Fact Sheet:
Forced Sterilization
Prepared by Carolyn Frohmader, Women With Disabilities Australia (WWDA)
Australian Civil Society Delegation to the 53rd Session of the Committee Against
Torture, Geneva, November 2014
1.
There is growing recognition at the international level that medical interventions of an
invasive and irreversible nature, absent a therapeutic purpose, may constitute torture
or ill-treatment when administered without the prior, free and informed consent of the
person concerned.1
2.
‘Forced sterilization’ refers to the performance of a procedure which results in
sterilization in the absence of the prior, free and informed consent of the individual
who undergoes the procedure, including instances in which sterilization has been
authorized by a third party, without that individual’s consent. This is considered to
have occurred if the procedure is carried out in circumstances other than where there
is a serious threat to life. Coerced sterilization occurs when financial or other
incentives, misinformation, misrepresentation, undue influences, pressure, and/or
intimidation tactics are used to compel an individual to undergo the procedure.
Coercion includes conditions of duress such as fatigue or stress. Undue influences
include situations in which the person concerned perceives there may be an
unpleasant consequence associated with refusal of consent. Any sterilization of a
child, unless performed as a life-saving measure, is considered a forced sterilization. 2
3.
Forced sterilization is now globally recognised as an act of violence,3 a form of social
control, and a clear and documented violation of the right to be free from torture.4
4.
Forced sterilization is an ongoing practice that remains legal and sanctioned by
Governments in Australia.
5.
Perpetrators5 are not held accountable and those individuals who have experienced
this violent abuse of their rights are unable to obtain justice – such as reparation,
satisfaction and guarantees of non-repetition as well as compensation, rehabilitation
and recovery.6 Successive Australian Governments have demonstrated an apathy and
indifference to the urgency of prohibiting this pervasive practice, and regrettably, a
callous disregard for the life-long impact on those individuals affected.
6.
The monitoring bodies of the United Nations core international human rights treaties7
have all found that forced and coerced sterilization clearly breaches multiple
provisions of the respective treaties.8
Forced and coerced sterilization of girls and women disabilities
7.
Women and girls with disabilities in Australia are at particular risk of forced and
coerced sterilisations performed under the auspices of legitimate medical care or the
consent of others in their name.9
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8.
Forced sterilization is performed on young girls and women with disabilities for various
purposes, including eugenics-based practices of population control, menstrual
management and personal care, and pregnancy prevention (including pregnancy that
results from sexual abuse). 10 In Australia, the reasons used to justify forced
sterilisations generally fall into five broad categories, all couched as being in the “best
interests” of women and girls with disabilities: a) the genetic/eugenic argument; b) for
the good of the state, community or family; c) menstrual management; d) incapacity
for parenthood; and e) prevention of sexual abuse.11
9.
The ‘burden’ of parents having to deal with menstrual management of their disabled
daughters is often used as a valid justification when Australian Courts authorise the
sterilization of disabled females - even before the onset of puberty.12 For example, in a
recent case, the Family Court of Australia authorised the sterilization of an 11 year old
girl with Rett Syndrome. The application was made by the young girl’s mother to
prevent menstruation. No independent children’s lawyer was appointed to advocate for
the girl, as the judge determined it would be of ‘no benefit’. In accepting “without
hesitation” the evidence of Dr T, an Obstetrician and Gynaecologist, the judge said:
“Undoubtedly and certainly of significant relevance is that there are
hygiene issues which must fall to the responsibility of her mother
because Angela cannot provide for herself….. the operation would
certainly be a social improvement for Angela’s mother which in itself
must improve the quality of Angela’s life.” 13
10.
Incapacity for parenthood is a common theme in applications for and Court
authorisations of sterilization of disabled females in Australia. For example in the case
of ‘Re H’, the Court authorised the sterilization of a 12 year old disabled girl who was
yet to begin menstruation. The judge in approving the sterilization stated:
‘If she were to be the victim of sexual assault, and to become pregnant,
this would be a very complicated situation, both ethically and medically.
The hysterectomy would remove the chance of an unwanted pregnancy
and further medical complications associated with a pregnancy.’ 14
11.
