Human Rights Brief

Reparations for Forced Sterilization in the United States and Peru

Peruvian indigenous women near Colca, Peru via Flickr user Pedro Szekely. Licensed under CC BY 2.0.

The United States and Peru are culturally different and have different legal systems; however, both have a history of forced sterilization and have failed to provide reparations for the victims. In 1996, the Peruvian government implemented a Family Planning Program, which included sterilization as a federally authorized family planning method that systematically targeted poor rural and indigenous people for sterilization.[1] After it was enacted, Peruvians complained about the program’s implementation, mainly citing coerced or forced sterilization.[2] In the United States, Indiana enacted the first sterilization law in 1907 and California followed suit in 1909.[3] Buck v. Bell, a landmark Supreme Court decision in 1927, upheld Virginia’s forced sterilization statute for the “unfit” and paved the way for other states to follow.[4] The practice continued well into the 1980s in the United States as the focus shifted from the “feeble-minded” to black and Latino welfare recipients.[5] Information regarding sterilization procedures in both the United States and Peru has come to light, and judicial proceedings in both States have mainly ignored the issue or used the judicial system to circumvent responsibility. However, the only state that has implemented a reparations framework is North Carolina. Peru and the rest of the United States have yet to follow suit on reparations for the victims of forced sterilization.

Peru

The Family Planning Program was a state sponsored policy mainly directed towards rural, indigenous women who primarily spoke Quechua or another indigenous language. One of the main purposes of the program was to control the population, mainly in rural areas where Sendero Luminoso, a guerilla group that fought the government from the 1980s to 1990s, was prevalent. The Family Planning Program was, in part, a result of the guerrilla movement, and an attempt to prevent future generations from rebelling. After the government implemented the Family Planning Program, the Office of the Ombudsman began receiving complaints about the irregularities in the application of the program.[6] The Office investigated the reports and found that women were not free to elect their preferred birth control method, there was a quota doctors had to satisfy, and there was a lack of follow up after sterilization procedures.[7] Subsequent reports consistently state that from 1996 to 2000 there was a lack of informed consent, sterilization of illiterate and married women, procedures that did not ensure the health of the patients, and lack of reparations for women sterilized without consent.[8]

María Mamerita Mestanza, a rural indigenous woman, is one of the thousands of Peruvian women forced to undergo a sterilization procedure. She was thirty-three-years-old and the mother of seven children when she was pressured into accepting a sterilization procedure in 1998.[9] Healthcare personnel harassed her and threatened to turn her in to the police until she accepted the surgery claiming that she needed to undergo the procedure because she was in violation of a new law requiring anyone with more than five children to pay a fine or go to jail.[10] She was released the next day, despite the presence of complications, and a few days later she died.[11] Her husband filed a case before the local court in 1998 but the court found insufficient grounds to prosecute.[12] The case has remained in legal limbo since then because the State refuses to acknowledge this practice as a crime against humanity. The case went to the Inter-American Commission on Human Rights (IACHR) and resulted in a friendly settlement, but the State has not met all the agreements.[13] Recently, the prosecutor’s office dismissed the case domestically, effectively ending the investigation.[14]

United States

In 1927, the Supreme Court legalized sterilization in the United States and over time, targets for sterilization turned from the “feeble-minded” to women “who transgressed middle class sexual boundaries, either intentionally or as victims of sexual assault.”[15] In the late 1960s and 1970s thirty-three lawsuits involving coercive sterilization were filed.[16] The plaintiffs in these suits were all poor and some received welfare.[17] Women encountered multiple hurdles when filing lawsuits, such as lack of standing because the law no longer recognized them as being at risk, or because they had signed a form, even though the women had not given informed consent. Judges also justified dismissing their cases because they claimed some women belong to a certain subculture and doctors could not have known the damaging effect of sterilization on these women.[18]

The documentary No Más Bebés explains the story of Latina women in Los Angles coerced into accepting sterilization procedures.[19] Madrigal v. Quilligan demonstrates the double layer of discrimination many women in the United States faced as both women and members of a minority group. Throughout the case, the attorneys for Madrigal presented evidence against the government, including testimony from a whistleblower medical resident, victims, and experts; however, the judge decided these women were sterilized because of a miscommunication between the doctors and their patients.[20] While the judge rejected the argument that women had not provided their informed consent, immediately after the decision, the hospital’s consent forms were written in both English and Spanish and county hospitals hired bilingual counselors.[21]

Reparations

Reparations come in many forms other than monetary damages, and they can serve to shift the focus to recognizing and addressing the victim’s needs.[22] There are two kinds of reparative processes: administrative and judicial.[23] Judicial processes, focused on justice, involve high expenses, gathering of evidence that is not always available, victim testimonies, and potential re-victimization.[24] Administrative processes are typically closed, have a lower threshold of evidence, and may spare the victims the pain of re-victimization.[25] Within the reparations process, compensation tends to be either material or symbolic.[26] Material reparations include monetary damages to the victims and their beneficiaries, while symbolic reparations include publicly admitting the violation or establishing a public memorial.[27] A combination of both monetary and symbolic reparations can more fully heal a victim’s wounds than only applying one mode of reparation.

