Women with disabilities in India suffer two-fold discrimination based on gender and disability. Often stigmatized and isolated by society, over 93% of women with disabilities are denied their reproductive rights and are forced into procedures like sterilization to regulate their fertility. In a joint statement released by the United Nations (UN) agencies forced sterilization was emphasized as a “form of torture and a violation of the right to be free” yet the practice continues to prevail in the country.
The Practice of Forced Sterilization
Across the globe, the practice of Forced sterilization can be linked to the eugenics theory where people with disabilities are excluded from society and are often considered genetically inferior from the rest of the human population. A similar mindset can be observed in India, where the guardians or family members frequently associate disability with a burden, especially when it comes to the reproductive autonomy of a disabled woman. Social prejudice envelops the society where a disabled woman is often considered incapable of understanding her sexuality and the family feels the need of making decisions on behalf of her often leading to violation of the rights such as Article 21 enshrined in the Indian Constitution that guarantees protection of Personal Liberty. Another facet of this problem can be traced back to the state-sponsored population control camps that have been organized by the government since 1975 when the then prime minister Indira Gandhi ordered mass sterilization of over a million people in the country. With a growing population of more than 1 billion people, even today successive Indian governments have been accused of performing involuntary sterilization camps in unsanitary and unsafe conditions that often target the poor and vulnerable sections of society as a method of population control. Governments at the state and district level are allocated funds for family planning, which often assigns certain numbers or targets for sterilizing the population as a mode of permanent contraception. In 2020, the state of Madhya Pradesh issued a circular to multi-purpose health workers (MPHWs) to persuade at least 5 willing male beneficiaries for sterilization, and any failure to complete the given task would result in consequences ranging from their salaries being withheld to a compulsory retirement. While the government repealed the order after strong backlash from citizens and opposition political parties, this target oriented approach towards population control still poses a threat to the vulnerable population, particularly the disabled community. In order to achieve these targets, health workers on the ground are forced to impose coercive conditions without providing adequate information to the concerned population, as was seen during the pandemic when an ASHA ( Accredited Social Health Activist) worker in the state of Uttar Pradesh left a deaf and mute man sterilized without his knowledge on the pretext of getting the COVID vaccination in order to complete the target assigned by the district health department.
International Law on Forced sterilization of Persons with Disabilities
The Convention on the Rights of Persons with Disabilities adopted by the UN General Assembly in 2006 and ratified by 185 countries, addressed the problem of forced sterilization among the disabled abled community. Under Article 23 (1)(c) persons with disabilities including children have equal reproductive rights to retain their fertility. Additionally, Article 25 emphasizes providing health care to persons with disabilities after taking their free and informed consent. While India has ratified the Convention on the Rights of Persons with Disabilities the question of ensuring equal rights still remains a challenge.
The Legal Conundrum in India
In India, the Right to Persons with Disabilities Act (RPWD), 2016 was introduced to legally address the problems faced by the disabled community and ensure equitable access to justice for all members of society. While the RPWD Act took a step towards recognizing the issue of forced abortions under Section 92(f)[1] which states that any medical procedure performed on a disabled woman without her express consent that leads to the termination of pregnancy is punishable with an imprisonment term, there is still no specific mention of forced sterilization as a problem. Another contentious factor is the need for “express consent”. While consent forms a crucial factor in developing reproductive autonomy there is no mention regarding the procedure to take this consent free from any undue influence from the disabled woman.
Like in the case of Suchita v Chandigarh (2009) where a mentally ill orphaned woman expressed clear consent to have a child but was opposed by the guardian welfare institution where she was admitted. In this case, the Supreme Court emphasized that the requirement for consent cannot be diluted solely by what society deems to be in the woman’s best interests. The case further argued for a limited guardianship approach, whereby the state could not extend its power to the point of breaching a woman’s reproductive autonomy. While this principle of limited guardianship is present even in the Rights to Persons with Disabilities Act under Section 14, the law on paper and the law practiced shows a stark difference. In 2012, when almost 53 women from the state of Bihar were forced to undergo sterilization in a state-run camp inside school premises in unsanitary conditions, the case of Devika Biswas v Union of India was moved to the Supreme Court of the country. The apex court emphasized the need for informed consent in the case of sterilization, it also considered that such informal incentive schemes of fixing “sterilization targets” by the state impacts the socially and economically vulnerable the most. While these judgments have tried to take a progressive stance, access to justice remains a struggle for many. According to a Human Rights Watch report, 15 out of 17 women with disabilities in India were either left neglected by the authorities or suffered additional sexual violence while trying to file a complaint.
