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Abstract The law in Iran regards men as the heads of families and guardians of women, responsible for funding women’s necessities of life. Having a male guardian might be an advantage for poor women, provided the male guardian fulfils his obligations. The law has several provisions to support women who are without a male guardian. However, some eligible women still face difficulties in enjoying their rights such as the right to social security. A married woman whose husband has enough financial resources, but does not provide access to necessities of life such as health care for her, is not eligible to receive governmental financial aid. The law recognizes her right to get divorced; however, this is not an appropriate solution for a woman with a low socio-economic status. In addition, the role of guardianship gives men the right to interfere in some rights of women, including the right to access health services. This policy is a discriminatory treatment of women and a violation of their right to control their body and health. Women are fully capable adults able to make autonomous decisions about their lives. The government of Iran should reconsider the laws and policies which negatively impact the ability of women to enjoy their right to health. Also, the government should identify and remove all barriers in the law and cultural attitudes of the population that hinder women’s access to health services and social security. Women’s rights should be guaranteed regardless of their marital status. I. INTRODUCTION The right to health is one of the fundamental human rights recognized by several international human rights treaties such as the Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966. This right is defined by Article 12 ICESCR as a ‘right to the highest attainable standard of physical and mental health’. To realize this right, it is essential that all services, goods, and facilities related to health and its determinants such as nutritious food and safe water are provided to all.1 Moreover, non-discrimination and equality are basic concepts of international human rights law; people have the right to be treated equally in the enjoyment of their civil, political, economic, social, and cultural rights without any kind of discrimination with regard to race, colour, sex, language, political or other opinion, religion, property, national or social origin, birth, or other status.2 States are required, based on the human rights treaties, to remove any discrimination in the enjoyment of people’s rights. It is an immediate and primary obligation for states. They are required to guarantee non-discrimination in the enjoyment and exercise of all the rights enshrined in the human rights covenants, such as the ICESCR and the International Covenant on Civil and Political Rights. Equality of men and women in their inherent dignity and rights has been given specific attention in human rights treaties. In addition to Article 2 ICESCR on the prohibition of any kind of discrimination, Article 3 reaffirms the equality of rights between men and women. Also, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979 proclaims women’s rights to equality and non-discrimination in the enjoyment of all rights (Article 2), to participate in political, social, economic, and cultural fields (Article 3), to nationality (Article 9), to education (Article 10), to employment (Article 11), to health care (Article 12), and to economic and social security (Article 13). In addition, General Comment no. 16 ICESCR 2005 on the equal right of men and women to the enjoyment of all economic, social and cultural rights expressed in the covenant reports that: women are often denied equal enjoyment of their human rights, in particular by virtue of the lesser status ascribed to them by tradition and custom, or as a result of overt or covert discrimination. Many women experience distinct forms of discrimination due to the intersection of sex with such factors as race, color, language, religion, political and other opinion, national or social origin, property, birth, or other status, such as age, ethnicity, disability, marital, refugee or migrant status, resulting in compounded disadvantage.3 The assumptions that men are heads of the household and breadwinners and women are subordinates usually limit women’s enjoyment of their rights such as the freedom to act as autonomous, fully capable adults, and to make decisions concerning their life conditions.4 In many parts of the world, women are confronted with more difficulties in accessing health services than men. They are more likely to be poor, unemployed, and economically dependent on men. In addition, women might have limited power in decision-making about their lives and even, over their sexual and reproductive health (Office of the United Nations High Commissioner for Human Rights and World Health Organization, 2008: 12). Iran is a party to several international human rights treaties which recognize equality of men and women in terms of their dignity and human rights. National legislation in this country contains several provisions to support women in the enjoyment of their rights, including the right to health. In recent years, Iran has had a respectable record in improving women’s health. All the recent Economic, Social and Cultural Development Plans of the country contain articles about empowerment of women and the elimination of all barriers to the full enjoyment of their rights. However, according to Iran’s Civil Code, men are regarded as the head of the household, breadwinner of the family, and the guardians of women; they are required to provide for the necessities of women’s life such as food, shelter, and health care.5 However, this role gives men a right to interfere in women’s enjoyment of their rights such as right to education, work, social life, and freedom of movement. National laws on marital rights recognize men as mediators (referred to as a male guardian) in married women’s enjoyment of several human rights. This sometimes acts as a barrier to accessing health and social security services. To improve women’s enjoyment of their rights, probable barriers should be identified and removed. In this article, the effects of a male guardian on women’s access to health care, health insurance, and social security are explored. In the following sections, after explaining the methods of the study, first the right to health and non-discrimination in international and national laws will be reviewed, followed by an overview of women’s right to health in Iran. Next, the meaning of a male guardian in the laws of Iran and its effects on women’s access to health services and social security are analysed. In the concluding section, the obligations of the government of Iran to overcome the problems related to inappropriate guardianship and discriminatory treatment of married women in access to health services are set out. Since this notion of equality of men and women is shared by many Islamic countries, the results of this study will be useful in the reconsideration of laws on women’s rights in those countries too. II. METHODS The question posed in the study is what are the effects of a male guardian on women’s access to health services and social security in Iran? The data is collected from Iranian national laws and policy documents, international human rights treaties, and academic literature. Data collection and analysis are organized according to the Health Rights of Women Assessment Instrument (HeRWAI). A Dutch human rights organization, Aim for Human Rights, in cooperation with several human rights organizations, developed this tool in 2006. HeRWAI is based on a human rights framework and assesses the impacts of national and international policies on women’s health rights by comparing what should have happened according to human rights obligations to what actually happened during a particular period of time. Even though the designers of the