North Carolina implemented an administrative reparations program, which incorporated monetary compensation and symbolic reparations.[28] The Governor ordered a taskforce to investigate North Carolina’s history of sterilization, and established a compensation fund based on the report.[29] The State advertised the establishment of the fund and awarded monetary damages to anyone who met three criteria: 1.) the victim was sterilized by the Eugenics Board, 2.) the victim came forward within three years of implementation of legislation, and 3.) the victim was still alive in 2013.[30] However, the process was closed after three years and victims that could not prove the Eugenics Board directly ordered their sterilization were not awarded damages.[31]

The Inter-American system is an international mechanism for the protection of human rights violations that may provide redress for victims of human rights violations.[32] Victims can petition the IACHR to receive international protection when all domestic remedies have been exhausted. The Inter-American system of human rights derives from the Organization of American States and is composed of two main organs: the IACHR and the Inter-American Court on Human Rights (IACtHR) both of which hear petitions from victims of human rights violations.[33] The Inter-American system can function as a tool to resolve structural problems that permitted the violation and provide a remedy for the victims.[34] The Inter-American system may seek to restore the victims to the situation that existed before and, when this is not possible, the system has turned to monetary damages and symbolic reparations.[35] The Inter-American system also includes guarantees of non-repetition, which have become an important part of the system.[36] Independent of the political will of the states, both Peru and the United States have an international obligation to implement the recommendations of the IACHR in good faith.[37] Peru is also obligated to comply with the judgments issued by the IACtHR.

Recommendations

The broader repercussions of forced sterilization on women and their families are ongoing and should not be ignored. A comprehensive reparations framework would help affected communities heal. The framework should also include the implementation of policies that allow both countries to adopt a purely administrative process with Task Forces for investigation before determining what reparations would best fit each country.[38] Specifically, material reparations should be awarded to the victims including monetary damages, rehabilitation processes that improve their condition, and a formal recognition of the rights these victims have and how they were violated.[39] California and Peru should include a curriculum in their public schools that teaches children about the history of sterilization in each country, as well as, recognizes its past and have civil society participate in this process.[40]

Additionally, both governments should issue a public apology for all forced sterilization procedures and include an open victims list where victims may come forward.[41] Equivalently, each country should change the laws, statutes or practices that still allow for these procedures, establish public forums where victims can voice their concerns with the process and what they prefer from the process, and compensate living victims as well as the families of victims.[42]

There is no single resolution. Each local community must create its own specific reconciliation and healing processes, tailored to the victims’ and society’s needs. For example, in Peru, it is clear the victims wish to continue with a judicial process because they refuse to give up on former President Fujimori’s prosecution.[43] However, this does not mean that some type of administrative process cannot go hand-in-hand with the judicial process.

 Conclusion

Peru and the United States must compensate the victims of forced sterilization regardless of whether there is a final judgment on the matter. Peru committed a crime against humanity when it forcibly sterilized women in poor and rural areas.[44] The State systematically targeted poor, indigenous, and rural women under the guise of expanding women’s rights in the state and introducing feminist policies.[45] The President of Peru, as well as the Health Minister, were fully aware of the consequences of this plan and actively monitored how many women were sterilized.[46] The United States, specifically California, committed human rights violations when it coerced women into signing sterilization procedure and violated their right to privacy.[47] Many victims were left without a remedy because the state failed to find a violation of the right to reproduce or give informed consent.[48] Both show how judicial systems may fail the victims even though the violations of their rights were clear.

Regardless of the different standards of law and jurisprudence in these two states, women can obtain a remedy through a reparations process even if the judicial system fails. A comprehensive framework, which addresses the victims needs and considers their goals will benefit both states while allowing society to heal and move forward.[49] This framework should include an administrative process, which allows the victims more privacy while also being geared towards their wants and needs.[50] Any process undertaken by either Peru or the United States, should empower and give voice to the victims.

[1] See Segunda Fiscalía Supraprovincial [The Second Supraprovincial Prosecutor’s Office], 27/7/16, “María Mamérita Mestanza Chávez et al. c. Eduardo Yong Motta et al.,” No. 29-2011 19 (Peru 2016).

[2] See Segunda Fiscalía Supraprovincial [The Second Supraprovincial Prosecutor’s Office], 27/7/16, “María Mamérita Mestanza Chávez et al. c. Eduardo Yong Motta et al.,” No. 29-2011 20-21 (Peru 2016).

