Forced and coerced sterilizations, far from being a relic of the past, remain a widespread and troubling practice throughout the world. In the Americas, numerous countries have been accused of carrying out state-sponsored campaigns of forced sterilizations against indigenous, Afro-descendant, poor, and/or intellectually disabled women, in what amounts to an appalling act of violence and targeted erasure of marginalized communities. While international jurisprudence on forced sterilizations is limited, the Inter-American Human Rights System has been at the forefront of confronting this issue of reproductive justice. Through an analysis of two landmark cases at the Inter-American Court of Human Rights, this paper explores the strides that have been made and the gaps that remain for survivors of forced sterilization to receive justice.
In September 2020, news reports revealed that immigrant women in U.S. Immigration and Customs Enforcement detention centers had been forcibly sterilized (Manian 2020). The allegations brought up memories not only of similar practices that occurred in Nazi Germany, but also of a long, painful history of government-sanctioned forced sterilization policies in the US (ibid.). Unfortunately, this phenomenon is not unique to the US, as many American countries have had similar policies at one time or another, often directed against marginalized groups of women. Canada, Peru, Bolivia, Chile, Mexico, and the Dominican Republic, among others, all have traumatic histories in which poor, rural, indigenous, intellectually disabled, transgender and/or HIV positive women have been forcibly sterilized, sometimes through wide-scale government programs. Due to the deeply personal nature of this reproductive trauma, forced sterilizations have often gone uninvestigated and unpunished throughout the Americas, leading to an overall lack of justice for victims. The Inter-American Human Rights System (IAHRS) has taken on the issue of forced sterilization, notably in relation to Bolivia and Peru. These cases have helped to increase the visibility of forced sterilization and its devastating effects on marginalized women and their communities, as well as bringing about state admissions of wrongdoing. However, state compliance remains low, and the intersectional injustices victims face remain unchanged. To help end forced sterilizations and bring justice to victims, the IAHRS must take a truly intersectional approach to ensure the enforcement of its decisions, envision equitable and violence-free medical systems, and uplift the voices of marginalized women.
Background on Forced Sterilization
Forced and coerced contraceptive measures are those which are conducted on one’s body “without full, free and informed consent” (World Health Organization 2014, 1). Involuntary, coercive and/or forced practice sterilizations and contraceptive measures include tubal ligations, vasectomies, and other procedures that limit fertility. Forced sterilization occurs when the consent was invalid due to lack of proper information, obtained under duress, or when consent was not obtained at all (American College of Obstetricians and Gynaecologists’ Committee on Ethics 2017). Involuntary sterilization procedures are generally a manifestation of intersectional discrimination experienced by society’s most marginalized people based on race, ethnicity, class, disability and/or nationality (Sifris 2016). As a patriarchal practice seeking to govern women’s bodies, involuntary sterilization has been legitimized by eugenics discourse aiming to control ‘unhealthy’ birth rates of vulnerable populations of women. Women who are deemed ‘undesirable’ or ‘unworthy’ of reproducing have been controlled through this practice (Arthur Thomson 1906; Bock 1983; Kuhl 2002, 25). Forced sterilization organizes individuals into hierarchies of who is ‘allowed’ and desired to reproduce, with the fertility of white, mentally healthy women encouraged and the reproduction of women of color, indigenous women and poor women controlled through coercive measures (Sifris 2016).
While both men and women use sterilization as a voluntary form of contraception, forced sterilization is particularly alarming as it violates numerous fundamental human rights, from the rights to health and to establish a family, to the right to privacy (World Health Organization 2014). Throughout the twentieth century, many European countries “enacted laws providing for the coerced or forced sterilization of mentally disabled persons, racial minorities, alcoholics, and people with specific illnesses” (Patel 2017). More recently, there have been cases documented worldwide, from the United States and Chile to South Africa and Hungary. Women who undergo forced sterilization may not even discover this has happened until years later (ibid.).
Relevant Legal Provisions: Establishing a Right to Reproductive Autonomy
The blatant violation of international treaties through the use of forced sterilization measures is an affront to the very dignity of women, who are stripped of the ability to decide their own reproductive fate.
