Marek Szilvási: Czech Government should stop gambling with the country's reputation - the fight for compensation for forced sterilization is not over
I remember being with the European Roma Rights Centre (ERRC) just a couple of months when I was invited to Ostrava to an informal meeting with the Group of Women Harmed by Coercive Sterilization, an informal collective of harmed self-advocating Romani women. The meeting was organised by the local Life Together NGO in early April 2012 to celebrate the fact that after years of local activism, lawsuits and advocacy struggles, the Government’s Council for Human Rights had finally recommended the Government develop a compensation scheme for involuntarily sterilized women. A month earlier, the Group, Life Together and the ERRC had sent an official letter welcoming this government commitment. I took an early morning train and after a half-day journey from Budapest to Ostrava, I was warmly welcomed by the Life Together staff and the Romani women activists, whom until then I knew only through phone calls and email correspondence. After shedding my water-soaked coat I entered the second room and was introduced to Monika Šimúnková, the Czech Government’s Human Rights Commissioner, and Kateřina Valachová, now the current Minister of Education, who was at that time working for the Ombudsman. The atmosphere was relaxed, almost festive, and I soon succumbed to it and started expecting this controversy soon to be over.
Back in 2003 my ERRC predecessors collected evidence about the state-supported practice of the involuntary sterilization of Romani women in the former Czechoslovakia (but also in independent Slovakia and the Czech Republic throughout the 1990s). The ERRC was not the first to raise this problem; the Charter 77 activists Ruben Pellar and Zbyněk Andrš (1978 and 1989) and Human Rights Watch (1992) had reported on this practice earlier. The ERRC however, not only pointed to individual cases, but also provided an analysis of the role of public authorities in implementing these policies limiting the reproductive strategies of Romani women and women with disabilities, and notified the Ombudsman. Since then it has been more than 12 years of intensive advocacy and legal work with the Czech Government and international organizations to win an official acknowledgement and compensation for this outrageous state-sponsored practice. Dealing with the authorities in this case was somehow special because, despite the fact that such sterilizations are the most intimate of issues and a social taboo, some of the harmed women were not afraid of publicity and confronted the authorities confidently. Elena Gorolová is an example of such a courageous Romani women; over the years she has become an informal spokesperson not only for the Ostrava-based Group, but also for all involuntary sterilized women in the Czech Republic (and Slovakia). I still vividly remember how Elena’s powerful story caused the faces of many state representatives to pale when we met them before the UN Universal Periodic Review (UPR) on the Czech Republic (during a UPR session all UN member states scrutinize the human rights situation in a particular state). I am convinced that it was due to Elena’s self-advocacy effort that many states used strongly critical language against the Czech Republic and urged the Government to immediately develop an adequate compensation scheme for the affected women.
Although officially approved by all of the involved ministries and signed by the Prime Minister, the 2012 Human Rights Council recommendations to compensate these harms seemed to meet the same fate as recommendations previously issued in 2009. They did not result in any concrete draft proposal, all of the relevant deadlines were missed, and silence was the only thing that advocates of compensation received from the responsible authorities. Despite 10 long years of advocacy, the Ombudsman’s official report and two Czech Government Human Rights Council recommendations, in February 2013 I was still confronted with the numbness of Ministry of Justice officials when I raised the issue of involuntary sterilizations at a conference on equal treatment organised by the Ombudsman. During the short chat following my presentation, the officials admitted that it was the first time they had heard about the issue. Today I know I should have taken this as an indication that the Compensation Act was not actually on the agenda.
And so it happened that three weeks ago a prepared Compensation Act, the result of six years of expert consultations, advocacy, activism and the work of various inter-ministerial Working Groups, went for the government’s approval and was rejected without any official reasons being provided. Let me, however, step back now and share with you what we talk about when we talk about the women harmed by involuntary sterilization and why we criticize the state for this serious human rights violation.
Background information on involuntary sterilization
In the former Czechoslovakia, a Public Decree on Sterilization from 1971, in force from January 1972, enabled public authorities to take programmatic steps to encourage the sterilization of Romani women and women with disabilities placed in mental institutions in order to control their birth rate. This legal provision resulted in giving public authorities more or less free reign to systematically sterilize Romani women and women with disabilities without their full and informed consent. In 1979, Czechoslovakia also initiated a programme providing financial incentives to Romani women for undergoing sterilizations motivated by the need “to control the highly unhealthy Roma population through family planning and contraception”, as the Ombudsman’s 2005 report concluded.
