Portugal's legislation on forced sterilisation
Legislation about (forced) sterilisation
In Portugal, Law 16/2007 provides for the medical treatment of persons without legal capacity, and Standard No. 15/2013 of the Directorate General for Health on “Informed, clear and free consent given in writing” includes provisions on forced sterilisation.
The CRPD Committee recommended that Portugal takes measures to ensure full, free and informed consent to medical treatment after reporting that persons with disabilities, especially those without legal capacity, are subjected to termination of pregnancy and sterilisation against their will.
Forced sterilisation is criminalised under articles 143 and seq. of the Penal Code regarding medical and surgical treatments (no specific provision on forced sterilisation). The Portuguese Penal Code also punishes medical interventions performed without the patient’s free and informed consent.
Under Portuguese law, medical interventions including voluntary termination of pregnancy and sterilisation require a written consent form from the person concerned. If a person lacks legal capacity, a judicial authorisation is needed for the sterilisation.
Even though Portugal has legislation protecting individual integrity (Constitution, Law 36/98, Norm 15/2013) in the scope of medical treatment, the Disability and Human Rights Observatory noted that exceptions apply to persons deemed “psychologically incapable” who are subjected to such treatment including terminations of pregnancy with the written consent of their legal representative or family member (Law 16/2007) and sterilisation with the judicial authorization.
Article 66 of the Portuguese Medical Association Code of Ethics (PMACE) provides that: “irreversible methods of sterilisation, shall only be permitted at the patient’s request and with his/her express, explicit full consent following detailed clarification of the methods’ risk and irreversible nature”; “3. Physicians are expressly prohibited from practicing irreversible sterilisation methods at the request of the State or other third parties, or in any other way without the patient’s fully informed consent”; “4. Irreversible sterilisation methods shall only be carried out on minors or the incapacitated following a duly grounded request to avoid severe risks to the life and health of the hypothetical children and always with prior legal consent”.
Standard No. 15/2013 of the Directorate General for Health on “Informed, clear and free consent given in writing” provides that decisions on the health of a person who lacks capacity to decide must be authorized by their legal representative, health care proxy, an authority or a person or body provided for by law.”
Data related to the matter
According to the Disability and Human Rights Observatory, there is an absence of official data on the sterilisation of adults with disabilities in Portugal.