Compulsory female sterilisation in Brazil: reproductive rights for whom?

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Leila Marchezi Tavares MenandroUniversidade Federal do Espírito Santo, Brazil

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Hazel Rose BarrettCoventry University, UK

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Family planning programmes have been implemented throughout the world since the mid-20th century. In Brazil, the act governing family planning has been law for 25 years. However, the concept does not seem to be well known, being understood as contraceptives distribution. This article discusses Brazilian family planning policies, using a compulsory sterilisation lawsuit – reported by the media – to illustrate one of the many facets of gender-based violence in Brazil. This article is based on documentary research and uses a qualitative approach, applying content analysis to three selected texts. Only the news report that made the case public directly mentions the Family Planning Law and questions the suppression of reproductive rights. It was clear that conservatism was present in the actions of the judiciary, which appeared to be selective when choosing whose rights should be protected, denying poor women’s reproductive rights and upholding coercive birth control for the most deprived groups in the population.

Abstract

Family planning programmes have been implemented throughout the world since the mid-20th century. In Brazil, the act governing family planning has been law for 25 years. However, the concept does not seem to be well known, being understood as contraceptives distribution. This article discusses Brazilian family planning policies, using a compulsory sterilisation lawsuit – reported by the media – to illustrate one of the many facets of gender-based violence in Brazil. This article is based on documentary research and uses a qualitative approach, applying content analysis to three selected texts. Only the news report that made the case public directly mentions the Family Planning Law and questions the suppression of reproductive rights. It was clear that conservatism was present in the actions of the judiciary, which appeared to be selective when choosing whose rights should be protected, denying poor women’s reproductive rights and upholding coercive birth control for the most deprived groups in the population.

Introduction

Since the middle of the 20th century, family planning programmes have been implemented globally as a means to increase national economic development, to reduce poverty and hunger, to preserve the environment and natural resources, and to advance the reproductive rights of women (Hartmann, 1995; Cleland et al, 2006). It was anticipated that these programmes would also reduce the maternal mortality resulting from illegal clandestine abortions. However, family planning is a controversial topic in many countries (Horn, 2013), in particular, the use of sterilisation (of women and men) and abortions as a means of controlling births. Such debates continue in many countries, including Brazil (Costa, 2012; Berquó, 2014).

The world’s first official family planning programme was implemented in India in 1952 (Mathai, 2008), with many other developing nations following, including many African and other Asian countries, such as China (Hartmann, 1995; Therborn, 2004). In South America, though, government family planning programmes were not implemented until the end of the 20th century (Guzmán et al, 2006; Berquó, 2014) in countries such as Brazil, Colombia and Mexico. In these countries, from the 1960s onwards, the large demand for family planning advice and access to fertility control technologies was only met by philanthropic institutions, often financed by international bodies and foundations, such as the United Nations Fund for Population Activities (UNFPA), the United States Agency for International Development (USAID), the World Bank and the International Planned Parenthood Federation (IPPF) (Hartmann, 1995). In Brazil, institutions linked to these international organisations were the first to offer family planning services, including modern contraceptives, during the military dictatorship period (1964–84) (Fonseca Sobrinho, 1993). It was not until 1996 that the Brazilian government passed legislation concerning family planning. The Family Planning Law (Law 9,263 of 1996) regulates the seventh paragraph of Article 226 of the Federal Constitution of 1988 and states that:

Based on the principles of the dignity of the human person and responsible parenthood, family planning is a free decision of the couple and it is a responsibility of the State to provide educational and scientific resources for the exercise of this right, being forbidden any form of coercion by official or private institutions. (Emphasis added)

This law represented a step forward for reproductive rights in the country, as it separated family planning provision from birth control and affirmed access to family planning as a right (Vieira, 2003; Costa, 2012). This established that access to family planning was important to the health of women and men, proposing a ‘set of actions within a vision of global and integral care to health’ (Law 9,263). The law established the principle that family planning was not restricted to the field of procreation, ‘but would cover all the needs and aspirations of a family, including housing, food, study, leisure, etc.’ (Costa, 1995: 2).

The law therefore suggests that family planning not only should be included in health policy, but also needs to be combined with several other social policies, including those relevant to the responsibilities of social workers. The Brazilian social worker ethics code, introduced in 1993, has as its second fundamental principle the ‘Intransigent defence of human rights and refusal of arbitrariness and authoritarianism’ (CFESS, 2012: 23). The ongoing fight for women’s reproductive rights, including access to family planning programmes, is a challenge not only to health providers, but also to social work professionals in a country where basic social rights such as housing and work are unavailable to many people.

After 25 years of implementation of the Family Planning Law, the concept of family planning as a human right still seems to be very little understood by the general public, as well as politicians, the judiciary and healthcare workers. Even though the current total fertility rate of the country is only 1.71 children per woman (World Bank, 2019), Brazil’s family planning programme continues to focus on access to and the distribution of contraceptive technologies, including female sterilisation, with the intention to control births. Law 9,263 of 1996 has not been able to guarantee women’s reproductive rights. As illustrated by the case of Janaína Aparecida Quirino, a poor, black and alcoholic woman, who was sterilised against her will after a lawsuit filed by the Public Prosecutor’s Office, a department of state that should have protected her rights (for details, see later). Furthermore, the Brazilian National Congress is in the process of presenting several bills that propose changes to Law 9,263 in order to accelerate women’s access to sterilisation surgery (Menandro et al, forthcoming).

