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V. Voluntary Tubal Ligation: A Case Study in Denial of Access to Contraceptives

A prime example of the inaccessibility of contraceptives is the fact that many women in Argentina are arbitrarily denied access to one of the most effective forms of contraception: voluntary tubal ligation (female surgical sterilization).¹¹¹  Argentine law restricts access to tubal ligation to situations where the intervention is warranted by a “therapeutic reason.”¹¹²  While courts and experts have interpreted this clause in different ways, medical doctors and public health officials often cite the restrictive law as justification for denying women access to voluntary tubal ligation.  Many public hospitals have formulated and implemented burdensome procedures that women must comply with to obtain a tubal ligation, in violation of authoritative interpretations of women’s rights to health, to privacy, to nondiscrimination, and to decide on the number and spacing of their children.  Twenty of the forty-three women Human Rights Watch interviewed were denied a voluntary tubal ligation the first time they asked, and of these, fourteen had been unable to obtain a voluntary tubal ligation altogether, often despite repeated attempts.  One of the women who were initially denied the operation was later granted permission for medical reasons, and the remaining five were able to obtain a voluntary tubal ligation only after great efforts to find a “friendly” doctor in the public health care system who performed the operation as a “favor.” 

Most of the women we spoke to who had sought to obtain a tubal ligation were required to go through arbitrary and discriminatory procedures—including the requirement of spousal consent—as a condition for access to voluntary tubal ligation in the public health system, and the majority were denied the operation even when they fulfilled the criteria.  This situation subjects women’s decision-making in the most intimate area of their lives to male authority or arbitrary medical intervention.  As such, it constitutes a violation of women’s rights to nondiscrimination, privacy, and health.¹¹³

Tubal Ligation and the Law

The routine denial of voluntary tubal ligation in the public health system has its roots in the Legal Regime for the Exercise of Medicine, Odontology, and Collaborative Activities (henceforth “law on the medical profession”) dating from 1967, an era of political hostility to all contraceptive methods.¹¹⁴  The law requires a “perfectly determined therapeutic indication”¹¹⁵ and the exhaustion of “all possibilities to preserve the reproductive organs” in order for it to be legal to carry out an operation that results in sterilization.¹¹⁶  In addition, some legal scholars cite penal code provisions that criminalize violence which causes permanent damage to a limb as applying to sterilization procedures.¹¹⁷  These restrictive laws are in and of themselves inconsistent with Argentina’s obligations and commitments under international human rights treaties.

The U.N. Committee on Economic, Social and Cultural Rights has advised that the right to the highest attainable standard of health—protected by the International Covenant on Economic, Social and Cultural Rights—creates a specific legal obligation of the state to “refrain from limiting access to contraceptives.”¹¹⁸  Voluntary tubal ligation or female sterilization is widely accepted by medical science and international health and human rights entities as a method of contraception or birth control.¹¹⁹  In fact, the WHO has declared tubal ligation one of the most effective contraceptive methods and highly appropriate where women give meaningful informed consent and the medical conditions allow the operation.¹²⁰  In 1999, the U.N. Committee on the Elimination of Discrimination against Women (CEDAW Committee) clarified its position on sterilization in its concluding remarks on the periodic report of Chile:  “The Committee is … concerned that [under Chilean law] a husband’s consent is required for sterilization and a woman who wishes to be sterilized must already have four children.  The Committee considers these provisions to violate the human rights of all women.”¹²¹ 

Government officials in Argentina confirmed that public health workers deny women access to tubal ligation not because of physical and economic constraints in the public health system, but rather because the law does not recognize tubal ligation as a valid method to control fertility.  “The law does not contemplate tubal ligation or vasectomy because they are not approved methods by the ANMAT [National Administration of Medicines, Food, and Medical Techonology],” explained Inés Martínez, who is responsible for the coordination of the National Program on Sexual Health and Responsible Procreation. “The law does not permit it, does not see it as a method of contraception.”¹²² 

To be fully consistent with international human rights standards, the law on the medical profession should be amended to allow access to safe voluntary sterilization with informed consent.  The National Program on Sexual Health and Responsible Procreation should include voluntary tubal ligation and vasectomy in the spectrum of contraceptive methods offered, subject to meaningful informed consent by the person involved.  The U.N. Human Rights Committee reached this conclusion in 2000, when it noted with regard to Argentina,“women should be given access to family planning methods and sterilization procedures.”¹²³ 

