Searching for reproductive justice for migrants held in the United States Immigration and Customs Enforcement detention centres

MARINA THAIS RODRIGUES GARCEZ  |  4 JUNE 2022  |  OXFORD MIGRATION CONFERENCE 2022

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Picture by Nitish Meena on Unsplash.

The debate on eugenics dates back to the 19th century, having deep connections with dark periods of world history. However, practices such as forced sterilisation as a tool for population control were not left in the past, nor are they limited to authoritarian dictatorships. In the 21st century, a woman’s right to bodily autonomy is still subject to fierce discussions all over the world, particularly if we consider vulnerable populations and minorities. This applies to migrant women and LGBTQIA+ people, for instance, as the direct result of a lack of policies and practices considering intersecting identities. 

 

When taking for example the situation of migrant women detained in the US, they live in precarious health and sanitary situations and are exposed to much violence while in transit through the Mexico border. Later on, these women can find themselves in a double state of vulnerability, as both migrants and women, while detained in the Immigration and Customs Enforcement (ICE) detention centres, where many of them are coaxed into hysterectomies or tubal ligations with the goal of sterilisation

 

On 14 September 2020, a whistleblower complaint was filed by the NGO Project South. In this document, nurse Dawn Wooten describes the performance of unnecessary elective hysterectomies and tubal ligations on detained migrant women at the Irwin County Detention Center (ICDC) in the state of Georgia. According to the report, five different women detained at ICDC between October and December 2019 had hysterectomies performed on them, and Ms Wooten noted that the nurses discussed the unusually high number of surgeries among themselves. The issue of consent is an important factor, as Ms Wooten highlighted that the migrant women did not fully understand what interventions were being made to their bodies. Instead of using the recommended translation line, the nurses would often communicate by googling Spanish words or asking another detainee to interpret what they were saying, meaning informed consent was difficult to obtain. Migrants were given diverging answers when they asked questions about what procedures were being done on them by different professionals. 

 

International human rights law aims to protect individuals from practices like forced sterilisation through the protection of fundamental human rights such as personal integrity, the right to healthcare, and the right to sexual and reproductive freedom. Also protected is the prohibition of torture and medical treatment without consent. The right to healthcare in the specific context of family planning is protected by several international treaties.

 

This particular case in Georgia violates the human rights in patient care framework (HRPC), which highlights fundamental elements of patient care, including the practice of coerced/forced sterilisation. Firstly, the victims of these human rights violations are usually part of a vulnerable group, deemed as not worthy of procreating: migrant, LGBTQIA+, Black, indigenous people, or members of an ethnic group such as the Roma women in Eastern Europe. Secondly, this framework situates medical professionals in a place of importance, identifying a systematic issue rather than pointing fingers at individual healthcare providers. Next, the framework underscores the role of the state in preventing the situation and taking action when it happens. Ultimately, the HRPC seeks the application of international human rights law in patient care. 

 

The goal of reproductive justice represents a step beyond the protection of sexual and reproductive rights. The concept was created to address a larger number of individuals who did not find themselves represented by the traditionally white movement for reproductive rights, and who were facing intersectional barriers to access. It goes further than the discussion of abortion, for example, by contemplating other necessary discussions such as the right to family planning, the right to choose to have or not have children and how to birth and raise them. The fight for true reproductive justice is a community-based movement that surpasses the legal framework and takes into account social diversity to address inequality and promote change.

 

But what are the paths available to seek accountability for the human rights violations documented at the ICDC? The United States signed the American Convention on Human Rights in 1977, but never ratified it. Therefore, even though the US is a member of the Inter-American Commission on Human Rights through its membership in the Organization of the American States, it does not recognise the jurisdiction of international courts, including the Inter-American Court of Human Rights, which reduces opportunities for accountability. And while the US is a party to the Commission Against Torture, it is not to its Protocol, which established the Committee for the Prevention of Torture as an inspection mechanism. Furthermore, movements like international shaming are not viable options due to the geopolitical strength and the role the US has within the international community, not to mention the possibility of it backfiring.

 

This leaves advocacy as the most viable path. Education and activism can inform the population and promote awareness on matters of human rights protection. It can also catalyse action. For example, the public outcry after the Project South report was published resulted in the Biden administration’s decision to close two detention centres in Georgia, including the ICDC. The more attention drawn to the issue, the more likely justice can be won. Therefore, the work of activists and journalists is fundamental to ensure the population has access to information and the tools to seek accountability.

 

To achieve reproductive justice, there needs to be a longer-term solution, one which extends rights to everyone. The solution must see fewer women detained by immigration authorities and, if there are any in custody at all, they should be offered only necessary and consensual medical care, regardless of their citizenship status. Thus, it is only through inclusive policies that respect human rights that these important issues can be, if not solved, mitigated. However, to do so, the structural problems in detention centres and immigration administrative procedures must be addressed by competent authorities – at local, state and federal levels – with the goal of protecting the migrants’ right to personal integrity, life, and human dignity. 

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Marina Thais Rodrigues Garcez

Marina Thais Rodrigues Garcez is a master's degree candidate in Human Rights at the Federal University of Goiás, where she is also a researcher at the Sérgio Vieira de Mello Chair. She has an LLM in International Law from the Instituto Damásio de Direito/IBMEC and a bachelor's degree in Law from the Federal University of Uberlândia (UFU). Marina is also a qualified lawyer and member of the Minas Gerais State Bar Association (OAB/MG).

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