’s Faculty of Law, for summarizing this decision of the Inter-American Court of Human Rights.  She also presented oral expert testimony in this case during its hearing on 2 May 2016 in San Jose, Costa Rica, focusing on international and regional human rights standards in relation to informed consent to sterilization, and on gender discrimination and stereotyping. (Overview of her testimony.)

Caso I.V. v. Bolivia,   Sentencia de 30  Noviembre de 2016 (Excepciones Preliminares, Fondo, Reparaciones y Costas) Corte InterAmericana de Derechos Humanos  Decision in Spanish.

I.V. v Bolivia concerns the involuntary sterilization in 2000 of an immigrant woman from Peru in a public hospital in Bolivia during a caesarean section.   In its first case alleging forced sterilization and indeed, its first case on informed consent to a medical procedure, the Inter-American Court of Human Rights struck at the heart of such practices by addressing underlying causes of such violations: gender discrimination and stereotyping.

The Court held that the State violated the woman’s rights to personal integrity, personal freedom, private and family life, access to information and rights to found a family, and to be free from cruel, inhuman and degrading treatment contrary to the dignity of a human being, all contained in the American Convention on Human Rights.  The State had also violated its duties to condemn all forms of violence against women under the Convention of Belem do Pará.   In finding these violations, the Court recognized that sterilization without consent annulled the right to freely make decisions regarding one’s body and reproductive capacity, resulting in loss of control over one’s most personal and intimate decisions, with lasting implications.

While generally agreeing with decisions about forced sterilization of Roma women issued by the European Court of Human Rights and the CEDAW Committee , the Inter-American Court’s decision is groundbreaking in that it uniquely highlighted the transcendent role of state obligations to respect and guarantee the right to non-discrimination in the context of women’s human rights violations. Thus, the Court recognized that the freedom and autonomy of women in sexual and reproductive health, generally, has historically been limited or annulled on the basis of negative and harmful gender stereotypes in which women have been socially and culturally viewed as having a predominantly reproductive function, and men viewed as decision-makers over women’s bodies. The Court recognized that non-consensual sterilization reflects this historically unequal relationship. The Court noted how the process of informed decision-making operated under the harmful stereotype that I.V., as a woman, was unable to make such decisions responsibly, leading to “an unjustified paternalistic medical intervention” restricting her autonomy and freedom.  The Court thus found a violation of the right to non-discrimination based on being a woman. It also stressed the particular vulnerability to forced sterilization facing certain women, based on other characteristics such as socioeconomic status, race, disability, or living with HIV.

The Court ordered both individual reparations and general measures, including ensuring education and training programs for healthcare and social security professionals regarding informed consent, gender-based violence, discrimination and stereotyping.  The Court’s unequivocal articulation of the right of women to make decisions concerning reproductive health, without being subjected to discrimination based on stereotypes or power relations, is important in this first case by an international or regional tribunal addressing this in the context of sterilization.  It could also apply to other reproductive health care contexts, such as the case for abortion.

Links for this case:
Caso I.V. v. Bolivia,   Sentencia de 30  Noviembre de 2016 (Excepciones Preliminares, Fondo, Reparaciones y Costas) Corte InterAmericana de Derechos Humanos  Decision in Spanish
Report on the Merits (2014) in English.
Amicus Curiae brief by Ciara O’Connell, Diana Guarnizo-Peralta and Cesar Rodriguez-Garavito:  in English.

