The U.S. Bears International Responsibility for Forced Sterilization of Women in ICE Detention

According to a Sept. 14 complaint filed by Project South, whistleblower and nurse Dawn Wooten, and other organizations, a gynecologist contracted by the Irwin County Detention Center (ICDC) in Georgia has performed hysterectomies on immigrant women in detention at an alarmingly high rate and without their informed consent. ICDC operates as an Immigration and Customs Enforcement (ICE) detention facility owned and managed by LaSalle Corrections, a private corporation. This allegation is just one of many in the complaint, which describes appalling conditions of detention and an utter lack of care for detainees’ health during the ongoing COVID-19 pandemic. The complaint echoes serious, well-documented concerns regarding the provision of healthcare for detained immigrants, which have been raised since ICE’s inception and previously with its predecessor agency, the Immigration and Naturalization Service.

In July, one of us wrote about the forced sterilization of Uyghur women in China as a discriminatory, coercive population control campaign that rises to the level of a human rights violation. That piece posed the question: forced sterilization is clearly prohibited by international law, so why is it still happening? The answer to that question lies, in large part, in the prevailing lack of accountability for prior forced sterilizations, including – and perhaps, especially – in the United States. This country has a long history of coercive sterilization, including targeting of Latinas, Black women, and women in detention, that extends into the current era.

And, so, it bears repeating: a sterilization performed without the patient’s prior, full, free, and informed consent is a human rights violation. International human rights bodies have established (and repeatedly confirmed) that forced sterilization violates the right to freedom from torture or inhuman treatment. Depending on the specific circumstances and treaty law applicable to the situation, forced sterilization also may violate treaty provisions protecting the rights to liberty, respect for honor and dignity, respect for private and family life, freedom of expression, sexual and reproductive health, non-discrimination, and freedom to decide the number and spacing of one’s children. These rights apply regardless of a person’s migration status or whether a person is in detention.

This piece explains why the U.S. government bears international responsibility for forced sterilization of ICE detainees, and what obligations it has to prevent, investigate, and remedy those abuses.

Allegations of Forced Sterilization of ICE Detainees

According to the whistleblower complaint, a gynecologist providing healthcare to ICDC detainees removed the uterus of nearly every detainee sent to his office. The complaint includes a detainee’s report that the doctor performed hysterectomies on at least five ICDC detainees between October and December 2019, and that the women were confused about why the surgery had been performed. He reportedly sterilized multiple women who received incomplete or false information about the procedure or its purported necessity, including as a result of contradictory or inaccurate statements by medical personnel and inadequate Spanish-English interpretation.

Journalists have contributed more detail and corroboration in recent days. Tina Vasquez, writing for Prism, has independently reported one former-ICDC detainee’s allegation that the gynecologist performed a hysterectomy on her without her consent. Vasquez reports that the procedure took place at the Irwin County Hospital, a hospital managed by a private company owned by that same doctor. A former ICDC detainee has also publicy accused medical personnel of removing one of her fallopian tubes without her consent. Mexico is reportedly investigating the allegations.

Separately, Congresswoman Pramila Jayapal stated she knows of five separate attorneys representing at least 17 immigrant women forced to have unnecessary gynecological procedures, including hysterectomies, while in ICE custody at ICDC. In an interview, Representative Jayapal described the three attorneys she had spoken with as “extremely reputable.” A Congressional delegation visited ICDC over the weekend and spoke with multiple women who said they had been subjected to unwanted gynecological procedures.

The U.S. government has denied the whistleblower’s allegations and may attempt to assign blame to one “bad apple,” hoping to distinguish itself from China and its written population control policies (it has also imposed sanctions in connection with China’s treatment of the Uyghur population). But the fact that there is not – to our knowledge – an express U.S. government policy of sterilizing immigrant women in ICE detention does not absolve the United States of liability.