instrument primarily intended it to be used for lobbying and advocacy purposes, it has been adapted for analytic use due to its comprehensiveness, ease of use, and flexibility (Figure 1) (Bakker and Plagman, 2008: 7). Figure 1. View largeDownload slide Health Rights of Women Assessment Instrument. Figure 1. View largeDownload slide Health Rights of Women Assessment Instrument. The period under study is January–October 2017. According to the instrument, two kinds of data have been used in this study: (i) the first set of data is related to the effects of a guardian on the access of women to health care and social security in Iran. This data is collected from electronic databases including EBESCO, Pub Med, Web of Science, and Google Scholar by searching key words: marital rights, right to health, guardian, women’s rights, access to health care, women’s health and Iran. Having found little in academic literature, the official web pages of Iran’s government and United Nations’ health and human rights committees and organizations are investigated too. (ii) The second set of data is about the legal obligations of Iran related to women’s rights and non-discriminatory treatment of men and women. For this part of the study, international human rights laws and national laws and policy documents were scrutinized. To acquire this set of data, electronic databases including the United Nations Treaty Collections, the United Nations official Document System, and Iran’s Parliament Research Centre were searched using the terms right to health, non-discrimination, women’ health, women’ rights. After identifying the relevant information, both sets of information were summarized by keywords for analysis. III. RIGHT TO HEALTH Article 25.1 of the Universal Declaration of Human Rights 1948 affirms that ‘everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services’.6 Being healthy is a prerequisite to the enjoyment of a standard of life. Health has been defined in the Constitution of the World Health Organization 1948 as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’.7 Right to health is defined by ICESCR as ‘a right to the achievement of the highest standard of physical and mental health’. Member States who are signatories to this Covenant are required to create conditions to assure that all medical services are provided in the event of sickness to all.8 Based on the General Comment no. 14 ICESCR which interprets right to health, this right is not a right to be healthy. But it is a right to a health system which provides equal opportunity for everyone to enjoy the highest attainable standard of health; also a right to be free from interference (such as non-consensual health experiments) and to control one’s own health.9 This system should provide timely and equal access to preventive, curative, and rehabilitative health services and education; regular screening programmes; appropriate treatment of prevalent diseases, illnesses, injuries, and disabilities; and essential medicines.10 To realize the right to health, the states have three kinds of obligations: protect, prevent, and fulfil. To perform the obligation to protect, they should refrain from denying or limiting equal access to health care on a discriminatory basis; to comply with the obligation to prevent, they should take necessary means to prevent third parties from interfering in people’s enjoyment of their right to health. Finally, they are required to fulfil the right to health by providing, promoting, and facilitating people’s enjoyment of their right to health through adoption of essential means for the full realization of this right including legislative, administrative, budgetary, judicial, promotional, and other measures. Member States to the ICESCR are committed to providing health services, facilities, and products that are accessible, affordable, and acceptable with good quality to all. This obligation extends to the determinants of health such as food and shelter as well.11 To realize the rights of women to health, there is a need to develop and implement a comprehensive national strategy for promotion of women’s health throughout their life span. This strategy should include measures for prevention and treatment of women’s diseases as well as policies to provide access to a full range of health services. Reducing women’s health risks and protecting women from domestic violence and harmful traditional cultural practices, and removal of all barriers interfering with access to health services must all be considered in such a strategy.12 IV. RIGHT TO BE FREE FROM DISCRIMINATION Prohibition of discrimination and promoting equality in the enjoyment of rights are recognized in all international human rights treaties including the Universal Declaration of Human Rights, ICESCR, ICCPR, CEDAW, the Convention on the Rights of the Child (CRC) 1989, International Convention on the Elimination of All Forms of Racial Discrimination (CERD) 1965, the Convention on the Rights of Persons with Disabilities (CRPD) 2006, and several General Comments of ICESCR about rights to water, food, health, education, work, social security, sexual and reproductive health, and several others. Also, regional human rights instruments such as the European Social Charter of 1961, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988, the African Charter on Human and Peoples’ Rights of 1981, and Cairo Declaration of Human Rights in Islam 1990 recognized the right to be free from discrimination in the enjoyment and exercise of human rights. General Comment no. 20 ICESCR is specifically about non-discrimination in economic, social, and cultural rights. There has been special attention to equality of men and women in all the mentioned legal instruments. General Comment no. 16 ICESCR focuses on the equality of men and women in economic, social, and cultural rights and prohibits discrimination on the grounds of sex. Discrimination against women is defined by CEDAW as: Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.13 The principle of equality and prohibition of discrimination between men and women does not mean that difference is not admitted at all. It means that equal cases should be treated in the same way and different treatment should be based on reasonable criteria (World Health Organization, 2002: 13). Equality is achieved if laws and policies treat men and women in an equal manner regardless of gender, and alleviate inherent disadvantage that an individual or certain group experiences. Therefore, in addition to neutral laws and policies, steps should be taken to remove existing inequalities.14 According to General Comment no. 16 ICESCR: States must refrain from discriminatory actions that directly or indirectly deny equal rights of men and women. States are required to consider whether laws and policies can have a negative impact on the ability of men and women to enjoy their human rights on an equal basis.15 Discrimination can be direct or indirect; direct discrimination occurs when a law or policy treats people on distinctions based on their characteristics, such as gender. Indirect discrimination happens when a law or policy does not aim to be discriminatory, but in practice it has discriminatory effects.16 State Parties should remove all forms of discrimination, formal and substantive, in the enjoyment of people’s rights. To diminish formal discrimination, the government should ensure that laws and policies do not discriminate on any prohibited grounds. Substantive discrimination is more difficult to address since it is related to the conditions and attitudes of a group that is characterized by the prohibited grounds of discrimination.17 Cultural expectations and assumptions about different attitudes, personality traits, behaviour, physical and intellectual capabilities of people based solely on their sex can lead to different treatment of men and women. Generally, gender-based expectations and assumptions limit women in the enjoyment of their rights, including the