11. STERILIZATION AND WOMEN WITH DISABILITY
Sterilization can be defined as any process that effectively kills or eliminates transmissible agents (such as fungi, bacteria, viruses and prions) from a surface, equipment, foods, medications, or biological culture medium. In practice sterility is achieved by exposure of the object to be sterilized to chemical or physical agent for a specified time. Various agents used as steriliants are: elevated temperature, ionizing radiation, chemical liquids or gases etc. The success of the process depends upon the choice of the method adopted for sterilization.
“Sterilization is defined as the process where all the living microorganisms, including bacterial spores are killed. Sterilization can be achieved by physical, chemical and physiochemical means. Chemicals used as sterilizing agents are called chemisterilants”.(Sridhar ,2002:2)
Sterilisation represents a life sentence, a loss and a betrayal for women and girls with disabilities. It can also cause serious health consequences. Forced sterilisation forms part of a wider paternalistic model and patriarchal system in which women with disabilities are denied their human and reproductive rights. This includes exclusion from suitable healthcare for reproductive health and sexual health screening programmes, restrictions in choice of contraceptive type, a tendency to suppress menstruation, shortcomings in pregnancy and birth management, selective or forced abortions and denial of the right to have a family life.
Girls and adolescents with disabilities face a greater risk of subjection to forced sterilisation. This leads to a number of considerations. First, sterilisation must not be performed on children. The UN Committee on the rights of the child has identified forced sterilisation of girls with disabilities as a form of violence and noted that states parties to the Convention on the rights of the child are expected to prohibit by law the forced sterilisation of children with disabilities. The Committee has also stated that the principle of the “best interests of the child” cannot be used “to justify practices which conflict with the child’s human dignity and right to physical integrity.”(Grover,2002: 108)
Frohmader (2013:6-13) pointed out the women and girls with disabilities are particularly vulnerable to forced sterilisations performed under the auspices of legitimate medical care or the consent of others in their name. The forced sterilisation of disabled women and girls is recognised under international human rights law as an act of violence, a form of social control and a violation of the right to be free from torture and other cruel, inhuman or degrading treatment or punishment.
Sterilisation disproportionately affects women and girls and is a gendered issue. Whilst there may be instances where disabled men and boys are subject to sterilisation procedures, all cases that have come to the attention of relevant authorities in Australia (including Courts and Guardianship Tribunals) have involved the sterilisation of girls with intellectual disabilities. There have been no instances in Australia where authorisations to sterilise have been sought for children without disabilities in the absence of a threat to life or health.
The sterilisation of a child in circumstances other than where there is a serious threat to the health or life of that child effectively denies the child present and future enjoyment of her or his human rights. The main reasons used to justify forced sterilisations in Australia have generally fallen into four broad categories, all couched as being in the best interests” of women and girls with disabilities:
• The genetic/eugenic argument
• For the good of the state, community or family (to reduce ‘burden of care’),
• Incapacity for parenthood
• Prevention of sexual abuse
For more than twenty years, women with disabilities and their allies have been asking successive Australian Governments to show national leadership and undertake reforms to address the forced sterilisation of women and girls with disabilities and to develop policies and programs that enable disabled women and girls to realise their human rights on an equal basis as others.
women with intellectual disabilities, their families, support persons, and service providers, came together at a conference in Victoria to examine the issue of sterilisation. The conference was called ‘My Body, My Mind, My Choice’. It was organised by STAR, an independent community organisation that advocates for the rights of people with an intellectual disability. At the time, STAR stated:
‘All women with intellectual disabilities have the right to control their own bodies. STAR is concerned at the ease with which hysterectomy and tubal ligation are promoted as the solutions to menstrual management and contraception for women with intellectual disabilities. Existing and viable options are often not explored and parents and other caregivers are not made aware of these, or are discouraged from understanding their effectiveness.’
The STAR Conference resolutions included amongst other things, the need for law reform; the need for information, education, and training of both women with intellectual disabilities and service providers; and the need for women with disabilities to be treated as equals and to be treated with dignity and respect.
In October 1992, the then Federal Minister for Justice (Senator Tate) commissioned the Family Law Council10 to undertake an inquiry into sterilisation and other medical procedures on children. The Recommendations from the Inquiry, published in 1994, included:
That there should be a new division in the Family Law Act regulating sterilisation of young people;
That the legislation would indicate four situations in which sterilisation could never be authorised: a) sterilisation for eugenic reasons; b) sterilisation purely for contraceptive purposes; c) sterilisation as a means of masking or avoiding the consequences of sexual abuse; or, d) sterilisations performed on
Young women prior to the onset of menstruation, based on predictions about future problems that might be encountered with menstruation.