Since 2005, the United Nations treaty monitoring bodies have consistently and
formally recommended that the Australian Government enact national legislation
prohibiting the use of sterilization of girls and boys with disabilities, and of adults with
disabilities in the absence of their prior, fully informed and free consent
[CEDAW/C/AUS/CO/7;
CRC/C/AUS/CO/4;
CRC/C/15/Add.268;
A/HRC/17/10;
CCPR/C/AUS/Q/6; CRPD/C/AUS/CO/1].
12.
The Committee on the Rights of Persons with Disabilities, in its 2013 Concluding
Observations [Australia][CRPD/C/AUS/CO/1] emphasised its “deep concern” at the
ongoing practice of forced sterilization, including “the failure of Australia to implement
the recommendations from the Committee on the Rights of the Child
(CRC/C/15/Add.268; CRC/C/AUS/CO/4), the Human Rights Council (A/HRC/17/10),
and the Report of the UN Special Rapporteur on Torture (A/HRC/22/53), which
address concerns regarding sterilization of children and adults with disabilities.” The
Committee urged the Australian Government to adopt national uniform legislation
prohibiting the use of sterilization of boys and girls with disabilities, and of adults with
disability in the absence of their prior, fully informed and free consent.15
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13.
In calling for an end to the practice of forced sterilization of women and girls with
disabilities, the human rights treaty monitoring bodies, international medical bodies,16
human rights advocates and disability advocates17 also recognise that adult women
with disabilities have the same rights as their non-disabled counterparts to choose
sterilization as a means of contraception. In this context, safeguards to prevent forced
sterilization should not infringe the rights of women with disabilities to choose
sterilization voluntarily and be provided with all necessary supports to ensure that they
can make and communicate such a choice based on their free and informed consent.
14.
In September 2012 the Australian Parliament [Senate] commenced an Inquiry into the
Involuntary or Coerced Sterilization of People with Disability in Australia, and released
its Inquiry Report in July 2013. 18 The Senate Committee undertaking the Inquiry
worked hard to ensure that people with disabilities, particularly women with disabilities,
were able to participate in the Inquiry and express their views. However, as it
transpired, the views of women with disabilities – those most affected by forced
sterilization and other denials of reproductive rights – held little weight and had less
influence than the views of parents, carers, guardians and a myriad of ‘professionals’
and other ‘experts’, many of whom argued for the practice of sterilization of girls and
women with disabilities to be allowed to continue in Australia.19
15.
Although several of the Inquiry Report’s recommendations were welcomed and long
overdue - particularly those emphasising the need for reproductive and sexual health
education, training and support for people with disabilities, the medical workforce,
judicial and legal officers – the Inquiry Report recommended that national uniform
legislation be developed to regulate sterilization of children and adults with disabilities,
rather than to prohibit the practice, as has long been recommended to Australia by
international human rights treaty bodies, UN special procedures, human rights
advocates, disability advocates, and most importantly women with disabilities
themselves.
16.
The Senate Inquiry Report recommended that for an adult with disability who has the
‘capacity’ to consent, sterilization should be banned unless undertaken with that
consent. However, based on Australia’s Interpretative Declaration in respect of Article
12 of the Convention on the Rights of Persons with Disabilities (CRPD), the Report
also recommended that where a person with disability does not have ‘capacity’ for
consent, substitute decision-making laws and procedures may permit the sterilization
of persons with disability. The Report further recommended that the financial costs
incurred by parents or guardians in child sterilization cases be covered by legal aid
(free legal representation and related costs), which could in fact, make it easier rather
than more difficult, for sterilization procedures to be sought.
17.
It is clear that Australia’s Interpretative Declaration to the CRPD (in respect of Articles
12, 17) has in fact exacerbated the pervasive violations of the human rights of women
and girls with disabilities, and been used by successive Australian Governments as a
justification to deny disabled women and girls their sexual and reproductive rights.
Regardless of the fact that the monitoring bodies of the core international human rights
treaties have all found that forced and coerced sterilization clearly breaches multiple
provisions of the respective treaties,20 the Australian Government has determined that
Australia's obligations are shaped by the Interpretative Declarations made at the time
Australia ratified the Convention. In ratifying the treaty, Australia declared its view that
the CRPD allows for substituted decision-making and compulsory medical treatment.
18.
During its September 2013 review of Australia’s compliance with the CRPD
[CRPD/C/AUS/CO/1], the CRPD Committee repeatedly expressed its concern at the
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impact of Australia’s Interpretative Declarations to Articles 12, 17 and 18 on the
implementation of the CRPD. The CRPD Committee stressed to the Australian
Government delegation, that these Interpretive Declarations have in fact hindered
Australia’s ability to comply with the Convention on the Rights of Persons with
Disabilities (CRPD).