Numerous international legal instruments provide for a right to reproductive justice for women and freedom from violence. Under Article 5 of the Universal Declaration of Human Rights, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,” and Article 7 stipulates that “All are equal before the law and are entitled without any discrimination to equal protection of the law” (United National 1948). The International Covenant on Civil and Political Rights (1966) has the same provisions. Forced and coerced contraceptive measures may be considered “cruel, inhuman or degrading treatment” applied on a discriminatory basis against women, especially minoritized and marginalized women (Patel 2017). These practices also fall into the category of torture under the UN Convention against Torture due to the severe pain and suffering they inflict on women, and their instigation by public authorities in many cases (OHCHR 1984). Under the Rome Statute, forced sterilization is characterized as a crime against humanity (Rome Statute of the International Criminal Court 1998, 4).
The right to family planning and control of one’s own reproduction outlined in the Convention on the Elimination of Discrimination against Women asserts a great degree of autonomy by women and freedom from reproductive oppression or control by the state. This includes safeguarding a woman’s “function of reproduction” (Article 11.1(f)), requiring “Access to specific educational information to help to ensure the health and well-being of families,” (Article 10(h)), and declaring that women should be given “The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights” (Article 16(e)) (United Nations 1979). In addition, Article 12 provides for the elimination of discrimination in health care services, “including those relating to family planning.” The International Conference on Population and Development (ICPD), which took place in Cairo in 1994, was a hallmark moment for the recognition of reproductive rights and justice, leading to the adoption of the ICPD Program of Action by 179 countries. The Program of Action thoroughly defines reproductive health and rights, and states that people should “have the capability to reproduce and the freedom to decide if, when and how often to do so” (United Nations Population Fund 2014). The 1995 Beijing Declaration and Platform for Action explicitly states that “Acts of violence against women also include forced sterilization and forced abortion, [and] coercive/forced use of contraceptives” (United Nations and Department of Public Information 2014, 76).
The American Convention on Human Rights has numerous provisions that can be interpreted as prohibiting forced sterilization, as does the Convention of Belém do Pará.  The rights to health and to non-discrimination in the San Salvador Protocol may also be interpreted in light of forced sterilization.  The legal instruments above provide an international framework for establishing a right to reproductive justice for women, regardless of race, ethnicity, immigration status, (dis)ability, or socioeconomic level. The blatant violation of these international treaties through the use of forced sterilization measures is an affront to the very dignity of women, who are stripped of the ability to decide their own reproductive fate.
Forced Sterilizations and the IAHRS: the cases of Peru and Bolivia
Peru is particularly notorious for its wide scale sterilizations of poor, indigenous, and rural women under President Alberto Fujimori’s forced sterilization campaign in the 1990s. Between 1996 and 2000, over 260,000 women had tubal ligations, of which possibly as few as ten percent had given consent.
The Inter-American Human Rights system (IAHRS), is an inter-governmental body responsible for safeguarding and promoting human rights in the 35 countries of the Organization of American States (OAS) (International Justice Resource Center, n.d.). It is composed primarily of the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR). Both bodies have the ability to hear individual complaints of human rights violations and issue decisions accordingly, including emergency protective measures. The IACHR was established in 1959 by an OAS resolution and is the region’s main human rights body. The American Convention on Human Rights, to which 24 OAS members are party, established the IACtHR; the Court began operating in 1979 and can currently adjudicate cases involving 20 states that have accepted its jurisdiction. Thus, the Court’s jurisdiction is more limited than the Commission’s, as it can only take cases referred to it by the Commission or by states parties. In addition to its contentious jurisdiction, the Court has the ability to issue advisory opinions on cases submitted to it by the Commission.
The Inter-American Human Rights system has taken on the issue of forced sterilizations in the past at the Commission and Court levels. Women throughout the region have been subjected to forced sterilizations, with indigenous, migrant, HIV positive, and other marginalized women disproportionately affected (Reilly 2015). According to one study of women living with HIV in four Latin American countries, 23 percent of the research group had faced pressure from medical providers to be sterilized (Kendall and Albert 2015, 19462). Recently, complaints have been filed to the Commission about the forced sterilizations of indigenous women in Canada and of HIV positive women in Chile (Inter-American Commission on Human Rights 2019 and 2014). There have been two notable cases before the Commission/Court that merit further examination: that of Maria Mamerita Mestanza Chavez v. Peru and I.V. v. Bolivia.
