Forced Sterilization: Why Three Generations of Antiquated Law is Enough

Sterilization is a medical procedure that renders an individual permanently incapable of sexual reproduction. Men, women, and children with intellectual disabilities are routinely sterilized all over the world despite their express refusal or lack of knowledge or opportunity to provide consent. Under international conventions, forced sterilization is prohibited and may even amount to torture. Despite these prohibitions, United States (US) law continues to allow for this degrading and inhumane practice.

International law explicitly prohibits forced sterilization of persons with disabilities. The United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD), adopted on December 13, 2006, explicitly includes “those who have long-term physical, mental, intellectual or sensory impairments . . . .” Article 23 of the CRPD demands that “States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others . . . .” It also requires States Parties to ensure “[t]he rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided” and that “[p]ersons with disabilities . . . retain their fertility on an equal basis with others.”

In addition to breaching the CRPD, involuntary sterilization breaches the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), and recommendations by the UN Committee Against Torture. In 2008, Manfred Nowak, then the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, declared forcible sterilizations of those with disabilities to be torture.

Despite the international prohibition on this practice, the United States is guided by a 1927 case that permits forced sterilization of individuals with intellectual disabilities. The Supreme Court of the United States upheld the involuntary sterilization of the allegedly mentally disabled in Buck v. Bell. In that case, when Carrie Buck’s foster mother was away, her foster mother’s nephew raped Carrie. Carrie became pregnant and gave birth to a girl. Her foster family, embarrassed by the unwed mother, deemed her “immoral” and committed her to a mental institution where she was forcibly sterilized at the age of 18. During the trial, the Buck family was classified as belonging to “the shiftless, ignorant, and worthless class of anti-social whites of the South.”

Justice Holmes issued the opinion of the highest court in the land, in which he infamously and simply stated: “Three generations of imbeciles are enough.” Buck v. Bell has been heralded by many as a “reflection of the popularity of the eugenics movement.” Subsequent study of the case found strong questions as to the actual mental impairment of Carrie and her defense to be suspiciously weak.

The decision led to the forcible sterilization of more than 8,300 inmates of state mental institutions between 1927 and 1972 and cleared the way for the passage of laws across the county sanctioning sterilization of over 60,000 Americas. Notably, the later sterilizations of millions at the hands of Hitler were sanctioned by German law containing much of the same language found in the Virginia sterilization law at issue in Buck v. Bell.

Over the years, courts have rejected a broad interpretation set forth in Buck v. Bell. For instance, in 2014, the Iowa Supreme Court decided in In re Guardianship of Kennedy that the vasectomy of a guardian’s 20-year-old intellectually disabled son against his wishes violated state law because the guardian had not received court approval. However, many courts are authorizing sterilization of the mentally disabled, especially women, if deemed necessary to serve her best interests.

Human Rights Watch points out that arguments that involuntary sterilization is in the best interests of people with disabilities often have little to do with the rights of those with disabilities, but in fact have much “more to do with social factors, such as avoiding inconvenience to caregivers, the lack of adequate measures to protect against the sexual abuse and exploitation of women and girls with disabilities, and the lack of adequate and appropriate services to support women with disabilities in their decision to become parents.”

Additionally, obligations under international law require the United States to refrain from forced sterilization of people with disabilities. United States signed the CRPD on July 30, 2009, but has not ratified it, despite demonstrated bipartisan support. Signing the CRPD merely constitutes a preliminary endorsement. It demonstrates the State Party’s intent to examine the treaty within its domestic procedures and consider its ratification. Unlike ratification or accession, signing does not create a legal obligation, but it does oblige the State to refrain from acts that would defeat or undermine the objective and purpose of the treaty.

The permanence of sterilization and the existence of safe and effective non-permanent alternatives cannot be stressed enough. Legally sanctioned forced sterilization directly contradicts the object and purpose of the CRPD, which is to treat individuals with disabilities humanely. The widespread forcible sterilization of the intellectually disabled community allows room for dangerous complacency regarding the safety and protection of these individuals and unjust stagnancy in improving support services and environments in which those with intellectual impairments can thrive.

To ensure that individuals with disabilities are no longer treated inhumanely through forced sterilization, the United States Senate should recommend ratification of the CRPD. iustitia joins other human rights and disability rights organizations in calling for for the unequivocal requiring of free and informed consent to sterilization, providing clear information understandable to those with intellectual impairments regarding their reproductive options, and prohibiting the sterilization of children. Lastly, the intellectually impaired community needs to sit at the head of the table in creating legislation and formulating policy governing sterilization practices. The United States must comply with international law by revisiting Buck v. Bell and its attitude toward those with intellectual disabilities.