Related decisions, alluded to above:
V.C. v. Slovakia, European Court of Human Rights (Decision 8 November 2011)
N.B. v. Slovakia,  European Court of Human Rights (Decision 12 June 2012)
VC and NB decisions, summarized by Andy Sprung
I.G. and others v. Slovakia  European Court of Human Rights (Decision 13 November 2012).
IG decision, summarized by Andy Sprung

UN Committee on the Elimination of Discrimination against Women (CEDAW)
A.S. v. Hungary  (Decision online).
Summary  and documents from CRR.
Analysis by Simone Cusack, OP CEDAW blog.
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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   For Program publications and resources, see our website, online here.     TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


REPROHEALTHLAW Updates – Feb. 2017

February 14, 2017


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DEVELOPMENTS:

AB and Surrogacy Advisory Group v. the Minister of Social Development (Centre for Child Law as Amicus Curiae)  CCT 155/15, decided November 29, 2016 (Constitutional Court of South Africa).  Genetic link to one parent is required, and constitutional.   Surrogacy decision.   Summary by Ronaldah Lerato Karabo Ozah.

CALLS:

Meeting: INROADS (International Network for the Reduction of Abortion Discrimination and Stigma), African regional members’ gathering in Lusaka, Zambia, 29-30 May 2017.  Free membership. Free registration.   Financial support for travel expenses: apply by Wed March 8, 2017.

CFP: Sexual and reproductive health and rights in humanitarian crises, especially essays re heightened risk and vulnerability, interventions and responses, and legal and policy issues, for Reproductive Health Matters 26:51.   Submit by May 31, 2017. Call for papers.

Call for volunteer experts in sexual and reproductive health rights to review and validate country-specific data for the “National Sexual Rights Law and Policy Database.” Contact person and Countries where expertise needed.   About the database.    About the Sexual Rights Initiative.

RESOURCES
[abortion law] “Regulating Abortion: Dissensus and the Politics of Rights”  Social and Legal Studies: an international journal, 25.6 (2016): 6-166. Online for institutional subscribers.
— Introduction, by editor Siobhan Mullally
— The Protection of Life During Pregnancy Act 2013: Suicide, Dignity and the Irish Discourse on Abortion, by Clare Murray
— Gender in Constitutional Discourses on Abortion: Looking at Spain from a Comparative Perspective, by Blanca Rodríguez-Ruiz
— Advocating Abortion Rights in Northern Ireland: Local and Global Tensions, by Catherine O’Rourke
— Killing ‘Unborn Children’? The Catholic Church and Abortion Law in Poland Since 1989, by Dorota Szelewa
— Abortion Rights as Human Rights, by Rachel Rebouché
–Talking about Abortion [in the U.S.], by Carol Sanger
 Online for institutional subscribers.

[abortion – Ireland]  “Fatal Fetal Abnormality, Irish Constitutional Law and Mellet v. Ireland,” by Fiona de Londras, Medical Law Review (2016) 24 (4): 591-607.  Article – 17 pages.

[abortion – Ireland]  “Invisible Women:  Ireland and the Fight to Access Safe and Legal Abortion,” by Chiara Cosentino, Medicina nei Secoli Arte e Scienza (Journal of History of Medicine) 28/2 (2016) 413-434.  Online for institutional subscribers.

[African court decisions]  Legal Grounds:  Reproductive and Sexual Rights in Sub-Saharan African Courts, Volume III:  54 African court cases summarized and analyzed by Godfrey Kangaude, Onyema Afulukwe, Guy-Fleury Ntwari, et. al (Pretoria University Law Press (PULP), 2017) 228 pages from PULP.   Overview including previous volumes.

[conscientious objection] “Conscientious objection to abortion provision: Why context matters” by Laura Florence Harris, Jodi Halpern, Ndola Prata, Wendy Chavkin, Caitlin Gerdts,  Global Public Health 12 September 2016; Online for institutional subscribers

[conscientious objection] “Freedom of Conscience, Medical Practitioners and Abortion in South Africa,” by  Shaun Alberto de Freitas, International Journal for Religious Freedom, 4.1 (2011) Abstract and Article

“Conscience and Agent-Integrity: A Defence of Conscience-Based Exemptions in the Healthcare Context” by Mary Neal and Sara Fovargue,  Medical Law Review  (2016) 24 (4): 544-570. Online for institutional subscribers.

