Coercion in family planning: individual autonomy is pitched against communal values.

WHILE COERCION IN family planning always and rightly arouses controversy, it is useful to place some sort of context--historical and sociological--on the debate. In the last century, coercion in the reproductive field has been associated with very serious human rights violations, whereby people have either been forcibly prevented from procreating, or in exceptional cases been forced to bear children. The former category includes not just notorious Nazi experiments, but also forced sterilization programs adopted by ostensibly free and democratic regimes, for example, in the US and Scandinavia, on eugenic grounds, and under legal authority. Between the 1920s and the 1970s, it is estimated that some 60,000 people were compulsorily sterilized in the US. (1)

That trend was exemplified by the US Supreme Court, decision of Buck v Bell (1927). Carrie Bell was an unmarried mother, who was committed to a State Colony for Epileptics and the Feeble-Minded, aged eighteen. This method of dealing with young women who had children outside marriage was, sadly, not unknown in Britain either. In Bell's case, matters went further than mere detention, because a Virginia statute of 1924 provided that "the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives, under careful safeguard; that the Commonwealth is supporting in various institutions many defective persons who if discharged would become a menace but if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and to society; and that experience has shown that heredity played an important part in the transmission of insanity, imbecility, & c." (2)

Carrie's lawyers challenged this statute unsuccessfully before the US Supreme Court, after a lower court concluded that she "was the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization" (3) [italics added]. The greet jurist, Justice Oliver Wendell Holmes, rejected her challenge, saying:

  "We have seen more than once that the public welfare may call upon
  the best citizens for their lives. It would be strange if it could
  not call upon those who already sap the strength of the State for
  these lesser sacrifices, often not felt to be such by those
  concerned, in order to prevent our being swamped with incompetence.
  It is better for all the world, if instead of waiting to execute
  degenerate offspring for crime, or to let them starve for their
  imbecility, society can prevent those who are manifestly unfit from
  continuing their kind. The principle that sustains compulsory
  vaccination is broad enough to cover cutting the Fallopian tubes.
  Three generations of imbeciles are enough." (4,5)

The governor of Virginia has recently apologized for Virginia's forced sterilization program, which seems barbaric by modern standards. (6)

In the next category, there are situations where law and order has broken down, as in wartime, resulting in the rape and (sometimes) the impregnation of vulnerable civilian female populations, followed on occasion by the denial of abortion. It goes without saying that such acts constitute torture or inhuman or degrading treatment, for which no extenuating circumstances can be countenanced.

What about the situation at present? Debates about `ideal' population levels rage among policymakers and at international conferences. According to the UN, "Depending on the quality and the magnitude of the actions taken over the next 5 to 10 years in the areas of population policy and reproductive health, including the provision of family planning services, world population will total somewhere between 6.9 billion and 7.4 billion in 2015." (7) Pursuit of measures to control population growth have lead to specific concerns about coercion in countries such as India (where legal challenges by women's groups concerned about injectable contraceptives have come before the courts on a number of occasions); Peru (where involuntary sterilizations of poor Indian women under a program introduced by President Fujimori, with a target of 100,000 sterilizations a year, have caused an outcry); Bangladesh (where tiny loans to start small businesses are made to women who undergo sterilization); and China. In 2002, the US government withdrew its $34 million grant to the UNFPA, alleging that it is complicit in coercive practices in China: a claim bitterly disputed by UNFPA and its defenders. (see p.12)

Is coercion in family planning ever permissible, or justified? To someone brought up in a Western liberal society, with its experience of past eugenic abuses, the answer is usually "No." But to consider such questions, it may be helpful to set down clear definitions. The word "coercion" connotes either the use of physical force to overpower someone, or lock them up; or else the exercise of (legal) authority, which ultimately rests on force, in the sense that authority may be imposed forcibly if not acquiesced in, should the need arise.

