The recent news around singer Britney Spear's conservatorship ruling has brought forth an important aspect of sexual and reproductive health of women and girls with disabilities (WWD) — that of intersectional discrimination. Young girls and women with disabilities (WWD) in India are often the targets of such sexual violence. With little state-led protection against sexual violence, this has incentivised parents to sterilise WWD to avoid unwanted pregnancies. The fall-out of this is that when women are diagnosed with a disability, they can be wrongfully denied the right to experience their sexuality, maintain sexual relationships, and start a family. WWD are perceived to be ‘sexless’, as they are socially constructed based on their disability, with little scope for self-conscious sexuality. This forced, non-consensual procedure can be classified as an act of violence, stripping WWD of their reproductive autonomy.
From an Indian perspective, the overlapping issues of gender, reproductive and disability rights in the legal system do not provide sufficient and discernible protection. Forced sterilisation is a reality that many WWD face. In 1994, reports of hysterectomies carried out on WWD raised a storm. India Today reported that in many cases, this was a joint decision taken by the government, doctors and healthcare providers along with the families of the WWD. Conspicuously, there was no discourse on the rights of WWD’s need for consent on issues which affected their sexual and reproductive health. Instead, one of the doctors on the panel making the decision stated that “hysterectomy is an accepted form of treatment in such cases”. In some cases, the opposite is assumed: WWD are considered ‘hypersexual’, with no control over their sexual urges. Reports describe women in mental institutions and hospitals as dressed in loose, shapeless clothes, with (forcibly) cropped hair. They are discouraged from keeping themselves “clean and attractive”, to ensure that male patients aren’t provoked. Such violent treatment is both dehumanizing and demeaning.
A decade later, in 2005, a report by Oxfam Trust surveyed 729 WWD and tried to study the complex issue of sterilisation and reproductive health of disabled women. It tried to bring to limelight the deplorable condition in which intellectually disabled women live at home. This study, “Abuse and Activity Limitation: A Study on Domestic Violence against Disabled Women in Orissa, India”, showed clear evidence of forced sterilisations on women and girls with disabilities. It found that 6 per cent of women with physical disabilities and 8 per cent with intellectual disabilities were subject to forced sterilisation. In 2011, Human Rights Watch published a briefing paper on “Sterilisation of Women and Girls with Disabilities”. It analysed the arguments favouring forced sterilisation which claimed that it was in the “best interest” of WWD. It concluded that sterilisation had little to do with their rights and more to do with social factors such as avoiding inconvenience to caregivers, lack of adequate measures to protect them against sexual abuse and exploitation and lack of appropriate services to support WWD in their decision to become parents. The UN has recognised forced sterilisation of persons with disabilities as torture, irrespective of its legal nature in many countries. Forced sterilisation constitutes gross human rights violations and is part of systemic violence inflicted upon WWD.
Presently, in India, the Rights of Persons with Disabilities Act, 2016 (RPWD Act) and the Mental Healthcare Act, 2017, govern the rights of persons with disabilities. These statutes have been brought into place to comply with India’s obligations after ratifying the Convention on the Rights of Persons with Disabilities (CRPD)
· Article 16 (1) of the CRPD makes State parties liable to take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.
· Additionally, Article 23 (1)(b) asks State parties to uphold the 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 recognised, and the means necessary to enable them to exercise these rights are provided. Article 23, thereby provides the autonomy for a woman with a disability to decide whether she would want to give birth. Through this, it is clear that forced sterilisations are not allowed under international law.
· Section 4 (1) of the RPWD Act states that the appropriate government and the local authorities shall take measures to ensure that the women and children with disabilities enjoy their rights equally with others. Section 25 puts the onus of providing sexual and reproductive healthcare, especially for women with disability on the government and local authorities. While there is no explicit mention of forced sterilisation as a crime, Section 92 (f) provides punishment for termination of pregnancy without consent.
By ratifying CRPD, India is obligated to take gender-based approaches in terms of protection of persons with disabilities from all forms of exploitation. On the other hand, the Mental Healthcare Act, 2017, specifically provides protection against forced sterilisations. Under Section 95 of the Act, sterilisation of men or women, when such sterilisation is intended as a treatment for mental illness, is categorised as a prohibited procedure.
While express protection against forced sterilisations is available for women with intellectual disabilities under the Mental Healthcare Act, the same amount of protection must be extended to all WWD. Despite the laws, there are instances of forced sterilisations in India. The reason is usually cited as difficulties in menstrual hygiene management for such girls and fear of rape-resultant pregnancy. However, more often than not, forced sterilisations are decisions taken by medical practitioners, legal guardians and other private non-state entities, which largely go unchecked. The Supreme Court of India in Suchita Srivastava & Anr v. Chandigarh Administration (2009) laid down the theory of best interest test to be applied in situations of reproductive health of persons with disabilities. The judgment states that the best interest test requires the court to ascertain the course of action which would be in the best interests of the person in question.
This could be undertaken through a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. The said decision should be guided by the interests of the victim alone and not those of stakeholders such as guardians or society in general. While it is evident that the woman in question will need care and assistance, which will, in turn, entail some costs, the Supreme Court held that this cannot be a ground for denying the exercise of reproductive rights. The judgment also observed that forced sterilisations are in violation of the equality as guaranteed by the Indian Constitution. It states that “persons who are found to be in a condition of borderline, mild or moderate mental retardation are capable of being good parents.
A crucial step forward is ensuring the justice system is accessible to WWD, to hopefully ensure that efficient, sensitive assistance is received during traumatic situations. Rampant unpunished sexual violence against WWD has only catalysed their stigmatisation by Indian society. As prejudices against disability and gender subsequently intertwine to worsen their lived experiences, ensuring that the root cause is effectively tackled is the call of the hour. Women’s sexual politics and rights India are finally in the national public limelight. In this moment of renewed conversation, it is imperative that the sexual trauma of ‘conventionally’ sidelined WWD also takes centre stage.