From Silent Atrocities to Justice: Examining the Legal Landscape of Forced Sterilisation of Women with Disabilities across Europe Features
From Silent Atrocities to Justice: Examining the Legal Landscape of Forced Sterilisation of Women with Disabilities across Europe

Moreover, The United Nations Convention on the Rights of Persons with Disabilities (“UNCRPD”), lacks explicit mention of forced sterilisation in treaty text, but the Committee on the Rights of Persons with Disabilities has gone on to emphasise protection against forced sterilisation under General Comment 3 of the CRPD committee which is related to Article 6 of the UNCRPD, which concerns the rights of women and girls with disabilities and clearly identifies forced sterilisation as a cruel, and inhumane. The Committee is responsible for monitoring the implementation of the UNCRPD by the states parties.

Historical Context

Forced sterilisation, originated in eugenics movements, and took a sinister turn in the 20th century as European countries sought to control specific populations. The background of forced sterilisation stems from the 19th and 20th centuryeugenics efforts. This approach took a dark turn, especially in Nazi Germany, where forced sterilisation and the killing of “undesirable” people – those with mental illnesses, genetic diseases, and other deemed disabilities—were methods of “negative” eugenics. This procedure was a part of a larger, mainstream eugenics movement that was prevalent throughout American culture and wasn’t limited to the fringes. Moreover, forced sterilisation laws targeting marginalized people were implemented in a number of European countries such as the Romani women, the poor, the unmarried, and women seeking abortion. Despite being made illegal in most countries of Europe, forced sterilisations still  persist in some regions, reflecting a troubling history that continues to impact marginalized populations today.

This even persists in the EU today, with recent reports revealing ongoing forced sterilisation, disproportionately impactingwomen and girls with disabilities, particularly those under guardianship. This harmful practice, rooted in systemicprejudice, assumes that individuals lack decision-making capacity for their bodies or parenting. Placing them under guardianship exacerbates the issue, surrendering control over medical choices, including sterilisation decisions.

Forced sterilisation severely violates women’s rights, especially through ethnic and gender-based discrimination. Addressing underlying stereotypes, discrimination, and ableism is crucial to ending this practice and rectifying persistent historical injustices against disabled communities. This also highlights the urgent need for a coordinated response, which includes criminalizing forced sterilisation and ensuring justice for victims.

Implications of the forced sterilisation of disabled people

The forced sterilisation of disabled people has significant implications for various human rights. It is part of a broader pattern of denial of the human rights of women and girls with disabilities and exclusion from reproductive and sexual health care, limited contraceptive choices, involuntary abortion, and denial of parenting rights which stems from social attitudes and prejudices that characterise disability as a personal tragedy or pathological, needing medical treatment . It infringes upon the rights of women and girls with disabilities, including their right to found and maintain a family, and their right to be free from violence and exploitation. The practice violates their physical integrity and security, constituting violence against women. It also represents a form of systemic violence against girls with disabilities, leading to aggravated forms of discrimination and a denial of their right to make decisions about their own bodies.

The UNCRPD provides a basis for upholding the rights of individuals with disabilities, emphasizing the need to prohibit forced sterilisation and ensure the full realization of their rights. The practice of forced sterilisation is also linked to historical eugenic laws and represents a violation of the right to self-determination, bodily integrity, and family life.

Therefore, addressing the implications of forced sterilisation of disabled people is essential to uphold their fundamental human rights and prevent further systemic violence and discrimination.