freedom to act as a capable adult, to make decisions about their conditions, and to be recognized as an autonomous person.18 States are required to adopt necessary measures to change the conditions that cause substantive discrimination.19 According to General Comment no. 16 ICESCR, states should eliminate all discriminatory practices such as prejudices and customs that perpetuate the notion of superiority or inferiority based on sex and the stereotyped roles of men and women. There should be available and accessible remedies such as reparation, rehabilitation, compensation, restitution, guarantees of non-repetitions, educational programmes, and preventative means for all who have experienced a violation of their rights. It is important that courts be available to all including the poorest and most disadvantaged women.20 States should monitor the implementation of laws and policies to ensure they do not negatively affect disadvantaged groups including women. Awareness raising, training programmes, and education at schools about the equality of men and women in their dignity and rights are essential. V. WOMEN’S HEALTH Almost all the health initiatives at international, regional, and national levels have prioritized women’s health, especially pregnant women and mothers. The health of women has a direct effect on the health of family members and future generations. One of the obligations determined for Member States to ICESCR is to provide special protection for mothers for a reasonable period before and after childbirth.21 Maternal health care is determined as one of the primary health care services by the Declaration of Alma-Ata 1978.22 Based on General Comment no. 14 ICESCR, reducing women’s health risks and lowering rates of maternal mortality should be among the main goals of health systems. Provision of maternal health to every woman is one of the minimum core obligations of states that should be undertaken immediately after ratification of ICESCR. To realize women’s right to health, all barriers interfering with their access to health services and information need to be removed.23 According to the World Health Organization, being a man or woman has a meaningful effect on health due to biological and gender-related differences. In many societies, the health of women is a concern because they are disadvantaged mainly by discrimination caused by societal factors. Examples of such factors that limit women’s access to quality health services and achieving the highest attainable level of health include an unequal power relationship between women and men, extensive focus on women’s reproductive roles, social norms that decrease education and job opportunities for women, and potential and actual experience of physical, emotional, and sexual violence.24 Gender equality in health means that women and men, across their lifespan and in all their diversity, have the same conditions and opportunities to realize their full rights and potential to be healthy, contribute to health development and benefit from the results (World Health Organization, 2015: 1). It is true that men and women are different in biology, which might be the root for the socially constructed differences. The existence of such differences between women and men is not a problem, except when these differences limit access to health care and negatively affect health. Gender norms might influence access to and control over resources needed to achieve the highest attainable standard of health including income, social networks, information and education, participation in decision-making, and self-confidence. Moreover, gender norms, roles, and relations result in different exposure to risk factors or vulnerability, household-level investment in necessities of life, access to and use of health services, experiences in health care settings, and social impacts of ill-health.25 To improve women’s enjoyment of their right to health, states are required to remove harmful traditional cultural practices and norms that endanger the health of women. ‘Gender violence is a form of discrimination that inhibits the ability to enjoy rights and freedoms.’26 According to the World Health Organization, women may suffer several types of violence by a male partner including controlling behaviours, emotional/psychological abuse, and physical and sexual violence. Controlling behaviour includes: ‘not allowing a woman to go out of home, or to see family or friends, insisting on knowing where she is at all times, often being suspicious that she is unfaithful, not allowing her to seek health care without permission, leaving her without money to run the home’. Emotional/psychological abuse includes several types of behaviours such as criticizing the woman repeatedly, addressing her using demeaning words, threatening to hurt her or her children and to destroy things she cares about, and belittling or humiliating her in public. Physical violence includes kicking or beating, hitting, pushing, or hurting with a weapon which causes injury or harm to the body. Sexual violence includes forcing her to have sex or perform sexual acts when she is not willing to, harming her during sex, forcing her to have sex without protection that could result in pregnancy or infection (World Health Organization, 2014: 7–8). VI. EQUALITY OF MEN AND WOMEN IN IRAN’S LAWS AND POLICY DOCUMENTS Currently there are two human rights concepts in Iran; the first originates in international human rights discussions and the second is rooted in Islamic Sharia and traditions. They have been subjected to different interpretations; they overlap on some issues while colliding on some others. Reconciling both concepts and insuring all citizens enjoy their rights has been a challenge in Iran (United Nations, 2003: 53). This country is critical of international human rights, which, according to Iran’s authorities, is a Western notion of rights. They believe these rights are not appropriate for the culture of Iranians. In Islamic and Iranian laws, the rights of men and women are different. Examples are differences in rights to work, compensation for injury, and inheritance, value of testimony, marital rights, and age of legal responsibility (Jalali, 2004). As indicated in the Charter of the Rights and Responsibilities of Women in Iran 2004, different biological characteristics of men and women necessitate different rights and responsibilities in family and society. This does not mean men and women are different in inherent dignity and it is not an advantage for one group.27 Iran ratified several important international human right treaties such as ICCPR, ICESCR, CRPD, CERD, and CRC, which all prohibit discrimination based on gender and emphasize the equality of men and women in the enjoyment of their rights. However, Iran has not ratified the CEDAW since some provisions of this treaty conflict with the rights defined by Sharia, the basis of the laws of Iran. Some examples of this are the different rights of men and women in inheritance and the age of legal responsibility. It is fortunate that both international human rights laws and Islamic and Iranian laws recognize everyone’s right to a standard of life and health. Iran is a party to the Organization of Islamic Cooperation and it also ratified the Cairo Declaration of Human Rights in Islam. Based on this Declaration ‘all men are equal in terms of basic human dignity and obligations and responsibilities, without any discrimination on the basis of race, color, language, belief, sex, religion, political affiliation, social status or other considerations’. In referring to women, it states that women are equal with men in human dignity and have their own rights and duties to perform. Moreover, men are responsible for the maintenance and welfare of their family.28 The Constitution of Iran recognizes the equality of Iranians in the enjoyment of their economic, social, political, and cultural rights with respect to Islamic principles. It decrees the abolition of all forms of unjust