Conscientious Objection and Conscientious Commitment – publications by Bernard M. Dickens et al., and recommended reading.  Conscientious Objection publications

[embryos] The Use and Disposal of Stored Embryos, by Bernard M. Dickens.  International Journal of Gynecology and Obstetrics 134 (2016) 114–117. Abstract and Article.

[Inter-American Human Rights] “Women’s Reproductive Rights and Reparations: Lessons from the Inter-American System of Human Rights,” by Ciara O’Connell, in Inter-American Human Rights Network, Moving Beyond the Good, the Bad and the Ugly: What to Learn From International Human Rights Systems?” Ghent, Belgium (29-30 January 2016). Conference paper.

[Uruguay model] “Reducing Maternal Mortality by Preventing Unsafe Abortion: The Uruguayan Experience.” ed. Anibal Faúndes,  International Journal of Gynecology and Obstetrics 134, Sup 1 (Aug 2016). Articles include surveys before and after legalization, reduction in maternal deaths, role of medical abortion, barriers of conscientious objection and replication of the model in Buenos Aires province, Argentina.  IJGO Supplement

US-focused news, resources, and legal developments are available on Repro Rights Prof Blog.  View or subscribe.

NEWS

Abortion News Without the Stigma: breaking news on abortion rights.  New website tool

[Canada] “Mifegymiso” – abortion pill now available to Canadian women  Newspaper article

[Sicily, Italy] Valentina Milluzzo, aged 32, 5 months pregnant with twins when she miscarried, fell ill and died from sepsis.  Her death has reignited debate about the high number of gynaecologists and obstetricians who refuse to provide abortions.   Guardian newspaper.  Article by Elizabeth Canitano, gynecologist from “Vita di Donna” (Lives of Women)

JOBS

Links to other employers in the field of Reproductive and Sexual Health Law are online here

______________
Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


South Africa: Genetic-link requirement for surrogacy is constitutional

February 14, 2017

Congratulations to Ronaldah Lerato Karabo Ozah and the Centre for Child Law at the University of Pretoria, a law clinic which was accepted and thanked as amicus curiae in this recent decision:

AB and Surrogacy Advisory Group v. the Minister of Social Development (Centre for Child Law as Amicus Curiae)  CCT 155/15, decided November 29, 2016 (Constitutional Court of South Africa)  Decision online.

On 29 November 2016, the South African Constitutional Court found that the “genetic-link requirement” for surrogate motherhood agreements is constitutionally valid and does not unjustifiably limit the rights of persons who cannot contribute their own gametes for surrogate motherhood agreements. The decision follows the challenge by the Applicants to section 294 of the Children’s Act (38 of 2005) which requires that the gametes of at least one of the commissioning parents must be used for the conception of a child to be born from a surrogate motherhood agreement.

The first applicant was “AB,” a woman in her late fifties who had exhausted medical possibilities to conceive and carry a child to term, whether naturally with her former husband or through in vitro fertilization with personal or anonymous donor ova or sperm. Turning to surrogacy, but unable to supply parental sperm or ova, she and the Surrogacy Advisory Group challenged South Africa’s legal requirement of one parental gamete.  The Children’s Act (ch. 19, sec. 294) provides as follows:

Genetic origin of child. No surrogate motherhood agreement is valid unless the conception of the child contemplated in the agreement is to be effected by the use of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parents or, where the commissioning parent is a single person, the gamete of that person.”

Previously, in August 2015, the High Court at Gauteng had held that this section “is inconsistent with the Constitution for violating rights including equality, privacy, dignity, the right to bodily and psychological integrity, and the right to health care of persons who are unable to contribute a gamete or gametes in the surrogacy arrangement.”  The matter was then referred to the Constitutional Court for confirmation of constitutional invalidity.

