Governmental Policies toward Women Right to Choose

Governmental Policies toward Women Right to Choose 

Sexual and Reproductive Health and Rights

Judicial approach to the issue of coerced sterilization of HIV infected pregnant women

Definition of compulsory sterilization: Compulsory sterilization, also known as forced sterilization represents a government policy or program attempted to force people to undergo surgical or other sterilization, which is in direct violation of their human rights.

Article will examine the approach to the topic of forced sterilization from the court praxis of European Court of Human Rights, on the grounds of Europe and Namibian High Court on the territory of Africa, in two distinct yet very connected cases.

In 2012, the High Court in Namibia ruled in favor of three women who claimed that they had been sterilized in State Hospitals without their consent, given in clear and informed manner. These three women were all living with HIV and underwent Caesarean sections, during which they claimed, were sterilized against will. The important fact was that during the labor, women did sign some kind of the consent, but in situation of extreme pain. However in their suit toward government for damages, they firmly expressed the notion that consent given could not constitute informed consent. Apart from damages they have suffered, applicants claimed that they were specifically targeted because of their HIV positive status, which amounted to a violation of their right to equality and freedom from discrimination.

Based upon their arguments, sterilization infringed their constitutionally protected rights to life, liberty, human dignity, and their right to found a family, resulting in serious physical and psychological harm toward their future marriage prospects and wellbeing.

Though facts differed in LM and Others v. Republic of Namibia, High Court did found a violation of numbered rights, except in discrimination claim, which he dismissed, on account of there being ‘no credible or convincing evidence’ to substantiate that the sterilizations were performed because of the women’s HIV-positive status.

Court also criticized hospitals of not being accurate and clear with records that will prove that informed consent was obtained.

After the landmark ruling and decision, women were in fact entitled to damages which were to be obtained at later date.

Over the course of one year the European Court of Human Rights has issued three decisions finding Slovakia in violation of reproductive rights of Romani women due to their forced and coerced sterilization (V.C. v. Slovakia (2011) and N.B. v. Slovakia (2012)).

The third decision occurred n 2012 when the European Court of Human Rights (ECtHR) ruled in case I.G and Others v. Slovakia stating a major human rights violation recognizing involuntary sterilization of Romani women. Court found that sterilization of women without their informed and full consent violated the applicant’s right to be free from inhuman and degrading treatment and their right to respect for private and family life.

Three women, applicants: I.G, M.K and R.H were involuntarily sterilized during childbirth via Caesarian section in 1999, 2000 and 2002 in a public hospital. They were in fact asked to sign the document prior to the labor, but at that time they were unaware it was a request for sterilization. This fact was revealed to them years later during the investigation into their cases. Also an important fact was that two of the applicants were minors at the time, and no legal consent was given from their legal guardians which are strictly required by the Slovak law.

ECtHR found the violation of fundamental rights of women to self-determination, reiterating that in these cases sterilization proved to be a non-life saving intervention, and that no prior consent was given nor from the applicants neither from their legal guardians. The sterilization as Court puts it did not respect the applicant’s human freedom and dignity. Having this in mind, the process amounted to a degrading treatment.

Court harshly criticized Slovak authorities for not conducting the investigation, and that State indeed did not put into place effective legal safeguards to protect the sexual and reproductive health of Romani women.

“All women have the fundamental right to exercise autonomy over their reproductive lives, said Johanna Westeson, Regional Director for Europe at the Center for Reproductive Rights. “These women were treated like second-class citizens, humiliated, abused and left with physical and emotional scars – unable to ever bear children again.”

When compared, these two cases represent two different mirrors of Governmental policies aimed at suppressing women right to choose. These State practices can, as we have seen from judgments, occur in different regions of the world. From fairly new developed democratic European countries such as Slovenia as, to transient and relatively unstable African country of Namibia. Rarely these policies are not based on the discrimination on: gender, race or stigma attached to the HIV infected persons. Whether these State acts were intended to discriminate or deal with high rate of transient diseases, they are in fact gross human rights violations and they deprive a person his dignity in biological, psychological, physical and emotional manner. Also these breaches of human rights determinate in greater sense, future of one individual, where there is no place for his right to choose to bond to other individual and create life.

By creating and empowering these Policies State and governmental actors enable its citizen to live free from discrimination. They discriminate citizens who gave them their vote, in expectation to be protected in rule of law and safeguards of democracy.

So it is fairly to conclude that deprivation of right to choose in its core represents a deprivation of right to create.

By Zvijezdana Markovic