Such sterilizations were a recognized state policy encouraged by the Czechoslovak Government until 1993, when these specific legal provisions were abolished. However, the practice of sterilizing Romani women and women with disabilities against their will did not end with the fall of Communism, when the specific Decree was formally abolished, but it continued throughout the 1990s and 2000s, completely unrestrained by any regulation, as the doctors continued practicing what they were previously instructed to do. The last case known to civil society occurred as recently as 2007.
Obviously, women and men in the Czech Republic have always been able to request contraceptive sterilization without fearing they might violate any existing law. When I talk about involuntary sterilization specifically, I refer to the following set of practices: (1) an absolute lack of consent in either oral or written form prior to the intervention (sometimes consent was retrospectively doctored by medical personnel); (2) consent sought during delivery or shortly before delivery, during advanced stages of labor in circumstances where the mother was in great pain or under intense stress; (3) consent given in error with respect to the intervention, or upon the provision of manipulative information about sterilization – many women were undergoing a different type of surgery when they were also sterilized; and lastly (4) consent was given under duress or pressure from public authorities for the women to undergo sterilization under the threat of withholding social benefits, terminating employment, seeing their children institutionalized, or under the promise of financial awards (often the equivalent of several months’ income).
Many Romani women were maneuvered into the hospitals for sterilization on the instruction of general practitioners, gynecologists or social workers and under the pretext of some other health problem (often entirely fabricated diagnoses of tumors or cancer). Others were sterilized during C-section delivery, which doctors justified by pointing to sudden delivery complications - which, however, the patient had not been advised of during her regular check-ups during the nine-month pregnancy period (nor was the possible need for a C-section mentioned to the patient). A significant number of Romani women reported that the medical consultations they received during their pregnancies were minimal and that the doctors used dry, technical (and sometimes openly prejudicial) language during these consultations which they did not understand. Many women were made to believe by social workers and/or their gynecologists that sterilization is a temporary procedure and that they could have children in five years’ time or so again. They had not been previously consulted on other available contraception and believed what the medical and social experts claimed; most of the women did not even understand the word "sterilization", as in their communities another Czech word, "podvaz" ("tube-tying") was used to refer to this procedure. The Romani women living at the edge of poverty or beyond it would tend to agree to undergo the procedure as they and their partners responsibly estimated that in their socio-economic situation they could not afford another child. In fact, the irony of this human rights violation is that it often happened to the most responsible Romani women who took their pregnancy and family planning seriously and attended the regular pregnancy checks with their gynecologists. Because they were in regular contact with medical staff and social workers, they became the main target of the coercive sterilization policy. Even despite undergoing sterilization, some women still got pregnant again, with the fetus developing outside the uterus (so-called ectopic pregnancy) and had to undergo surgery again, this time abortion.
Former Ombudsman Otakar Motejl (with the support of his Deputy, now the current Ombudsman, Anna Šabatová) launched his own investigation and in 2005 published a report on the illegal practice of the sterilization of Romani women pre- and post-1989. The Ombudsman revealed the scope of the problem and recommended the government address the issue and compensate the victims of involuntary sterilization. The report documented 50 cases and the Ombudsman then filed criminal complaints in those cases with the General Prosecutor (out of a total of 87 requests that came to the Ombudsman). The Prosecutor dismissed all those cases, either for procedural reasons (reportedly the doctors had complied with the requirement to state an objective "indication" for the sterilization, or a signed consent form existed for the procedure, or conversely all documentation had been lost, etc.) or because of the statute of limitations (victims could only claim compensation within a three-year period from the time they realized they had been sterilized). The Ombudsman’s report concluded that the practice of involuntary sterilization, up to 1991, was directly and solely motivated by eugenics, and it recommended that all women subjected to involuntary sterilization between 1972 and 1991 should be directly eligible for compensation, as during this period the State’s social sector was directly involved in the practice of involuntary sterilization. Women involuntarily sterilized after 1991 were left to pursue their claims through the courts, as the report defined these women as the victims of individual doctors and hospitals rather than of State bodies. Moreover, the Ombudsman’s proposal did not apply to women involuntarily sterilized on the current territory of Slovakia, even if they eventually resided in the Czech Republic after the breakup of Czechoslovakia.
In November 2009, Czech Prime Minister Jan Fischer acknowledged there had been failures by individual doctors and expressed regret for the involuntary sterilizations. However, despite the Ombudsman’s conclusion that the involuntary sterilizations were encouraged by state policy, the government denied any systemic practice once existed. Meanwhile, a significant number of the UN and Council of Europe bodies (practically all of the relevant ones) have sent the Czech Government recommendations of urgent action to investigate the extent of the involuntary sterilization practice and to establish a compensation mechanism for victims.