This article focuses on the Brazilian debate on family planning, using the compulsory sterilisation case of Janaína Aparecida Quirino – reported by the Brazilian media in June 2018 – to reveal one of the many facets of gender violence and human rights abuses in Brazil. Janaína’s case showed that conservatism had been present in the actions of the Brazilian judiciary. It also showed that the Brazilian justice system has established itself as above the law, as the Family Planning Law was ignored in this case and a coercive form of birth control was used against a member of a vulnerable and deprived group within Brazilian society.

The case of forced sterilisation of Janaína Aparecida Quirino: February 2018

Janaína’s case is emblematic of the denial of the rights of Brazilian women, in particular, their reproductive rights. Janaína was forced into sterilisation because she was a poor, uneducated woman and a user of alcohol and drugs. Janaína was sterilised on the same day that she gave birth by Caesarean section to her child in February 2018. This was done following the filing of a lawsuit for her sterilisation by the Mococa Public Prosecutor’s Office of São Paulo State.

As demonstrated by the lawsuit documents, Janaína’s case was brought by the social services in Mococa with support from the public prosecutor, social workers, psychologists and healthcare professionals. The lawsuit started in May 2017. Janaína was sterilised in February 2018. The case was made public by a Brazilian national newspaper in June 2018. The chronology of the case is summarised in Figure 1.

Important dates of the Lawsuit from May 2017 to May 2018.
Figure 1:

Chronology

Citation: Critical and Radical Social Work 10, 1; 10.1332/204986021X16279107777662

Methods

This article uses a qualitative approach using documentary research (Minayo, 1992). Three news pieces (see Figure 2) that circulated in the mainstream media and provided the most significant information on Janaína’s case are analysed and discussed:

  • Document 1 (Vieira, 2018) is a newspaper report published by the Folha de São Paulo newspaper on 9 June 2018, entitled ‘Justice, albeit late’, which denounced the sterilisation performed on Janaína Aparecida Quirino. The news piece states that the compulsory sterilisation was performed following a lawsuit filed by the Public Prosecutor’s Office of Mococa, a city in São Paulo State. In the article, Vieira (2018) refers to the Family Planning Law and points to the discrimination suffered by Janaína, as well as the gender violence inflicted by judicial power on her.

  • Document 2 (Nassif, 2018) is the ‘rebuttal’ written by the Mococa Municipal Court judge, published by GGN online newspaper on 11 June 2018. In this document, the judge justifies his sentence by individualising Janaína’s situation.

  • Document 3 (Toledo, 2018) is the news about the ‘communiqué’ issued by the Brazilian Bar Association (OAB), published by Folha de São Paulo newspaper on 12 June 2018, in which the reporter attempts to reduce the media attention on the case.

The titles and key information on the three newspieces analyzed.
Figure 2:

Document sources

Citation: Critical and Radical Social Work 10, 1; 10.1332/204986021X16279107777662

Content analysis was the method chosen for the analysis of the three documents, as advocated by Bardin (2016), who states that content analysis consists in a set of techniques for analysing communications.

The three news pieces were analysed separately. Content analysis was applied to each document, starting with the observation of the frequency of occurrences of words and the sequences of the sentences, and then establishing the core analysis of each text.

Background

Family planning trends since 1945: global and Brazil

It was the British economist Thomas Malthus (1766–1834) who formulated the theory that the world’s population was growing faster than food production, which would eventually result in food shortages and famine, and necessitate fertility reduction (Malthus, 1983).1 Malthus was writing at the time of the English Poor Laws, which he was opposed to, believing that any assistance to the poor made them act irresponsibly and procreate beyond their ability to manage their own families (López, 2008). The solution Malthus proposed was to reduce birth rates through sexual abstention and late marriage.

Wealthy Europeans started to adopt birth control methods within their own families in the late 17th and early 18th centuries, resulting in low fertility rates in the 19th century in some European countries (Therborn, 2004). In this way, Malthusianism strongly influenced the reproductive behaviour of the 19th-century bourgeoisie (Donzelot, 1980).

In the US, the situation was similar. Davis (1983) states that in the 19th century, there was a decline in the fertility rate, especially among white women. One of the reasons for this decline was the struggle by the early feminist movement for voluntary motherhood, in which women demanded political rights and wished to control their reproductive cycle. Due to this decrease in white women’s fertility rate, an increase in the proportion of poor, black and immigrant children became a possibility. It was then that birth control became a racialised political issue, as it was advocated that it should be made available to poor, black and immigrant women. This included female sterilisation. Davis (1983) states that in 1931, 26 US states had passed a law on the compulsory sterilisation of people deemed inept.2

Therborn (2004) also mentions that European and US governments did not readily accept the idea of birth control in their countries (when it came to the white population, that is), and attempts were made to repress and condemn those who tried to avoid procreation. However, while the central capitalist nations stimulated procreation in their countries, the issue was not presented in the same way when the subject was the fertility situation in developing countries (Horn, 2013). Discussing the systematic actions of the US on the world population, Horn (2013) notes that by the 1960s, it was argued (in line with Malthus’s thesis) that there was a link between economic development and population control policies in poor countries, particularly in Latin America, South Asia and South-east Asia. In these countries, high fertility rates, combined with declining mortality rates, were framed as a ‘population problem’. This ‘problem’, in the view of the US and other rich countries, would only be solved by implementing birth control policies (Mass, 1972; Hartmann, 1995).

Although some leaders of developed countries resisted neo-Malthusian ideas,3 philanthropic international institutions began to stimulate and finance family planning programmes in peripheral capitalist countries4 from the middle of the 20th century. The earliest family planning policies adopted a neo-Malthusian philosophy therefore linking high fertility with poverty and thus targeted poor families (Mass, 1972; Hartmann, 1995; Therborn, 2004).

