On July 15, draft legislation addressing voluntary medical sterilization was unveiled for public discussion. A number of its provisions were deemed highly problematic, particularly by human rights defenders.
Voluntary or Mandatory For Some?
The first clause of the draft defines voluntary medical sterilization as “surgical intervention used as a permanent method of contraception and is performed only on a voluntary basis, with the informed consent of an adult individual (spouses).”
The same clause also states that the procedure can be done based on an individual’s wish or on medical advice with the individual’s informed consent, and “the medically indicated sterilization of persons recognized by the court as incapacitated or with limied legal capacity––by the court’s decision.”
The current law says that people recognized by the court as incapacitated (persons with psychosocial disabilities) or with limited legal capacity (persons with addictions) are not subject to medical sterilization.
In other words, the decision to sterilize a person determined to be incapacitated or with limited legal capacity is made by the court, even as the Constitution and other legal norms stipulate that a person’s informed consent is mandatory.
For example, Article 9 of the Law on Reproductive Health and Reproductive Rights stipulates that voluntary medical sterilization in medical facilities is only performed on adults with their informed consent.
Who Is Incapacitated or With Limited Legal Capacity?
Article 31 of the Civil Code says that a person may be declared incapacitated by a court as a result of a mental health disorder, or when they are unable to understand the meaning of or control their actions. A guardianship is established and transactions on behalf of a person declared incapacitated are handled by their guardian.
Article 32 of the same Code says that the legal capacity of a person may be restricted by a court if they put their family in a difficult financial situation because of alcohol or drug abuse or gambling. A trusteeship is assigned for such persons.
A person declared incapacitated can only make minor household transactions on their own. Other transactions such as receiving and spending their salary or pension can be made only with the consent of their guardian.
“How can a person not consent to their own sterilization? In our country, a person with a mental disability can be deprived of legal rights but having a mental disability does not imply that the person does not understand the significance of such a medical intervention,” says Mikael Khachatryan, a specialist on Health Law.
Khachatryan emphasizes that the person’s informed consent is the minimum and most important condition for sterilization to be considered voluntary. According to him, the court can act as an additional guarantor in this process, assuring that a person truly understands the nature of the intervention and its consequences, regardless of whether they are deemed incapacitated or capable.
Mushegh Hovsepyan, co-founder and president of Disability Rights Agenda NGO, cites another problem. A person declared incapacitated may only appeal to the court in one case: in restoring their legal capacity.
Article 2 of the Civil Procedure Code stipulates that minors and persons recognized as incapacitated or with limited legal capacity can go to court independently only in cases provided for by the Code. Yet this is possible only when they want to be declared capable and to have the restrictions on their legal capacity removed.
“In other words, even in the case of sterilization, only the guardian has the authority to appeal to the court, not the individual. So it turns out that a person can be sterilized at the guardian’s request, and the guardian is not obligated to respect the person’s wishes,” says Hovsepyan.
Declaring a Person Incapacitated
“Sterilization is a very serious intervention in a person’s private life and cannot happen without their informed consent,” says lawyer and president of Protection of Rights Without Borders NGO, Araks Melkonyan, emphasizing that the process of recognizing a person incapacitated in Armenia is itself problematic.
In accordance with Article 249 of the Code of Civil Procedure, not only can a relative apply for a person to be declared incapacitated, but also the guardianship or trusteeship body or the administration of a psychiatric institution.
Article 252 of the same Code states, “In the presence of reasonable suspicions about a citizen’s mental condition, the Court of First Instance orders a psychiatric expert examination to determine if there are sufficient grounds to declare the citizen incapacitated.” In other words, just the fact that a person has a mental health problem can become a basis for restricting their legal capacity.
Melkonyan believes that the practice of declaring someone incapacitated based on a mental health issue must be completely abolished because it constitutes discrimination and severely restricts their rights.
“The development of such a draft law in itself threatens the restriction of a person’s rights. In the case of the applicant of our organization, ‘Nikolyan vs Armenia’, the European Court of Human Rights (ECHR) ruled that the restriction of this legal capacity breached his right to his private life,” says Melkonyan.
On April 25, 2012, Gurgen Nikolyan, a citizen of Armenia, applied to the court to divorce his wife and evict her from his apartment. Around three months later, on July 4, Nikolyan’s wife appealed to the court, seeking to declare him incapacitated. On November 14, their son also applied to the court with the same request. On November 22, the Court decided to postpone the divorce and eviction proceedings until a decision on Nikolyan’s incapacitation had been given.
In 2013, Nikolyan was declared incapacitated by a court and his son was appointed as his guardian, even as they had a difficult relationship. He, as his father’s guardian, refused to file for his father’s divorce and mother’s eviction.
The ECHR ruling in this case was that the incapacitated person was deprived of the right to manage his personal life at his own discretion, including the right to divorce his wife.