The Family Law Council further recommended that:
-the legislation should provide that no person under the age of 18 shall be sterilised unless the procedure is necessary to save life or to prevent serious damage to the person’s physical or psychological health.
Women with disabilities have typically been perceived as sub-human - lacking such basic human needs as the need for love, intimacy, identity and freedom. dehumanising conditions - such as those which still pervade many of our state institutions - have been rationalised on the basis that women with disabilities do not have the same needs and feelings as the “fully human”, and hence that they do not need privacy, personal property, recognition, intimacy or freedom of choice. Viewed as “undesirable” and as potential threats to society, women with disabilities have often been isolated in institutions and otherwise prevented from fully participating in society.
The right to bodily integrity and bodily autonomy, including the right of a woman to make her own reproductive choices, are enshrined in a number of international human rights treaties and instruments to which Australia is a party. However, women and girls with disabilities in Australia have failed to be afforded, or benefit from, these provisions in international human rights law. Instead, systemic prejudice and discrimination against them continues to result in widespread denial of their right to make decisions about their own bodies, experience their sexuality, have sexual relationships, and found and maintain families. in Australia there are women and girls with disabilities who have been and continue to be, denied these and other fundamental human rights through the ongoing Government sanctioned practice of ‘forced/involuntary’ and ‘coerced’ sterilisation.
Forced sterilisation – that is, sterilisation in the absence of the free and informed consent of the individual concerned - including instances in which sterilisation has been authorised by a third party, without that individual’s consent - is an act of violence, a form of social control, and a clear and documented violation of the right to be free from torture. Forced sterilisation of girls and women with disabilities is internationally recognised as a harmful practice based on tradition, culture, religion or superstition. Perpetrators are seldom held accountable and women and girls with disabilities who have experienced this violent abuse of their rights are rarely, if ever, able to obtain justice. Successive australian Governments have not acknowledged this pervasive practice, nor expressed regret, nor offered redress to the women and girls affected.
Forced sterilisation constitutes torture. The right to be free from torture is one of the few absolute and non-derogable human rights, a matter of just cogens, a peremptory norm of customary international law, and as such is binding on all States, irrespective of whether they have ratified specific treaties. A State cannot justify its non-compliance with the absolute prohibition of torture, under any circumstances. The Special rapporteur on Torture has recently clarified:
“Forced interventions [including involuntary sterilization], often wrongfully justified by theories of incapacity and therapeutic necessity inconsistent with the Convention on the Rights of Persons with Disabilities, are legitimized under national laws, and may enjoy wide public support as being in the alleged “best interest” of the person concerned. Nevertheless, to the extent that they inflict severe pain and suffering, they violate the absolute prohibition of torture and cruel, inhuman and degrading treatment.
Forced sterilisation breaches every international human rights treaty to which Australia is a party. legal authorisation of forced sterilisation procedures directly implicate the Australian Government in the perpetration of torture against disabled women and girls. Any law which authorises forced sterilisation is a law which authorises violence against women, the consequence of which is severe pain and suffering, including ‘drastic and emotionally painful consequences that are un-ending’.
The un Special rapporteur on Torture has made it clear that the failure of the State to exercise due diligence to intervene to prevent torture and provide remedies to victims of torture ‘facilitates and enables non-state actors to commit acts impermissible under [the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment] with impunity,’ and its indifference or inaction provides a form of encouragement and/or de facto permission. The un committee against Torture has also confirmed that States have a heightened obligation to protect vulnerable and/or marginalised individuals from torture and cruel inhuman and degrading treatment and to: ‘adopt effective measures to prevent public authorities and other persons acting in an official capacity from directly committing, instigating, inciting, encouraging, acquiescing in or otherwise participating or being complicit in acts of torture.’