There is, though, another important point of view regarding family planning, especially concerning women. Relegated to the private sphere of the house and to the care of her children and husband, the poor woman’s day was divided between domestic duties and precarious work (Mies, 2014). Her arrival in the labour market did not exempt her from the role of housekeeper and responsibility for the control of reproduction (Ferguson, 2020). From this point of view, the possibility of controlling one’s body and deciding when to have children, if so desired, became a reality after the advent of the contraceptive pill in the 1960s (Hartmann, 1995). Advances in reproductive medicine had also made it possible to separate as distinct activities sex for leisure and sex for reproduction (Vieira, 2003).

In order to study the adoption of family planning policies throughout the world and, in particular, Brazil, it is important to understand the international debates concerning birth control, family planning policies and the rights of women. These are often played out at the United Nations (UN) and can directly affect national policy and the implementation of family planning.

UN population conferences and family planning

Following the Second World War, the UN organised a series of world conferences, where the Malthusian view of population growth and its links to development were first enforced and later challenged. In 1946, the Population Commission was established, with the aim of monitoring and preparing studies on demographic and population issues (Berquó, 2014). From these studies and the concern with demographic dynamics, the first World Conference took place in Rome in 1954. Neo-Malthusian views were dominant. According to Berquó (2014), 80 countries attended this conference, including several ‘Third World’ countries, many of which were still under colonial domination. However, they played a minimal role, mainly being onlookers in the meeting. At the Belgrade World Population Conference in 1965, there was little change in the effective participation of these countries (Finkle and McIntosh, 2002) and limited challenges to the dominance of neo-Malthusian views on poverty and birth control.

The World Population Conference that took place in Bucharest in 1974 was a watershed, as it was the first time at an international population conference that ‘intense conflict and difficult negotiations’ (Finkle and Crane, 1975: 88) concerning neo-Malthusian views of fertility took place. A group of developing countries led by Algeria and Argentina argued that high fertility rates were a symptom of imbalances in the development process, which were the result of the international global economic system, and that a new international world order was required to tackle the ‘population problem’. The final World Population Plan of Action thus moved away from the neo-Malthusian concept of limiting population growth to the need to accelerate socio-economic development in general (Finkle and Crane, 1975).

According to Berquó (2014: 19), the Bucharest Conference was important because it was agreed that women should have a right to equality in access ‘to education and participation in social, economic, cultural and political life’. Another important outcome of this conference was the introduction of the concept of ‘responsible parenthood’ as a fundamental part of family planning, taking into consideration that couples and individuals should have the right to decide on the number of children they have, as well as the spacing of births. Horn (2013: 201) states that ‘US policy-makers were aware of the need to link population control policies to the language of development, human rights and, most specifically, women’s rights.’ This conference, therefore, marked the beginning of a new movement to replace neo-Malthusian birth control arguments with an approach in which socio-economic development, including family planning and the rights of parents, in particular, women, took centre stage (Franda, 1974; Maudin et al, 1974).

At the 1984 International Conference on Population in Mexico, the UNFPA advocated that fertility reduction was an effective policy that less developed nations could use to improve living standards for citizens (Hartmann, 1995; Berquó, 2014). The important role of women and their reproductive rights was a major outcome from this conference, and the link between family planning and reproductive rights, especially for women, was endorsed (Berquó, 2014). Four years later, as a result of the emergence of the HIV/AIDS pandemic and concerns regarding other sexually transmitted diseases, the World Health Organization (WHO) coined the term ‘reproductive health’, which represented a major change in the field of sexual health and reproductive rights based on family planning as a human right and part of a bigger development package.

The International Conference on Population and Development in Cairo in 1994 was attended by more than 1,500 non-governmental organisations and was guided by the concept of reproductive health developed by the WHO (Finkle and McIntosh, 2002).  At this conference, feminists criticised family planning programmes in developing countries. They condemned the birth control emphasis of many family planning programmes, including the use of female sterilisation (Finkle and McIntosh, 2002). Thus, at this conference, birth control was no longer the main focus; instead, it was replaced by an emphasis on reproductive rights, particularly of women, based on the expanded concept of reproductive health and justice (Berquó, 2014).  This conference was instrumental in establishing the consensus ‘among family planning advocates that linked women’s reproductive health, environmental issues and development issues’ (Horn, 2013: 205). In other words, family planning was seen to be part of a much bigger development agenda and was no longer just about birth control. This momentous shift in the conceptualisation of family planning at the international level then filtered down to member states and international organisations, and has influenced family planning policies at the national level over the last 30 years.

Family planning in Brazil

Early in the 20th century, Brazil supported pro-natalist measures that stimulated fertility. This could have been because: it was a country that had an agricultural economic base that was reliant on human labour; it was a country that followed the ideology of the Roman Catholic Church (Portuguese and Catholic society ideal); it stimulated eugenics (Fonseca Sobrinho, 1993); or a mixture of all these.

