Eliminating forced, coercive and otherwise involuntary sterilization

Eliminating forced, coercive and otherwise involuntary sterilization

Introduction

p.1 Like any other contraceptive method, sterilization should only be provided with the full, free and informed consent of the individual. However, in some countries, people belonging to certain population groups, including people living with HIV, persons with disabilities, indigenous peoples and ethnic minorities, and transgender and intersex persons, continue to be sterilized without their full, free and informed consent (6–16). Other individuals may also be at risk of coercive sterilization, such as persons with substance dependence (17, 18). While both men and women are subject to such practices, women and girls continue to be disproportionately impacted (9, 19, 20).

Sterilization without full, free and informed consent has been variously described by international, regional and national human rights bodies as an involuntary, coercive and/or forced practice, and as a violation of fundamental human rights, including the right to health, the right to information, the right to privacy, the right to decide on the number and spacing of children, the right to found a family and the right to be free from discrimination (21, para 23; 22, para 27; 23, para 36; 24, para 31; 25, para 24m; 26; 27, paras 37 and 38; 28, paras 31 and 32; 29, paras 33 and 34; 30, para 38; 31, para 34 and 35; 32; 33, para 18). Human rights bodies have also recognized that forced sterilization is a violation of the right to be free from torture and other cruel, inhuman or degrading treatment or punishment (34; 35, para 60).

International human rights bodies and professional organizations have explicitly condemned coercive population policies and programmes, noting that decisions about sterilization should not be subject to arbitrary requirements imposed by the government (36–38) and that states’ obligations to protect persons from such treatment extend into the private sphere, including where such practices are committed by private individuals, such as health-care professionals (35, paras 15, 17, 18 and 22; 39). Coerced and/or forced sterilization of women has also been characterized as a form of discrimination and violence against women (25, para 24m; 37; 40, para 22; 41, para 23a; 42, para 28, 31 and 36; 43, paras 51–56). Any form of involuntary, coercive or forced sterilization violates ethical principles, including respect for autonomy and physical integrity, beneficence and non-maleficence (37, 44)

Background

P.2 Some groups, such as transgender and intersex persons, also have a long history of discrimination and abuse related to sterilization, which continues to this day. Such violations are reflected, for example, in the various legal and medical requirements, including for sterilization, to which transgender and intersex persons have been subjected in order to obtain birth certificates and other legal documents that match their preferred gender (15, 16, 63). Intersex persons, in particular, have been subjected to cosmetic and other nonmedically necessary surgery in infancy, leading to sterility, without informed consent of either the person in question or their parents or guardians. Such practices have also been recognized as human rights violations by international human rights bodies and national courts (15, 64).

Transgender persons and intersex persons

p.7 In many countries, transgender and often also intersex persons are required to undergo sterilization surgeries that are often unwanted, as a prerequisite to receiving genderaffirmative treatment and gender-marker changes (16, 64).

According to international and regional human rights bodies and some constitutional courts, and as reflected in recent legal changes in several countries, these sterilization requirements run counter to respect for bodily integrity, self-determination and human dignity, and can cause and perpetuate discrimination against transgender and intersex persons (15, 64, 140, 141–146).

Intersex persons may be involuntarily subjected to so-called sex-normalizing or other procedures as infants or during childhood, which, in some cases, may result in the termination of all or some of their reproductive capacity. Children who are born with atypical sex characteristics are often subjected to cosmetic and other non-medically indicated surgeries performed on their reproductive organs, without their informed consent or that of their parents, and without taking into consideration the views of the children involved (64; 147, para 57; 148; 149). As a result, such children are being subjected to irreversible interventions that have lifelong consequence for their physical and mental health (64; 150, para 20; 151).

Medical procedures that might result in sterility may sometimes be justified because of benefits to health, including the reduction of cancer risk (152). Such treatments may be recommended for transgender or intersex persons; however, they may be proposed on the basis of weak evidence, without discussing alternative solutions that would retain the ability to procreate (151, 153–157). Parents often consent to surgery on behalf of their intersex children, including in circumstances where full information is lacking (151, 158, 159).