19.
The Report of the Senate Inquiry into Involuntary Sterilization of People with
Disabilities in Australia used Australia’s Interpretative Declaration to the CRPD to
reject the consistent recommendation from international human rights treaty bodies,
UN special procedures, human rights advocates, disability advocates, and women with
disabilities, that the Australian Government ‘adopt national uniform legislation
prohibiting the use of sterilization of boys and girls with disabilities, and of adults with
disability in the absence of their prior, fully informed and free consent.’21
20.
In early 2013, the UN Special Rapporteur on Torture [and other cruel, inhuman or
degrading treatment or punishment], in addressing reproductive rights violations under
the torture framework, 22 clarified that forced sterilization of people with disabilities,
regardless of whether the practice is legitimized under national laws or justified by
theories of incapacity and therapeutic necessity, violates the absolute prohibition of
torture and cruel, inhuman and degrading treatment. The Special Rapporteur further
clarified that the grounds on which a medical procedure can be performed without a
person's free and informed consent should be the same for persons with or without a
disability. Yet the Senate Inquiry Report dismissed this, by arguing that the
recommendations contained in the Special Rapporteur’s Report “do not include explicit
calls for the prohibition of sterilization without informed consent.”23
21.
In practice, this means that forced sterilization of women and girls with
disabilities remains legal and sanctioned by Governments in Australia. The
Australian Government remains of the view that it is an acceptable practice to
sterilize children and adults with disabilities, provided that they ‘lack capacity’
and that the procedure is in their ‘best interest’, as determined by a third party.
NB: For examples of cases of forced sterilization of girls and women with
disabilities in Australia, see: Frohmader, C. (2013) ‘Dehumanised: The
Forced Sterilization of Women and Girls with Disabilities in Australia’.
Women With Disabilities Australia (WWDA), Hobart, Tasmania. ISBN:
978-0-9876035-0-0.
Available
at:
http://wwda.org.au/wpcontent/uploads/2013/12/WWDA_Sub_SenateInquiry_Sterilization_Marc
h2013.docx
Forced and coerced sterilization of intersex people in Australia
22.
Forced and coerced sterilization of infants and children with intersex variations through
‘sex normalising’ surgery continues to occur in Australia. 24 'Intersex' describes
biological variation in members of a species, including humans, which means they
cannot be comprehensively described by the labels 'male' or 'female'. It represents a
range of genetic, chromosomal and hormonal circumstances. Intersexuality is
sometimes but not always evident at birth.25
23.
In February 2013 the Australian Parliament [Senate] extended its Inquiry into the
Involuntary or Coerced Sterilization of People with Disability in Australia to include
examination of ‘current practices and policies relating to the involuntary or coerced
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sterilization of intersex people in Australia’. 26 The Inquiry confirmed that “sex
normalizing” and sterilization treatments continue to occur in Australia, particularly on
infants and children. It found aspects of current clinical practice “disturbing”. 27 The
Committee reported that ‘the sterilization of intersex persons is influenced by medical
protocol, societal attitude and legal requirements’.28 The Inquiry found that: ‘intersex
physiology is considered within the medical community as a medical condition with
little or no consideration of the individual.’ Organisation Intersex International Australia
(OII) submitted to the Inquiry that: 'surgical cosmetic "normalisation" and involuntary
sterilization are the most serious issues of concern to the intersex community'.
24.
As highlighted by the Senate Committee, 'normalising' surgery on infants and children
has the potential to impact on a range of interrelated human rights, including the right
to privacy (which extends to the right to personal autonomy/self-determination in
relation to medical treatment); the right to equality and non-discrimination; and the
prohibition against torture and other cruel, inhuman and degrading treatment
(including the prohibition against non-consensual scientific or medical
experimentation).
25.
The UN Special Rapporteur on Torture [and other cruel, inhuman or degrading
treatment or punishment], in addressing reproductive rights violations under the torture
framework,29 expressed concern at evidence of non-consensual gender assignment
surgery, and recommended the repeal of all laws and healthcare practices that
discriminate against lesbian, gay, bisexual, transgender and intersex persons:
‘There is an abundance of accounts and testimonies of ..... hormone
therapy and genital–normalising surgeries under the guise of so-called
'reparative therapies'. These procedures are rarely medically necessary,
can cause scarring, loss of sexual sensation, pain, incontinence and
lifelong depression and have also been criticised as being unscientific,
potentially harmful and contributing to stigma.’