And how to define family planning? According to the New Oxford Dictionary of English, the term means "the practice of controlling the number of children in a family and the intervals between their births particularly by means of artificial contraception or voluntary sterilization." This in turn entails access to information: specifically, sex education. In certain societies at certain times, frank discussion of family planning has been considered subversive or even illegal: see, for example, Annie Besant, who with Charles Bradlough was convicted (though later released on appeal) for publishing The Fruits of Philosophy, New Englander Charles Knowlton's 1832 book advocating birth control. She also wrote The Laws of Population, which pleaded for "limitation of the family that pauperism might be avoided", and which the (London) Times called "an indecent, lewd, filthy, bawdy and obscene book." Margaret Sanger got into difficulty with the authorities, when she published information about contraception in her newspaper in 1915. And Marie Stopes' Wise Parenthood in 1918 upset the leaders of the Protestant and Catholic churches. Plus ca change, cynics might say.

At present, it is not "politically correct" to suggest that abortion is an acceptable form of family planning. Yet in Russia and Japan, abortion is accepted as a de facto form of family planning. It is strongly arguable that there will always be a need for abortion, if only as a "back-up" in cases of failed contraception, as well as for cases of rape or incest, or maternal ill-health, or fetal abnormality, which are not preventable. Yet the current debate about coercion and family planning reflects to some degree a struggle for dominance between competing ideologies and moral discourses. Equally, the ways in which states balance the interests of the individual against those of the community in this context are symptomatic of the wider balance of power within those societies.

In this discussion, I anticipate that the term "coercion" tends to be used more loosely nowadays, to include other factors that might prevent a voluntary agent from acting in a fully autonomous manner. For example:

* A lack of fully informed consent to the provision of certain types of services, which could include a failure to inform prospective users about possible side-effects

* Deception or misinformation in connection with the provision of such services

* The provision of inducements to needy people, to secure their acceptance of certain services

* Legal rules which privilege the users of such services over those who decline them

* Other social barriers such as illiteracy, lack of education, lowly status, poverty and so on.

From a legal perspective, these factors do not always denote coercion per se. (It would be difficult, for example, to argue that the financial incentives offered to couples having more than one child in Australia, Japan, Taiwan and Singapore represent "coercion." By contrast, that same financial incentive in India or Bangladesh might bring irresistible pressure to bear when poverty is brought into the equation.) In general, these factors suggest deficiencies in the legal and regulatory environments, lack of effective political accountability, and lack of appropriate infrastructures. Campaigners are justified in raising concerns about such matters as medical ethics in clinical research, medical negligence and patients' rights generally, consumer protection, anti-competitive behavior, the "dumping" of products in less-regulated markets, and discrimination. It is not surprising that what might be more accurately described as consumer abuses can occur in societies where legal protection for consumers of medical services may be deficient or ineffective, or where target populations are poor and lacking in political clout. And no responsible person condones an unsafe product being foisted on vulnerable groups, for example.

But a simplistic preference for liberal values over communal interests may obscure important systemic differences in the way in which different societies function, and their ideological priorities. A professor of international law has pointed out that:

   "In the majority of Muslim societies and in many Third World
   countries, there is still a tension between the interests
   of the community and the family unit on the one hand, and the
   interests of the individual woman/child on the other.... The
   balance of rights and interests shift from country to country
   and depends, among other factors, on the political ideas of
   liberalism and communitarianism. Liberal ideas favor the
   individual's rights and freedoms to a greater extent than
   communitarian ones, which imply that the interests of the
   community should prevail.... International law has tried to
   balance the need to protect human rights against other
   needs with which they may occasionally come in conflict.
   However, the degree to which it is permissible to curb human
   rights and exactly what grounds justify restric-tions of the
   rights of others remain contested questions." (8)

Even within Western societies, there can be strong disagreement about the extent to which communal values--such as protection of public health or morals should constrain individual autonomy. The notorious dwarf-tossing case of Manuel Wackenheim, a vertically-challenged person whom the French authorities would not allow to be tossed at discos, though he badly needed the work, shows how a preference for an abstract value--human dignity--can result in individual autonomy being constrained. For people in common law jurisdictions, such as the United Kingdom, the ruling in this case seems unacceptably authoritarian. Yet both the European Commission of Human Rights in Strasbourg and the UN Human Rights Committee rejected his complaint. (9)

In the context of family planning, the contest between individual autonomy and communal gain is made far more complex by various public policy imperatives that may concern a particular society: such as the need to defeat poverty, promote the education and empowerment of women, control population growth, ration access to scarce resources, and obtain financial aid. The contest is likely to become seriously imbalanced in countries which are economically dysfunctional, or whose politicians are corrupt, or which are (to use current jargon) "failed states." Even in societies which are reasonably functional, powerful pressures are exerted by current economic theories as mediated by financial institutions, politicians, and other sources of power in society; and the-economic interests of pharmaceutical companies, the medical professions, and the like, whose wares or services are involved. Add the growing threat posed by HIV/AIDS to economic and social stability, and you have a hugely complicated matrix in which to try and vindicate individual autonomy of action in the sphere of family planning.

