As the second decade of this new millennium pushes toward its completion, it may come as a surprise to readers to learn that the sterilization of women without their consent remains a persistent problem for public health systems worldwide. Recent efforts in Europe to address these abuses have revealed how public health administrators and justice systems have yet to learn the lessons of these abuses.
The primary method through which female sterilization is achieved is tubal ligation. Women living in places as disparate as the American state of California, the Czech Republic, India, Peru, South Africa, and Uzbekistan have been subjected to sterilization without their informed consent. They have been sterilized during the course of other ob/gyn procedures, Caesarian deliveries in particular, and then either never informed of what was done to them, or misinformed that the procedure was a mandatory, “life-saving” one. States have also offered significant financial inducements to the impoverished in particular to undergo sterilization. Women have been misled to believe the procedure is reversible, or tricked into signing consent forms to sterilization at times when they could not have been expected to be able to make such a momentous decision (such as during labor). They have also been told that sterilization was a mandatory condition of their release from institutions or for the provision of other medical services.
In response to these incidents, the International Federation of Obstetrics and Gynecology (FIGO), the world’s only professional organization for obstetricians and gynecologists, adopted new ethical guidelines (1) on the performance of female contraceptive sterilization in 2011. These guidelines emphasize that contraceptive sterilization is not of therapeutic value, but is an elective procedure; that patients must be informed that sterilization is irreversible; that sterilization can never be justified on grounds of medical emergency; and that consent to sterilization must never be a condition for receiving other medical care or benefits of any kind.
Recent efforts to draw attention to such practices in the Czech Republic resulted in the publication almost 10 years ago by the Czech ombud of a 2005 report (2) finding that illegally-performed sterilizations constituted an unresolved justice issue for the country and recommending their investigation and redress. The criminal complaints forwarded by the ombud to the police at that time were subsequently dismissed. After several cases of civil litigation were ruled on by the domestic courts, and after pressure by the Group of Women Harmed by Forced Sterilization, a self-help group of Romani women who had survived these practices, Czech Prime Minister Jan Fischer expressed regret (3) in 2009 for this wrongdoing. The Czech ombud told the press at that time that he believed thousands of women throughout the former Czechoslovakia had been affected by illegal sterilizations since the 1970s.
Now the Czech Helsinki Committee has submitted a proposal for legislation (4) to compensate those who have been illegally sterilized CZK 250 000 (EUR 9 000) for their suffering. Current Human Rights Minister Jiří Dienstbier said recently he is planning to present his own proposal for a compensation plan to the Czech Government by the end of this year. These efforts at redress in the Czech Republic were preceded by civil court victories recognizing the nature of the violations at issue, as well as by the decision of the Czech Government to settle out of court with one woman who took her case to the European Court of Human Rights (ECtHR) in Strasbourg. The vast majority of those harmed, however, cannot sue as the three-year limitations in their cases have expired. The Czech Helsinki Committee proposal would ensure everyone is compensated who was harmed between 1972 and 2012, the year in which laws in the Czech Republic were finally amended to clarify the provision of informed consent.
Elsewhere in the region, domestic courts have been less willing to see eye to eye with these women about the nature of the harms they have been subjected to. In Hungary, A.S., a Romani woman sterilized without her informed consent, was unable to achieve justice through the national courts alone. After her case was brought to the United Nations Committee on the Elimination of Discrimination against Women under its Optional Protocol, the Committee recommended the Government (5) uphold its international human rights obligations by compensating her (and only then did the authorities do so). The Budapest-based European Roma Rights Centre (ERRC) says they are currently litigating a second case in Hungary of a very similar nature, in which a hospital is claiming that sterilization of another Romani woman without her informed consent was “medically necessary” as part of an “emergency” procedure. There was no documentation of the patient ever requesting sterilization, and no documentation of her having given informed consent to it. Despite this, the Hungarian Supreme Court ruled last December that while the patient was entitled to compensation for the fact of the missing documentation, it essentially sided with the first-instance court, which believed the testimony of the witnesses for the hospital, who claimed the patient had requested the sterilization (even though there was no record of it, and even though she herself insists otherwise).
Slovakia has had three judgments (6) handed down against it by the European Court of Human Rights (ECtHR) in Strasbourg for human rights violations in similar cases involving Romani girls and women sterilized without their informed consent. Legal scholar Claude Cahn has recorded (7) that the legal action taken in Slovakia involved criminal complaints which never led to indictments, and civil complaints which were similarly dismissed, including by the Slovak Constitutional Court, which the ECtHR found amounted to “excessive formalism” on the part of the Slovak justice system. The judgment of V.C. v. Slovakia (which has become the template for subsequent judgments) required Slovakia to compensate the applicant EUR 31 000 plus EUR 12 000 for the costs and expenses related to the litigation. Unfortunately, the judgment is not without its flaws; for example, the ECtHR has appeared to have accepted the view of the Slovak state that contraceptive sterilization may be carried out for therapeutic reasons, even though FIGO’s ethical guidelines say otherwise.
Further east, in the autocratic regime of Uzbekistan, a recent report (8) has uncovered the fact that since the turn of the millennium, doctors there have sterilized women without their informed consent on a colossal scale, usually during C-section deliveries. Women who can afford to do so prefer to travel abroad to give birth. Doctors are regularly instructed by the authorities as to how many women are to be sterilized monthly and are pressured to meet these quotas; a recent increase in C-sections has been linked to the sterilization program. Regulations governing the performance of the program are of course not open to public scrutiny. All women of reproductive age who have delivered two or more children are potential targets, but those most likely to be sterilized are women of lower socio-economic status and members of ethnic minorities, particularly the Roma. Doctors interviewed for the report said they often do not have the necessary equipment to undertake proper medical examinations or sterile environments in which to perform these surgeries (this has been a problem in India in recent years as well, one which has resulted in fatalities). As one doctor in Uzbekistan said, “Considering the conditions we are working in, a mass sterilization program can only lead to a mass mutilation of women.”
The number of international institutions with which the autocratic Uzbek regime cooperates is extremely low. According to the report, while reproductive health remains one of the very few areas where the international community is able to engage with the Uzbek regime, the World Health Organization, The United Nations Population Fund, and UNICEF have not yet pushed for changes to the current practice of requiring the country’s health care providers to deliver on the government’s quotas for sterilizing women. The report concludes that the international community’s close cooperation with the Uzbek government on reproductive health, and its acceptance of the regime’s blanket assurances that forced sterilization is not happening, have implicitly encouraged the government of Uzbekistan to continue this practice.
It is imperative not only that the victims of these practices be compensated for the harms they have suffered, but that states worldwide educate their current and future health care providers, hospital administrators, and public health officials on their obligations to protect the human rights of the women whom they serve. Systems need to be designed to maximally safeguard those rights. Current and future members of law enforcement and justice systems also need to be educated as to the responsibilities of health care professionals to safeguard their patients’ rights. Violations of these rights can rise to the level of ill-treatment and torture, so preventing them should be a serious concern for all justice systems and public health systems everywhere.
(6) V.C. v. Slovakia, N.B. v. Slovakia, and I.G. and others v. Slovakia
(7) Cahn, Claude, Sovereignty, Autonomy and Right: Human Rights Law and the International Effort to Seek Justice for Romani Women Coercively Sterilized in the Czech and Slovak Republics (2013), pg 160