The Special Rapporteur calls upon all States to repeal any law allowing
intrusive and irreversible treatments, including forced genital-normalizing
surgery, involuntary sterilization, unethical experimentation, medical
display, 'reparative therapies' or 'conversion therapies', when enforced or
administered without the free and informed consent of the person
concerned. He also calls upon them to outlaw forced or coerced
sterilization in all circumstances and provide special protection to
individuals belonging to marginalized groups.
26.
The Australian Government is yet to consider, respond to, or enact any of the
recommendations stemming from the Reports of the Senate Inquiry into Involuntary
Sterilization of People with Disabilities in Australia. The two reports are: 1) The Senate
Community Affairs References Committee: Involuntary or coerced sterilization of
people with disabilities in Australia (released in July 2013) and 2) The Senate
Community Affairs References Committee: Involuntary or coerced sterilization of
intersex people in Australia (released in October 2013).
Proposed Recommendations
1.
In keeping with the recommendations from: the United Nations treaty
monitoring bodies [CEDAW/C/AUS/CO/7; CRC/C/15/Add.268; CRC/C/AUS/CO/4;
A/HRC/17/10; CRPD/C/AUS/CO/1; CCPR/C/AUS/Q/6; A/HRC/22/53; A/67/227],
along with the International Federation of Gynecology and Obstetrics (FIGO)
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Guidelines on Female Contraceptive Sterilization (2011);30 recommendations of
the World Medical Association (WMA) (2011); the International Federation of
Health and Human Rights Organisations (IFHHRO) (2011);31 and the Report of
the UN Special Rapporteur on Torture (2013), 32 the Australian Government
should adopt national uniform legislation prohibiting the use of sterilization of
girls and boys with disabilities, and of adults with disabilities in the absence of
their prior, fully informed and free consent.
2.
In keeping with Australia’s international human rights obligations, and
consistent with the Report of the UN Special Rapporteur on Torture (2013),33 the
Australian Government should develop and enact legislation prohibiting nontherapeutic genital and hormonal interventions on children and infants and on
people with intersex variations without their prior, fully informed and free
consent.
1
Commonwealth of Australia (October 2013) Senate Community Affairs References Committee: Involuntary or
coerced sterilization of intersex people in Australia. Available at:
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilizatio
n/Sec_Report/~/media/Committees/Senate/committee/clac_ctte/involuntary_sterilization/second_report/report.a
shx
2 For more information see: Frohmader , C. (2013) ‘Dehumanised: The Forced Sterilization of Women and Girls
with Disabilities in Australia’. Submission to the Senate Inquiry into the involuntary or coerced sterilization of
people with disabilities in Australia. Women With Disabilities Australia (WWDA), Hobart, Tasmania. ISBN: 9780-9876035-0-0
3 See: Manjoo, Rashida (2012) Report of the Special Rapporteur on violence against women, its causes and
consequences; UN General Assembly; UN Doc. A/67/227;. See also: Radhika Coomaraswamy (1999), Report
of the Special Rapporteur on Violence Against Women, its Causes and Consequences: Policies and practices
that impact women’s reproductive rights and contribute to, cause or constitute violence against women, (55th
Sess.), E/CN.4/1999/68/Add.4 (1999), [para. 51].
4 Méndez, Juan. E, (2013) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, UN General Assembly; UN.Doc A/HRC/22/53; See also: Nowak, M. (2008) Report of
the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; UN General
Assembly, UN Doc. A/HRC/7/3; Committee on the Rights of the Child (2011) General Comment No. 13: Article
19: The right of the child to freedom from all forms of violence; UN Doc. CRC/C/GC/13.
5 A State’s obligation to prevent torture applies not only to public officials, such as law enforcement agents, but
also to doctors, health-care professionals and social workers, including those working in private hospitals, other
institutions and detention centres. As underlined by the Committee against Torture, the prohibition of torture
must be enforced in all types of institutions and States must exercise due diligence to prevent, investigate,
prosecute and punish violations by non-State officials or private actors. See: Méndez, Juan. E, (2013) UN.Doc
A/HRC/22/53.