discrimination and the provision of equal opportunities for everyone to access food, housing, work, health care, and social insurance as important goals of the country.29 In the Constitution, Economic, Social and Cultural Development Plans, laws and policies of Iran, numerous provisions are defined to support women in enjoying their rights, including their right to education, social security, and health. VII. WOMEN’S RIGHTS TO HEALTH AND SOCIAL SECURITY IN IRAN In recent years, the health of Iranian women has improved significantly and now is ranked as one of the best in the Middle East Region. Life expectancy at birth increased from 51 in 1980 to 74.5 years in 2014. Also, maternal mortality has decreased by more than 80 per cent from 1990 to 2008. More than 95 per cent of child deliveries are assisted by a trained health worker (Health Policy Council of the Ministry of Health and Medical Education of Iran, 2010: 1).30 Maternal health is one of the primary health care services provided by the country-wide health system of Iran. About 95 per cent of Iranians have access to this system. Maternal health services and natural confinement is free; the costs are paid by the government. In order to reconcile professional and family responsibilities, Iran’s policies about child and maternity care are quite generous. Paid maternal leave is from 6 to 9 months, respectively, in the public and private sector. There are several laws, policies, and programmes to support women in enjoying and exercising their rights in Iran. The Constitution of Iran guarantees rights to health and social security for all Iranians. Article 29 of the Constitution affirms that: it is a universal right to benefit from social security in respect of retirement, unemployment, old age, disability, being stranded, absence of a guardian, accidents, and from health and medical services and care provided through insurance or other means. The government must provide the aforementioned services and financial support for every individual citizen by drawing on national revenues and funds obtained through public contributions, in accordance with law. Article 21 of the Constitution is allocated to the rights of women. It requires the government to provide the necessary means for women to enjoy their human rights in conformity with Islamic criteria. It recognizes the right of women to be supported during pregnancy, and custody of the child. Elderly women, widows, and women without a guardian must receive financial support from the government.31 The Directive on the Development of Women's Affairs and Family 2013 requires the government to provide a system of advocacy and consultancy for protection of women’s rights, prevention of the violation of their rights, and providing compensation.32 The Charter of the Rights and Responsibilities of Women 2004 guarantees rights of women in Iran. It links women’s rights to their responsibilities for others and society. The right of women to the highest attainable standard of physical and mental health and access to health care and rehabilitation services is guaranteed in this Charter. Specifically, the rights to maternity care, safe delivery, and reproductive health services and products have been given special attention. Also, women without a guardian are entitled to social security and health insurance. This Charter is a substitute for the Convention on the Elimination of all Forms of Discrimination against Women which Iran has not ratified.33 There are several laws and policies in Iran pertaining to women’s rights, including the right to health. The Law on Policies and Strategies for Improving Women's Health 2007 defines the health of women as a complete physical, mental, spiritual, and social welfare and not just lack of diseases and disability. This document determines principles and strategies that should be considered in all the government’s plans which could affect women’s health and its determinants.34 The law on the Structure of Comprehensive Welfare and Social Security System 2005 requires the government to support women during pregnancy and to provide health insurance and social security for elderly women and women without a guardian.35 Iran’s approach to the health of women is comprehensive. It encompasses health and the determinants of health such as food and nutrition, social security, and welfare, education, and work. Moreover, support for vulnerable groups of women and providing equal opportunities for all are emphasized. However, the law in Iran has defined a mediator (referred to as the male guardian) in married women’s enjoyment of several human rights. This sometimes acts as a barrier to accessing health services and social security. VIII. GUARDIANSHIP IN THE LAWS OF IRAN A guardian is defined in West’s Encyclopedia of America as ‘a person lawfully invested with the power, and charged with the obligation, of taking care of and managing the property and rights of a person who, because of age, understanding, or self-control, is considered incapable of administrating his or her own affairs’.36 The office of the Cultural Studies of Iran’s Parliament defines a guardian as a person who earns money and decides how to spend it on the family (Office of the Cultural Studies of the Parliament of Iran, 2011: 5). In the laws of Iran, the term ‘without a guardian’ often is used to indicate vulnerable women and children who are eligible to get financial support and health insurance from the government. According to the law on the Protection of Women and Children without a Guardian 1992, the guardian is defined as the breadwinner of family. Women and girls are regarded to be without a guardian if they do not have a breadwinner or any source of financial resources to pay for their necessities of life. They can fall into one of these categories: (i) widows or divorced women; (ii) women whose husband is absent because of imprisonment or he is missing; (iii) women with a husband who is disabled and cannot work; (iv) orphaned girls; (v) elderly women. The law guarantees rights to financial support, vocational training, and social security services for these women and girls. Orphaned girls are eligible to receive support until they get married, are adopted, or find financial resources.37 In the laws related to marriage, the term ‘guardian’ determines the rights and responsibilities of husband and wife. This term has a direct effect on women’s access to their human rights, including the right to health and social security. In the husband and wife relationship, Article 1105 of Iran’s Civil Code indicates that the husband is the head of the family; by Articles 1106, 1107, and 1707 of the Civil Code, he is required to pay for his wife’s necessities of life such as housing, food, clothes, and health care. This payment is called Nafaghe and its amount is dependent on the wife’s socio-economic situation before marriage. If a wife has enough financial means to support her life needs, she is still, according to the law, eligible to receive Nafaghe from her husband. Since she has a better economic condition, she should receive a larger amount of Nafaghe than a poor woman. Nafaghe might be an advantage for poor women to access basic needs, if the husband keeps paying it. However, this payment is conditional on the wife’s commitment to her obligations towards her husband. One interpretation of the Article 1106 of Civil Code which considers the husband as the head of family might be that wife’s obedience should be complete. Based on the Articles 1105–1107 Civil Code, the minimum obligation of the wife is defined as not to deny having sex whenever the husband feels like it, without a legitimate reason, including a physical disease which makes having sex impossible, or during her menstrual period.38 Nevertheless, there is no list of the wife’s and husband’s obligations in marriage provided by the law. According to Article 167 of the Constitution of Iran, for the interpretation of the law, valid Islamic judicial resources and the