Created September 2011
Significant legislation exists which criminalizes the practice of forced/coerced sterilization. Many countries have national laws that necessitate consent for the sterilization procedure, and several international agreements condemn involuntary sterilization as a grave crime.
The Rome Statute of the International Criminal Court declares forced sterilization to be a crime against humanity; in the same category as murder, extermination, torture and enslavement.[1] Therefore, perpetrators of forced sterilization are subject to the jurisdiction of the International Criminal Court.
Additionally, forced sterilization falls under the definition of torture provided by Article I of The Convention Against Torture (CAT): “For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” [2]
Because of the immense psychological trauma that is caused by forced sterilization, the procedure is categorized as torture or cruel, inhuman, or degrading treatment (CIDT).[3] Also, because many forced sterilizations are carried out by medical professionals with the consent of government officials, the procedure further fits the CAT definition of torture.
Under the definition of torture or CIDT, forced sterilization violates the International Covenant on Civil and Political Rights (ICCPR). Article 7 of the ICCPR states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”[4]
In addition to international law, many countries have laws against forced and coerced sterilization. Some of these laws are not always enforced or not very effective, as sterilization continues to occur. The most prominent inadequacy is the lack of emphasis on the need for full and informed consent for the sterilization procedure.
Selected Country Laws:
Albania’s Law on Reproductive Rights:
Article 9: Every individual has the right to choose his sexual relationships and to control his reproductive life. The choice should be done of his own free will, which means: a) no woman is to be forced to be pregnant; b) every medical intervention relation to sexual and reproductive health is to be performed with the consent (acceptance) of the person on whom the intervention will be performed.[5]
Article 15: 1. Sterilization means a surgical medical procedure by means of which the permanent stoppage of the ability of an individual to reproduce is carried out 2. Sterilization is a lawful method for family planning and is performed only when: a) the patient gives written permission; b) the individual fulfils the age criterion.[6]
The Albanian law does not emphasize the need for the full and informed consent that is necessary for a lawful sterilization. As evident in the cases of the Roma women, many were illiterate or did not understand the meaning of sterilization, but signed their “consent” anyway.[7] Albania has not had extensive reports of forced sterilization.
Turkey’s Law:
Any person who sterilizes a man or woman, without their consent, shall be sentenced to a penalty of imprisonment for a term of three to six years. If the act is performed by a person who is unauthorized to sterilize, then the penalty shall be increased by one third.[8]
The Turkish law outlines a punishment for those who violate the law which emphasizes the severity of the crime. Further emphasis should be placed on the need for informed consent and consent should be clearly defined.
Singapore’s Law:
(3) Before a registered medical practitioner carries out treatment for sexual sterilization he shall give to the person undergoing such treatment, or to the person that gives consent to that treatment on his behalf, a full and reasonable explanation as to the meaning and consequences of that treatment and such person, or the person who gives consent on his behalf, shall certify that he clearly understands the meaning and consequences of that treatment.[9]
This provision of Singapore’s law is sufficient in emphasizing the need for full and informed consent. By ensuring that the patient (or the guardian in circumstances in which the patient is unable to understand) fully understands what is happening, the sterilization procedure is fully lawful. However, debate continues over whether or not a guardian can provide full consent for a patient.
In some cases, national laws criminalizing forced sterilization exist but are not being implemented properly. For example, the Czech Republic and Slovakia have specific laws prohibiting involuntary sterilization, but reports of the practice continue.
The women of the Czech Republic should be protected from discriminatory practices under Article 3 of The Charter of Fundamental Rights and Basic Freedoms which reads: (1) Everyone is guaranteed the enjoyment of her fundamental rights and basic freedoms without regard to gender, race, color of skin, language, faith and religion, political or other conviction, national or social origin, membership in a national or ethnic minority, property, birth, or other status.[10]
In addition, the Czech Republic has passed specific legislation that restricts sterilization. Act. No 20/1966 Coll. On Public Health Care states: “...sterilizations may be performed only with the consent of or at the request of the person subject to sterilization, under the terms set forth by the Ministry of Health.”[11]
The Slovak Parliament has also enacted informed consent laws that aim to protect women from forced sterilization including the Health Care, Health Services and Amendment Act No. 576/2004 which says: “...sterilizations may be performed only with the consent of or at the request of the person subject to sterilization, under the terms set forth by the Ministry of Health.”[12]
Despite the existence of this legislation, marginalized women are not adequately protected from forced/coerced sterilization.
In an effort to combat this injustice, the International Federation of Gynecology and Obstetrics (FIGO) released a set of strict and comprehensive guidelines in 2011, which establish how and when sterilization can be lawfully performed. Among the guidelines, FIGO recommends that only the women themselves can give consent to sterilization; sterilization should be completely voluntary and not part of a government program; sterilization is never an emergency procedure and is therefore not an exception to free and informed consent; sterilization should not be a condition of access to medical care; consent should not be asked during a position of vulnerability such as labor or the aftermath of labor; the permanent nature of the procedure must be expressed and information must be provided in a language the woman understands.[13]
[1] “Rome Statute of the International Criminal Court”
[2] “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”
[3] “Reproductive Rights Violations as Torture and Cruel, Inhuman or Degrading Treatment or Punishment: A critical Human Rights Analysis”, Center for Reproductive Rights (2010).
[4] “ICCPR”
[5] http://www.legislationline.org/documents/action/popup/id/16421
[6] Ibid.
[7] Tomasovic, Elizabeth. “Robbed of Reproductive Justice: The Necessity of a Global Initiative to Provide Redress to Roma Women Coercively Sterilized in Eastern Europe”, The Columbia Human Rights Law Review, (2010), p. 772
[8] Turkish Penal Code, trans. Edward Grieves and Dr. Vahit Biçak. (2007), p. 74.
[9] http://www.worldlii.org/cgi-bin/disp.pl/sg/legis/consol_act/vsac347341/vsac347341.html?stem=0&synonyms=0&query=sterilization
[10] http://www.legislationline.org/documents/id/5798
[11] Tomasovic, Elizabeth. “Robbed of Reproductive Justice: The Necessity of a Global Initiative to Provide Redress to Roma Women Coercively Sterilized in Eastern Europe” The Columbia Human Rights Law Review, (2010), p. 774.
[12] Ibid., p. 776
[13] “Female Contraceptive Sterilization Guidelines”, FIGO, (2011).