Türk Ceza Hukuku Açısından Kısırlaştırma (TCK md. 101)

Abstract

Today, an individual has freedom to choses whether or not to conceive a child, shorty referred as reproductive rights and freedoms. In terms of avoiding becoming pregnant, sterilization is considered one of the most common, permanent methods of contraception. Sterilization is performed through tying tubes of females - tubal litigation- and through cutting vas deferens of males - vasectomy. This operation requires an invasive operation and results in an irreversible changing of normal function of the reproductive organs. Therefore, if there is no consent given by the patient and the performer of the sterilization is not an authorized professional, the act of sterilization may be a crime. Instead of classifying the act of sterilization as a crime of injury, however, the Turkish lawmaker pushed for a separate crime focused on only the sterilization, art. 101 of the Turkish Criminal Code of 2005 just as the 1926 Code had after the 1936 amendments. This paper will focus on the Turkish Law makers’ reasons for making sterilization a separate crime and explore whether or not it should be included with other crimes. Within this context, it is addressed whether or not there is a special legal interest in protecting the right to conceive a child which that warrants the protection of law. The study shows historical backdrop of the special provision in Turkish criminal law so far. In doing so, the study aims to analyze both the objective and subjective elements of the current type of the crime of sterilization, art. 101 of the Code, and discuss what sort of reasons can justify that crime. Lastly, the paper will discuss the available punishment for the perpetrator. Keywords: Sterilization, reproductive rights and freedoms, physical integrity, consent, patient, physician, reproductive organs of body, contraception, crime, injury, criminal liability.