Legal Frameworks and Violations

The UNCRPD serves as a crucial international instrument in safeguarding the rights of individuals with disabilities.Article 12 of the CRPD guarantees that people with disabilities will be treated equally before the law, particularly in the context of reproductive autonomy, legal capacity, and freedom from exploitation and abuse; Article 16 which requires States Parties to take all reasonable precautions to protect people with disabilities from abuse and violence, including neglect and exploitation. This article aims to create a protective framework that acknowledges the vulnerability of individuals with disabilities to these forms of mistreatment. Further, Articles 17 which guarantees that people with disabilities will have physical and mental integrity underscoring the significance of respecting and preserving their bodily and mental well-being; Article 18 of the CRPD mandates that States Parties recognize equal rights for persons with disabilities in liberty of movement, residence choice, and nationality ensuring their full inclusion and participation in society as a whole. Article 23 guarantees the right to begin a family and make decisions regarding childbearing and affirming their reproductive autonomy and family planning choices as they have been constantly facing issues regarding not given rights to initiate family as they are not competent enough to do it ; and Article 25 guarantees that people with disabilities will have the opportunity to freely and voluntarily consent to medical treatment. This emphasizes the importance of obtaining consent during medical treatment.

Moreover, The CRPD Committee, in (General Comment 3), clearly identifies forced sterilisation as a cruel, inhumane, or degrading treatment, violating multiple international human rights treaties.

Furthermore, within women’s rights, the Convention on the Elimination of All Forms of Discrimination Against Women(“CEDAW”) (Article 12) forbids forced sterilisation and mandates that states prohibit discrimination in healthcare, TheIstanbul Convention (Article 39) requires legislative actions that make forced abortion and sterilisation illegal.

The Rome Statute (Article 7) defines crimes against humanity as acts, including enforced sterilisation, committed in a widespread or systematic attack on a civilian population, In ICCPR (Article 7) strictly prohibits forced sterilisation, ensuring protection against torture, cruel treatment, and non-consensual medical or scientific experimentation. Further, Article 3 of the ECHR unequivocally prohibits torture, encompassing the prohibition of forced sterilisation, emphasizing the absolute rejection of any cruel, inhuman, or degrading treatment and Article 8 secures the right to privacy and family life, permitting state interference only when lawful and necessary.  

In the case of V.C. v. Slovakia (2011), a Roma woman was forcibly sterilized during a cesarean section in a state hospital in Eastern Slovakia. The European Court of Human Rights ruled that this act violated her right to freedom from inhuman and degrading treatment and her right to private and family life, ordering the Slovak Government to pay her compensation of 31,000 EUR and reimburse her legal fees.

Moreover, In the N.B. v. Slovakia (2012), involves the coerced sterilisation of a Romani woman during her second childbirth. Sterilized at 17, she claimed discrimination and coerced consent. The ECHR found the sterilisation lacked valid consent, violating Article 8 of the European Convention on Human Rights. Damages were awarded, emphasizing the state’s failure to protect Roma women’s reproductive health under Article 8, exposing issues of inhuman and degrading treatment.

And, In Y.P. v. Russian Federation (2022), The court found that there was no inhuman and degrading treatment, but held that sterilisation without patient consent violated the right to private life under Article 8 of ECHR. The case is significant in the context of patients’ autonomy, medical paternalism, and the right to informed consent in medical procedures yet forced sterilisation continues to occur across the Europe. 

The Road Ahead

The path forward in resolving the widespread issue of forced sterilisation of women with disabilities in the European Union demands a holistic strategy. Only women with disabilities themselves can give legally and ethically valid consentto their own sterilisation. Moreover, Perceived mental incapacity, including medically or judicially determined mental incapacity, does not invalidate the requirement of free and informed consent of the woman herself as the sole justification for the sterilisation.

As part of any process to ensure fully informed choice and consent, women with disabilities must be provided with information that sterilisation is a permanent procedure and that alternatives to sterilisation exist, such as reversible forms of family planning, and it should not be performed on a child.

This can be resolved through strengthening legal frameworks, raising awareness, fostering international collaboration, conducting comprehensive research, and implementing effective monitoring mechanisms. Prioritizing these actions will allow to collectively address historical injustices, ensure justice for victims of forced sterilisation, and strive for a future where the rights and dignity of every individual regardless of disability are unequivocally upheld.

Shivam Jadaun, is a fourth-year Law student at the Faculty of Law, Jamia Millia Islamia, New Delhi and Shivani is a program associate at the Centre for Effective Governance of Indian States in Personnel Management Vertical.