The decision of the Constitutional Court was split 7/4, with the majority of the court finding that the provision does not unjustifiably limit the rights of the applicants to equality, reproductive autonomy, reproductive health and privacy (paras 275-324). The Constitutional Court found that section 294 of the Children’s Act was rationally connected to its purpose, which is to safeguard the genetic origin of the child for the best interests of the child. (para. 288)   Furthermore, the Court was of the view that the High Court judgment had over-emphasised the interests of the commissioning parent(s) and overlooked the purpose of the impugned provision and the best interests of children. (para.293)   Although the Constitutional Court did not go so far as to proclaim a right to know one’s genetic origin, it acknowledged that children born of surrogate motherhood agreements do have an interest that needs to be protected by laws that will ensure that they can know at least one of their genetic parents.

References online:

AB and Surrogacy Advisory Group vs. Minister of Social Development, Nov. 29, 2016 (Constitutional Court of South Africa) Full text:  2016 Constitutional Court decision. 

Previous decision, 2015: AB and Surrogacy Advisory Group vs. Minister of Social Development [2015] ZAGPPHC 580 (High Court of South Africa).  2015 High Court decision  Summary by Godfrey Kangaude for: Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts.  228 pages, free from PULP.

The Children’s Act 38 of 2005, South Africa, with later amendments,  is online here.

Amicus curiae submission by the Centre for Child Law, University of Pretoria  is online here.


AFRICA: Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts – 54 case summaries

February 14, 2017

2017_legal_grounds

by: Godfrey Kangaude, Onyema Afulukwe, Guy-Fleury Ntwari, et al.
Foreword by Prof. Charles G. Ngwena
PULP (Pretoria University Law Press) 2017
228 page book onlinePrevious volumes.
Printable flyer with Table of Contents

Reproductive and sexual rights, which are guaranteed in constitutions and in international and regional human rights treaties, have no impact if they are not recognized and enforced by national-level courts. Legal Grounds: Sexual and Reproductive Rights in Sub-Saharan African Courts Volume III continues to provide much-needed information about whether and how national courts of African countries apply constitutional and human rights to protect reproductive and sexual rights. The case summaries, significance sections, and thematic highlights serve as useful resources for those seeking to further develop litigation, advocacy, and capacity- building strategies.

Like its predecessors, Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts – Volume III is a tool for organizations, individuals, and institutions of learning. The scope of this third volume has been widened beyond Commonwealth African countries to include cases from Francophone countries, while focusing more exclusively on court decisions related to reproductive and sexual health. This compelling publication contributes towards a knowledge base of court decisions that bear directly or indirectly on the exercise of reproductive and sexual health as constitutional and human rights in Africa.
228 page book onlinePrevious volumes Printable flyer with Table of Contents.

TABLE OF CONTENTS:
Foreword, Introduction, Acknowledgments
Children and Adolescents
—Child, Forced and Early Marriage
—Female Genital Mutilation legal-grounds/
—Sexual Abuse, Assault and Violence
—Consensual Sexual Conduct
—Student Pregnancy
—Maternal Health Care and Services
Abortion and Fetal Interests
—Abortion
—Wrongful Birth or Life
Adoption and Surrogacy
—Adoption
—Surrogacy
Gender, Sexuality, Women and Discrimination
—Rape
—Disability, Sexuality and Criminal Law
—Women and Criminal Law
—Legal Recognition of Intersexuality
—Gender Identity
—Sexual Orientation
—Recognition of LGBTIQ Advocacy and Groups
HIV
—Access to Treatment
—Criminalisation of Transmission
—Forced Sterilization
—Discrimination in Employment
Francophone Africa / L’Afrique Francophone
—Adultery, Polygamy, Infanticide
Appendices – Table of Cases, Online Resources, Endnotes

