Informed consent for sterilisation of women and girls with disabilities in the light of the Convention on the Rights of Persons with Disabilities

In South Africa, as indeed around the world, systematic prejudice and discrimination continues to result in women and girls with disabilities having their right to experience their sexuality, to have sexual relationships and found and maintain families violated. There have been anecdotal reports in KwaZulu-Natal of parents and guardians of pubescent girls and women with disabilities giving consent for the sterilisation of these girls and women based on stereotypical notions of sexuality, parenthood, challenges with sanitation and menstruation periods, sexual abuse and myths about HIV/AIDS and sexually transmitted diseases. This Article is aimed at identifying the stereotypical beliefs and attitudes towards parenting, sexuality and reproductive choices that make women with disabilities more likely to be involuntarily sterilised than non-disabled women. It is also aimed at illustrating the problems in South African legislation dealing with sterilisation and the inaction of government tasked with implementing sexual reproductive health policies. The author interrogates whether or not the amended Sterilisation Act 4 of 1998 meets the state's obligations under the Convention on the Rights of Persons with Disabilities (CRPD) and whether it promotes the rights of women to freedom of the person and bodily integrity, equality and dignity under the South African Constitution. It is argued that the legal capacity of women with disabilities must be uncoupled from their sexuality, fertility and reproductive capacity to ensure that the agency of women with disabilities to make their own reproductive decisions is recognised. This will require demystifying the sexuality of women with disabilities, through policy, advocacy and media efforts, but also through careful law reform measures to enhance their autonomy in decision-making about reproduction, particularly to ensure South Africa's Sterilisation Act (as amended) is in line with the Constitution and the state's obligations under the CRPD. Recommendations for law reform are made in this regard.