Contributed by Olivia Wawin
Introduction
In 2018, a class action lawsuit was brought against the Saskatchewan provincial health system after at least 60 Indigenous women came forward alleging coercion or being forced into consenting to undergo tubal ligation, a form of permanent sterilization whereby a woman’s fallopian tubes are cut or closed, ensuring that she cannot conceive again after giving birth. Since then, the class action has grown to include over 100 women from multiple provinces, who have reported similar allegations occurring as recently as 2018, for example in Manitoba.
Canada’s provincial healthcare systems have a history tainted by a lack of full and informed consent to tubal ligation procedures dating back to the early 20th century, often with the aim of restricting population growth in “undesirable” groups such as people with disabilities, certain immigrants, Indigenous peoples, and people living in poverty. Such practices were permitted under legislation that has since been repealed, but have nonetheless persisted beyond the time that sterilization without consent was made illegal, leading to a de facto use of forced sterilizations which continue to this day.
Women of colour, Indigenous women, and disabled women have allegedly been sterilized in Canadian hospitals without providing informed consent in recent years. || (Source: pixabay // Pexels)
Background: History of Eugenics in Canada
The control of certain populations through forced sterilization is a form of eugenics, which was first used in 1883 by British scientist Francis Galton, to describe the theory that undesirable traits, such as mental and physical afflictions, could be bred out of the human race through “selective breeding”. In Canada, eugenics was considered “modern, scientific, and respectable” in the early 20th century among politicians, doctors, and other highly regarded experts.
Through the passage of the Gradual Civilization Act in 1857 and the Indian Act in 1876, Canada had already controlled the marriage and reproduction of Indigenous peoples when theories of eugenics started to become widespread in the early 1900s. Moreover, an influx of immigrants from Eastern and Southern Europe, following Canada’s more permissive immigration policy that aimed to settle the West, gave rise to anxiety about the proliferation of “feeblemindedness” in the general population. Such theories did find some opposition by French Catholics in Quebec, as the English Protestant experts who espoused them supported measures such as birth control and sterilization. However, sterilization for the purpose of perpetuating eugenic ideologies was favoured in Western Canada, and was codified in both Alberta and British Columbia.
Codification of Forced Sterilization in the Early 20th Century
The Sexual Sterilization Act of Alberta was passed in 1928, following widespread anxiety that mental defects and criminal activity were on the rise due to increased immigration into the province. The Act gave a “Eugenics Board”, composed of two medical practitioners and two “persons other than medical practitioners appointed by the Lieutenant Governor in Council”, the ability to authorize the sterilization of recently released mental patients with their consent or that of their guardian, although this requirement was removed in 1937. The Albertan government sanctioned the sterilization of approximately 2,800 people under the Act until it was repealed in 1972. Moreover, between 1969 and 1972, a quarter of said sterilizations were performed on Indigenous women who were overrepresented due to their increased likelihood of being branded as “mentally defective”, a theory rooted in racism towards Indigenous peoples.
British Columbia followed Alberta’s lead shortly thereafter, passing An Act Respecting Sexual Sterilizationin 1933 and putting a Eugenics Board in place to review cases involving institutionalized patients. However, the British Columbia Act had a narrower scope than that of Alberta, resulting in an estimated 200 to 400 sterilizations before it was repealed in 1973. Similar legislation had been drafted in other provinces around the same time as Alberta and British Columbia, but ultimately failed due to opposition, most notably by Catholic groups. However, it was not until 1986 that the right to consent to sterilization for all Canadians, including “mentally incompetent” individuals, was affirmed by the Supreme Court in the landmark E. (Mrs.) v. Eve case.
In the years following these events, multiple lawsuits were filed against provincial health authorities in both Alberta and British Columbia. The most well-known case is that of Leilani Muir, who as a child was deemed “mentally defective”, institutionalized, and sterilized without her knowledge pursuant to Alberta’s Sexual Sterilization Act. Upon taking an IQ test in her adulthood that proved that she was of normal intelligence, she won a lawsuit in 1996 against the Albertan government for wrongful sterilization, leading to a formal apology and compensation to her and hundreds of others who had been similarly violated as a result of the Act.
The theory of eugenics has historically been used in Canada to justify the sterilization of certain groups without consent. || (Source: pixabay // 1662222)
Contemporary Eugenics
Despite all legislation allowing sterilization without consent having been repealed in Canada, there is nonetheless evidence demonstrating the continuation of such practices. For example, forced sterilization of Indigenous peoples occurred in “Indian hospitals”, which operated across Canada. Even after the Canadian Charter of Rights and Freedoms came into force, which guarantees “the right to life, liberty, and security of the person” in section 7, de facto eugenics is still allegedly being practiced in Canada’s hospitals. Alberta, for example, has faced allegations of forced sterilizations of Indigenous women that occurred years after the Sexual Sterilization Act was repealed. Moreover, the aforementioned Saskatchewan lawsuit details similar instances of forced sterilization of Indigenous women in recent years.
Notably, a recent Senate report on forced and coerced sterilizations in Canada since 2000 found that the practice persists in hospitals, with marginalized women being particularly vulnerable. For instance, allegations of a lack of informed consent to sterilization procedures included accounts of Indigenous women being coerced by medical staff who made threatening remarks about child custody, not being adequately educated on the permanence of the procedure, being asked for consent shortly after labour or while the effects of an epidural were wearing off, and not being made aware that they could decline the procedure. A Haitian woman from Montreal has also filed a complaint alleging she was not informed of the medical implications of the tubal ligation that she verbally consented to right before undergoing an emergency C-section in 2018. Her story has been widely publicised in Quebec after Radio-Canada interviewed her and other victims of coerced sterilization this past September.
Conclusion: Where Do We Go from Here?
The Senate report concluded with two recommendations: that the federal government respond to the report’s findings as soon as possible, and that a second study focusing on survivors’ testimonies be completed by Parliament to find solutions to stop the practice of forced sterilizations. This report was also completed without the participation of the Quebec government, as it refused to participate in 2018 when the Senate’s research began (although Premier Legault has condemned coerced sterilizations since the Radio-Canada report). To remedy this gap in the literature, the Assembly of First Nations of Quebec and Labrador, in partnership with the University of Quebec in Abitibi-Témiscamingue, has launched a new research inquiry on forced sterilizations, and is currently collecting testimonials from First Nations and Inuit women in Quebec.
More broadly, it is argued that addressing systemic discrimination as the root cause of forced and coerced sterilizations is essential to eradicating such practices. Rather than finding that women’s individual rights were violated in certain exceptional instances, it is imperative that courts and governments recognize the existence of systemic discrimination, particularly against women of colour and women with disabilities, which in turn has resulted in a pattern of medical victimization. In the words of Alisa Lombard, lead counsel in the case against the Saskatchewan government: “whatever Canada has done is wholly inadequate and really not measured to the seriousness of the violations that are at stake”.
Olivia Wawin is a Junior Online Editor with the McGill Journal of Law and Health. She is currently a first-year student at McGill University’s Faculty of Law. Prior to beginning law school, she completed a Bachelor of Sociology and Economics at McGill University. Her interests include maternal and sexual health, international development, and human rights.
McGill Journal of Law and Health 