opinions of Islamic jurist-consults (Faqih) can be used. In all these resources, men are defined as guardians of women, but the level of the guardianship has been defined differently, ranging from interference in all or some of the wife’s life issues to punishing her for disobedience. Some of these resources require the wife to obtain permission of the husband in every issue from going out of the home, to having a social life (Nasiri, 2014). The ambiguous indication of a wife’s obligations has led to different interpretations of obligations and non-obedience. It might lead to arbitrary justifications for not paying Nafaghe and easily limiting women’s access to necessities of life, including health services by not giving permission for seeking and accessing services. Almost all of the jurist-consults in Iran believe that the wife must not go out of the house without the permission of her husband. However, some of them have made some exceptions where permission of the husband for leaving the house is not needed. The exceptions include leaving the house to seek health care (if it is not possible to get the treatment at home), or if staying at home threatens the health of the wife, or if the husband does not pay Nafaghe to his wife.39 These interpretations are used by the family courts in Iran. IX. CULTURE OF GUARDIANSHIP AND SUBSTANTIVE DISCRIMINATION In Iranian society, the man is regarded as the guardian and the head of family, and the wife as the subordinate. There is also a cultural and strong religious belief in favour of this structure. Women, particularly Muslims, have accepted that the husband is the final decision-maker in the family and believe that full obedience is a virtue. The attitude of masculinity in rural areas and among nomads is even stronger. Women of low socio-economic status, or who are unemployed and uneducated do not object to this structure, nor do they fight for their rights (RaisiSarteshnizi, 2002; Zolfagharpour et al, 2004; Movahed et al, 2014). Even though the power structure is the same in highly educated families, the share of educated or employed women in decision-making in the family is greater than among housewives and uneducated women. It is more probable that educated or employed women know their rights and how to claim them. In general, Iranian women’s knowledge about their rights and the ways for claiming their rights is insufficient (Ghiasi et al, 2010). In Iranian families where the wife does not work and the source of the financial recourses is the income of husband, it is the husband who controls the expenses in family life. Furthermore, not all employed women make decisions regarding spending their income; they believe making decisions about spending is the duty of their husband (RaisiSarteshnizi, 2002). Also, rural women, who work on family farms do not decide about their earnings themselves. This dependence is not just about spending money on the family, but extends to other issues related to the life and health of woman. For example, a study showed that decisions about family planning usually are made by the husband, but the wife takes the responsibility to meet the wishes of the husband (Nabavi et al, 2009). Based on the Article 1129 of Iran’s Civil Code, if a husband does not pay Nafaghe, the wife can sue him and start a court proceeding for compensation or divorce. However, it is not an appropriate option for Iranian women. Claiming rights in the courts is regarded as a very negative last resort for Iranian women; it exacerbates relationships in the family. Also, a woman who takes a case to the court against her husband is regarded as a wife who is going to get a divorce, and she might encounter violence too. Moreover, obtaining a divorce is more difficult for women than men, because the courts do not accept divorce requests of women easily (Najafisani and Mohammadniaii, 2011: 10). On the other hand, obtaining a divorce is not a feasible solution for women who do not have any source of income themselves (Pournaghash Tehrani and Tashk, 2007). Moreover, because of the negative attitudes of Iranian society regarding divorced women, the fear of losing children (since laws on the custody of children favour the father) and inability to afford the necessities of life, women prefer to tolerate the difficulties and do not seek help from the court to solve their problems (Safairad and Varastefar, 2003). Looking at the above-mentioned problems, it is not an effective solution to suggest that a married woman who lacks access to necessary health care brings her case to the court in Iran. X. EFFECTS OF THE MALE GUARDIAN ON WOMEN’S ACCESS TO HEALTH CARE AND SOCIAL SECURITY SERVICES Having a guardian affects married women’s right to health in two ways: (i) by influencing the access to financial means to enjoy the right to health and (ii) by limiting free decision-making regarding their health. 1. Right to Health Insurance and Social Security Ambiguous definitions of a wife’s obligations and a man’s rights in marriage lead to an arbitrary limitation of women’s enjoyment of their rights. For instance, according to some Islamic jurist-consults, the husband has a right to prevent his wife from leaving the house and the wife has the obligation to obey him. However, the law recognizes the right of the wife to get permission from the court to leave the house if she is experiencing hardship or if her health is under threat at home. If the husband still does not permit his wife to leave the house after the court’s intervention, she even can ask for a divorce.40 Nevertheless, the court process is time-consuming. Moreover, even if the woman receives permission from the court to leave the house in order to seek health care, there is still another barrier. She herself has to pay for health services if the husband refuses to pay. Assuming that she cannot afford the services, the government does not provide her with financial aid because women who have a guardian are not eligible to receive financial aid. In this situation, having financial resources or being employed determines a woman’s access to health services. The rate of employment of Iranian women is much lower than men.41 The employment-to-population ratio of men and women was 57.4 and 11.8, respectively in 2016.42 This means that a large number of Iranian women are economically dependent on the man in the family. If he cannot or is not willing to pay for health care or Nafaghe in general, women’s access to health services becomes difficult. There are several laws and policies on welfare and empowerment of women in Iran. However, these laws are rarely incorporated in detailed regional and provincial action plans; corresponding programmes and necessary infrastructure are not adopted either. Considering men’s role as guardians in other laws such as the draft of Master Plan for Population and Family Excellence (in discussion in Parliament), men are prioritized for employment.43 The belief that men and women are different in their responsibilities in the family in the way that it is better for a woman to be a housewife and for a man to be the breadwinner makes women dependent on men. Then, if the man of the family does not undertake his responsibilities, or if the woman gets divorced, it will be difficult for her to live independently (Zaree et al, 2014). Fewer job opportunities for women mean fewer opportunities to have financial recourse and access to health insurance and health care. For some of the girls who marry at a very young age, acquiring education and employment is even more difficult. A study showed that most of the cases in the family courts are about insufficient payment of Nafaghe. In 2011, about 50 per cent of Tehran’s family court cases were about women who were not receiving any money from their husbands. Some husbands in the study used non-payment of Nafaghe as a means to apply pressure (Najafisani and Mohammadniaii, 2011:10). To empower housewives, the government has introduced a social security insurance package. But