When “Consent” Becomes Control

‘Gravity of Tenderness’ by The Fabler.

“This ‘positive’ sense of the word ‘liberty’ derives from the wish on the part of the individual to be his own master. I wish my life and decisions to depend on myself, not on external forces of whatever kind. I wish to be the instrument of my own, not of other men’s, acts of will. I wish to be a subject, not an object; to be moved by reasons, by conscious purposes, which are my own, not causes which affect me, as it were, from outside”. Isaiah Berlin, Two Concepts of Liberty

Turkish law permits voluntary sterilisation of adults (from the age of 18) of any gender on the basis of informed consent. However, once an individual is married, this autonomy becomes legally conditional on the spouse (Articles 4 and 6(2)). At first glance, the gender-neutral letter of the law creates an appearance of equality. Nevertheless, the ostensible equality does not withstand closer examination. The consequences of an unwanted pregnancy are not borne equally by men and women, whether in terms of physical health, psychological well-being, social positioning, or economic security. Restrictions framed as marital cooperation in practice function as structural constraints on women’s autonomy, as women’s right to control their fertility operates as a gateway to the enjoyment of many other human rights. Türkiye is a party to multiple international human rights treaties that guarantee equality and bodily autonomy. Therefore, this blog post examines the extent to which international law offers meaningful protection and whether these impose sufficient obligations on states to adopt and enforce effective domestic legislation.

What Does International Law Say?

The short answer is that international law treats reproductive autonomy and decision-making as an individual right, imposing an obligation on states to guarantee it without discrimination. The longer, more complicated answer is that this recognition in principle has not translated into an explicit treaty-level ban on spousal consent requirements, nor into sufficient enforcement upon states. The resulting gap has predictable gendered consequences.

The contemporary international legal framework on reproductive autonomy crystallised in the 1990s. The 1994 ICPD Programme of Action reframed reproduction away from demographic targets and towards individual well-being. It defined reproductive health as a state of complete physical, mental, and social well-being and affirmed the freedom to decide “if, when, and how often” to reproduce. Moreover, the ICPD grounded “reproductive rights” in the rights to health (CEDAW Article 12, ICESCR Article 12), privacy (ICCPR Article 17), and equality (CEDAW Article 16). Building on this, the 1995 Beijing Platform for Action stated that “the explicit recognition and reaffirmation of the right of all women to control all aspects of their health, in particular their own fertility, is basic to their empowerment”.

This language has been taken directly from CEDAW Article 16(1)(e), which establishes the rights to decide freely and responsibly on the number and spacing of children, and to have access to the information, education, as well as means to enable them to exercise these rights, based on the equality of men and women. With respect to health, Article 12 is central. It imposes an obligation on the States Parties to take all appropriate measures to eliminate discrimination against women in the field of health care to ensure access to health care services, including those related to family planning. The CEDAW Committee clarified in its General Recommendation No. 21 that, while reproductive decisions may preferably be made in consultation with a spouse, they “must not nevertheless be limited by spouse, parent, partner or Government.” General Recommendation No. 24 further states that respect for a person’s dignity and physical and mental integrity includes the opportunity to make autonomous reproductive choices. Hence, spousal authorisation requirements constitute a barrier to women’s access to health care, including family planning, and thus are incompatible with Article 12, as they interfere with decision-making autonomy.

Similarly, the CESCR has affirmed that the right to sexual and reproductive health includes control over one’s body, and informed consent must be free, prior, and individual. General Comment No. 22 directly states that States must eliminate legislation that requires spousal or third-party authorisation for reproductive health services. Furthermore, General Comment No. 14 explains that states must undertake preventive, promotive, and remedial action to shield women from the impact of harmful traditional cultural practices and norms that deny them their full reproductive rights. The same position has been taken by other international bodies, as reflected in the CCPR General Comment No. 28, WHO guidelines, and OHCHR reports.

Reproductive autonomy also sits squarely within the right to privacy and confidentiality. International and regional jurisprudence, including that of the ECtHR, for instance in Evans v. UK (para. 71) and A, B, C v. Ireland (para. 212), has recognised that decisions to have or not to have a child fall within the core of private life and the right to personal autonomy. Conditioning those decisions on spousal approval is therefore not merely discriminatory, but also interferes with personal autonomy and bodily integrity.

States nevertheless continue to defend spousal consent requirements, particularly “gender-neutral” ones, such as those in Türkiye, by invoking formal equality or family unity. Treaty bodies, however, have consistently emphasised substantive equality. CEDAW General Recommendation No. 25 emphasised that in order to promote equality, “biological as well as socially and culturally constructed differences must be taken into account,” and that under certain circumstances, such differences will require non-identical treatment. General Recommendation No. 24 emphasises that states parties should also place a gender perspective at the centre of all policies and programmes affecting women’s health. These principles are important to keep in mind when dealing with reproductive health.

Japan provides a concrete illustration of a longstanding tension with the spousal consent requirement. In its Concluding Observations, the CEDAW Committee repeatedly criticised Japan’s continued requirement of spousal consent for abortion or voluntary sterilisation under the Maternal Health Protection Act, urging its removal as inconsistent with women’s rights to health, autonomy, and substantive equality.

