Posted by: Adrianne Walters | February 11, 2013

Applying a right to health framework to involuntary or coerced medical procedures

I have been working with the UN Special Rapporteur on the right to health (UNSR) for a little over two months now. Slowly, I am starting to feel cautiously at home in the gigantic chaotic sensory overload that is Delhi. It is a place full of passion. Whether in anger, pleasure or jest, there is always energy. People, events, news, law reform, everything moves at rapid pace. This passion and energy drives the work of the UNSR’s team, which has been busy working on three reports for the UN Human Rights Council and General Assembly on access to medicines, migrant workers and the Fukushima nuclear disaster in Japan. On top of all of this, there are Urgent Appeals to draft, Allegation Letters to send and speeches to write.

Violations of the right to privacy, bodily integrity, confidentiality and informed consent have been common themes emerging from the Urgent Appeals issued by the UNSR during my time here. Such violations have arisen in the context of compulsory testing for HIV, disclosure of test results to employers or authorities and criminal prosecution, or deportation in the case of migrant workers. Needs for early treatment, counselling and referral are too often ignored due to the stigma attached to HIV or, in the case of migrants, in the effort to minimise the cost to the public health system. It is an issue being examined as we draft a report focusing on low-skilled and undocumented migrant workers and the right to health.

Similar rights violations come into play when considering the issue of involuntary or coerced sterilisation of children and adults with disabilities, a practice permitted in Australia and currently subject to an inquiry by the Senate Committee on Community Affairs. Involuntary or coerced sterilisation is a human rights violation that disproportionately impacts upon women and girls in Australia – all of the cases that have come before the courts and tribunals in Australia have involved women and girls. Sterilisation conducted without free, voluntary and informed consent violates numerous rights, including rights to privacy, dignity, bodily integrity and to decide on the number and spacing of children All of these rights are indivisible aspects of the right to reproductive and sexual health.

Australia has ratified the Convention on the Rights of Persons with Disabilities (CRPD). Article 6 of CRPD recognises that women and girls with a disability face intersecting discriminations, based on gender and disability. The compounding effect of these intersecting discriminations means that women with a disability are highly vulnerable to violations of the right to health. For girls, age-related discrimination further compounds vulnerability. Measures that link gender with disability are therefore required.

Examining the issue from a right to health framework, as a party to the International Convention on Economic, Social and Cultural Rights (ICESCR) Australia has obligations to respect, protect and fulfil the right to health. Whilst most aspects of the right to health are subject to the principle of progressive realisation, non-discrimination is an overarching and immediate obligation, to which the claim of resource constraints cannot be used to justify non-compliance. Particular attention should be paid to ensure the participation by vulnerable groups, such as women and girls with disabilities, in decision-making processes.

The obligation to respect the right to health obligates Australia to refrain from “imposing discriminatory practices relating to women’s health status and needs” and from “applying coercive medical treatments”. Court authorised involuntary or coerced sterilisation in Australia is only employed against women and girls with a disability, and as a result Australia is in breach of the obligation to respect the right to health. This is relatively simple to remedy by repealing those laws that allow courts and tribunals to authorise involuntary sterilisation.

The obligation to protect the right to health addresses the role that private individuals and organisations can have in violations of the right to health. It requires Commonwealth, State and Territory Government’s to adopt laws, regulations and other measures to ensure that privately-run health, education and social support services are available and physically and economically accessible to women and girls with disabilities and their families. Such services play a vital role in supporting families and carers to meet the reproductive and sexual health needs of women with disabilities who require care. Government’s must monitor services in the private sector to ensure that services provided are acceptable, of good quality and based on principles of equality and non-discrimination. The obligation to protect also requires Australian Governments to take measures to prevent third parties from coercing women and girls with disabilities into ‘consenting’ to sterilisation. Further, involuntary sterilisation is sometimes (misguidedly) justified as a way of preventing sexual assault and resulting pregnancy. A better approach, and one consistent with the obligation to protect the right to health, would be sufficiently funded strategies focussing on preventing the opportunity for sexual assault by non-state actors in the first place.

The obligation to fulfil the right to health speaks to the conditions and environment required to enable individuals to enjoy the right to the highest attainable standard of physical and mental health. Accordingly, Australia is required to adopt and implement appropriate legislative, administrative, social, financial and educational measures to facilitate the enjoyment of the right to reproductive and sexual health by women and girls with a disability. The legislative prohibition of sterilisation in all circumstances where free, voluntary and informed consent is not given (except in cases of medical emergency to avoid death or permanent injury) is consistent with the obligation to fulfil the right to health. The provision of adequate and sustainable funding to support services for women and girls with disabilities, their families and carers is required so that reproductive and sexual health needs can be managed and respected without resort to sterilisation. Positive measures to facilitate the participation of women and girls in decision-making on matters affecting their reproductive and sexual health are also important. Further, the provision of appropriate and accessible sex education to women and girls with disabilities is necessary. Finally, the obligation to fulfil the right to health requires a broad public awareness raising strategy to counter socially embedded harmful stereotypes that posit women and girls with disabilities as lacking autonomy and the ability to control their reproductive and sexual lives.

Prohibition of involuntary or coerced sterilisation has been recommended by the Committee on the Rights of the Child in 2005 and 2012 and by the Committee on the Elimination of Discrimination against Women in 2010. It was also a recommendation that emerged from Universal Periodic Review of Australia at the UN Human Rights Council in 2012. Further, Article 23 of CRPD specifically provides for the right to retain fertility on the basis of equality with others. Many other countries around the world do not sanction involuntary or coerced sterilisation against people with disabilities it is so incongruent with fundamental rights. It is high time that Australia complies with the international human rights laws that it claims to be committed to.


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