Suggestions
Internationally, groups like The Women Enabled International have collaborated with the United Nations Population Fund and have issued guidelines to increase accessibility to sexual and reproductive health services for women and young people with disabilities who have experienced gender-based violence like forced sterilisation. Further in India, local advocacy initiatives like Project Samarth organize menstrual awareness sessions for young girls with disabilities who are often sterilized by their guardians because of difficulties in menstrual management and the risk of sexual abuse.
Finally, it becomes the need of the hour to implement a systematized change against the problem of forced sterilization amongst disabled women. It is time for the judiciary to be more accessible to the needs of such vulnerable groups, which can be achieved by facilitating remedial action and creating an independent grievance redressal mechanism for reporting such cases, and for the government to be more responsive to the needs of the disabled community by ensuring their due inclusion in the social health benefit schemes and family planning programs.
Lastly, bringing a shift in the mindset of the society cannot be achieved without public discourse because it is equally important for people to acknowledge this problem rather than dismissing it as a subject too taboo for Indian society.
Bibliography
- Of Stigma and Sterilization: The Layered Stigmatization of Women With Disabilities. (2019).The Bastion. https://thebastion.co.in/ideas/of-stigma-and-sterilization-the-layered-stigmatization-of-women-with-disabilities-in-india/
- Eliminating forced, coercive and otherwise involuntary sterilization- An interagency statement. (2014). https://www.unaids.org/sites/default/files/media_asset/201405_sterilization_en.pdf
- Eugenics and Scientific Racism. National Human Genome Research Institute. https://www.genome.gov/about-genomics/fact-sheets/Eugenics-and-Scientific-Racism
- The Constitution of India,1950, Article 21. https://legislative.gov.in/sites/default/files/COI_English.pdf
- India: “The Emergency” and the Politics of Mass Sterilization.(2020). Association for Asian Studies. https://www.asianstudies.org/publications/eaa/archives/india-the-emergency-and-the-politics-of-mass-sterilization/
- Govt transfers NHM director, scraps sterilization circular. (2020). The Times of India. https://timesofindia.indiatimes.com/city/bhopal/govt-transfers-nhm-director-scraps-sterilisation-circular/articleshow/74249580.cms
- Lavania, D. (2021). Deaf- mute man taken for Covid shot is sterilized at Uttar Pradesh hospital. The Times Of India. https://timesofindia.indiatimes.com/city/agra/unmarried-deaf-mute-man-goes-to-etah-dist-hosp-for-covid-19-jab-along-with-an-asha-worker-returns-home-sterilized/articleshow/84355308.cms
- Ministry of Health & Family Welfare-Government of India. National Health Mission. https://nhm.gov.in/index1.php?lang=1
- United Nations Convention on the Rights of Persons with Disabilities. (2006). https://www.un.org/disabilities/documents/convention/convention_accessible_pdf.pdf
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- Suchita v Chandigarh. (2009). https://indiankanoon.org/doc/1500783/
- Devika Biswas v Union of India. (2016). https://indiankanoon.org/doc/28938556/
- Invisible Victims of Sexual Violence. (2018). Human Rights Watch. https://www.hrw.org/report/2018/04/03/invisible-victims-sexual-violence/access-justice-women-and-girls-disabilities
- Women Enabled International. (2022). https://womenenabled.org/
- Changoiwala, P. (2017). The Fight to End Forced Sterilization of Girls with Disabilities. The New Humanitarian. https://deeply.thenewhumanitarian.org/womenandgirls/articles/2017/12/19/the-fight-to-end-forced-sterilization-of-girls-with-disabilities
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This post was originally published on LSE Human Rights.