From the second half of the 20th century, the world experienced the introduction of a number of modern contraceptive technologies, including the birth control pill for women and a new approach to family planning based on the principle of reproductive health and justice at the international level. However, the Brazilian government did not adopt an official position on the subject of family planning until 1996, perhaps being cautious of offending the Roman Catholic Church (Fonseca Sobrinho, 1993). The gap left by this lack of government policy concerning family planning allowed philanthropic institutions, often with neo-Malthusian philosophies and financed by international organisations, to act in the country. As a result, the total fertility rate reduced significantly in a few years (Costa, 2012).5

From 1965,6 the Brazilian Civil Society for Family Welfare (BEMFAM), funded by IPPF, began to operate in the country, providing free distribution of contraceptive pills to poor women without medical supervision (Hartmann, 1995; Costa, 2012). Costa (2012) states that BEMFAM was considered a public utility since between 1971 and 1976, it was already working in partnership with municipalities, states and the federal government. Therefore, BEMFAM was effectively filling the policy gap left by Brazilian government inaction. Hartmann (1995) states that in the north-east of Brazil, ‘BEMFAM and other agencies signed agreements with local governments to sterilise women in public hospitals’ (Hartmann, 1995: 251).

Another institution that carried out birth control measures in Brazil was the Centre for Research on Integrated Care for Women and Children (CPAIMC). Funded by institutions linked to USAID, according to Costa (2012), the CPAIMC was even more aggressive in its actions than BEMFAM by spreading the ideology of interventionist contraception among health professionals (trained or in training), as well as by distributing materials, donating equipment and subsidising birth control activities in the country (female surgical sterilisation being among these activities).

Only from the mid-1970s did the Brazilian government officially take action on the topic of family planning, including in the Maternal and Child Health Programme (PSMI), which supported the concept of responsible parenthood, as advocated at the Bucharest Conference. However, the programme found strong resistance from the Roman Catholic Church regarding the inclusion of contraceptive actions (Fonseca Sobrinho, 1993).

In the meantime, starting in 1980 and propitiated by the amnesty given to political prisoners and exiles from the military dictatorship (1964–85), women returning to Brazil joined the feminist movement engaged with the political debate concerning reproductive rights.  These women brought with them aspects that were being discussed in countries such as France and the US (Pinto, 2003).  Among the guidelines advocated by the feminist movement, organised in various groups throughout the country, were family planning, reproductive rights and justice (Pinto, 2003).

In 1983, the Ministry of Health, in partnership with representatives of the feminist movement and the Brazilian Sanitary Reform movement, formulated the Integral Assistance Programme for Women’s Health (PAISM).  This programme discontinued the practices of previous programmes that focused on maternal and child health, which were restricted to prenatal, childbirth and puerperium, and disregarded women as a ‘complete being’ inserted in a ‘social, psychological and emotional context’ (Osis, 1998: 29). PAISM was a milestone in health policy in Brazil, as it was the first time that the government announced an official position regarding family planning, dissociating it from birth control (Jannotti et al, 2007) and adopting some of the agreed outcomes of the Bucharest Conference.

The process of re-democratisation of the country was marked by an increase in participation of social movements, which led to advances regarding social rights in the Federal Constitution promulgated in 1988. Article 226 of the 1988 Federal Constitution defines the family as the basis of society and warrants it with special protection from the State. In the seventh paragraph of this article, family planning was instituted as a right and the dissociation of family planning from birth control was reinforced. However, Law 9,263 regulating this paragraph was only sanctioned eight years later.

In the 1980s, several social organisations were concerned about the increase of female sterilisation in the country (Caetano, 2014). In 1992, a Parliamentary Inquiry Commission was set up to investigate allegations that family planning clinics funded by international institutions were promoting mass sterilisation in the country (Caetano, 2014). The result of this commission eventually pressured the passage of a law regulating family planning. After many disputes and discussions, Bill 209 of 1991 was sanctioned by President Fernando Henrique Cardoso in January 1996. While this legislation had been sparked by activities associated with female sterilisation, and this topic was covered in the law, to the great surprise of the feminist movement, the president vetoed the articles related to female sterilisation. The presidential vetoes to the law, recognised even by Cardoso as mistaken, were voted down and overturned by the Brazilian National Congress in August 1997 after much struggle and action by the feminist movement.

Law 9,263 of 1996 prohibits family planning actions that focus solely on birth control. It acknowledged and legislated for a reproductive health approach to family planning.  With regard to the surgical sterilisation of women and men, the law stipulates criteria for the procedure, with the understanding that health teams should discourage sterilisation of young people, as it is a radical process with few possibilities for reversal that should be preceded by information and offering other forms of contraception. The law also prohibits sterilisation during childbirth or abortion (except for strict medical reasons), and, according to Article 12, ‘individual or collective induction or instigation to the practice of surgical sterilisation’ (Law 9,263). The law also provides penalties for agencies and professionals who breach the law.

However, a number of scholars, including Ferreira, Costa and Melo (2014), have criticised the legislation, arguing that the reproductive rights elements of the law are fragile since it disregards the principle of integrality to health, restricting it to the delivery of contraceptives or female sterilisation surgery. In this way, the sphere of discussion on family planning is surrounded by a moral, ideological, economic and political dispute that hinders advances not only in the understanding of family planning, but also in the policies and actions that support it (Ferreira et al, 2014).

Brazilian family planning law

Under Law 9,263 of 1996, only persons with full civil capacity, aged 25 years or older or with at least two live children can access female sterilisation or male vasectomy, either in the Unified Health System (SUS) or through private services.  To be eligible for the surgical procedure, the woman or man must undergo counselling with a multidisciplinary team, which includes social workers, psychologists and nurses. This team should present to the service user the existing reversible methods of contraceptive use and explain the risks and irreversibility of the surgical sterilisation procedure.  After that, the person must sign a consent document recording their knowledge about the risks associated with the surgery, its effect and its small possibility of reversion. After this step, the person must wait at least 60 days before the operation can be performed.