It has been recommended by human rights bodies, professional organizations and ethical bodies that full, free and informed consent should be ensured in connection with medical and surgical treatments for intersex persons (64, 150) and, if possible, irreversible invasive medical interventions should be postponed until a child is sufficiently mature to make an informed decision, so that they can participate in decision-making and give full, free and informed consent (15, 149). It has also been recommended that health-care professionals should be educated and trained about bodily diversity as well as sexual and related biological and physical diversity, and that professionals should properly inform patients and their parents of the consequences of surgical and other medical interventions (149; 150, para 20; 160–162). Discrimination on the basis of gender identity has been recognized by international human rights bodies as a human rights violation. Human rights bodies have condemned the serious human rights violations to which transgender and intersex persons are subjected and have recommended that transgender and intersex persons should be able to access health services, including contraceptive services such as sterilization, on the same basis as others: free from coercion, discrimination and violence. They have also recommended the revision of laws to remove any requirements for compulsory sterilization of transgender persons (39, para 21; 163, para 32; 164; 165; 166).

Guiding principles for the provision of sterilization services

p.9 Special care must be taken to ensure that every person makes a voluntary and informed choice regarding the use of any contraceptive method (3). This is particularly important for sterilization, since it is a surgical procedure that is intended to be permanent.

Autonomy in decision-making

p.9 Respect for dignity and the physical and mental integrity of a person include providing that person with the opportunity to make autonomous reproductive choices (40, para 22; 114, art 23; 167, art 16). The principle of autonomy, expressed through full, free and informed decisionmaking, is a central theme in medical ethics, and is embodied in human rights law (168, 169). People should be able to choose and to refuse sterilization. Respecting autonomy requires that any counselling, advice or information given by health-care providers or other support staff or family members should be non-directive (119), enabling individuals to make decisions that are best for themselves, with the knowledge that sterilization is a permanent procedure and that other, non-permanent methods of fertility control are available. Clear guidelines that indicate the requirement of full, free and informed consent should be available and should be well understood by practitioners and the public, especially the affected populations (92, para 24).

[…]

Neither contraceptive nor therapeutic sterilization (e.g. menstrual management) are emergency procedures. Sterilization for prevention of future pregnancy cannot be justified on grounds of medical emergency, which would permit departure from the general principle of informed consent. Even if a future pregnancy might endanger a person’s life or health, there are alternative contraceptive methods to ensure the individual concerned does not become pregnant immediately, and the individual concerned must be given the time and information needed to make an informed choice about sterilization (37). For example, sterilization can be discussed with a pregnant woman as an option, should the need for caesarean section arise later (170).

Requiring third party consent or authorization (including from a spouse, partner, medical practitioner or public officer) for contraceptive sterilization compromises decision-making authority and the enjoyment of human rights. In making a decision for or against sterilization, an individual must not be induced by incentives or forced by anyone, regardless of whether that person is a spouse, parent, other family member, legal guardian, health-care provider or public officer (28; 36, para 20; 114, art 25; 136, para 38; 164; 171, para 20; 172, paras 31 and 32; 173, para 22).

Provision of information and support

p.10 In order to make an informed decision about safe and reliable contraceptive measures, comprehensive information, counselling and support should be accessible for all people, including people living with HIV, persons with disabilities, indigenous peoples and ethnic minorities, and transgender and intersex persons. Individuals have the right to be fully informed by properly trained personnel. A provider performing sterilization has the responsibility to convey accurate, clear information, in a language and format that is readily understandable to the person concerned, together with proper counselling, free from coercion, to achieve full, free and informed decision-making (40, para 22; 78; 92, para 24; 173, para 22).

[…]

Censoring, withholding or intentionally misrepresenting information about sterilization can put health and basic human rights in jeopardy (174).

Access to medical records

p.10 The right to effective access to information regarding one’s health includes access to medical records. All persons are entitled to know what information is being collected about their own health (176, art 10). The right to respect for privacy and family life includes being able to find out about whether or not sterilization has been performed, and the precise procedure used (177, para 44). Lack of access to their medical records makes it hard for individuals to get information about their health status or receive a second opinion or follow-up care, and can block their access to justice (177, para 65).

Ensuring non-discrimination in provision of sterilization services

p.10 States parties’ obligation to respect the right to health requires that they abstain from imposing discriminatory practices (40, para 14; 164, para 18). This includes an obligation to respect the rights of persons with disabilities and transgender and intersex persons, who also have the right to retain their fertility and the right to have access to sterilization and other family planning services on an equal basis with others. […]

Accountability, participation and access to remedies

p.12 Accountability is central to preventing human rights violations and to ensuring that laws, policies and programmes are properly developed and implemented. Accountability mechanisms also assist in identifying individual and systematic human rights violations, as they provide victims with an avenue to air their grievances and seek redress.

