Litigating against the Forced Sterilization of HIV-Positive Women: Recent Developments in Chile and Namibia
In response to rising Human Immunodeficiency Virus (“HIV”)-infection rates, poverty, and overpopulation, some nations have resorted to a policy of forcibly sterilizing HIV-positive women in order to prevent the transmission of HIV during childbirth. Such forced sterilization violates a woman’s fundamental right to control her own body and her right to make her own reproductive decisions. Forced sterilization “occurs when a procedure eliminating a woman’s [or man’s] ability to bear children is performed without her [or his] informed consent.” The term encompasses emotionally coerced sterilization, in which hospital professionals pressure a patient into consenting to the sterilization in a way that diminishes her autonomy. One way to prevent forced sterilizations is to require informed consent before a sterilization procedure. Traditional human rights approaches of naming and shaming through studies on forced sterilization have resulted in little change. Recently, advocates have begun to litigate coerced sterilization as a rights violation in domestic and international courts. Two such cases are presented below. Although the cases are still in the litigation process, they represent a promising new approach for anti-sterilization advocates and an important step toward recognizing the reproductive rights of HIV-positive women.
Government sterilization programs originally emerged in Europe and the United States in the 1920s as part of the eugenics movement. The democratic legislatures of many nations authorized formal sterilization programs to prevent vulnerable groups of people from producing “undesirable” offspring. In 1927, the United States Supreme Court upheld the constitutionality of a Virginia law requiring the sterilization of all mentally retarded persons in an 8-1 decision.4 Writing for the majority, Justice Oliver Wendell Holmes stated, “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” After World War II, the eugenics movement lost support due to its close association with Nazism, and government-sponsored sterilization programs were eventually eliminated in most Western countries.7 However, some developing countries adopted and continue to use sterilization in an attempt to solve poverty by reducing overpopulation; the practices of India and China have garnered the most international attention to date.