The sterilization of women with mental disability under international law

Abstract

The fast growing population number in the world insists the government of each country to adopt family planning program that aimed at balancing the country’s birth rate and their economy. To this effect the government emphasizes the importance of making available different kinds birth controlling methods that ranges from daily administered oral contraceptives up to permanently existing sterilization. In parallel the international human right laws provide the individual’s right to reproductive health that extends to the right to choose a birth controlling mechanism that fits oneself. Thus for many women sterilization is often the contraceptive method of their own free choice. However for some others, specially for women with mental disability, sterilization is the consequence of decisions of other’s and this is negatively implicating on their enjoyment of certain fundamental human rights. Albeit this fact, International Human Rights Law and Jurisprudences, as they now stand, are not adequate to protect women with mental disability from forced sterilization. This is mainly the case because the requirement of free and fully informed consent is provided as a guarantee for protection against forced sterilization. But, Women with mental disability are not mentally competent enough to give free and fully informed consent and this leads to substituted decision making system. This paves way for the guardians to give consent for sterilization of women with mental disability. This inevitably results in human right violation due to the existence of conflicts of interest between the guardian and women with mental disability. Aimed at making such persons’ sterilization compatible with fundamental human rights, this study argues for avoiding the requirement of free and informed consent and adoption of specific prohibition of sterilization of such persons. However due to deference in the degree of severity of mental disability between women with absolute and relative mental disability, in addition to the case of serious threat to life, protection of human right necessitates the sterilization of women with absolute mental disability in very narrow exceptional circumstances up on the fulfillment some substantive and procedural requirements.