Sterilisation and Informed Consent: Global Legal Challenges and the Way Forward

By Gwendolyn Albert, Director, Women’s Initiatives, Peacework Development Fund and Dr Peter Hornnes, President, European Board and College of Obstetrics and Gynaecology 

In 2003, the General Assembly of the International Federation of Gynaecology and Obstetrics (FIGO) adopted a resolution on “Women’s Sexual and Reproductive Rights - A Social Responsibility for Obstetricians-Gynaecologists”.[1] The resolution called on FIGO Member Societies to “focus their efforts on priority areas in human rights failings identified in their own countries, where advocacy efforts by gynaecologists and obstetricians, in collaboration with other civil society groups, can have an impact on women’s health.” 

In the spirit of this resolution, a panel entitled “Sterilisation and Informed Consent:  Global Legal Challenges and the Way Forward” is on the programme for the 2009 FIGO Congress in Cape Town this October. The panel will highlight a particularly serious human rights violation for which the obstetrical-gynaecological profession is the unique vector, that of the sterilisation of women without their informed consent (hereinafter “coerced/forced sterilisation”).[2]

For most of the 20th century and into the 21st, during times of both war and peace, coerced/forced sterilisation has occurred for various reasons in countries on every continent, irrespective of the political system in place (authoritarian, democratic, etc). The targets are primarily but not exclusively women (and sometimes girls) who are socially marginalised due to their ethnicity, their social status, and either an actual or perceived disability. While in countries such as Sweden and Norway governments acknowledged and redressed these harms during the 20th century, the vast majority of cases have not been redressed.[3] From the perspective of human rights defenders and those concerned with medical ethics, there is a need for the obstetrical-gynaecological profession to better protect the human rights of women and girls and to better monitor the conditions under which practitioners violate those rights, in some cases with state sanction.

Some of the most recent instances of coerced/forced sterilization come from Africa, where the International Community of Women Living with HIV/AIDS (ICW) has documented cases of HIV positive women being coercively or forcibly sterilized by tubal ligation since January 2008. Two of the victims have filed a lawsuit against the Namibian government. They allege they were advised that the surgery was a necessity and signed consent forms without fully understanding the consequences for their future reproductive careers, as the nature of the procedure was not explained to them.[4] Given the recent advances in drugs that help prevent mother-to-child transmission of HIV, this particular health status, grave as it is, should not be interpreted as an automatic license to sterilise women.

Unfortunately, 21st-century Europe has seen its share of coerced and forced sterilisations as well, albeit under somewhat different circumstances. In 2005, the Czech ombudsman issued a report in which he reviewed more than 80 allegations of coerced and forced sterilisation of women, most of whom are members of the Roma minority.[5] As in Africa, some of the more recently harmed victims have filed suit, but the road to justice is slow and complicated. While lower courts have acknowledged that their civil rights have been violated, higher courts have refused to uphold their demands for compensation, citing statutes of limitations. It will take years for the victims to fight their way through to the European Court of Human Rights if necessary. Their cases were recently the subject of a documentary, “Trial of a Child Denied”, broadcast on CNN International.[6]

Sterilisation performed without informed consent is of particular concern to human rights advocates because in terms of international human rights law, when practiced against a national, ethnic, racial or religious group, the practice implicates Article 2 (d) of the Convention on the Prevention and Punishment of the Crime of Genocide, i.e., “imposing measures intended to prevent births within the group.”[7] Because the potential to eradicate these violations lies with the profession itself, our panel at FIGO, with the support of the Council of Europe, hopes that detailing the various mechanisms by which coerced/forced sterilisation is imposed upon women in various circumstances around the globe will inspire the profession to implement improved safeguards.

[1]FIGO Resolution on Social Responsibility, http://www.figo.org/projects/social_responsibility Accessed 1 July 2009.

[2] Cook, R.J. and Dickens, B.M., Voluntary and involuntary sterilization:  denials and abuses of rights. International Journal of Gynecology & Obstetrics 2000; 68: 61 -67.

[3]Broberg, Gunnar and Roll-Hansen, Nils, eds., Eugenics and the Welfare State:  Sterilization Policy in Denmark, Sweden, Norway and Finland, East Lansing:  Michigan State University Press, 2nd edition 2005:  xi – xviii.

[4]“Shantel Ferreira:  You’r e trying to deny me giving birth”, IRIN Humanitarian News and Analysis, a project of the UN Office for the Coordination of Humanitarian Affairs, June 2009, http://www.irinnews.org/HOVReport.aspx?ReportId=85014, accessed 7 July 2009.

[5]Final Statement of the Public Defender of Rights in the Matter of Sterilisations Performed in Contravention of the Law and Propose Remedial Measures, 2005, http://www.ochrance.cz/dokumenty/document.php?back=/cinnost/index.php&doc=400, accessed 7 July 2009.

[6]The documentary can be viewed online at  http://edition.cnn.com/video/#/video/international/2008/07/14/untold.stories.child.denied.bk.a.cnn, accessed 7 July 2009.

[7] “Convention on the Prevention and Punishment of the Crime of Genocide”, adopted by Resolution 260 (III) A of the U.N. General Assembly on 9 December 1948. Entry into force: 12 January 1951.