6 Frohmader , C. (2013) ‘Dehumanised: The Forced Sterilization of Women and Girls with Disabilities in
Australia’. Submission to the Senate Inquiry into the involuntary or coerced sterilization of people with
disabilities in Australia. Women With Disabilities Australia (WWDA), Hobart, Tasmania. ISBN: 978-0-9876035-00
7 OHCHR, The Core International Human Rights Instruments and their monitoring bodies. See:
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx
8 Frohmader , C. (2013) OpCit.
9 Women With Disabilities Australia (WWDA), Human Rights Watch (HRW), Open Society Foundations, and the
International Disability Alliance (IDA) (2011) Sterilization of Women and Girls with Disabilities: A Briefing Paper.
Available at: http://www.wwda.org.au/Sterilization_Disability_Briefing_Paper_October2011.pdf. See also:
International Federation of Gynecology and Obstetrics (2011) Female Contraceptive Sterilization. Available at:
http://www.wwda.org.au/FIGOGuidelines2011.pdf
10 Women With Disabilities Australia (WWDA), Human Rights Watch (HRW), Open Society Foundations, &
International Disability Alliance (IDA)(2011) Op Cit. See also: Brady, S., Briton, J., & Grover, S. (2001) The
Sterilization of Girls and Young Women in Australia: Issues and Progress. A report commissioned by the
Federal Sex Discrimination Commissioner and the Disability Discrimination Commissioners; Human Rights and
Equal Opportunity Commission, Sydney, Australia. Available at: www.wwda.org.au/brady2.htm
11 Frohmader, C. (2013) OpCit.
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12
Between: the Attorney-General of Queensland and Parents Re S [1989] FamCA 80; (1990) FLC 92-124 13
Fam Lr 660 Children (22 November 1989)
13 Re: Angela [2010] FamCA 98 (16 February 2010)
14 Re H [2004] FamCA 496 (20 May 2004)
15 CRPD/C/AUS/CO/1
16 FIGO (International Federation of Gynecology and Obstetrics), Female Contraceptive Sterilization. Available
at: http://www.wwda.org.au/FIGOGuidelines2011.pdf See also: World Medical Association (WMA) in
conjunction with the International Federation of Health and Human Rights Organizations (IFHHRO) (2011)
Global Bodies call for end to Forced Sterilization: Press Release, 5 September 2011. Available at:
http://www.wwda.org.au/sterilWMA2011.htm
17 WWDA, Human Rights Watch (HRW), Open Society Foundations, and the International Disability Alliance
(IDA) (2011) OpCit.
18 Community Affairs References Committee, Involuntary or coerced sterilization of people with disabilities in
Australia. July 2013, Available at:
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=clac_ctte/involuntary_ster
ilization/first_report/index.htm
19 See the Senate Inquiry Submissions online at:
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilizatio
n/Submissions
20 See: Frohmader, C. (2013) OpCit.
21 CRPD/C/AUS/CO/1
22 Méndez, Juan. E, (2013) OpCit.
23 Commonwealth of Australia (July 2013) The Senate Community Affairs References Committee: Involuntary or
coerced sterilization of people with disabilities in Australia. Available online at:
http://www.aph.gov.au/parliamentary_business/committees/senate/community_affairs/involuntary_sterilization/~
/media/Committees/Senate/committee/clac_ctte/involuntary_sterilization/first_report/report.ashx [at: para. 3.31,
p61].
24 People with Disability Australia (PWDA) (October 2014) Consideration of the 4th and 5th Reports of Australia
by the Committee to the Convention Against Torture. Available online at:
http://www.pwd.org.au/admin/australian-delegation-to-the-un-committee-against-torture.html
25 Cited in Commonwealth of Australia (October 2013) Senate Community Affairs References Committee:
Involuntary or coerced sterilization of intersex people in Australia. OpCit.
26 Ibid.
27 People with Disability Australia (PWDA) OpCit.
28 Cited in Commonwealth of Australia (October 2013) Senate Community Affairs References Committee:
Involuntary or coerced sterilization of intersex people in Australia. OpCit.
29 Méndez, Juan. E, (2013) OpCit.
30 FIGO (International Federation of Gynecology and Obstetrics), OpCit.
31 World Medical Association (WMA) OpCit.
32 Méndez, Juan. E, (2013) OpCit.
33 Ibid.
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