The UN High Commissioner for Human Rights, Navanethem Pillay, was also attentive to the issue and in May 2014 sent an official letter to the Czech Government in which she asked the Government to report on the established safeguards to prevent recurrence of these abuses and the compensatory measures regarding the victims of involuntary sterilization. Moreover, during the United Nations Universal Periodic Review (a UN meeting where states scrutinize each others' human rights records) in April 2012, a number of States raised concerns about the involuntary sterilization of Romani women during the session on the Czech Republic.
In 2009 and 2012, the Czech Government’s Human Rights Council passed resolutions recommending that the Czech Government introduce a mechanism for adequate financial redress for victims of involuntary sterilization. The Council advised establishing a systematic, transparent compensation mechanism for women subjected to involuntary sterilizations. The Council estimates that as few as 50 (i.e., the cases previously documented by the Czech Ombudsman), and as many as thousands (an estimate based on the Swedish experience) of women could be entitled to compensation (experts’ estimates are a maximum of several hundreds of women). The relevant Ministries of Health, Social Affairs and Finance, however, did not endorse the Czech Government's Human Rights Council’s resolutions.
Almost three years after the Czech Government's Human Rights Council issued its second resolution urging the Government to develop a compensation scheme and no progress had been achieved, the Czech Helsinki Committee (CHC) designed a new legislative proposal detailing an alternative compensation scheme for victims of involuntary sterilization, which tackled the shortcomings of the previous resolution. Among the most significant changes was that it abolished the division between women involuntarily sterilized before and after 1991. The CHC submitted this proposal to the Ministry of Justice in January 2014. Meanwhile, Anna Šabatová, the former President of the CHC, was elected as the new Czech Ombudsman, making the public commitment that she would prioritize the compensation mechanism for involuntary sterilizations. The newly-appointed Minister of Human Rights had made similar statements and in February 2015 submitted a Compensation Act proposal to the Government.
Nevertheless, despite the robust and persistent international criticism, the Government (with the exception of the Human Rights Minister/Commissioner) has neglected to take any action and has maintained that the state did not support systemic sterilization among Romani women and women with disabilities. They also claimed that they adopted all necessary measures to prevent any further incidence of involuntary sterilization and recommended all the previously-harmed women seek justice at the Czech courts. Let me briefly demonstrate why the Government’s position is misleading.
Is there an adequate informed consent procedure?
The Healthcare Act adopted in 2004, which entered into force in 2005, repealed the older regulations authorizing sterilizations. In November 2011, a new Act on Specific Health Services was adopted and came into force in April 2012, which newly defined the provisions on sterilization. In Part 2, that law newly regulates sterilization and includes instructions for medical personnel on how to consult with patients on its consequences, the risks and the nature of sterilization, including how to acquire informed consent from the patient. An independent witness (medical personnel) is now required to attend the consultation with the patient, and one more witness can be present at the request of the patient also. The minutes from the consultation, signed by all participants, are archived in the patient's personal medical files. A period of seven days (in cases of "medical indication") and 14 days for other reasons should be applied between the consultation and the surgery. The Act incorporates some of the provisions from the International Federation of Gynecology and Obstetrics (FIGO) Guidelines and puts in place more robust safeguards with regard to legally-incapacitated people and minors. It also forbids the performance of sterilizations in prisons or on people with mental disability for other than "medical reasons" (which had previously been allowed). Regarding the sterilization of minors and legally-incapacitated people, additional decisions by an expert commission and the court are required. These all are positive steps.
There are, however, prevailing shortcomings with some of these provisions. The Act does not define the concepts of informed consent and informed choice. It also does not oblige medical personnel to inform the patient that sterilization is only one of many methods of contraception. In this regard, the law omits any reference to when it is appropriate for doctors to initiate the discussion of sterilization with patients. Likewise, it does not forbid doctors from raising the possibility of undergoing sterilization when patients are in a vulnerable state, such as during labor or when emotionally unstable.
Section 12 of the Act defines sterilization and describes the medical and other situations under which it can be performed. However, not once does it indicate that sterilization is never a solution to a medical emergency, nor does it emphasize that sterilization is never a life-saving intervention (as indeed it is not). Arguments of medical necessity of this nature have been used by medical personnel to either pressure Romani women to agree with the procedure or served as a retrospective justification for "emergency sterilizations" performed entirely without the patient’s consent. Finally, although the Act prescribes the period between the consultation and the performance of the sterilization, Section 15(2) allows for the performing of a sterilization immediately after signing the consent form. This provision raises further concerns regarding the performance of sterilizations on women in vulnerable states and under the pretext of medical emergencies, for example during Cesarean section delivery, which is when many Romani women have reported they have been pressured to sign a consent form for that procedure.