[3] See 1909 Cal. Stat. 1093-94.

[4] See Buck v. Bell, 274 U.S. 200, 207 (1927).

[5] See Rebecca M. Kluchin, Fit To Be Tied: Sterilization and Reproductive Rights in America, 1950-1980 3 (Rima D. Apple et al. eds 1st ed. 2009).

[6] See Segunda Fiscalía Supraprovincial [The Second Supraprovincial Prosecutor’s Office], 27/7/16, “María Mamérita Mestanza Chávez et al. c. Eduardo Yong Motta et al.,” No. 29-2011 19 (Peru 2016)

[7] See id. at 20.

[8] See id. at 21.

[9] See generally Chávez v. Peru, Petition 12.191, Inter-Am. Comm’n H.R., Report No. 71/03, Report No. 66/00, OEA/Ser.L./V/II.111, doc 20 rev. (2003).

[10] See id. at ¶ 10.

[11] See id. at ¶ 11.

[12] See id. at ¶ 12.

[13] See id.

[14] Alberto Fujimori: archivan 77 denuncia de esterilizaciones forzadas, Perú.com (Dec 8, 2016), http://peru.com/actualidad/politicas/alberto-fujimori-archivan-77-denuncias-esterilizaciones-forzadas-noticia-488093

[15] Kluchin, supra note 5 at 15.

[16] See Kluchin, supra note 5 at 151.

[17] See id. at 148.

[18] See id. at 153-55.

[19] No Más Bebés, PBS (2016).

[20] See id.

[21] See id.

[22] See id.

[23] See Ruth Rubio-Marin, Women and Reparations, Int’l J. of Transitional Just., 2007.

[24] See id.

[25] See id.

[26] See id.

[27] See id.

[28] See generally Sarah Brightman et al., State Directed Sterilizations in North Carolina: Victim-Centredness and Reparations, British J. of Criminology, 474-493 (2015).

[29] See id. at 474.

[30] See id. at 483.

[31] See id. at 489.

[32] Reparations in the Inter-American System: A Comparative Approach, 56 Am. U. Int’l L. Rev. 1376, 1376 (2007).

[33] Inter-American Commission on Human Rights, available at: http://www.oas.org/en/iachr/mandate/what.asp

[34] See id. at 1383.

[35] See id. at 1386.

[36] See id. at 1387.

[37] For the purposes of this article the functions and description of the Inter-American system have been simplified.

[38] See Sarah Brightman et al., State Directed Sterilizations in North Carolina: Victim- Centredness and Reparations, Brit. J. of Criminology, 474-493, 481 2015 (establishing that a Task Force which investigates the history of sterilization will be beneficial to explaining the past and recognizing that the state has violated certain rights).

[39] See Rubio-Marin, supra note 56 (recognizing that an approach that considers all forms of material reparations is better suited to address the needs of the victims).

[40] See id. (including civil society allows for a process which includes the victims’ voices and ensures the process is geared toward what the victims need and allows them to make sense of the past and move on).

[41] See id. (detailing how a closed victims list may allow different victims to come forward when they feel psychologically prepared).

[42] See id. (delineating that the process should focus on the victims and is sensitive to their needs including beneficiaries whose relationships have been disrupted by violations).

[43] Las víctimas de esterilizaciones forzadas claman justicia en Perú, El Telégrafo (Jul. 30, 2016), http://www.eltelegrafo.com.ec/noticias/mundo/9/las-victimas-de-esterilizaciones-forzadas-claman-justicia-en-peru (noting that women want justice will appeal the case to the senior prosecutor and will present the case to the Inter-American Commission for failure to meet its obligations).

[44] See Petición CIDH ¶ 21[Petition filed in the Inter-American Commission of Human Rights] (accusing the state of Peru of committing human rights violations because it practiced a widespread and systematic attack on poor, rural indigenous women).

[45] See id. ¶ 5(outlining how the program was used as an excuse to target these women and prevent them from reproducing).

[46] See id. ¶ 52-60(explaining how the plan was hierarchical in nature and involved the highest level of government).

[47] See No Más Bebés, PBS (2016) (examining the case and explaining how it was a violation of women’s right to privacy and reproduce).

[48] See Kluchin, supra note 6 at 94 (explaining how many times these women were left with decisions that ignored the fact they were coerced and only look to see if a document was signed).

[49] See Rubio-Marin, supra note 56 (summarizing how to best include women into a reparations process and how to bring a gender justice system into design).

[50] See id. (clarifying the different methods of reparations and arguing that administrative processes are better for the victim because they are a participant of the process and allows for a lower standard of evidence).