Coercive Sterilisation in Czech Republic: Civil and Criminal Law Aspects

16 May 2007

Michaela Kopalová

In September 2004, ten Romani women filed complaints with the Public Defender of Rights ("The Ombudsman"), claiming that they had been sterilised without their free and informed consent, in hospitals throughout the Czech territory. Besides the Ombudsman's investigation, an effort which ultimately led to a report published in December 2005 recognising this practice and bringing a number of recommendations for changes to law and policy to end it (http://www.ochrance.cz/), some of the women concerned filed civil complaints with the Czech courts. In March 2005, the Public Defender of Rights passed eight cases to the Chief Public Prosecutor and approximately twenty other cases throughout 2005. Ultimately, around eighty women – all or most of them Romani – have brought complaints to the Ombudsman concerning sterilisation, and the Ombudsman has in turn reportedly filed fifty-four criminal complaints in relation to these matters. The aim of this article is to describe the developments in the sterilisation cases as well as the problematic issues that the women and their lawyer are dealing with.

1. Legal Conditions for Performing Sterilisations

Czech law sets out rather strict requirements for performing sterilisation. General requirements are set out by the Civil Code: consent is a legal act that must be made freely, seriously, certainly and intelligibly in order to be valid. Any form of threat or pressure may result in invalidity of such act. Further requirements are involved in the Health Care Act and Sterilisation Directive:

• Before any intervention into the reproductive capacity of an individual, it is obligatory that a special commission approves this intervention,
• If the medical intervention does not pursue an immediate health interest of an individual, it can only be performed after the person concerned has provided written consent,
• A (medical) indication for sterilisation must exist (the list of indications is attached to the Sterilisation Act),
• Before the sterilisation is performed, the woman concerned must sign a statement to show she has understood to what extent sterilisation is reversible and that she approves the sterilisation being performed.

In all or most of the cases reported to the Public Defender of Rights, either one or all of the conditions were not met. The recent cases from 1990s or 2000s all have in common that the sterilisations were performed within the context of a caesarean section delivery without the approval of a commission, and without leaving the woman concerned enough physical, temporal and/or psychological space to consider the nature and consequences of sterilisation, and to discuss the matter with her partner or with another doctor.

2. Civil Cases

In March 2005, I lodged the first civil complaint on behalf of Helena Ferenčíková. Helena was sterilised at the age of nineteen while giving birth to her second child by caesarean delivery. She claims that a few minutes before the operation she was informed that sterilisation would be necessary because another caesarean section delivery would be too risky for her life. Neither was she asked whether or not she was planning another pregnancy or informed about the nature, consequences and risks of sterilisation so that she could give her informed consent. She was not informed at all about alternatives. In Ms Ferenčíková's health records there was a typewritten request for sterilisation: "The patient requests sterilisation". This request was signed by Ms Ferenčíková. There was also a general form of informed consent also signed by Ms Ferenčíková, but without precise information as to the type of treatment for which the patient had provided her consent, and when the treatment would take place. This particular case has been one of the first in which a patient in the Czech Republic sued a hospital on the ground that the signature in the health records does not constitute free and informed consent. The Ostrava Regional Court in its judgement of November 11, 2005 expressed an opinion that the facts of the case reveal that free and informed consent had not been provided: "It can be concluded that an operation, which interfered with the plaintiff's physical integrity, was performed without a proper (qualified) consent. This operation constitutes an illegal act, and violates the plaintiff's personality rights – not only the right to physical integrity but also the right to privacy, and this interference has been particularly serious.

However, the Regional Court dismissed the claim for monetary compensation on grounds that it was time-barred. In Czech Republic, the case law on this issue is currently ambiguous. For thirty years, however, the Supreme Court has ruled that the general period of limitation applies also to the right to seek compensation for breach of personality rights, including physical integrity, mental integrity, dignity, etc. In December 2005, both the Vítkovice hospital and Ms Ferenčíková lodged an appeal. The case will be further judged by the High Court in Olomouc.

Since November 2005 two other civil complaints have been lodged before Czech courts. The facts of these cases are similar to those in Ms Ferenčíková's case. The case Ms Holubova v. City Ostrava hospital was lodged in November 2005 with the Regional Court in Ostrava. Ms Holubova was sterilised in 1997 when giving birth to her second daughter in City Ostrava hospital. She was asked to sign some documents a few minutes before the caesarean section without even knowing the content of the documents. In her health records there is a handwritten request for sterilisation (written by hospital staff) with the signature of Ms Holubova, without any reference to the date and time of this request. The sterilisation was not approved by the commission, and when Ms Holubova signed, she was not aware that sterilisation is not reversible. Another case was filed with the Regional Court in Ústí nad Labem. The plaintiff, Ms Kešelyová, was sterilised in the Most hospital in 2003 when giving birth to her fourth child. She asserts that the request for sterilisation was given to her after the sterilisation was performed. In this particular case it is important that no medical indication for sterilisation existed. This case was lodged in June 2006.