Melkonyan points out that the legislation does not provide solutions to assist a person in making decisions on their own life, including making a decision based on informed consent regarding medical interventions. In a 2020 decision, the Constitutional Court also registered the legal and practical issues of informed consent to medical interventions for a person recognized as incapacitated.
Under the regulation, the court will not examine the individual’s will regarding their sterilization. “Meanwhile, a person, regardless of their mental health issue, should be properly informed and should make a decision regarding the intervention, especially regarding an intervention that has such irreversible consequences for their personal life,” Melkonyan notes.
Women Targeted Again
Only three cases of voluntary sterilization are defined in Clause 8 of the new draft law, and all three apply only to women. They are provided for when a woman is 35 or older and has three or more children; when a woman is 40 or older and has at least two children; and when a woman has undergone three caesarean sections and has children.
From this wording it can be presumed that men do not have the right to voluntary sterilization.
Article 9 of the same document refers to cases for sterilization with medical indications, which also refer exclusively to women.
“Sterilization based on medical advice is performed with the woman’s consent if there are diseases and conditions that are accompanied by irreversible pathological changes and in which cases pregnancy is incompatible with the given disease and is a threat to the woman’s life. The authorized body determines the list of illnesses and conditions that serve as justification for sterilization based on medical grounds. In individual cases not provided for in the list, the decision is made by the standing committee of the medical organization.”
Araks Melkonyan believes there is an issue of double discrimination against a woman and a person with a mental illness. “In practice, it is likely that women who are declared incapacitated will be subject to more court-ordered interventions. This makes them highly vulnerable,” she says.
Parallels With Eugenics
After the circulation of this draft law, comparisons were made to forced sterilization programs, the purpose of which can be ethnic cleansing, preventing the spread of certain diseases, and population control.
There are still countries where forced sterilization is permitted by law. For example, 31 U.S. states have legislation permitting it, and 17 states even permit forced sterilization of minors.
Perhaps the most famous case is that of Ashley X. Ashley, born in 1997, had severe developmental disabilities. Doctors determined that her mental abilities would not develop while she would continue to grow physically. When she was seven years old, her parents made the decision for her to have a hysterectomy and removal of her breast buds, as well as be administered drugs to constrict her physical development. The goal was to keep her a child for life. These interventions are known as the Ashley Treatment.
“Involuntary sterilization is a component of a constrictive, oppressive system in which women, particularly those with disabilities, are denied their reproductive rights. For example, the inaccessibility to sexual and reproductive health screening programs, the lack of access to contraceptives, the suppression of menstruation, the shortcomings of pregnancy and childbirth services, the refusal of or coercion to one’s right to choose abortion, and the denial of the right to marry,” says Mushegh Hovsepyan.
According to Article 25 of the Constitution, everyone has the right to physical and mental integrity; eugenic practices are prohibited; and no one may be subjected to scientific, medical or other experiments without his or her freely and clearly expressed consent. The person shall be given information about the potential consequences of such experiments beforehand.
Discrepancy of International Documents
Besides the fact that the clause on performing medical sterilization of persons declared incapacitated or with limited legal capacity contradicts Armenia’s Constitution, it also contradicts other international conventions that emphasize the importance of a person’s informed consent in medical interventions.
In particular, it contradicts the principle of equality of the UN Convention on the Rights of Persons with Disabilities and is actually a discriminatory approach based on the fact that they have a mental health issue. Moreover, in its 2016 observations, the UN Committee on Persons with Disabilities points out that “all practices of forced treatment, including non-consensual castrations, sterilizations and abortions should be abolished, and the possibility for third parties such as guardians, doctors and the courts to approve such practices should be eliminated.”
In order to protect women’s reproductive rights, the Council of Europe Convention on “preventing and combating violence against women and domestic violence” urges the criminalization of “performing surgery which has the purpose or effect of terminating a woman’s capacity to naturally reproduce without her prior and informed consent or understanding of the procedure.”
According to Article 135 of the Criminal Code, forced sterilization is punishable by 12 years to life imprisonment. Article 47 of the Code of Administrative Offenses stipulates liability for violating the rules around carrying out voluntary medical sterilization, and they range from a warning to a 400,000 AMD fine.
In its guidelines on medical sterilization, the International Federation of Gynecologists and Obstetricians considers it “unethical for medical practitioners to perform sterilization procedures within a government program or strategy that does not include voluntary consent to sterilization.” A woman declared by the court as incapacitated and with limited legal capacity can make an informed decision about her own body and reproductive health if she is provided with accessible information.
Head of Maternal and Reproductive Healthcare at the Ministry of Health, Ruzan Martirosyan says that the current law on voluntary sterilization was adopted in 1998 and was derived from the Law on Medical Care and Services of the Population. The latter has undergone a number of changes since, and there is a need to adjust the law in accordance with those changes.
As for the draft law, Martirosyan notes that it is currently undergoing revision and that the problematic clauses will be amended in the final version.
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