The first forced sterilization (and reproductive justice) case to come before the Commission was that of Maria Mamerita Mestanza Chavez v. Peru (2003). Maria Mamerita Mestanza Chavez was an indigenous woman in Peru who for two years faced pressure and intimidation from local authorities to receive a tubal ligation. In 1998, she caved to the coercion and received the procedure. She received no post-operative medical care and died from an infection one week later. A case was filed to the Commission on behalf of Mestanza in 1999, and in 2003 an amicable settlement was reached between the parties. The Peruvian government admitted responsibility for the sterilization and death of Mestanza, agreed to compensate her next-of-kin, and agreed to implement recommendations from Peru’s Human Rights Ombudsman, including a full investigation of the forced sterilization campaigns and punishment of those responsible (Center for Reproductive Rights 2021). Peru is particularly notorious for its wide scale sterilizations of poor, indigenous, and rural women under President Alberto Fujimori’s forced sterilization campaign in the 1990s. Between 1996 and 2000, over 260,000 women had tubal ligations, of which possibly as few as ten percent had given consent (Lizarzaburu 2015). In 2011, facing pressure from the IACHR, the Peruvian government reopened investigations into the mass forced sterilizations (Carranza Ko 2021). However, in 2014, the Peruvian government announced the reclosure of investigations, citing lack of evidence, and in 2016 closed the investigation into Mestanza’s case, thus breaching the guarantees of the Mestanza settlement (Center for Reproductive Rights 2014). In addition, the government has failed to fulfill all of its restitution promises for Mestanza’s family (Cejil 2019). Only following immense pressure from indigenous grassroots organizations and groups like Amnesty International has the Peruvian government consented to begin the prosecution of Fujimori and his ex-ministers and hold public hearings for victims to describe their experiences, which began in 2021 (Papaleo 2021). At the level of legal change, a 2015 Law to Prevent, Sanction, and Eradicate Violence Against Women included obstetric violence in its text. Recent changes to Peru’s reparations law also entitle victims of forced sterilizations to medical, financial and educational reparations (el Congreso de la República Peruana 2021). While steps forward have been slow, the road is long for thousands of Peruvian women to get the justice they deserve.
In I.V. v. Bolivia (2016), a landmark case where the Court first dealt with forced sterilization, the Court examined the situation of a Peruvian woman refugee in Bolivia who was forcibly sterilized in 2000 following the delivery of her child by C-section. The Court considered this non-consensual and involuntary sterilization to be in violation of the “rights to personal integrity, to personal liberty, to dignity, to private and family life, of access to information, and to raise a family” and acknowledged the physical and psychological harm forced sterilization causes (Inter-American Court of Human Rights 2016, 109). The Bolivian government, whom the Court held responsible for this procedure, not only deprived the victim, I.V., of her reproductive rights, but also generated significant medical, psychological and social complications for her. In its decision, the Court went beyond simply declaring a violation of I.V.’s rights; it also emphasized the gendered dimension of this phenomenon, compounded by discriminatory health systems and other vulnerabilities (Hevia and Constantin 2018). While details of I.V.’s identity were kept private, her status as a refugee in Bolivia put her in a more vulnerable group, again highlighting the ways in which intersectionally marginalized women are disproportionately affected by forced sterilizations. The Court declared, “Factors such as race, disability and socio-economic status cannot be used as grounds to limit the patient’s freedom of choice with regard to sterilization, or to circumvent obtaining her consent” (Inter-American Court of Human Rights 2016, 56). A large emphasis was put on human dignity and agency in the Court’s decision, while also framing I.V.’s specific case within a broader context of multifaceted discrimination throughout the region that leads to obstetric violence. The Court ordered reparations be made to I.V., as well as mandating education programs on gender discrimination/violence for medical professionals, especially those who deal with reproductive issues.
Both of these cases were milestones in the IAHRS for the way they dealt with reproductive rights and their intersectional dimensions. The Mestanza case and its amicable settlement laid the groundwork for the case of I.V. v. Bolivia, which set a Court precedent for informed consent and reproductive rights, as well as drawing broader conclusions about the discriminatory environments in which women are subjected to such traumatic medical practices. However, the IAHRS has been unable to fully enforce these decisions, with no punishment for high-up perpetrators in government, failure to fully investigate and remedy, as well as facing significant challenges from domestic authorities and institutions in both Peru and Bolivia, where impunity is the norm for powerful actors.