Human Rights Watch interviewed women in three provinces—Tucumán, Santa Fe, and Buenos Aires—who had been denied access to voluntary tubal ligation, usually because health officials said it was illegal or not allowed under local hospital procedures.  At the same time, it is important to note that not all public hospitals deny this form of contraceptive, and that some provinces have recently passed legislation to attempt to overcome the shortcomings in the national law.   However, even where provincial law or municipal decrees make voluntary sterilization more readily available, some providers still professed fear of legal consequences.  For example, two weeks after a provincial law in Santa Fe had been approved to allow for voluntary sterilization in that province, Elda Cerrano, the municipal official responsible for the implementation of the reproductive health program in Rosario in the province of Santa Fe told Human Rights Watch: “The issue with tubal ligation is a big problem, even after the law has been passed. … [The professional code] has to be amended … . How can I require my people to do this if they risk having their license taken away? … Until now, it has been totally prohibited.  It is not written down in any code how to proceed.”¹²⁴ 

Women’s Decisions Subject to Male Authority

The criteria for women to access tubal ligation vary from one hospital to the next, but a common denominator mentioned by most women we interviewed was the spousal consent requirement.  “You have to have permission from your husband” said Valentina Rodríguez, twenty-two.¹²⁵  Micaela Márquez, twenty-eight, as well as ten other women Human Rights Watch interviewed in three provinces, gave a similar testimony: “I asked about it, and they told me that you have to have a certain age, [and] you have to have spousal authorization.”¹²⁶

The requirement of spousal authorization for access to tubal ligation contravenes Argentina’s obligations under CEDAW¹²⁷ and the International Covenant on Civil and Political Rights,¹²⁸ both of which were incorporated into the Argentine constitution in 1994.¹²⁹  The CEDAW Committee has spelled out that “[d]ecisions to have children or not, while preferably made in consultation with spouse or partner, must not nevertheless be limited by spouse, parent, partner or Government.”¹³⁰  The Human Rights Committee has indicated that the right to privacy, protected by article 17 of the ICCPR, may be violated “where there is a requirement for the husband’s authorization to make a decision in regard to sterilization [and] where general requirements are imposed for the sterilization of women, such as having a certain number of children or being of a certain age.”¹³¹ 

When a hospital requires spousal authorization for access to certain family planning services, an unmarried woman who is denied access to these services because she cannot obtain spousal consent also experiences discrimination on the basis of her marital status.  This was the case for Romina Parma, who had tried to get a tubal ligation several times, both before and after the separation from her physically and sexually abusive husband.  She said: “[To have a tubal ligation] I have to be married, I have to have authorization from my husband.  But if you are not duly married, they deny it again and again.”  Parma had had eleven children and thirteen pregnancies.  The doctor at a public hospital in Buenos Aires City denied her the procedure because of the lack of spousal authorization despite the weekly and sometimes daily rapes Parma was enduring at the hands of her live-in partner and despite the adverse health consequences of other contraceptive methods for her: “The IUD gave me enormous hemorrhaging and very bad anemia.”  Parma finally decided to live alone because she saw this as the only way to avoid having any more children.  “It has been six years since I separated,” Parma noted, “and I don’t have a husband because I don’t want any more children.”  She saw what happened to her as a great injustice: “It is illegal that they tie your tubes. … But I ask you: having ten children and being thirty years old, you might have at least fifteen children more.  Is that right? … Maybe it is illegal, but if I could just sign a consent form, because it is my life.  Not the life of any future child, but my life, physically and mentally.”¹³²

Women’s Decisions Subject to Arbitrary Veto by Medical Authorities

The lack of national regulations interpreting the law on the medical profession results in arbitrary and inconsistent implementation that often gives more weight to the views on morality of local doctors and health officials than to women’s own choices in the reproductive realm.  Some hospitals set up elaborate and onerous local procedures and requirements, and individual doctors sometimes deny tubal ligations even where women fulfill all specified criteria.

Many public hospitals require women to obtain prior approval from social services or family planning offices, the hospital’s ethical committee, the hospital’s legal advisor, or any combination thereof. 