this programme cannot be an effective solution for all since most of Iranian women do not work and do not have any source of income to pay the premiums. Also, not all the women are eligible to apply for this insurance because of the age limit (18–45 years) defined for applicants.44 2. Free Decision-Making and Consent to Health Services Married women face another barrier in accessing health services even if they have the financial resources to pay for it, ie the consent of their male guardian, the husband. His consent is necessary for receiving some (and in some health facilities, all) health services. Single women older than 18 years and divorced women do not need third-party consent to access health care (Mahmudian et al, 2010: 29–30). According to Article 59 of the Islamic Punishment Law of Iran, the consent of patient or his/her guardians or a person appointed by him (if he/she is unable to give consent because of being unconscious, a child or mentally ill) is needed for receiving medical care and surgeries.45 Also, in emergencies, the law does not require any consent. However, according to the policies of the Ministry of Health and Medical Education in Iran, the husband’s consent is a prerequisite for his wife to access some health services such as abortion, infertility treatment, hysterectomy, C-section, sex reassignment surgery, organ transplantation, and cosmetic surgery (Mahmudian et al, 2010: 15, 21). Some health facilities of Iran have gone one step further and require the consent of the husband for access to any hospital care and surgery (Rahimi et al, 2012). If the husband is not available, they arbitrarily decide to seek consent from the father-in-law, brother-in-law, or mother-in-law for gynaecological surgeries for married women or for hospital care for pregnant women.46 If the wife is younger than 18 years, the consent of her father, in addition to the consent of her husband, is needed. Because she is younger than 18 years and a child, her father must agree to the treatment. And since she is married and has another guardian, he must give consent too.47 It seems very contradictory that a 13-year-old girl (or even younger) is allowed to get married officially in Iran,48 but is not regarded as capable of giving consent for receiving health services. In such cases, the patient can request the court for permission. However, it is not an effective solution because the court process takes time and time is valuable for somebody who needs necessary health care. Some health services requiring the consent of male guardian are considered necessary health care. Delay in access to these services endangers the health and the life of women. XI. DISCUSSION AND CONCLUSION A review of national laws and policies of Iran and the international human rights laws it has ratified indicates that both these sources recognize rights to a standard of life and health for men and women. However, according to the HeRWAI, laws and policies related to the guardianship of women based on the assumption that men are guardians of women, breadwinners, and heads of family might directly and indirectly limit women’s access to health services and social security. Everyone has a right to a standard of living adequate to her/his health and well-being and right to security in the event of a lack of resources due to circumstances beyond her/his control.49 To realize this right, everyone should have equal opportunity to access necessities of life such as health facilities, goods, and services. For example, having a guardian does not guarantee Iranian women’s financial access of to health services. Denying equal social security benefits to married women is regarded as formal discrimination in the General Comment no. 20 ICESCR.50 When the government decides to prioritize men over women for employment and leaves the welfare of married women to their spouses, it must consider any necessary means for the protection of women who have a guardian who nevertheless does not provide a standard of life for his wife. The government should find ways to support every woman who faces difficulties in accessing health services, whether she has a guardian or not. The law permits the husband to stop paying Nafaghe if his wife does not commit to her obligations (which are not clearly defined). The minimum obligation is that she should meet the will of the husband for having sex whenever he wants. This law is disrespectful of the dignity of the wife. According to World Health Organization, forcing a woman to have sex or perform sexual acts against her will are examples of sexual violence. When she is not willing, she should not be forced by means of limitation on financial access to necessities of life. Enjoyment of a basic human right such as right to health should not be subjected to any conditions, including the proper fulfillment of obligations in the marriage. Defining such a power relationship in the family causes disputes between couples. If the couples do not agree about their sexual life, they should have the opportunity to receive marriage counseling and treatment or get divorced. Everyone has a right to control her/his body. The right to control over one’s health and body and the right to a health protection system which provides equality of opportunity for men and women to enjoy the highest attainable standard of health are two main components of the right to health.51 Differential treatment of people based on their status or situation, including characteristics of men and women or marital status is prohibited by international human rights laws. The law that requires the consent of the husband for receiving health services is itself a source of discrimination and a violation of women’s right to autonomy and control over their body and health. Women have the ability to make free, informed, and responsible decisions and the right to control their own body; this freedom is fundamental to their dignity. Equal treatment of men and women is an immediate obligation for the state. Imposing a condition on accessing health services is discriminatory and is a violation of the right to health. Requiring third-party consent limits the wife’s access to health services. The question is why should there be a condition for receiving necessary health care? There is a possibility to seek help from the court to receive health care which has not been permitted by the husband. However, when a health specialist believes in the necessity of a treatment, what can a judge add to that? Starting a court process will delay receiving health care. To access necessary health services, the best interests of the patient have to be a primary consideration, not the consent of the husband. According to the World Health Organization, not allowing a woman to go out of home and to seek health care without permission, and leaving her without money are examples of violations of women’s rights. The law should prevent every possible mistreatment of individuals by others. Sex reassignment surgery which needs the consent of the husband is also related to the identity of a person. Respecting human dignity necessitates respecting the identity of a person and to act according to his/her identity. Moreover, requiring the consent of the husband to exercise the right to obtain an abortion (that is only allowed for limited medical reasons in Iran) and C-section is a violation of a woman’s right to reproductive health and is disrespectful of her integrity and autonomy. Women are capable of controlling every aspect of their health and of deciding freely about their sexuality and reproduction. They should have the opportunity to exercise this right without any kind of discrimination, coercion, and violence. The right to control one’s health and body and the right to a health protection system which provides equality of opportunity for men and women to enjoy the highest attainable standard of health are two main components of the right to health.52 Introducing such laws as third-party consent