The law is clear about the prohibition of compulsory sterilisation surgery and that the procedure should not take place at the time of childbirth or abortion. Also prohibited is the procedure for birth control purposes, with the provision of penalties for those involved in the operation. It is within this legislative framework that Janaína’s case became the subject in one of Brazil’s most-read newspapers in 2018.

The duty of the Brazilian Public Prosecutor’s Office

The Brazilian Federal Constitution of 1988 gave a new meaning to the Public Prosecutor’s Office in Brazil (Sadek, 2001).  The Public Prosecutor’s Office (or Public Ministry), once directly linked to the executive branch, became autonomous with regard to the three powers: legislative, executive and judiciary.

According to Article 127 of the Federal Constitution, the Public Prosecutor’s Office is a ‘permanent institution, essential to the judicial function of the State, entrusting it with the defence of the legal system, the democratic regime and the indispensable social and individual interests’. Thus, the Public Ministry has two responsibilities, though the legal norm is constantly violated by the State itself: to ‘defend the constitutional interests of citizens and society at large’; and to ‘ensure that public administration fulfils all its constitutional responsibilities and adheres to existing legal norms’ (Sadek, 2001: 68).

Thus, Sadek (2001) concludes that there are two Brazils within Brazil: one real and one legal. According to Sadek (2001: 66): ‘The real Brazil, in contrast to the legal, has therefore been a country of inequality, of exclusion and of disrespect for legal principles. In the real country, rights are a dead letter for a significant part of the population.’

Results and discussion

The news pieces

The three published articles reported on the same subject, namely, the forced sterilisation of Janaína in February 2018. Each piece contains quite different content and messages. For the purpose of analysis, initially, the frequency of the words contained in the documents was counted:

  • Document 1 (Vieira, 2018): central to this document is the right of  ‘all Brazilian women’ that was denied to Janaína – the reproductive right. The word ‘right’ is the most repeated (seven times), followed by the words ‘justice’, ‘sterilisation’ and the name Janaína (all appearing five times).

  • Document 2 (Nassif, 2018): in the text that represents his own defence, the Mococa Municipal Court judge uses the name of Janaína as an artifice to personalise his decision. For this, he quotes the name of Janaína nine times, followed by the word ‘son’ (appears eight times) and the word ‘no’ (seven times). The word ‘right’ only appears once in this text.

  • Document 3 (Toledo, 2018): in this piece on the role of the OAB, the name of Janaína again stands out. ‘Janaína’ and ‘process’ appear eight times each, followed by ‘procedure’ (seven times) and the word ‘no’ (six times). In this text, the word ‘rights’ appears twice.

Document 1 (Vieira, 2018): The account of Janaína’s forced sterilisation

The denouncement report printed in a Folha de São Paulo newspaper column states that Janaína’s case began in 2017. The author uses the column space to narrate the facts of what happened to Janaína, reminding the reader that this could have happened to any other woman who presented similar characteristics. The piece denounces the absurd situation created by the Public Prosecutor’s Office, an agency that, in theory, should care for citizens’ rights but that, in this case, behaved like Janaína’s tormentor and jailer.  At first, the text surmises the real reasons why Janaína was forced to undergo the surgical sterilisation procedure: ‘poor woman, living on the streets and who has children’ (Vieira, 2018). Vieira (2018) discusses how this case contravenes Law 9,263 of 1996, which states that conception and contraception are reproductive rights that should take into account the free decision of the man, the woman or the couple. He also reminds the reader that the Federal Constitution prohibits any coercive intervention by the State with respect to the number of children a woman can have in Brazil.

The denouncement text emphasises the words ‘poverty’, ‘vulnerability’ and ‘inequality’, which are all expressions of the social issue.7 It also demonstrates the devices used by the public prosecutor: public civil action and coercive conduct. Within the fragile Brazilian democracy, it is not uncommon for justice to be an instrument of coercion and control.8

Due to the topic of forced female sterilisation and the judicial process that was carried out without Janaína being able to defend herself and her rights, the report in the Folha de São Paulo newspaper resulted in heated discussion in Brazil. Even though it was judged by the Court of Justice of São Paulo as unfounded, the lawsuit caused irreversible damage to this woman – a mutilation.

Document 2 (Nassif, 2018): More than words – the imposition of a morality

Two days after Document 1 was published in the national press, the Mococa Municipal Court judge who had approved Janaína’s forced sterilisation – and, by doing so, had ensured that the municipality had broken Law 9,263 of 1996 – published his version of the facts (Nassif, 2018). Without citing the 1988 Federal Constitution or Law 9,263 of 1996, and in a clear attempt to defend himself and influence public opinion, the judge revealed personal elements and facts concerning Janaína’s private life, such as: the number of her children and sexual partners; her drug use; the benefits she received; her attendance at agencies such as the Specialised Referral Centre for Social Assistance (CREAS), the Centre for Psychosocial Care – Alcohol and Other Drugs (CAPS AD) and the Public Prosecutor’s Office; and the fact that she was currently serving time for drug trafficking and association for trafficking.9

The revelations of these facts about Janaína’s life were accompanied by terms that imply neglect and intra-familial violence, classifying Janaína’s family as ‘unstructured’ or dysfunctional. The judge also explains the situation of one of Janaína’s children, who, according to the magistrate, is hospitalised due to ‘chemical dependency’.