HIGHLIGHTS BY AFRICAN AUTHORS:
Child Marriage: Legal and Socio-Cultural Aspects, by Godfrey Kangaude
Adolescent Consensual Sexual Conduct, by Godfrey Kangaude
Sexual Abuse, Assault and Violence, by Victoria Balogun
Maternal Health Care and Services, by Tinyade Kachika
Abortion and Fetal Interests, by Onyema Afulukwe
Adoption and Surrogacy, by Ronaldah Lerato Karabo Ozah
Gender, Sexuality, Women and Discrimination, by MaryFrances Lukera
Criminalisation of HIV Non-Disclosure, Exposure and Transmission, by Jacinta Nyachae
Sexual and Reproductive Rights of Women Living with HIV, by Ebenezer Durojaye
Towards Respect for Human Diversity, by Godfrey Kangaude

COUNTRIES:  Benin, Botswana, Kenya, Namibia, Niger, Nigeria, Rwanda, South Africa, Uganda,  Zambia, Zimbabwe

228 page book online.  Previous volumes.
Printable flyer with Table of Contents.


Tanzanian Court: Third party consent to marriage of girls under 18 is unconstitutional

January 13, 2017

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), an LL.D. candidate at the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for summarizing this decision for REPROHEALTHLAW subscribers.  He is also Chief Editor of Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, forthcoming 2017.

Rebeca Z. Gyumi v. Attorney General, Miscellaneous Civil Cause No 5 of 2016 decided on July 8, 2016.   (High Court of Tanzania, unreported)  Decision online.

Abstract: The Court considered whether by permitting girls under the age of 18 to marry by third party consent, Sections 13 and 17 of the Marriage Act CAP R.E. 2002 (Marriage Act) violate the right to equality, the right to expression and receipt of information as provided for under Articles 12, 13, 18 and 21 of the Constitution of the United Republic of Tanzania 1977 (Constitution). The Court held that the differential treatment of girls and boys by the impugned provisions, which permitted the girl-child to marry  underage with the consent of a third party (such as a parent or guardian) was discriminatory and infringed the right to equality. The Court therefore declared the impugned provisions unconstitutional and ordered the government to review the law in accordance with its obligations under Article 6 of the Maputo Protocol and Article 21 the African Charter on the Rights and Welfare of the Child, with a view to setting the age of marriage at 18, the age of consent, with full consent from the girl, and without exceptions.

The  Court could not agree that the provisions infringed on the right to expression and information, because the petitioner did not present  any evidence to substantiate those claims.

Comment: The Court did not address the aspect of human dignity, also raised by the petitioner, which is central to the practice of child marriage and the attitudes surrounding the sexuality of the girl-child. By treating the girl-child as the means to some material or non-material end, the practice of child-marriage is first and foremost a violation of the dignity of the girl-child.  Her body and sexuality are regarded as property that families can exchange for economic gain or honor or both. Further, maintaining virginity before marriage is a powerful motivation behind practices such as denying the girl-child comprehensive sexuality information and education, and restricting her freedom to make decisions regarding sexual relationships. The practice of child marriage therefore sustains the violation a host of other human rights of the girl-child, such as rights to sexual and reproductive health, sexuality information and education.

Related Resources:

Constitutional Court of Zimbabwe  outlawed child marriage under 18 years old: Mudzuru & Another v Ministry of Justice, Legal & Parliamentary Affairs (N.O.) & Others (Const. Application No. 79/14) [2015] ZWCC 12 (20 January 2016);  Decision online.   Detailed case summary by Godfrey Kangaude. Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts (2017)

Forced Out: Mandatory Pregnancy Testing and the Expulsion of Pregnant Students in Tanzanian Schools (Center for Reproductive Rights, 2013).  Fact-Finding Report.

Child Marriage in South Asia: Stop the Impunity (Center for Reproductive Rights, 2013) Fact-Finding Report.

United Nations General Assembly Adopts Resolution to end Child, Early, and  Forced Marriage Worldwide   (Dec. 19, 2016) CRR Press release.

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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   For Program publications and resources, see our website, online here.     TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.