Malta's legislation on forced sterilisation
Legislation about (forced) sterilisation
Forced sterilisation is criminalised under § 251F of CAP. 9 of the Laws of Malta (Criminal Code), which was updated with amendment 4 states that :
- Whosoever surgically removes ordisables a minor person’s reproductive organs, or anadult person’s reproductive organs without that adult person’s free and informed consent, leading to sterilization, shall be guilty of enforced sterilization andshall, unless the fact constitutes a more serious offence under any other law or any other provision of this Code,be liable, on conviction, to imprisonment for a termfrom five (5) years to nine (9) years, with the possibilityof a fine (multa) of not less than eight thousand euro (€8,000) and not exceeding twenty thousand euro( €20,000).
- For the purposes of this article, “free and informed consent” shall: (i) mean consent reflecting the will and preferences of an adult person, freely given directly by said adult person, in respect of a surgical procedure the adult person might undergo, which may lead to sterilization; and
(ii) be given after said adult person would have been provided with prior information, in respect of the purpose and nature of the procedure,a s well as of its consequences, risks and alternative options thereto, in a manner that is appropriate, accessible and easy to understand for that adult person, including, as necessary, through non-conventional methods of communication and access to independent support from third parties; and(iii) be able to be withdrawn at any moment prior to the procedure following its initially having been given, with said possibility having been likewise communicated to the adult person alongside the information indicated above: Provided that if an adult person is unable to give free and informed consent in accordance with this article, whether due to a cause that is either temporary or long-term, no other person shall be able to substitute said adult person’s free and informed consent for the purposes of this article:
The Mental Health Act 2012 (MHA) includes provisions for the sterilisation of persons with mental health problems.
The sterilisation of a person with intellectual and/or psychosocial disabilities is carried out with the consent of the patient or a “responsible carer” and subject to the oversight and confirmation of the Commissioner for Mental Health according to the Mental Health Act (MHA).
The MHA prohibits the sterilisation of minors with mental health problems and the sterilisation or other invasive intervention to modify sexual and emotional changes resulting from a mental illness.
The legal framework on sterilisation is about to be amended, to include the right to consent and free and informed consent from the person concerned by the sterilisation.
In 2021, Malta launched its National Policy on the Rights of Persons with Disabilities which provides for the elaboration of a “new comprehensive Sexual Health Policy and Strategy, […] to guarantee equal opportunities for quality access to sexual and reproductive health care”. It also stated that […] the new Policy and Strategy shall emphasize that efforts towards forcing contraception on disabled persons, particularly persons with intellectual and psychosocial disabilities, and including sterilisation by way of permanent contraception, are to be countered effectively.”
Malta informed in its replies to the list of issues concerning its initial report to the CRPD Committee, that the State barriers to the exercise of consent due to restrictions on legal capacity, will be addressed in the new Personal Autonomy Bill.
Legal cases on the forced sterilisation of people with disabilities
In its 2018 report to the CRPD Committee, Malta stated that in recent years there was only one case (in 2016) of a person with intellectual disabilities who had undergone sterilisation. However, this person expressed her consent to the intervention.