For more than twenty years, women with disabilities and their allies have been demanding successive Australian Governments show national leadership and undertake wide ranging reforms to stop the forced and coerced sterilisation of women and girls with disabilities, and develop policies and programs that enable disabled women and girls to realise their human rights on an equal basis as others
No group has ever been as severely restricted, or negatively treated, in respect of their reproductive rights, as women with disabilities. The practice of forced sterilisation is itself part of a broader pattern of denial of human and reproductive rights of Australian disabled women and girls which also includes systematic exclusion from appropriate reproductive health care and sexual health screening, forced contraception and/or limited contraceptive choices, a focus on menstrual suppression, poorly managed pregnancy and birth, selective or coerced abortion and the denial of rights to parenting. These practices are framed within traditional social attitudes that continue to characterise disability as a personal tragedy, a burden and/or a matter for medical management and rehabilitation.
The impact of forced sterilisation on women and girls with disabilities is also highlighted in this Submission, and reaffirms that forced and coerced sterilisation has long-lasting physical, psychological and social effects and causes severe mental pain and suffering, extreme psychological trauma, including depression and grief. it also demonstrates that for women with disabilities, the issue of forced sterilisation encompasses much broader issues of reproductive health, including for example: support for choices and services in menstrual management, contraception, abortion, sexual health management and screening, pregnancy, birth, parenting, menopause, sexuality, violence and sexual assault prevention and more.
This Submission looks in detail at forced sterilisation as a violation of human rights and provides an analysis of how the practice contravenes every international human rights treaty to which Australia is a party. it examines the human rights treaty monitoring bodies responses to the practice of forced sterilisation around the world and clearly demonstrates that Australia’s apathy and indifference to the issue sees it lagging behind the rest of the developed world, at the expense of the human rights of disabled women and girls.
The Submission provides examples of several recent legal cases to highlight that the issue of forced and coerced sterilisation of women and girls is increasingly being recognised in courts around the world, as a violation of women’s fundamental human rights. Importantly, WWda’s Submission also examines redress and transitional justice for women and girls with disabilities who have been sterilised in the absence of their fully informed and free consent. In doing so, the Submission looks at the necessary components of redress and transitional justice, including for example: measures of reparation, satisfaction and guarantees of non-repetition as well as compensation, rehabilitation and recovery.
Given the magnitude of the issue of forced sterilisation of women and girls with disabilities, in that it represents just one element of a much broader pattern of denial of human and reproductive rights of Australian disabled women and girls, it is outside the scope of this Submission to address in detail the wide-ranging and extensive raft of actions required to address the breadth and scope of issues involved. This Submission has, however, endeavoured to identify key recommendations for consideration, whilst acknowledging that much more intensive work is required. Critically, any work in this area, must be based on the understanding that women and girls with disabilities must be at the forefront of any and all consultative and decision-making processes.
Forced sterilisation of women and girls with disabilities, and the inadequacy of Australian Governments’ responses to it, represent grave violations of multiple human rights. The Australian Government is obliged to exercise due diligence to: prevent the practice of forced and coerced sterilisation from taking place; investigate promptly, impartially and effectively all cases of forced sterilisation of women and girls with disabilities; remove any time limits for filing complaints; prosecute and punish the perpetrators, and, provide adequate redress to all victims of forced or coerced sterilisation. meeting these obligations requires the Australian Government to take into account the marginalisation of disabled women and girls, whose rights are compromised due to deeply rooted power imbalances and structural inequalities, and to take all appropriate measures, including focused, gender-specific measures to ensure that disabled women and girls experience full and effective enjoyment of their human rights on an equal basis as others. Nothing less is acceptable.
In conclusion of the above, sterilization to women with disability is being done without their consent which is forced sterilization, the issue a formal apology that identifies the discriminatory actions, policies, culture and attitudes that result in forced and coerced sterilisation of people with disabilities and that acknowledges, on behalf of the nation, the harm done to those who have been forcibly sterilised and experienced other violations of their reproductive rights. The formal apology must be developed in consultation with those affected and their allies, and satisfy the five criteria for formal apologies as articulated by the law commission, which include: acknowledgment of the wrong done or naming the offence, accepting, responsibility for the wrong that was done, the expression of sincere regret and profound remorse, the assurance or promise that the wrong done will not recur and reparation through concrete measures.
Dowse, L. & Frohmader, C. (2001) Moving Forward: Sterilisation and Reproductive Health of Women and Girls with Disabilities, A Report on the National Project conducted by Women with Disabilities Australia (WWDA).
Grover.S.R.2002.Management in women with an intellectual disability.pg 108-110.
Sridhar Rao.P.N.2008.Sterilization and Disinfection.June.pg 1-70.