Between the lines of the text is clear the conservative idea of the ‘denatured mother’: that woman who subverts the standards of a ‘good mother’. Finally, the judge lists all the actions taken by the municipality and shows that Janaína was not able to improve her own situation, forcing the Public Prosecutor’s Office to take such action. In this case, the position of the Public Prosecutor’s Office and the judge is to blame the individual for her situation of poverty and misery, thus justifying a timely and focused intervention by the State. Thus, the social issue becomes a moral and individual problem that can only be solved with social assistance actions from the State, without discussion with and the consent of the person involved.

Document 3 (Toledo, 2018): The number of children as justification for the use of authority by the State

The third document addressed in this study is an article in the Folha de São Paulo newspaper (the same one that published the denouncement) published on 12 June (Toledo, 2018). The report contains a statement from the OAB. According to the report published in the newspaper, the president and the vice president of the OAB section in Mococa visited Janaína in the female penitentiary, and the OAB issued the statement as a result of this visit. According to the two lawyers, Janaína said she consented to the surgery, was not sorry and was feeling well. It would be surprising, though, if Janaína, imprisoned and mutilated by the State, would have told two lawyers (who she did not know) anything different. The key element in this news piece is the title, which begins with ‘Sterilisation of a mother of 8’. The mentioning of the number of Janaína’s children in the OAB communiqué – which is reaffirmed four more times in the course of the report – seeks to justify the action by the Public Prosecutor’s Office, trying to garner public opinion that she has had too many children, exceeding the capacity that she can care for – a clear Malthusian justification for the action taken by the State against Janaína.

Besides the statement from the São Paulo State Attorney Office that the process should not have taken place, thus reinforcing the illegality of the Mococa Public Prosecutor’s Office process, what is new in this report is the information that the Internal Affairs Department of the Court of Justice of São Paulo would evaluate the conduct of the Mococa judge and that the Regional Medical Council of the State of São Paulo (CREMESP) would investigate the actions of the physician who performed the surgery. This shows that, in essence, this latter report seeks to placate public concern and outrage about the case. The intention is to minimise the severity of the case and to transform the mutilation of Janaína, promoted by the Mococa Public Prosecutor’s Office and approved by a Mococa Municipal Court judge, as just a quarrel between public agencies that had already provided evidence to the authorities. The report focuses on the chronology of events and treats Janaína as an object, with titillating facts about her personal and family life. There is a relativisation of the seriousness of the situation, which is obviously a violation of rights, as was pointed out by the Legal Department of Mococa City Hall.

Family planning in the reports

Document 1 refers directly to family planning and to Law 9,263 of 1996. While Document 3 makes reference to Law 9,263, it is not directly discussed. In this news piece, some sections are highlighted by the interviewees without referring to where these sections come from. Document 2 omits to mention Law 9,263, appealing to moral issues and seeking to make the case as being something isolated and individual.

In Document 1, the Family Planning Law appears as a Brazilian advance in the sphere of reproductive rights, away from the character of birth control or eugenics. In Document 2, the perspective of the law is missing. The omission of the term ‘family planning’ in the text implies that the decision concerning Janaína’s body belonged to the State, as despite not being legally considered incapable, her situation of poverty made her a person with no rights. Therefore, the compulsory sterilisation assumes a punitive meaning for the woman involved, with a coercive and eugenic character, namely, birth control for the unfit (Davis, 1983).

The illegality of Janaína’s case

It is important not to lose sight of the illegality of the lawsuit filed by the Public Prosecutor’s Office and upheld by the judge. At the beginning of Document 2, the magistrate affirms that Janaína ‘agreed with the tubal ligation proposed by Mococa Public Prosecutor’s Office’, that is, the judge openly states that they violated Article 12 of Law 9,263 of 1996, as surgical sterilisation could not have been suggested by an agency that has an openly coercive character (or by any government agency, for that matter). In addition, Janaína was submitted to the sterilisation procedure while she was having a Caesarean section to deliver her baby, another illegality that is provided for in paragraph 2 of Article 10 of Law 9,263 of 1996.

Therefore, in Janaína’s case, it was the Public Prosecutor’s Office – which, under the letter of the law, should protect citizens’ rights – that behaved like her tormentor by opening a public action and requesting her sterilisation. When the case arrived in the hands of the Mococa Municipal Court judge, he colluded with the illegality, ordering the procedure to be carried out.

Is Janaína’s case an isolated incident in Brazil? Despite the under-reporting of these occurrences, Rangel (2018) states that among the cases of 15 drug-using mothers who lost custody of their babies (in the same maternity unit in Espírito Santo State) between 2008 and 2017, two mothers went through situations similar to Janaína’s: one of them was sterilised by judicial determination at the same time as she gave birth; and the other had the procedure suggested by the judge and sent to the Health Department.

The issue here is that the Public Prosecutor’s Office should be engaged in assuring comprehensive social policies – as provided for in the Federal Constitution – including housing, day care, schools, work, and quality services for drug users, among others. It is public knowledge that the Brazilian State has failed in providing basic social rights to poor families, a situation worsened by the approval in 2016 of the 95th Parliamentary Amendment, which freezes public spending in the social sector for 20 years (Marques, 2019). Another element that confounds this problem is that besides the municipal social work and health networks of Mococa, the Public Prosecutor’s Office has social work professionals on its staff who issue social statements and social reports. The way these professionals have being acting in times of budget cuts and the individualisation of the social issue is questionable, often with disregard for the fundamental principles of the professional ethics code (CFESS, 2012).

Brazilian justice, in this sense, seems to be in line with the neo-Malthusian ideal when opting for the biological model of birth control, eliminating the reproductive capacity of women like Janaína. The law’s agents, in this case, the State prosecutors and the judge, show that the old practice of holding the poor accountable for their poverty (as Malthus did in his time) remains in effect in Brazil.

