ABSTRACT
Laws and practices allowing for sterilisation against the will of the patient have existed in Europe for around a century, targeting different groups at different times. Groups particularly targeted by the practices today are Romani women, people with disabilities and trans people. The Istanbul Convention Article 39(b) outlaws “performing surgery which has the purpose or effect of terminating a woman’s capacity to naturally reproduce without her prior and informed consent or understanding of the procedure”. But which practices are included in the scope of this Article? Who does it recognise as a victim? And how effective a legal instrument is the Istanbul Convention when it comes to combatting contemporary practices of forced sterilisation in its ratifying States? The chapter renders visible how forced sterilisation has, modelled on the Nazi atrocities, developed from a violation of international criminal law to also a violation of human rights law, appearing before the European Court of Human Rights. The chapter welcomes the explicit inclusion of forced sterilisation as a form of gender-based violence in the Istanbul Convention. Nevertheless, it points to three specific shortcomings for the Convention to be effective. The first is its limited remedial scope and individual focus. The second is its failure to recognise the structural discrimination and stereotypes inherent in practices of forced sterilisation – which are not merely gender-based, but rather, intersectional. The last shortcoming concerns the Convention’s inherent cis-exclusiveness, which hampers its potential to combat some of the currently most common coercive sterilisations in Europe.
