Hungary's legislation on forced sterilisation
Legislation about (forced) sterilisation
In Hungary, the Act CLIV of 1997 on healthcare (Eütv) includes provisions on forced sterilisation.
Under the said Act, forced sterilisation is explicitly allowed for medical reasons, based on the person’s concerned written request, for persons above 18 and persons with limited or lacking “disposing capacity”. The Act also provides a set of cases for which forced sterilisation is possible.
A request for the sterilisation of a person with limited “disposing capacity” for reasons other than medical requires the approval of the guardianship authority and the person’s legal representative, or the person designated to exercise the right to consent of the concerned person.
For a person lacking capacity, sterilisation requires a court’s decision and is carried out when the person concerned “has reached the age of fertility (meaning that minors may be sterilised).
The action is taken to the Budapest Municipal Court by the legal representative of the person concerned and the guardianship authority (if the person is a minor).
When approving the forced sterilisation of a person “lacking capacity”, the court considers the following:
- the use of another method of contraception is not possible or not recommended due to medical reasons,
- the person lacking capacity is unable to raise a child, and carrying out the intervention is consistent with the intention of the person lacking capacity;
- the child to be born out of the pregnancy is assumed by doctors to be severely disabled, and the intervention is consistent with the intention of the person lacking capacity,
– the pregnancy would directly endanger the life, physical integrity, or health of the person lacking capacity.
Furthermore, under article 187/B.§, women with disabilities under full guardianship can be forced to undergo sterilisation if the Court decides so, following the request of their guardian. While the legal provision provides that the intervention cannot go against the will of the person concerned, there are no provisions ensuring that the will is protected throughout the procedure.
Once the application for sterilisation is submitted, a doctor meets the person concerned to inform her about other possible methods of contraception, the nature of the intervention, the risks and consequences, and the possibility to restore the ability to procreate or conceive.
If the intervention does not meet the listed requirements, the sterilisation is considered illegal and is criminalised under the Criminal Code for non-authorized medical intervention.
In consequence, the CRPD Committee expressed concerns about the fact that “women and girls with disabilities, especially those placed under substitute decision-making regimes and those still in institutions can be subject to sterilisation without their consent.” The Committee thus recommended the State party to abolish legal provisions allowing sterilisation on women and girls with disabilities based on third-party requests and to adopt protocol ensuring the respect of sexual and reproductive health rights of women and girls with disabilities and institute a duty to provide those with intellectual disabilities, with accessible information and services.
Cases on forced sterilisation
In 2006, the CEDAW Committee determined that Hungary had failed to protect a woman’s reproductive rights. The decision establishes that sterilising a woman without her full and truly informed consent is a violation of her basic human rights. It marks the first time that an international human rights committee has held a government accountable for failing to provide necessary information to a woman to enable her to give informed consent to a reproductive health-related medical procedure. The CEDAW Committee’s decision affirms international ethical standards recognising that informed consent is more than just a signature.