The decision of the Peruvian government to finally hold public hearings about the forced sterilization campaigns of the 1990s is significant; this only came after indigenous groups applied sustained political pressure and the government closed numerous investigations (Papaleo 2021). The “good faith” element of friendly settlement procedures at the Commission level is part of the barrier to enforcement; this provision assumes a willingness of the state to actually hold those responsible accountable. The inner circle of former President Fujimori remains powerful and continues to resist any potential punishment (Carranza Ko 2021). The Bolivian government for its part denied any discriminatory intent in its sterilization of I.V. and denies that there has been a widescale policy of forced sterilizations (Inter-American Court of Human Rights 2016). There are thus numerous lingering problems that states and the IAHRS must address to ensure the cessation of forced sterilizations and bring about justice to victims:
- The absence of an intersectional gendered approach by both states and the IAHRS. While the IAHRS has made strides in considering the intersectional dimensions of violence against women, further analysis is needed to ensure the most vulnerable are not left behind.
- Lack of criminal accountability for those culpable of promoting and/or carrying out forced sterilizations. Even as states like Peru and Bolivia have passed laws criminalizing medical violence against women, across the Americas, many of the medical professionals and state officials guilty of perpetuating forced sterilizations have yet to face any consequences.
- Lack of awareness broadly about medical violence against women. While grassroots groups continue to work tirelessly to get justice for victims of forced sterilization, many women vulnerable to these procedures may not know how to fight against it, or may not realize what has happened to them until years later. This overall lack of awareness only serves to further the interests of perpetrators.
- Violence within the medical profession. Doctors and nurses who take advantage of their power to commit violence against women violate the most sacred tenants of the medical profession and create mistrust of modern medicine within affected communities. Moreover, patriarchal norms persist and are reproduced within the medical community.
- Lack of state recognition of wrongdoing. States guilty of having sponsored programs of forced sterilization have yet to recognize their own wrongdoings and provide reparations to victims, leading to an overall lack of justice.
- Lack of adherence to Court and Commission rulings, as well as international law in general. States that have top-down policies of forced sterilizations, or that turn a blind eye to them, are in blatant violation of international and regional law. When these same states refuse to comply with the IAHRS’ rulings, they undermine the authority of international human rights law and its ability to create change.
Through the use of an intersectional lens in its approach to cases of violence against women and the creation of truth and reconciliation commissions in cases of reproductive violence, the IAHRS can continue the important work it has started and further pursue justice for victims/survivors of forced sterilization.
Use of Intersectional Gender Analysis in the IAHRS
Moving forward, the IAHRS should take a truly intersectional approach to its decisions and their enforcement. Such an approach would give more consideration to “women facing human rights violations on the basis of multiple factors, such as their age, ethnicity, disability, sexual orientation, gender identity, migrant status, marital or family status and their poverty and literacy levels” (Sosa 2017). I.V. v. Bolivia is a step in the direction of incorporating an intersectional, gender-based analysis into the Court’s reasoning. In each case involving the violation of women’s rights, the Court and the Commission should examine the concerned state’s unique history of colonization and subjugation of indigenous and Afro-descendent peoples, discrimination against women, and neoliberal industrialization to contextualize modern-day inequalities in their rulings. By considering the multitude of discriminations and vulnerabilities faced by victims of forced sterilization, such as being part of an indigenous group, being low socio-economic status, or living in a rural area, the IAHRS can better consider victims’ needs in its decisions. The case of Artavia Murillo et al. v. Costa Rica (2012) was notable for the Court’s articulation of sexual and reproductive health and rights and a preliminary attempt to take an intersectional approach to human rights violations. The Court’s ruling that Costa Rica’s complete prohibition of in-vitro fertilization violated the 18 complainants’ rights to freedom, privacy, equality, and non-discrimination was an important step in the right direction. However, this judgment and many others could have benefitted from a more robust analysis of gender inequalities and cross-cutting discriminations, especially at the reparations stage (O’Connell 2015).
Criminalize Medical Violence Against Women
The I.V. case also opened the door to further envisioning equitable and violence-free medical systems, although Bolivia and the region at-large have a long way to go. The passage of laws in both Bolivia and Peru in recent years that recognize and criminalize medical violence against women is a positive development, albeit one necessitating government enforcement to be effective (El Estado Plurinacional de Bolivia 2013). Countries throughout the region should pass similar laws criminalizing medical violence against women and ensure proper enforcement by having a designated unit to investigate and prosecute crimes against women at the state and local levels. Signaling national opposition to forced sterilizations and accountability for perpetrators is a critical step to ensure the end of this violent practice.