3. Criminal Proceedings

The cases reported by the Public Defender of Rights were set aside after several months on the grounds that a crime had not occurred. This fact highlights the need for further clarification of Czech criminal law in relation to acts such as sterilisation undertaken without free and informed consent. The Chief Public Prosecutor issued a guideline for prosecuting crimes committed in regard to medical practice in 1998, in which it holds that a medical intervention performed without consent of the person concerned is not a crime as long as it is performed lege artis. A medical intervention pursuing a health aim cannot be a crime according to the Chief Public Prosecutor.

However the sterilisation cases go beyond this interpretation because sterilisation is performed purely for contraceptive purposes. The intervention damages the patient's body and is not undertaken for any curative end. In Czech Republic there is no case law on this issue. By dismissing these cases, the police prevent the courts from ruling on this controversial issue. The question of whether or not the patient provided free and informed consent and the criminal consequences of this fact are therefore decided by the police and public prosecutor rather than by the judge.

Another problem arises from the fact that there are not enough witnesses on the patient's side. If the patient claims that he/she was not duly informed, but hospital staff claim that he/she was, it is highly unlikely that the doctors will be punished. In a situation such as this, indirect evidence must be taken into account. For example, if an obligation to obtain the written consent of the patient exists and there is no written consent for the sterilisation, then the patient's assertion is highly credible. Certain guidelines as to how to investigate the non-existence of consent are provided by the European Court of Human Right's case law. In the case M.C. v. Bulgaria (Application no. 39272/98, judgement of 4.12.04.) the Court focused on the question of whether the investigation of rape had met the requirements set forth in Articles 3 and 8 of the European Convention of Human Rights. The Court held that in the circumstances of no direct evidence of rape, such as traces of violence or direct witnesses, the authorities must nevertheless explore all the facts and decide on the basis of an assessment of all surrounding circumstances. The investigation and its conclusions must be centred on the issue of non-consent (M.C. v. Bulgaria, § 181).

An Example of Faulty Practice: The Case of Ms K.

Ms K. delivered twins on 12 April 1998 in the M. hospital. The delivery of the first child was spontaneous, the second delivery was by caesarean section. At the time of the second delivery, the doctors performed sterilisation. The woman concerned was informed about the sterilisation the day after delivery. On 8 November 2005, the Public Defender of Rights reported the case to the Chief Public Prosecutor and thereby initiated criminal investigation. On 26 May 2006, an expert was appointed, who, in her opinion, stated the following:

"Sterilisation was performed in order to prevent future health problems which could be associated with a potential further pregnancy and the doctor acted in compliance with the Health Care Act and Sterilisation Directive as the Caesarean section was urgent and the indication for sterilisation arose during the operation so that it was not possible to gain the patient's consent."

The reasoning of this opinion is so deeply flawed that it hardly bears comment. As noted above, sterilisation is not carried out for medical reasons. There is no plausible circumstance in which an indication for sterilisation might arise during an operation, caesarean section birth or otherwise. Insofar as the caesarean section birth was her first caesarean delivery, there were in any case no future potential health risks that could have resulted from failing to undertake the sterilisation. On the contrary, the sterilisation may cause future health problems.

Police dismissed this case without hearing the victim or the doctors, and relying solely on the basis of this expert opinion. In this example another problem is obvious – dependency on false "expert opinions".

Conclusion

Cases for legal remedy brought by advocates to judicial and quasi-judicial remedy concerning sterilisation without free and informed consent have to date been successful in terms of the assessment of the facts. The case of Ms Ferenčíková highlights the need for monetary compensation, as well as the need to clarify statute of limitations issues in these cases. The Regional Court in Ostrava did not award compensation to Ms Ferenčíková because of its distinctive interpretation of the time bar, not because the interference was not of such gravity as to engage civil damage. The Public Defender of Rights also found numerous violations and suggested redress. However, during criminal proceedings in cases involving lack of informed consent in the matter of sterilisation, authorities have not reasoned logically, and as such have not prosecuted doctors for crimes committed in the course of these practices. The autonomy of patient to decide on matters concerning his/her bodily integrity has not yet been adequately acknowledged as a matter of criminal law in Czech Republic. At present, doctors can be brought to justice in a criminal context solely for infringing lex artis, that is, for the faulty performance of an operation or another medical intervention, but not for failing to secure a patient's consent in invasive procedures. I believe that this issue should be further examined by the courts, rather than by the police or public prosecutors. The Court is the most appropriate to develop an authoritative interpretation of failure to obtain informed consent. Neither police nor the public prosecutor has the competence to assess such a complex and complicated question.

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