The women Human Rights Watch interviewed who had asked for a tubal ligation had generally done so in connection with a cesarean section, and were under the impression that the operation could not be done unless during an already scheduled cesarean section.  One woman had asked her doctor at a public hospital in Buenos Aires City if she could have a tubal ligation without her being pregnant, and was told no.¹³³  Indeed, in many countries, the most common time for tubal ligation is the immediate postpartum period because of the greater convenience, lower costs, ease of surgery, and more efficient use of health resources when the surgery is carried out at this time as opposed to any other time.  Where the surgery is carried out during the same surgery session as a cesarean section, these advantages are doubly relevant.¹³⁴

Romina Redondo, thirty-two, was pregnant with her tenth child when Human Rights Watch spoke to her.  She explained that when pregnant with her eighth child,  she had completed all the steps required by her local public hospital, “Dr. José María Cullen” hospital in Santa Fe City, to have a tubal ligation.  Her doctor still denied her the operation at the last moment:

When I was pregnant with the eighth child, I did all the paperwork to have a tubal ligation. … A lawyer seeks the consent of the husband. … When I got to the hospital, I had the paperwork with me, but the doctor said that [in the time it took to] prepare me for the cesarean section¹³⁵ they could do three natural births.  It was like they were wasting their time. … I insisted and insisted and they told me that I had to go back to family planning and get an IUD [intrauterine device]. … But I didn’t want an IUD.¹³⁶

After an unplanned pregnancy while taking hormonal contraception, a birth, and another unplanned pregnancy, Redondo was attempting to gather the paperwork to have a tubal ligation at another public hospital, “J.B. Iturraspe,” when we spoke to her in September 2004.  She described an onerous process where the ultimate outcome—notwithstanding endless paperwork and consultations—depended on her own ability to convince the individual doctor who was to carry out the operation:

Now I have done all the paperwork at another hospital.  I have to go there again for them to give me the papers. … The social worker told me that I have to insist and insist, because there are doctors who don’t want to do it. … At first we went to talk to the director [of the hospital] … then my husband had to sign, and I had to take this [his signature] to the lawyer. … Then to family planning.  To get an appointment you have to go early in the morning. … I talked to the head [of family planning], and he gave me a piece of paper to go to the social worker. … She met with a group of us [women who wanted a tubal ligation], and she told us that we have to negotiate with the doctors, and she gave us an appointment for the gynecologist.  He asked me questions, and they give you a piece of paper that the husband has to sign along with two witnesses.  Now I need to go ask for the form that says that they can do it, and then I have to go get an appointment so that they can put in my papers that they are allowed to do the tubal ligation.¹³⁷

Marianela Casillas, thirty-seven and mother of six, explained to Human Rights Watch that she also was denied a tubal ligation at the local public hospital “Dr. José María Cullen” in Santa Fe City during her sixth pregnancy, against the recommendation of her gynecologist: “I shouldn’t become pregnant anymore because I have hypertension. … Also I get very high blood pressure from the contraceptive pills. … My organism rejects the IUD [intrauterine device], and then there is no other method. … I want to get my tubes tied. … The gynecologist prescribed it herself, that they should do it at the same time [when I gave birth]. … But they didn’t.”¹³⁸

Several women told Human Rights Watch that doctors second-guessed their wishes, denying them access to tubal ligation on the reasoning that the women might change their minds later.  “What they say is that if you do it while you are very young, you might change your mind and they would have to reverse it.  It is like they are in favor of you having more children,” noted Yanina Carlotto, forty-six.¹³⁹  According to the World Health Organization (WHO), approximately 20 percent of women sterilized at a young age later regret this decision.¹⁴⁰  The WHO, however, does not advise the delay of tubal ligation for young women who are otherwise medically eligible, but rather cautions that all women should be properly counseled about the permanency of sterilization and the availability of alternative contraceptive methods.¹⁴¹ 

Moreover, Human Rights Watch’s interviews show that women face questioning about their potential future husbands or partners even at a quite advanced reproductive age.  “The doctor asked me … if I was going to separate and get together with someone else,” recalled Marina Padilla, forty-one, who was thirty-nine when she asked for a tubal ligation during her seventh pregnancy at public hospital “J.B. Iturraspe” in Sante Fe City.¹⁴²  Marcela Espinosa, thirty-two, captured the sentiments of many of the women Human Rights Watch interviewed when she said: “If I don’t want any more [children], and if I ask for it [a tubal ligation], no one can say to me: ‘what happens if you have another husband.’”¹⁴³

In some cases, women we interviewed managed to convince a doctor in the public health care system to provide access to a tubal ligation as a personal “favor.”  Andrea González, forty-six, had asked for a tubal ligation after the birth of her third child, but the doctor had denied her the operation at the public hospital “Maternidad Nuestra Señora de las Mercedes” in San Miguel de Tucumán.  After the birth of her seventh child, another doctor told González that she would “help her.”  “She put on the gloves, she didn’t tell me anything.  I suppose she did something. … I haven’t gotten pregnant again,” González recalled.¹⁴⁴  Although González was ultimately fortunate enough to succeed in her pleadings with her doctor, the fact remains that she was not allowed to make an independent decisions about her reproductive health.