International human rights standards require states to ensure effective accountability processes (including monitoring and evaluation), the availability of effective remedies, and the participation of a wide range of stakeholders in the development, implementation and monitoring of laws, policies and programmes (114). Individual, community and civil society participation – including of women living with HIV, persons with disabilities and transgender and intersex persons – in the development and monitoring of laws and policies, including budgets and use of public funds, is an important avenue for accountability (164).

[…]

Regarding the right to effective remedies, treaty-monitoring bodies have noted that states parties should conduct fair and effective investigations of reports of coercive sterilization, prosecute perpetrators, and provide effective remedies and compensation for all victims of such practices (26; 33, para 18; 92, para 24; 183, para 6n; 184, para 10; 185, para 12; 186, para 12). Legal aid should be provided where people lack the means to access accountability mechanisms (181).

Legal, regulatory, policy and practice actions

p.13 Human rights bodies have called upon states to take all appropriate measures to prevent coercion in relation to fertility and reproduction and to provide effective remedies for when such violations occur. They have specified that these measures may include clarifying and strengthening legal frameworks that ensure and clearly define full, free and informed consent; ensuring that such measures are well understood among practitioners and by the public; and training health professionals on patients’ rights (29, para 34; 33; 40; 111, para 35; 92, para 24; 136, paras 37 and 38).

Laws, regulations and policies

• p.13 Provide legal guarantees for full, free and informed decision-making and the elimination of forced, coercive and otherwise involuntary sterilization, and review, amend and develop laws, regulations and policies in this regard.
• Review, develop, implement and monitor ethical and professional standards for the prohibition of discrimination and stereotyping on all grounds in connection with sterilization, in conformity with international human rights law and ethical standards.
• Provide legal guarantees to prohibit the sterilization of children, and review, amend and develop laws in this regard. In the case of medical necessity for procedures in children that may result in sterilization, the best interests of the child should always be the primary concern, giving due weight to the views of children in accordance with their age and maturity, and taking into account their evolving capacity for decisionmaking.
• Ensure that sterilization, or procedures resulting in infertility, is not a prerequisite for legal recognition of preferred sex/gender.
• Provide procedural safeguards protecting the rights of those who are at high risk of being subjected to medical interventions without informed consent. Appropriate legal, medical and ethical scrutiny should be applied for “menstrual management” interventions, such as endometrial ablation and hysterectomy, which result in sterility even though they are not defined as sterilization procedures. This might involve second opinions, independent advocacy or other measures.

Supportive measures

• p.15 Provide support and information to parents who have intersex children, for example through psychological counselling and peer support or self-help groups, as well as support for intersex children.
• Provide counselling for survivors of coercive sterilization.

Remedies and redress

• p.15 Recognize past or present policies, patterns or practices of coercive sterilization, and issue statements of regret or apology to victims, as components of the right to remedy for these practices.
• Provide notification, through appropriate and humane means, to people who have been subjected to coercive sterilization, and who may be unaware of their situation, and provide information on the possibility of seeking administrative and judicial redress.
• Promptly, independently and impartially investigate all incidents of forced sterilization with due process guarantees for the alleged suspect, and ensure appropriate sanctions where responsibility has been established.
• Provide access, including through legal aid, to administrative and judicial redress mechanisms, remedies and reparations for all people who were subjected to forced, coercive or involuntary sterilization procedures, including compensation for the consequences and acknowledgement by governments and other responsible authorities of wrongs committed. Enable adults to seek redress for interventions to which they were subjected as children or infants.
• Guarantee access to reversal procedures, where possible, or assisted reproductive technologies for individuals who were subjected to forced, coercive or otherwise involuntary sterilization.

Monitoring and compliance

• Establish monitoring mechanisms for the prevention and documentation of forced, coercive and otherwise involuntary sterilization, and for the adoption of corrective policy and practice measures.
• Collect data regarding forced, coercive and otherwise involuntary sterilization, in order to assess the magnitude of the problem, identify which groups of people may be affected, and conduct a comprehensive situation and legal analysis.

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