However, there are clear barriers to such a top-down approach to tackling medical violence against women in the Americas, the first one being a lack of trust in state institutions which have often played a part in perpetuating forced sterilizations of marginalized women. As in the case of Peru, a mass state-coordinated policy of sterilizing indigenous women can hardly be righted by elites in Lima passing a law. This is where grassroots-driven educational campaigns and truth and reconciliation commissions can come into play to create buy-in from communities and bring further justice to victims.
Educational Awareness Campaigns about State-Sanctioned Medical Violence against Women
Where possible, the IAHRS should work with grassroots organizations to create educational awareness campaigns about state-sanctioned medical violence against women. By providing resources to local organizations with intimate knowledge of local communities and their histories of forced sterilization, the IAHRS can empower local actors to equip women with the tools to recognize and combat medical violence in their everyday lives. This combination of top-down and bottom-up awareness-raising can serve as a know your rights campaign for women who are most vulnerable to forced sterilization. Such campaigns could face resistance from states, especially those that have played a part in sterilizing marginalized women.
Implement Gender-Sensitive Trainings for Medical Professionals
The Commission has urged member states to “adopt immediate measures to ensure that women can fully exercise all sexual and reproductive rights…free from all forms of discrimination and violence” (OAS 2017). The requirement that medical professionals undergo training on discrimination and violence against women in the I.V. decision is a way for states to start changing institutional cultures of violence and for grassroots organizations to build bridges between local communities and the medical community.
Create Truth and Reconciliation Commissions
The IAHRS could do more to uplift the voices of marginalized women, centering victims/survivors in its work. As complaints of forced sterilizations in Chile and Canada have recently come before the Commission, there is a responsibility to ensure these women’s stories are heard and that they receive justice. The Commission and Court should emphasize the creation of truth and reconciliation commissions that take an intersectional approach, as the one formed in Peru after Fujimori’s dictatorship failed to mention the forced sterilization campaigns in its final report (O’Connell 2015). These commissions can play a critical role in exposing human rights violations, beginning the reparations process and bringing more justice to survivors of gender-based violence.
The overwhelming challenge changing the dominant tides of impunity and machismo in order to raise awareness of forced sterilizations, and more broadly, violence against women, while also demanding accountability for perpetrators.
While forced sterilizations remain an underreported and taboo topic in many communities, the IAHRS has helped draw broader international awareness to this phenomenon and how it could be remedied. There is a long way to go to change the intersectional discriminations that lead to forced sterilizations and eradicate this practice completely, as well as bring justice to the women who have suffered. The IAHRS has the opportunity here to continue taking landmark measures that will not only impact the Americas but will also bring hope to victims of forced sterilization worldwide.
The cases of Mamerita and I.V. set important precedents at the regional and international levels as they illuminated the widespread phenomenon of forced sterilizations in the Americas and provided legal recourse for victims. However, these cases are only the beginning.
Through the use of an intersectional lens in its approach to cases of violence against women and the creation of truth and reconciliation commissions in cases of reproductive violence, the IAHRS can continue the important work it has started and further pursue justice for victims/survivors of forced sterilization. States have the opportunity to prevent further forced sterilizations from occurring and pursue perpetrators through the passage and active enforcement of laws criminalizing medical violence against women. NGOs and activists, as the foremost experts in their communities, must be empowered to provide educational awareness campaigns, organize gender-sensitive trainings for medical professionals, and continue their work to hold perpetrators of violence accountable. Mobilization at the grassroots level must be met with openness and responsiveness at the state and IAHRS levels to collectively make forced sterilizations a relic of the past.
*This article was edited by Allison Blauvelt (Princeton University), Sharanya Rajiv (Yale University), and Lea Hunter (Princeton University).
Meredith McCain is student at the Sciences Po Paris School of International Affairs pursuing a master in human rights and humanitarian action. Her previous work experiences have centered around human rights, diplomacy, and civic engagement. She is particularly interested in the impact of grassroots movements on the recognition and fulfillment of human rights.
The author would like to thank Morgan Peterson, Mariam Abdellatif, and Negar Mohtashami for their intellectual collaboration that inspired this paper.
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