Human Rights / Health

“Perpetual deprivation from fertility” provision to be examined

Monday, August 21, 2017

Lawyer Sinem Hun: “I think it would be difficult for the Constitutional Court to make a negative decision on the ‘perpetual deprivation from reproduction ability’ provision.”

Constitutional Court examined the “perpetual deprivation from fertility” provision in June 14 and ruled on a merits-examination.

Edirne 1th Civil Court of Firts Instance judge applied to the Constitutional Court for the examination of the contradiction of “perpetual deprivation from fertility” provision to the constitution, and the Court accepted this application. Evaluating the decision in June 14, the Court hold to examine the provision of gender transition process regarding the merits.

With regards to this decision, Constitutional Court will have to make decisions on vagina and penis surgeries as the finalization provision of gender transition provided by laws and on the provision of perpetual deprivation from reproduction ability. If these two requirements in the transition process would be repealed by Constitutional Court, gender recognition based on declaration could be possible.

Highlighting the importance of this historical decision-making process, Lawyer Sinem Hun told KaosGL.org:

“We have a chance to change this article. The Court should act and decide in favor of transgender people to give their legal recognition rights back without violating basic human rights. After the ECHR ruled against France on this issue, I actually think that it would be hard for Constitutional Court to make a negative decision on perpetual deprivation from fertility provision.”

What is the “perpetual deprivation from fertility”?

The provision is written under the Article 40 of Turkish Civil Code. It is required that the person in gender transition process must certify their perpetual deprivation from fertility with an medical board report obtained from an official medical board of a training and research hospital. However, the provision is contradicted with the Article 17 and 20 of Constitution. The provision especially contradicted with the Article 17 which guarantees that body integrity of a person cannot be touched except in cases of medical necessities or legal provisions.

If Constitutional Court would repeal one or both of the provisions, legislator would have to reformulate the legal recognition laws in accordance with human rights

Translation: Damla Umut Uzun

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