Economics Trumps Medical Need: Ready Access in Private Health Clinics

Though the law on the medical profession applies to both public and private medical practices, it appears to have more force in the public health care system.  A legislative aide in Santa Fe Province explained: “Here you have two options.  If you have money, you go to a private institute, and the same doctor who does it there [i.e. performs the tubal ligation] is the one who refuses to do it in the public sphere. … In reality, this allows for a discriminatory situation.”¹⁴⁵ 

Marisa Rossi, thirty-six, who worked as a nurse in the private health system for several years, confirmed that women had access to tubal ligation upon demand if they could pay for it:

If you want to do it, they will do it.  You decide. Because in the private system you decide anything you want to do. … They put some kind of pathology that does not exist [in your papers, to cover for the tubal ligation].  And even more if you have many children, then they offer it to you, they say: ‘Stop torturing yourself!’ … If you have money, they do anything you want.¹⁴⁶

The fact that there is economic discrimination at play was not lost on the women who sought and were refused tubal ligations.  Laura Passaglia, a thirty-two-year-old woman who had had nine pregnancies, was denied a tubal ligation by a court in Buenos Aires Province in 2004.¹⁴⁷  She said: “If you have the money, yes [you can get a tubal ligation], but what about those of us who don’t have money? I have neighbors who cannot even afford shoes.”¹⁴⁸  Nora Casas, thirty-four, echoed this sentiment: “If you have the money, the doctor does it for you. … If you have the money you can do it at any age.”¹⁴⁹ 

Indeed, many women Human Rights Watch interviewed cited financial constraints as their main reason for wanting the operation in the first place.  “I would like to do it, because I am forty years old, I have seven children, and the economic situation is not good,” said Marina Padilla. “I told the doctor: ‘The economic situation is worse all the time, and they just fired my husband.  It is all the time more and more difficult.  And there are so many of them now [my children].’”¹⁵⁰

Requiring Judicial Authorization

Argentina’s law does not specifically require judicial authorization for tubal ligation.  However, many doctors, government officials, NGO representatives, and individual women believed this to be a requirement, either legally or de facto, or saw the legal provisions as ambiguous enough that they felt compelled to seek authorization to avoid legal action.  “[N]o one has ever done a tubal ligation without judicial authorization,” noted Inés Martínez, responsible for the coordination of the National Program on Sexual Health and Responsible Procreation.¹⁵¹  “Those [doctors] who might otherwise do it [perform a tubal ligation] are afraid to go to jail,” explained Paola Bergallo, a university professor with expertise in reproductive health law.¹⁵²  That said, to Human Rights Watch’s knowledge, no doctor had had his or her license revoked or been sent to prison for performing a tubal ligation. 

While Human Rights Watch interviewed women who did have a voluntary tubal ligation without judicial authorization, we also encountered women who had to go to court to ask for a judicial authorization for their operation, sometimes only to be denied authorization, or to give birth before their motion was considered or appealed.

Gisela Oporto, thirty-seven, told Human Rights Watch that she sought judicial authorization for a tubal ligation during her last pregnancy due to severe pregnancy-related health problems, but she gave birth before the case was finally resolved.  As a result, she never had the operation. 

Oporto started suffering from hypertension during her first unplanned pregnancy, and her doctors at public hospital “Gobernador Domingo Mercante” in Buenos Aires Province advised against using contraceptive pills: “They [the doctors] didn’t want to give me the pills.  They told me to use condoms, but … my husband says that [then] he doesn’t feel anything.”  Oporto had two other unplanned pregnancies, then tried to use contraceptive pills again to avoid another health-threatening pregnancy:

When I was pregnant with the third child, I got very depressed. … I was really ill, I almost died with the last pregnancy. ... I started to throw up and the scar [from previous cesarean sections] started to bleed, and I couldn’t breathe. … After I had her, the doctor gave me pills, but they changed my nerves. … I was menstruating three or four times a month.¹⁵³ 

Oporto decided to stop taking the contraceptive pills.  After six years, Oporto got pregnant again, unplanned.