Despite the legislation protecting reproductive rights in Brazil and the Family Planning Law of 1996 – which establishes the family constitution, the decision on duration between births and when to stop having children as free choices – actions on primarily poor, marginalised women’s bodies, such as happened to Janaína, have intensified in the country.

Final remarks

The report published in a national newspaper that gave visibility to Janaína’s case has the title ‘Justice, albeit late’ (Vieira, 2018). Unfortunately, as the author rightly pointed out, time will not return to Janaína. Time, it should be added, will also not return to other countless women who undergo similar situations on daily basis but do not receive prominence in the media. In Brazil, the female body has been instrumentalised by the State when it comes to reproductive rights, with minimal advances and a strong possibility of regression.

In Janaína’s case, conservatism is present in the actions of the judiciary, with such power being selective when choosing whose rights are protected, denying poor women’s reproductive rights and taking the social issue as an individual responsibility phenomenon. This conservatism ignores the Family Planning Law, upholding coercive birth control methods against the poor and deprived.

This article has demonstrated that the issue of family planning is highly topical in Brazil and a topic that should be discussed for two pressing reasons. The first one concerns the historical moment that Brazil is experiencing as a country: the regression of women’s rights (reproductive and sexual) and the underfunding of social policies that directly affect women’s lives. The second reason can be understood as an unfolding of the first, as violence and barbarism become an alternative when social policies are lacking. In this case, women are in the front line, suffering in body and soul – the perverse effects of a patriarchal capitalist society.

Notes

1

As a means of avoiding pregnancy, Malthus suggested sexual abstinence and late marriage.

2

The unfit to procreate would be ‘Morons, mental defectives, epileptics, illiterates, paupers, unemployables, criminals, prostitutes and dope fiends’, as defended by Margaret Sanger in a radio interview (Davis, 1983: 214).

3

Neo-Malthusian is the current adaptation of Thomas Malthus’s theory. The ‘neo’ prefix indicates that although based on the original theory of the thinker, supporters of this theory accept methods of contraception that go beyond sexual abstinence and late marriage.

4

The total fertility rate in Brazil in 1960 was 6.2 children per woman. In 1975, that number had dropped to 4.5 children per woman.

5

It must be noted here that a military regime was established in Brazil in 1964 by means of a coup d’état. Thus, the unofficial birth control actions responsible for a drastic drop in Brazilian total fertility (between 1965 and 1985) operated under the rule of military dictators.

6

In 2010, the Public Prosecutor’s Office of Espírito Santo sent Recommendation Note 003/2010 to all the directors of hospitals/maternity clinics. The note ‘recommended’ that hospitals/maternity clinics should notify competent authorities when they admit pregnant women who use drugs. Babies should not be given to mothers (drug users) before the responsible agency is called. The research of Rangel (2018) is restricted to women admitted to the maternity hospital of the Hospital das Clínicas in the state capital. It is estimated that the number of women who lost custody of their babies is much greater than that when the existence of other hospitals/maternity clinics scattered throughout the state is considered. The note was repealed in 2012.

7

The social issue presents itself as a phenomenon that occupies the core of the conflicting and irreconcilable relationship between capital (presented by the bourgeoisie class) and labour (presented by workers’ class or proletariat) (Netto, 2006).

8

It is important not to lose sight of the fact that, in essence, the Brazilian judiciary serves as an instrument of the national bourgeois class and that various denunciations are made daily on condemnations of working-class subjects, while the subjects of the capitalist class remain untouchable by law.

9

In Brazil, the prison system is full of people convicted of drug trafficking. However, it is known that this prison population has a specific social class and that those who truly profit from drug trafficking are not incarcerated (Zaccone, 2011).

Funding

This work was supported, in part, by the Coordination for the Improvement of Higher Education Personnel (CAPES), Brazil (Finance code 001), and by CAPES/PRINT under grant number 88881.311890/2018-01.

Acknowledgements

We thank Professor Maria Lúcia Teixeira Garcia for helpful discussions.

Conflict of interest

The authors declare that there is no conflict of interest.

References

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    • Search Google Scholar
    • Export Citation
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    • Export Citation
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    • Search Google Scholar
    • Export Citation
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    • Search Google Scholar
    • Export Citation
  • Sadek, M.T. (2001) The Public Prosecutor’s Office and legal change in Brazil, IDS Bulletin, 32(1): 6573, doi: 10.1111/j.1759–5436.2001.mp32001008.x.

    • Search Google Scholar
    • Export Citation
  • Therborn, G. (2004) Between Sex and Power: Family in the World, 1900–2000, New York: Routledge.

  • Toledo, M. (2018) Esterilização de mãe de 8 foi consentida e mulher não se arrepende, diz OAB, Folha de São Paulo, 12 June, https://www1.folha.uol.com.br/cotidiano/2018/06/esterilizacao-de-mae-de-8-foi-consentida-e-mulher-nao-se-arrepende-diz-oab.shtml

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    • Search Google Scholar
    • Export Citation
  • Vieira, O.V. (2018) Justiça ainda que tardia, Folha de São Paulo, 9 June, https://www1.folha.uol.com.br/colunas/oscarvilhenavieira/2018/06/justica-ainda-que-tardia.shtml

    • Search Google Scholar
    • Export Citation
  • World Bank (2019) Fertility rate, total (births per woman), https://data.worldbank.org/indicator/SP.DYN.TFRT.IN?locations=BR

  • Zaccone, O. (2011) Acionistas do Nada: Quem são os Traficantes de Drogas, 3rd edn, Rio de Janeiro: Revan.