Gendered Power in “Family Planning”

Pregnancy and childbirth are not gender-neutral events; the burdens and risks are biologically sex-specific, and the downstream social and economic costs are systematically gendered. The deeper problem is that supposedly “gender-neutral” rules often take the male position in a patriarchal order as the reference point, and then reproduce the very asymmetries they claim to avoid. The spousal-consent requirement is a clear example: given that it derives from the Law on Population Planning, it becomes apparent that population policy considerations and cultural or societal expectations take precedence over women’s health and well-being. In effect, such rules grant men a right over their wives’ fertility, justified under the language of family planning.

Empirical patterns align with this logic. In a qualitative study of 17 women who had undergone or were seeking tubal ligation in two hospitals in Aydın, Türkiye (2018–2019), interviewees described choosing tubal ligation primarily due to fear (distrust in spouses’ contraception and anxiety about unintended pregnancy), lived hardship (difficult pregnancies, childrearing strain, and financial pressure), or having what they considered a sufficient number of children. These reasons are not neutral “preferences”; they reflect a baseline imbalance in which women shoulder the risks of contraception failure and the consequences of pregnancy. As stated in General Recommendation No.24, unequal power relations based on gender are a core concern for reproductive rights, as inequality makes it difficult or impossible for women and adolescent girls to refuse sex or insist on safe and responsible sex practices. Hence, seeking sterilisation and spousal consent for it can easily lead to the refusal, as the default expectation of womanhood is reproduction, childbearing, and motherhood, entrenching women’s reduced authority over their own bodies.

This imbalance compounds further once pregnancy occurs. Women disproportionately absorb health risks, career interruption, economic dependency pressures, and the long tail of caregiving. This sits within a broader care economy that already relies on gendered extraction of time. Perez points out that globally, women perform about 75% of unpaid caregiving work, spending roughly 3-6 hours per day, compared with men’s average of 30 minutes to 2 hours. In that framework, “family planning” is treated as a shared domain in theory, yet in practice, it is structured around unequal power. Child-bearing/rearing is not merely one option within family planning, but a life-altering event that can be used as a tool of control, either directly through reproductive coercion or indirectly through social expectations that discipline women’s choices.

Furthermore, in Türkiye, reports show that only 0.1% of men rely on vasectomy, whereas around 10% of women rely on tubal ligation. The point is not merely that men rarely undergo sterilisation; it is that the purportedly equal distribution of reproductive responsibility is illusory. Women are expected to bear the bodily and social costs of preventing pregnancy, while their influence over men’s reproductive choices remains minimal in practice. The abovementioned qualitative study likewise found that, when asked about vasectomy, most participants had never heard of it; and among the reasons given for preferring female sterilisation were framing pregnancy and reproduction as “women’s business” and invoking masculine pride. This illustrates that, in practice, women do not enjoy reciprocal influence over their husbands’ fertility decisions.

Autonomy Under Condition

Spousal consent requirements for sterilisation illustrate a core weakness in international human rights law: the persistence of formally neutral rules that reproduce substantive inequality. Although international law recognised reproductive autonomy as an individual right grounded in equality, privacy, dignity, and informed consent, it continues to address spousal consent primarily through interpretation rather than prohibition. The absence of a specific international obligation, combined with Türkiye’s restrictive interpretive approach, fails to foreclose domestic laws that are formally egalitarian yet substantively unequal.

Indeed, many human rights treaties are drafted in broadly framed terms to secure ratification and preserve interpretive flexibility, allowing norms to evolve through progressive interpretation. One may argue that the drafters of CEDAW faced political pressure to dilute certain provisions and soften the language of the Convention in order to secure its adoption. Even with these ‘compromises’, CEDAW has become one of the human rights treaties with the highest number of reservations, many of which arguably undermine the object and purpose of the Convention itself. In particular, Article 16 has attracted a concerning number of reservations. The significant number of objections to these reservations further illustrates the normative tension surrounding the treaty. This design choice entails a trade-off between specific (negative) obligations and ensuring more universal acceptance. This is precisely where a more explicit international safeguard would have mattered, narrowing the room for diluting fundamental rights in domestic jurisdictions.

The implications of this trade-off become concrete in Türkiye despite the absence of reservations to Article 16. In an ideal scenario, the interpretive space created by broadly framed equality guarantees could have been used to give effect to substantive equality. Türkiye could have interpreted its population-planning framework to ensure women’s full control over their reproductive decisions. It did not. As for Türkiye, until spousal consent requirements are recognised as structural discrimination, reproductive autonomy will remain conditional, and equality largely illusory.

This illustrates how, when normative ambition is softened and obligations remain under-specified, domestic actors can preserve restrictive rules while claiming formal compliance, leaving fundamental rights such as bodily autonomy and reproductive choice contingent rather than guaranteed. This raises the question whether, nearly five decades after the adoption of CEDAW, international law and the international community are now better prepared to engage openly with issues that are still considered too politically sensitive, such as reproductive rights and reproductive autonomy.