WWDA Systemic Advocacy on the Unlawful Sterilisation of Minors with Disabilities – Response from the United Nations High Commissioner for Human Rights


In late 2006 and early 2007, Women With Disabilities Australia (WWDA) wrote to a wide range of stakeholders seeking support for WWDA’s call to the Federal and State/Territory Governments to develop universal legislation which prohibits sterilisation of children except in those circumstances which amount to those that are a serious threat to health or life. Below is the response to WWDA Correspondence from the United Nations High Commissioner for Human Rights. January 19, 2007.


 

Ms Annie Parkinson
President
Women With Disabilities Australia (WWDA)
P.O. Box 605, Rosny Park, 7018 TAS
Australia

Dear Ms Parkinson,

Thank you for your letter to the High Commissioner dated 2 November 2006 concerning the Australia Government’s draft legislation on the sterilization of children with intellectual disabilities.

As you are probably aware, the United Nations General Assembly adopted the Convention on the Rights of Persons with Disabilities and its Optional Protocol on 13 December 2006 – a lanmark in the protection of the human rights of all persons with disabilities. The Convention is not yet legally binding; it will be open for signature and ratification on 30 March 2007 and will enter into force once it has been ratified by 20 States. The full text of the Convention is available at: www.ohchr.org/english/issues/disability/index.htm

In particular, I would like to draw your attention to article 23 on “Respect for home and the family”. Article 23 (1) reads:

“1. 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, so as to ensure that:

(a) The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized;

(b) 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 recognized, and the means necessary to enable them to exercise these rights are provided;

(c) Persons with disabilities, including children, retain their fertility on an equal basis with others.”

In addition to article 23 of the new Convention, I would draw your attention to article 7 on “Children with disabilities”, including a reference to concern for “the best interests of the child”, article 22 on “Respect for privacy”, and article 25 on “Health”, all relevant in the context of sterilization.

While Australia has has not yet signed or ratified the new Convention, it is a party to the Convention on the Rights of the Child. In its 2006 General Comment No. 9 on the Rights of Children with Disabilities, the Committee on the Rights of the Child expressed its deep concern about “the prevailing practice of forced sterilisation of children with disabilities, particularly girls with disabilities.” The Committee emphasized that forced sterilization “seriously violates the right of the child to her or his physical integrity and results in adverse life-long physical and mental health effects.” The Committee urged States parties to “prohibit by law the sterilisation of children on grounds of disability.” Since the final edited version of the General Comment is not yet available, you will find attached to this letter an advance uneditied version. However, the final edited version will be made available at: www.ohchr.org/english/bodies/crc/comments.htm in due course.

Australia is also a party to the International Covenant on Economic, Social and Cultural Rights. The Committee on Economic, Social and Cultural Rights in its 1994 General Comment No.5 on Persons with DIsabilities referred to the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, adopted by the General Assembly on 20 December 1993, stating that “persons with disabilities must not be denied the opportunity to experience their sexuality, have sexual relationships and experience parenthood”. The Committee emphasized that “[b]oth the sterilization of, and the performance of an abortion on, a woman with disabilities without her prior consent are serious violations of article 10 (2) [of the International Covenant on Economic, Social and Cultural Rights]”. The General Comment is available at: www.ohchr.org/english/bodies/cescr/comments.htm.

I would like to take this opportunity to encourage you and your organization in your work defending the rights of persons with disabilities.

Yours sincerely,
Ibrahim Wani
Chief
Research and Right to Development Branch
United Nations
High Commissioner for Human Rights
Palais des Nations
CH-1211 GENEVE 10