Good Apple, Bad Apple, Still the Government’s Apple

Generally, human rights treaties – including those to which the United States is party – impose obligations on States to respect, protect, and fulfill the rights they contain. Essentially, States must not themselves violate human rights, they must try to prevent others from doing the same, and they must take steps to facilitate full enjoyment of human rights. For the purposes of this article, we focus on the obligations to respect and protect.

Under the law of State responsibility, the obligation to respect applies across all branches of government and to any agent of the State, as well as to any person or entity exercising elements of governmental authority. When a private person or company is empowered by domestic law “to exercise functions of a public character normally exercised by State organs,” its conduct in carrying out those functions is attributable to the State.

As such, States are responsible for the treatment of detainees, including those in immigration detention. This includes treatment in privately-managed detention facilities and by private companies and their staff or contractors. The Inter-American Commission on Human Rights (IACHR) has stated, “States are responsible not only for the direct actions of their agents but also for that of third parties acting at the request of the State or with its tolerance or acquiescence.” In its new report on the use of private contractors in immigration and security contexts, the UN Working Group on the use of mercenaries writes, “States retain their obligations when they privatize the delivery of services that may have an impact on the enjoyment of human rights,” including with regard to immigration detention. At no time may a State engage in or permit acts of torture; the prohibition is absolute.

Pursuant to these standards, human rights bodies have held States directly responsible for forced sterilizations performed by doctors in public hospitals. This was the outcome, for example, in the case of I.V. v. Bolivia decided by the Inter-American Court of Human Rights, which held Bolivia responsible for violating its obligations to respect the rights to personal integrity, personal liberty, dignity, private and family life, access to information, and to raise a family under the American Convention on Human Rights. Though the United States is not a party to the American Convention, it has committed to respect these same rights through other regional and United Nations instruments. 

Obligations of Protection

Governments may also be indirectly responsible for human rights abuses by any actor, including companies and private individuals. The obligation to protect requires States to exercise due diligence to prevent, investigate, punish, and ensure access to redress for human rights abuses. Relevant action may include “legislative, judicial, administrative, educative and other appropriate measures” to deter rights violations.

Human rights bodies have identified specific obligations in the context of healthcare. As explained by the Inter-American Court of Human Rights, “States must regulate and supervise all activities related to the health care given to the individuals under [their jurisdiction], as a special duty to protect life and personal integrity, regardless of the public or private nature of the entity giving such health care.” Governments must also “submit, investigate and decide complaints, and establish suitable disciplinary or judicial procedures for cases of inappropriate professional conduct or the violation of patients’ rights.” The IACHR views States’ obligations as being “even greater” in the context of medical care provided by private actors in places of detention.

Human rights bodies have adopted a number of specific decisions and recommendations on forced sterilization. For example, States must clearly establish and define the obligation to obtain informed consent to sterilization. (Because Bolivia failed to do this, the Inter-American Court held the State had not satisfied its due diligence obligation to prevent forced sterilization, an obligation arising from its duty to protect the rights to humane treatment, liberty, and privacy, among other rights, that the United States is also obligated to protect.) In the context of modern-day forced sterilizations of Indigenous in women in Canada, assessed in light of Canada’s obligations under the American Declaration of the Rights and Duties of Man, the IACHR has “highlight[ed] that given that surgical sterilizations are procedures of great consequence for the reproductive health of a person, the controls to ensure that consent is provided in a free, informed and voluntary manner must be particularly rigorous.” It also urged the government “to maintain public and periodically updated records on reports of forced sterilizations, duly disaggregated by gender, ethnicity and other relevant criteria; to provide comprehensive training to health practitioners; and to raise awareness among Indigenous communities on their sexual and reproductive rights.”

