Legislation about (forced) sterilisation

In 2001, France legalised the practice of sterilisation for people with a intellectual disability with Law No 2001-588 on voluntary termination of pregnancy and contraception and codified it in its Public Health Code.

In the said Code, under Article L.2123-2 of the Public Health Code, sterilisation cannot be practiced on minors. However, it is legalised as a last resort method of contraception for persons with “an alteration of mental abilities” under substituted decision making regimes.

As such, sterilisation may be decided if:

• There is a medical condition preventing the use of other methods of contraception
• Or a proven impossibility to use such methods effectively.

The intervention can be authorised by the guardianship judge upon request of the protected person, the parents of a minor, or the person’s representative. If the protected person refuses such intervention, the request cannot be referred to the judge.

The judge decides on the sterilisation after hearing the person concerned. The person has to express their consent after being informed about the intervention, in an accessible manner adapted to their understanding. The judge cannot rule against their expressed consent and also has to hear the parents of the minor or the person’s representative or any other relevant person.

Last, the judge has to take into account the views of an ethics committee composed of qualified professionals and representatives of associations of persons with disabilities who evaluates the reasons for such medical intervention and its consequences.

Forced sterilisation is criminalised under Article 212-1 of the Penal Code when it is committed in the execution of a concerted plan against a civilian group as part of a widespread or systematic attack, which constitutes a crime against humanity and is punishable by life imprisonment. Otherwise, forced sterilisation falls under the provisions related to aggravated violence (Article 222-9 Penal Code).

Legal cases on the forced sterilisation of persons with disabilities

In 2002, the association “Collectif contre l’handiphobie” applied to the Conseil d’Etat to request the annulment of a decree implementing Article L.2123-2 of the Public Health Code relating to the forced sterilisation of adults with mental impairments. The association requested the annulment of the decree because the law on which it was based was contrary to the Declaration of Human Rights and France’s international commitments guaranteeing, in particular, the right to marry and found a family, respect for private life or prohibiting inhuman and degrading treatment.

The Conseil d’Etat rejected this application and considered, in particular, that the law in question was not contrary to France’s international commitments and that it did not contain any discrimination contrary to the stipulations contained in the said treaties.

Ten years later, in 2012, an application was brought to the European Court of Human Rights by five women with mental disabilities who underwent forced sterilisation. They underwent surgery without their consent and without knowing the nature of the operations.

However, the ECtHR dismissed the request considering the application as inadmissible according to Article 35 of the ECHR (the application had been lodged out of the six month provided for in article 35 of the Convention).

Data related to the matter

According to the French Council of Persons with Disabilities (CFHE), there is no recent data available on the number of women with disabilities that undergo forced sterilisation in France.

The latest data available dates from a 1998 report of the “Inspection Générale des Affaires Sociales (IGAS)”, inventorying 211 cases of sterilisations of women with intellectual disabilities, yet stressing the lack of data available.