[The birth] had to be by cesarean section,¹⁵⁴ so I decided to have a tubal ligation. ... We were trying to find out how.  You have to have money.  In the private clinic, the price depends, something between 600 and 800 pesos [U.S.$202-269.36], plus the days you are there. [It comes to up to] 2,500 pesos [U.S.$841.75]. ... I also checked it out at the public hospital.  ... The doctor said that without authorization from the judge, she wouldn’t do it.

With the help of a local NGO, Oporto decided to seek judicial authorization.  She recounted her experience with the court:

This doctor, she gave me a note that said my life would run risk [with another pregnancy] and also supposedly the life of the baby. ... Another doctor said the same thing. ... [The court] asked for the birth certificates of my children, and for a psychological analysis ... [and] a summary of my clinical history. ... I asked the social worker for help with all of this. ... The judge denied the motion, and the baby was almost ready to be born. ... The [scheduled] birth [by cesarean section] was set earlier [than expected] , and we had to appeal to the Supreme Court [of the Province]. ... [Finally] they couldn’t do it [the tubal ligation], because she was already born.

The court held that there were no “serious” reasons for Oporto to require a tubal ligation, and moreover that she had not proven that it would be impossible for her to use other types of contraception that did not require sterilization.¹⁵⁵  However, neither the court nor the doctors at the local public hospital specified what those methods might be: “No one at the hospital has given me any information about contraception. ... If I go to the gynecologist and I ask for pills or an injection, she says that she cannot [give them to me] because of my high blood pressure.  As for the IUD [intrauterine device], because I am fat, they are afraid that the IUD will fall out.” Oporto concluded: “They should make it easier for women who decide to have a tubal ligation, especially when their lives are in danger.”¹⁵⁶

Laura Passaglia, thirty-two, had a similar experience, also in Buenos Aires Province.  When Human Rights Watch interviewed Passaglia, she had had nine pregnancies, including two miscarriages and a premature child that died soon after birth.  She tried to get a tubal ligation for the first time when she plunged into deep depression after that child died: “The fourth child was the baby that died. … I was in a state, I didn’t want anything, neither the children that I already had, nor the ones that might come. … I was asking around for a tubal ligation.  They said no, that there was no law.  That with money, yes, but I would have to take food away from my children to get the 1,000-2,000 pesos [U.S.$336.70-673.40] needed [for the operation].”  Several pregnancies later, Passaglia consulted her doctor at public hospital “Larcade” in Buenos Aires Province about the possibility of having a tubal ligation once more. 

I asked the doctor, and she said no, that there was no law [that allows tubal ligations]. … I thought I was going to die, but I wanted to do it, because I thought it was my decision to make. … In the hospital, they set up every possible obstacle. … The head of the hospital told me that it was the same as having an abortion.  At that point I was four months pregnant.¹⁵⁷

Passaglia filed a case for judicial authorization.  She told Human Rights Watch that the public hospital kept presenting obstacles that prevented her from complying with the court’s demands:

I needed to get the summary of my medical history. … They gave me  two or three pages [of it].  They made me pay, but they didn’t give [all of] it to me. … They charged me 10 pesos [U.S.$3.37] and I had to wait for a month for them to give it to me.  You can’t get your medical history just like that. … The expert witness said that having many children is not an added health risk or anything.  [But] I was having contractions during the whole pregnancy, and I didn’t have help at home, I had to keep going.¹⁵⁸

The court that reviewed Passaglia’s case admitted that the evidence presented proved that she had high blood pressure and repeated urinary tract infections; that the medicine she received did not help her; and that she was under medical order only to carry out light tasks and not to walk around, but that she was unable to do so because of her other children.  The court nevertheless denied Passaglia the tubal ligation based on the testimony of the expert witness chosen by the court, who noted that there was “no medical reason” for the operation even though he considered Passaglia’s pregnancy-related health problems serious enough to add that Passaglia should seek medical attention.¹⁵⁹

Not all women who have asked for judicial authorization for tubal ligation have been denied the operation.  Some courts have ordered hospitals to honor such petitions.¹⁶⁰  However, the fact remains that women’s right to access voluntary tubal ligation—a safe, highly effective contraceptive method—depends on spouses, judges, doctors, social workers, and personal finances.