I am not in a position to analyze the interrelation of these factors from an economist's or a political analyst's perspective. As a lawyer, I would like to offer some tentative observations. There is a paradox posed by the present decline in fertility in the so-called "developed" world, compared to more fecund societies. If the liberation of women means that women become disinclined to engage in procreation at all, or only to a minimal extent, that raises serious questions about societies' capacity to maintain themselves, without making demands of other societies--for instance, as a source of cheap labor to care for elderly populations. To what extent should procreation be seen as a social responsibility, rather than as a purely private decision? This is a challenging question, but it needs posing.

It is not obvious that pro-natalist policies are inherently worse, or better, than anti-natalist policies. The important question from a lawyer's perspective is whether they impose an undue or disproportionate burden on individuals. That in turn involves striking a balance between the interests of the individual and the general interest. Who decides? In a civilized society, there should be proper mechanisms in place to ensure a democratic debate and decision on such issues, and the possibility of some form of independent judicial review in particular cases.

Individual countries have to grapple with difficult problems. Instead of castigating a particular country for alleged complicity in some sort of abuse, it is important to examine critically the nature of the alleged abuse; why and how it has occurred; and what, if anything, is being done, or can be done about it. It is important to recognize that in a country such as India, for example, the courts have been repeatedly asked to intervene by women's rights campaigners opposed to the uncontrolled use of contraceptives, and have done so. The possibility of effective judicial intervention is a sign of a properly functioning political system, as is the possibility of reparation, where harm has been caused by the indiscriminate or unprincipled use of family planning measures.

What assistance can human rights instruments afford? Fundamental human rights are enshrined in instruments such as the International Covenant on Civil and Political Rights (1966) and the European Convention on Human Rights (1950). In addition, there are instruments such as the Convention on the Elimination on Ali Forms of Discrimination against Women (1979) and the Convention against Torture (1984). Individual states have internal laws, some with written constitutions, and most have a raft of legislative measures of one kind or another. How effective are these laws and measures, and who can invoke them? Lawyers are sometimes criticized for thinking that the law is a panacea for all ills. The law is not, but one of its functions is to provide a bulwark between the power of the state and the individual. As a general rule, coercion in its crude form is difficult, though not wholly impossible, to justify according to conventional legal norms. In part it depends on what a society will tolerate: see Buck v Bell. There is a spectrum of policies that, whilst not coercive on their face, may nonetheless bring great pressures to bear on the individual. To achieve consensus on what constitutes legitimate and illegitimate pressures is a challenging, but important, task for those involved in family planning.

NOTES

(1) Bill Baskervill, "Virginia governor apologizes for forced sterilization under eugenics law," Associated Press, May 2, 2002.

(2) Buck v Bell 274 U.S. 200 (1927).

(3) Ibid, at 206-7.

(4) Jacobson v. Massachusetts, 197 U.S. 11, (25) S. Ct. 358, 3 Ann. Cas. 765 (case cited in Buck v Bell judgment).

(5) Buck v Bell op. cit., at 208.

(6) Baskervill, op. cit.

(7) Special Session of the United Nations General Assembly, Cairo+5 Conference, 21st Session, July 1, 1999, Key actions for the further implementation of the Programme of Action of the International Conference on Population and Development.

(8) Maja Kirilova Eriksson, Reproductive Freedom In the Context of International Human Rights and Humanitarian Lava (Nijhoff, 2000) pp.165-6.

(9) UN Convention on Human Rights, CCPR/C/75/D/854/1999, 26 July 2002.

BARBARA HEWSON practices law as an extern member of the Law Library, Dublin, in Ireland, and also at Littman Chambers in Gray's Inn, London, England, where she won the first Barrister of the Year Award in 1998, for her work on pregnant women's autonomy.