U.S. Responsibility for Treatment of Detainees at ICDC

The United States’ international human rights obligations include those contained in the treaties it has ratified, among them the International Covenant on Civil and Political Rights (ICCPR), Convention against Torture (CAT), and International Convention on the Elimination of All Forms of Racial Discrimination (CERD). According to the IACHR and its counterpart Court, as a member of the Organization of American States (OAS), the United States also has international legal obligations under the American Declaration of the Rights and Duties of Man. Each of these instruments protects rights relevant to conditions in immigration detention. For example, the ICCPR and American Declaration both protect the rights to life and freedom from inhumane treatment, among others. The relevant monitoring bodies have all recognized forced sterilization as a violation of their respective treaties.

ICE is the government agency responsible for enforcing the country’s immigration laws. Among other functions, it manages the vast system of immigration detention and deportation. ICDC is one of a growing number of immigration detention facilities operated by for-profit companies through contracts with ICE. LaSalle Corrections, which manages ICDC, is an increasingly important contractor.

Allegations of abuses and substandard conditions in U.S. immigration detention are well-documented and diverse, including in the provision of healthcare. In its 2011 report, the IACHR expressed concerns over “persistent complaints of improper medical care for immigration detainees.” LaSalle has been accused of allowing, or creating, poor conditions in its facilities and taking inadequate measures to protect the health of detainees, including in the context of COVID-19. A 2017 report by Project South and the Center for Immigrants’ Rights Clinic at Pennsylvania State Law describes many problems at ICDC and another Georgia facility, such as detained immigrants “being forced to eat rancid foods” and an “alarming” “lack of adequate access to medical care.” A VICE News article from 2019 summarizes some of the complaints against LaSalle-operated facilities, describing them as “horrific.” (LaSalle has also been accused of abuses in the jails it operates.)

For years, advocates and the international human rights community have brought these allegations to the attention of officials within the U.S. government, but they have been met largely with silence as LaSalle continues to profit from its contract with the Department of Homeland Security. Among many other examples, Project South has submitted communications to Congress and to the U.S. Civil Rights Commission detailing inhumane treatment in immigration detention centers in Georgia. A May 2018 Communication to the UN special procedures with relevant mandates set forth the panoply of rights violations committed at ICDC and the neighboring Stewart Detention Center, in Lumpkin, GA (operated by CoreCivic, Inc.). While information regarding forced hysterectomies had not yet come to light, the communication set forth in detail gross neglect in the provision of medical care, and retaliation against those who dared to raise complaints. Eleven UN special procedures, led by the UN Working Group on the use of mercenaries, communicated their concerns to the U.S. government, while also communicating directly to LaSalle Corrections and CoreCivic.

The U.S. government’s response has been to continue the contracts with LaSalle Corrections and CoreCivic without providing the necessary additional oversight to ensure the humane treatment of those detained at ICDC and the Stewart Detention Center, despite its legal responsibility noted above for those detained in these facilities. The result has been deaths by suicide and medical neglect, and as recently reported, the sterilization of immigrant women without their consent.

While there is little information available publicly on the specific circumstances in which women were allegedly involuntarily sterilized at ICDC, it is clear that the U.S. government has failed to adequately regulate and supervise the provision of healthcare there, despite numerous complaints that the medical care failed to meet minimum standards necessary to ensure the health and safety of those under its custody. Indeed, it has wittingly allowed the perpetuation of medical neglect and denial of basic rights, including the fundamental right to dignity of those detained under its custody. The United States therefore bears responsibility under international human rights law for the abuses that have occurred, including the forced sterilization of any woman detained at ICDC, or other detention facilities operating under its authority.

IMAGE: Cell room doors are seen at the Caroline Detention Facility in Bowling Green, Virginia, on August 13, 2018. A former regional jail, the facility has been contracted by the US Department of Homeland Security Immigration and Customs Enforcement (ICE). (Photo by SAUL LOEB/AFP via Getty Images)

 

About the Author(s)

Lisa Reinsberg

Executive Director of the International Justice Resource Center. Follow her on Twitter (@LReinsberg).

Sarah Paoletti

Practice Professor of Law and the founding Director of the Transnational Legal Clinic (@penntlc) at the University of Pennsylvania Carey School of Law.