Are paths available for seeking remedies?
When rejecting the Compensation Act proposal last month, the Government argued that the harmed women should turn to the courts to seek justice for the sterilizations without their consent. It is, however, clear that significant barriers to accessing justice persist for the victims of involuntary sterilization. The primary challenge is that the three-year statute of limitations, dating from the moment that the sterilization is acknowledged to have occurred, prevents the majority of victims from bringing civil claims for damages nowadays. This means that you can go to court only if you were sterilized without your informed choice and consent, or found out you had previously been sterilized without your informed choice and consent, at some point during the last three years. If the sterilization occurred longer ago than that, the courts automatically dismiss your case.
To date there have been three Czech court cases where involuntarily sterilized women have been financially compensated, and one additional case is currently pending at the European Court of Human Rights. The Romani women, involuntarily sterilized in 1997, 2001 and 2003, were eventually compensated either due to the court’s decision or in an extrajudicial settlement, where the Government decided to pay damages rather than go to court. This says something about the Government’s complicit role in the involuntary sterilizations. These cases, however, are no more than an exception to the rule as they were launched within the three-year limit.
Up to 2013 the Czech Civil Code differentiated between so-called claims for material and immaterial damages. The statute of limitations applied to claims for material damages only in which financial or other material compensation was sought. However a Supreme Court decision from 2008 established that whenever financial compensation is sought for immaterial damages, the statute of limitation should apply as well. Moreover, the new Civil Code, which came into force in January 2014, abolishes this distinction, equally applying the statute of limitations to all claims for all kinds of damages; therefore, even a claim against the state to recognize an injustice that has been carried out is bound by the statute of limitations. The current legal system has thus denied the absolute majority of the victims of involuntary sterilization any justice and any right to seek compensation through domestic civil remedies.
A conclusion, but not the end
In February 2015 a Working Group under the auspices of the Human Rights Ministry finalized its Compensation Act proposal. This draft legislation proposes that the Ministry of Health establish an independent expert Committee to review the individual claims of involuntarily sterilized persons and advise the Ministry on their compensation. The committee of nine members should have at least one practicing lawyer, practicing gynecologists and a social worker nominated by the ministries (one member should be nominated by the Ombudsman). The compensation was to have included an official apology, monetary compensation and free-of-charge rehabilitation or artificial fertilization treatment. The compensation was set at CZK 300 000 (which is approximately three times less than what the European Court of Human Rights has awarded in such cases) and the Compensation Act should be valid for three years, during which time the affected women can make their claim. Persons involuntarily sterilized between July 1966, when the Public Health Act was adopted, and March 2012, when the new Special Health Services Act annulled the previous legal provision, should be eligible for compensation. The draft legislation was put forward for the government’s approval. Some three weeks ago the Government rejected the adoption of this law without stating any official reasons why.
This legislation could have been a decisive moment in the long history of this controversial issue. The Government has had the opportunity to rehabilitate those Romani women and women with disabilities whose rights have been violated and by doing so, to finally comply with a great many UN and other international bodies’ recommendations. However, the cabinet of Prime Minister Sobotka (including the Minister of Education who previously, as a staffer with the Ombudsman, advocated for the compensation, a Minister of Labor and Social Affairs who has been closely affiliated with feminism and gender equality advocacy, a Minister of Justice who has a strong record in human rights activism, and a Minister of Foreign Affairs who has been exposed to intensive international pressure over this issue) thought differently and decided to ignore this problem. Their decision to deny the involuntarily sterilized women justice is sad and difficult to comprehend, especially for those women who have been waiting for more than 40 years now.
We – the women and their supporters - are not giving up. Together with the League of Human Rights, we have prepared a joint complaint on behalf of four affected Romani women to the UN Committee on the Elimination of All Forms of Discrimination against Women (CEDAW). We hope that the government will stop gambling with the country’s reputation, which suffers from international uproar and condemnation on this matter. Unfortunately, the case of involuntary sterilizations is one of the issues where the Government presents itself as being self-righteous vis-à-vis the international community - but how many of you perceive it as just that suing their own state for human rights violations is the only option left for the involuntarily sterilized women?
Marek Szilvási is an Advocacy and Research Officer with the European Roma Rights Centre in Budapest.
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