Imprisoned women and sterilization: Enduring legal and ethical concerns

Background and significance: In the United States, dual legacies of medical experimentation in prison and of compulsory sterilization in institutions and the community inform concerns about the treatment of imprisoned people. In particular, concerns that women are being subjected to coercive sterilization remain, despite decades of women's health and prisoners' rights activism. Most imprisoned women are of reproductive age and come from the same groups that have historically suffered from sterilization abuse: women of color, poor women, women who receive public assistance. Since 1978, federal regulations have prohibited jails and prisons from paying for sterilization procedures. Federal Bureau of Prisons (BOP) policy prohibits the sterilization of women in its custody “as a form of birth control.”

Objective: To assess what is known and what is not known about the sterilization of women in state prisons, and to assess the legal and ethical implications of sterilization policies and practices.

Methods: We collected and evaluated state Department of Corrections (DOC) policies, analyzed federal regulations, and reviewed other sources of information, including human rights reports about sterilization practices in the California prison system.

Results: At least 10 states have policies that permit sterilization. Some policies specify that the woman must pay for the procedure; others are ambiguous about who pays. Some policies specify circumstances in which women can be sterilized; others are open-ended. In California, the state DOC has been paying for sterilizations since 2006, even as the federal courts have been overseeing medical care throughout the prison system.

Discussion: Sterilization policies in state prisons raise serious concerns about women's health and rights. First, at least some state prisons are violating federal law by paying for sterilization procedures, by allowing for sterilization procedures without the proper 30-day waiting period, or both. Second, there appear to be gray areas where federal regulations are unclear or might not apply, such as when a woman who is in the custody of the state pays for sterilization with private funds or insurance. As a matter of public policy, should sterilization be permitted in these cases? What standards of informed consent should apply? As a practical matter, is informed consent possible when people are confined by the state?