is a violation of women’s right to health and an example of discriminatory treatment of men and women. A husband who threatens the health of his wife by not giving permission and limits her from seeking health care should face punishment. The laws that require the consent of the husband for access to health care should be removed completely. Meanwhile, the government must prevent hospitals and health facilities from arbitrarily expanding the list of health services which require the permission of a male guardian according to the current laws. The failure to monitor these hospitals and health facilities is non-protection of citizens from discriminatory actions of third parties and a violation of the right to health. Iran should ensure that the principle of non-discrimination is effectively applied in the public and private sector and enforced through administrative and judicial bodies. In addition to refraining from discriminatory actions, Iran should take steps to remove discrimination in the exercise of rights, including women’s right to health. Adopting laws to address discrimination is crucial. The laws should be regularly reviewed and where necessary, amended to make sure they do not lead to discrimination. To investigate complaints promptly, impartially, and independently; to address the violations, including actions and omissions; and to provide remedies, courts and tribunals, administrative authorities, and institutions should be available to everyone. Moreover, the country should effectively monitor the implementation of domestic legal guarantees of non-discrimination. Appropriate indicators and benchmarks which are disaggregated on the basis of the prohibited grounds should be defined to facilitate effective monitoring. Monitoring the implementation of laws to ensure they do not have unintended adverse effects on disadvantaged groups including women is essential. Controlling the compliance of third parties (here the male guardian) with the laws, eliminating violence against women, and punishing and redressing acts of violence against women are necessary. The process of handling women's complaints in family courts is quite lengthy in Iran. Complaints regarding domestic violence should be dealt with immediately. Appropriate deterrent laws and sanctions should be defined for every third party, including men who violate the rights of women. Society has the potential to help the government to identify women suffering violation of their rights. As an example, people who have enough knowledge of women’s rights can report cases of domestic violence to relevant authorities. In addition, based on international human rights laws, states need to eliminate prejudices and cultural expectations and assumptions about different capacities, attitudes, and personality traits of men and women based on their identity as a man or woman. The inferiority or superiority of each sex and their stereotyped roles must be gradually removed from the society. The government should address customary practices under which women undertake steps towards the full realization of the right to the highest attainable physical and mental health, address the ways in which gender roles affect access to health care and determinants of health, and remove legal obstacles that prevent women from accessing health care. Enhancing the knowledge of society and women about equality of men and women in their dignity and right to a standard of life will be helpful in removing discrimination against women and allow them to better enjoy and exercise their rights. Clear non-discriminatory definitions of the responsibilities of the husband and wife in marriage and educating men and women about life skills are essential for the realization of women’s rights in Iran. In recent years, Iranian society has undergone major changes with regard to the role of men and women in the family and society. By providing equal educational opportunities for girls and boys, Iranian women are now as educated and skilled as men (United Nations, 2003: 6). The job market and society have facilitated the participation of women, even though their participation is still less than men. Law or policies need to change as assumptions behind them change. Now, the question is whether a change in Iran’s laws (which are based on Sharia) is possible. According to Islamic jurist-consults, Islamic laws cover four main areas; the relationships between (i) human being and God, (ii) human being and his/her body, (iii) human being and nature, and (iv) human being and other human beings. The laws about the relationship between human being and God can rarely be changed; a few changes were decided upon by Prophet Mohammad. However, the laws about relationships between people can be changed based on the changes in society over time (Motahari, 2010: 44–5). In the current era, changes in societies have been much more rapid than before. One of the main duties of Islamic jurist-consults is to find solutions for the current problems of societies. Such changes in the national laws regarding people’s relationships have happened several times in Iran. For example, in 2016, it was decided by the Parliament to make the compensation for victims of car accidents (men and women) equal. Before this, women’s compensation was half that of men’s.53 Giving married women the right to freedom of movement on special occasions such as participating in international sport events, regardless of the consent of their male guardian is now being discussed in the parliament.54 Finally, poverty is a significant barrier to accessing health care for both men and women universally. But, poverty tends to place a greater burden on women. The reports about the increase of homeless women or poor female sex workers in Iran indicate that not all women without a male guardian are identified and covered by the current provisions of law. Equality necessitates special measures to bring disadvantaged or marginalized persons to the level of others.55 Providing victims of domestic violence with access to safe housing, remedies, and redress for emotional, mental, and physical damage is necessary. In addition, no woman should suffer living with an unwanted partner just because she cannot afford her living costs. Empowering women will decrease their need for financial support from guardians and government. Women who are educated and skilled can support their children too, especially in the event of divorce or death of the male guardian. Iran has several laws and policies on the empowerment and support of women but legislation is not enough for the protection of rights. Laws must be translated into realities; detailed action plans, appropriate benchmarks, and an effective monitoring system are needed for proper implementation of laws. Changes of laws and policies about marriage in a way that requires men and women to share the responsibilities in the upbringing of children, earning a living, and spending it on the family, and support for couples who lack essential means to access necessities of life will promote equality between men and women. The welfare of the family should be the priority of marital laws and policies; a poor family should be supported and empowered. Examples include the families of unemployed or drug-addicted guardians. The recent adverse economic situation in Iranian society, a high rate of youth unemployment, together with the obligations defined by law for men in family might be the reason why young people in Iran significantly delay entering marriage. The delay might cause other problems such as ageing of the population. A change to marital laws on the rights and responsibilities of couples might change this societal pattern. Women make up half of the population – using their potential for the development of Iranian society would be valuable. Footnotes 1 General comment no. 14 International Covenant on Economic, Social and Cultural Rights 2000, para 4. 2 International Covenant on Civil and Political Rights 1966, art 2 and ICESCR, art 2. 