Involuntary contraceptive sterilisation of women in South Africa and the criminal law
Authors Camilla Pickles
Affiliations: Postdoctoral Research Fellow at the Institute for Advanced Constitutional, Public, Human Rights and International Law, University of Johannesburg
Source: South African Journal of Criminal Justice, Volume 29 Issue 2, p. 89 – 115
The Sterilisation Act 44 of 1998 prohibits sterilisations without informed consent. Despite its enactment, people are being involuntarily sterilised in South Africa and women are reportedly disproportionately affected by this practice. An involuntary sterilisation violates a number of human rights and is recognised as a form of gender-based violence. On this basis, the article emphasises the role of the state to investigate and prosecute instances of involuntary sterilisations. It identifies s 9, read together with ss 2 and 4 of the Sterilisation Act 44 of 1998 and the common-law crime of assault as relevant crimes being perpetrated when a woman is involuntarily sterilised and considers when and how each crime is applicable. The article also recognises the complexity of consent-acquiring practices in the context of reproductive health care and considers criminal liability of different health care providers in relation to refusal to consent, coercion and signed consent forms. These issues need increased consideration because, to date, no health care provider has been held criminally liable for treatment without consent and there is no reported case law demonstrating how to apply criminal-law principles to this area of concern.