3 General comment no. 16 ICESCR on the Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights, 2005, para 5. 4 Ibid, paras 14 and 19. 5 Iran's Civil Code 1991, art 1105 6 Universal Declaration of Human Rights 1948, art 25.1. 7 Constitution of World Health Organisation 1948, preamble. 8 ICESCR, note 1 above, art 12. 9 General Comment no. 14, note 1 above, para 8. 10 Ibid, para 17. 11 Ibid, paras 34–37. 12 Ibid, para 21. 13 Convention on the Elimination of All Forms of Discrimination against Women 1979, para 13. 14 General Comment no. 16, note 3 above, para 7–8. 15 Ibid, para 18. 16 Ibid, paras 12–13. 17 General Comment no. 20 ICESCRS on Non-discrimination in economic, social, and cultural rights 2009, paras 7–8. 18 General Comment no 16 ICESCR, note 3 above, para 14. 19 General Comment no. 20 ICESCR, note 17 above, paras 7–8. 20 General Comment no 16, note 3 above, para 21. 21 ICESCR, note 1 above, art 10. 22 Declaration of Alma-Ata 1978, VII. 23 General Comment no. 14 ICESCR, note 1 above, para 21 24 World Health Organisation, Women’s health, available at http://www.who.int/topics/womens_health/en/ (last accessed 23 December 2016). 25 Ibid. at 1. 26 General Comment no. 16, note 3 above, para 27. 27 Charter of the Rights and Responsibilities of Women in Iran 2004, preamble. 28 Cairo Declaration on Human Rights in Islam 1990, arts 1 and 6. 29 Iran's Constitution 1979, art 19. 30 United Nations Development Program, About Iran, see http://www.ir.undp.org/content/iran/en/home/countryinfo/ (last accessed 23 October 2016). 31 Iran’s Constitution 1979, art 21. 32 Directive on Development of Women's Affairs and Family in Iran 2013, art 5. 33 Charter of the Rights and Responsibilities of Women in Iran note 27 above, preamble and art 1. 34 Law on Policies and Strategies for Improving Women's Health in Iran 2007, art 1. 35 Law on the Structure of Comprehensive Welfare and Social Security System in Iran 2005, art 1. 36 West’s Encyclopedia of America 2005. 37 Law on the Protection of Women and Children without a Guardian in Iran 1992, art 2(3). 38 Civil Code of Iran, arts 1105–1107. 39 Hasanzade, M., ′Does the wife require the permission of her husband for going out of house and for social activities?′ Mehrkhane online Database, http://mehrkhane.com/fa/news/17899 (last accessed 19 May 2016). 40 Civil Code of Iran, art 1130. 41 World Bank, Ratio of female to male labour force participation rate (%) (Modelled ILO estimate), see http://data.worldbank.org/indicator/SL.TLF.CACT.FM.ZS (last accessed 5 June 2016). 42 International Labour Organisation, ILOSTAT (IRAN), see https://www.ilo.org/ilostatcp/CPDesktop/?list=true&lang=en&country=IRN (last accessed 12 October 2017). 43 The Draft of Master Plan for Population and Family Excellence in Iran 2015, art 9. 44 Details on Health Insurance Package for Housewives, ASRIRAN, see http://www.asriran.com/fa/news/61225/ (last accessed 05 May 2016). 45 Islamic Punishment Law of Iran 2009, art 59 46 Shahid Beheshti Astara Hospital, Medical Data, see http://www.gums.ac.ir/astarah/tab-4969/.aspx, (last accessed 05 May 2016). 47 The policies on giving consent for surgeries of FajrMarivan Hospital, see http://fajrhospital.blogfa.com/post/7, (last accessed 03 May 2016). 48 Civil Code of Iran, art 1041. 49 Universal Declaration of Human Rights 1948, art 25. 50 General Comment no. 20 ICESCR, note 18 above, para 7. 51 General Comment no. 14 ICESCR, note 1 above, para 8. 52 Ibid, para 8. 53 Jafari, S., ‘Compensation for men and women killed in car accidents will be equal’, see http://fa.euronews.com/2016/03/14/iran-bloodmoney-women-men-laws (last accessed 14 March 2016). 54 Parliament's agreement to discuss allowing married women to go abroad without the consent of their husband for participating in international events, Alef News Agency, see http://www.alef.ir/news/3960712208.html (last accessed 10 September 2017). 55 General Comment no 16 ICESCR, note 3 above, para 7. The author thanks Professor Martin Buijsen for the valuable comments which have improved this manuscript. REFERENCES Bakker S. , Plagman H. ( 2008 ) Health Rights of Women Assessment Instrument , Netherlands : Aim for Human Rights . Ghiasi P. , Moin L. , Roosta L. ( 2010 ) ‘Social causes of divorce among women petitioned to family court in Shiraz’, Women and Society 1 ( 3 ), 79 – 103 . Health Policy Council of the Ministry of Health and Medical Education of Iran (2010) Achievements, Challenges and Future Views of the Health System in the Islamic Republic of Iran. Tehran: Ministry of Health and Medical Education, summary. Jalali M. ( 2004 ) ‘Women′s Rights in International Law and the situation of Iran’, The Journal of Faculty of Law and Political Sciences, Tehran University 66 , 115 – 43 . Mahmudian S. , Arzemani M. , Dolatabadi T. ( 2010 ) Consent and Its Legal Aspects , Bojnord, Iran : North Khorasan Medical University . Motahari S. M. ( 2010 ) Islam and Time Requirements , Tehran : Sadra . Movahed M. , Enayat H. , Mardani M. ( 2014 ) ‘Studying of factors associated with the distribution of power in the family (case study of married women of Shiraz)’, Social Studies and Research in Iran 1 ( 3 ), 159 – 87 . Nabavi S.A. , Ershad F. , Ahmadi L. ( 2009 ) ‘Socio-demographic factors and pragmatic acceptance of family planning in Ahwaz’, Nameh-ye olum-e Ejtemai 16 ( 35 ), 23 – 45 . Najafisani E. , Mohammadniaii Z. ( 2011 ) ‘Investigation of family court cases and causes of the increase of court cases' in Islamic-Iranian Model of Progress (ed), The Center for the Islamic-Iranian Model of Progress , Tehran : The Center for the Islamic-Iranian Model of Progress , 10 . Nasiri A. ( 2014 ) ‘Management of the family in Islam’, Islamic Journal of Women and Family 1 ( 1 ), 1 – 10 . Office of the Cultural Studies of the Parliament of Iran ( 2011 ) The Situation of Self-supporting Women in Iran , Tehran : The Office of Cultural Studies of the Parliament of Iran . Office of the United Nations High Commissioner for Human Rights and World Health Organization ( 2008 ) The Right to Health, Factsheet no. 31 , Geneva : United Nations . Pournaghash Tehrani S. , Tashk A. ( 2007 ) ‘Review and comparison of domestic violence against women and men in Tehran’, Psychological Studies 3 ( 3 ), 7 – 23 . Rahimi H. , Sadeghi H. , AmainiSamani R. ( 2012 ) ‘Husband’s consent for access of wife to health care services’, Private Law 8 ( 18 ), 25 – 52 . RaisiSarteshnizi A. ( 2002 ) ‘Violence against women and intervening factors: a case study of Shahrekord’, Women in Development and Policy 1 ( 3 ), 45 – 66 . Safairad S. , Varastefar A. ( 2003 ) ‘The relationship between marital conflict and emotional divorce among women petitioned to courts in East Tehran’ , Social Research 6 ( 20 ), 85 – 106 . United Nations ( 2003 ) Common Country Assessment for the Islamic Republic of Iran , New York : United Nations . World Health Organization ( 2002 ) 25 Questions and Answers on Health and Human Rights , Geneva : World Health Organization . World Health Organization ( 2014 ) Health Care for Women Subjected to Intimate Partner Violence or Sexual Violence: A Clinical Handbook , Geneva : World Health Organization . World Health Organization ( 2015 ) Fact Sheet no 403 on Gender , Geneva : World Health Organization . Zaree F. , Solhi, M., Taghdisi, M.H., Kamali, M., Shojaeezadeh, D., Nejat, S. and Merghati Koohi, E. ( 2014 ) ‘Post-divorce life experience of divorcee women: a qualitative study’, Razi Journal of Medical Sciences 21 ( 124 ), 22 – 36 . Zolfagharpour M. , Hoseynian S. , Yazdi M. ( 2004 ) ‘Determining the relationship between family power structure and marital satisfaction of employed women and housewives in Tehran’, Counseling Research 3 ( 11 ), 31 – 46 . © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please email: firstname.lastname@example.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
International Journal of Law, Policy and the Family – Oxford University Press
Published: Apr 5, 2018
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