  • Bardin, L. (2016) Análise de Conteúdo, São Paulo: Edições 70.

  • Berquó, E. (2014) As posições da OMS nas conferências de população da ONU nos últimos 50 anos, in L.R. Wong, J.E. Alves, J.R. Vignoli and C.M. Turra (eds) Cairo +20: Perspectivas da Agenda de População e Desenvolvimento Sustentável Depois de 2014, 2014. Serie Investigaciones, vol 15, Rio de Janeiro: ALAP,pp 1721.

    • Search Google Scholar
    • Export Citation
  • Caetano, A.J. (2014) Esterilização cirúrgica feminina no Brasil, 2000 a 2006: aderência à lei de planejamento familiar e demanda frustrada, Revista Brasileira de Estudos de População, 31(2): 30931, doi: 10.1590/S0102-30982014000200005.

    • Search Google Scholar
    • Export Citation
  • CFESS (Conselho Federal de Serviço Social) (2012) Código de ética do/a Assistente Social. Lei 8662/1993 de Regulamentação da Profissão, 10th edn, São Paulo: Câmara do Livro.

    • Search Google Scholar
    • Export Citation
  • Cleland, J., Bernstein, S., Ezeh, A., Faundes, A., Glasier, A. and Innis, J. (2006) Family planning: the unfinished agenda, The Lancet, 368(18): 181027, doi: 10.1016/S0140-6736(06)69480–4.

    • Search Google Scholar
    • Export Citation
  • Costa, A.M. (1995) Planejamento familiar no Brasil, Revista Bioética, 4(2): 113.

  • Costa, A.M. (2012) Política de saúde integral da mulher e direitos sexuais e reprodutivos, in Giovanella, L., Escorel, S., Lobato, L.V.C., Noronha,  J.C. and Carvalho,  A.I. (eds) Políticas e Sistema de Saúde no Brasil, Rio de Janeiro: FIOCRUZ, pp 9791009.

    • Search Google Scholar
    • Export Citation
  • Davis, A. (1983) Women, Race & Class, New York: Vintage Books/Random House.

  • Donzelot, J. (1980) The Policing of Families, London: Hutchinson.

  • Ferguson, S. (2020) Women and Work. Feminism, Labour, and Social Reproduction, London: Pluto Press.

  • Ferreira, R.V., Costa, M.R. and Melo, D.C.S. (2014) Planejamento familiar: gênero e significados, Textos e Contextos, 13(2): 38797, doi: 10.15448/1677- 9509.2014.2.17277.

    • Search Google Scholar
    • Export Citation
  • Finkle, J.L. and Crane, B.B. (1975) The politics of Bucharest: population, development and the new international economic order, Population & Development Review, 1(1): 87114.

    • Search Google Scholar
    • Export Citation
  • Finkle, J.L. and McIntosh, A. (2002) United Nations population conferences: shaping the policy agenda for the twenty-first century, Studies in Family Planning, 33(1): 1123. doi: 10.1111/j.1728-4465.2002.00011.x

    • Search Google Scholar
    • Export Citation
  • Fonseca Sobrinho, D. (1993) Estado e População: Uma História do Planejamento Familiar no Brasil, Rio de Janeiro: Rosa dos Tempos/FNUAP.

    • Search Google Scholar
    • Export Citation
  • Franda, M.F. (1974) The World Population Conference: an international extravaganza, Southeast Europe Series, 21(2): 19.

  • Guzmán, J.M., Rodríguez, J., Martínez, J., Contreras, J.M. and González, D. (2006) The demography of Latin America and the Caribbean since 1950, Population, 61(5): 519620.

    • Search Google Scholar
    • Export Citation
  • Hartmann, B. (1995) Reproductive Rights and Wrongs: The Global Politics of Population Control, Boston, MA: South End Press.

  • Horn, D.M. (2013) Locating security in the womb, International Feminist Journal of Politics, 15(2): 195212, doi: 10.1080/14616742.2012.699784.

    • Search Google Scholar
    • Export Citation
  • Jannotti, C.B., Sequeira, A.L.T. and Silva, K.S. (2007) Direitos e saúde reprodutiva: revisitando trajetórias e pensando desafios atuais, Saúde em Debate, 31(75–77): 2533.

    • Search Google Scholar
    • Export Citation
  • López, I.O. (2008) Matters of Choice: Puerto Rican Women’s Struggle for Reproductive Freedom, New Brunswick, NJ: Rutgers University Press.

    • Search Google Scholar
    • Export Citation
  • Malthus, T.R. (1983) An Essay on the Principle of Population, London: Electric Book Co.

  • Marques, R. (2019) Permanence and breaks in Brazilian social protection in the recent period, Argumentum, 11(1): 13045, doi: http://10.18315/argumentum.v11i1.23131.

    • Search Google Scholar
    • Export Citation
  • Mass, B. (1972) The Political Economy of Population Control in Latin America, Montreal: Editions Latin America.

  • Mathai, M. (2008) The global family planning revolution: three decades of population policies and programmes, Bulletin of the World Health Organization (WHO), 86(3): 161240, https://www.who.int/bulletin/volumes/86/3/07-045658/en/

    • Search Google Scholar
    • Export Citation
  • Maudin, W.P., Chouori, N., Notestein, F.W. and Teitelbaum, M. (1974) A report on Bucharest: the World Population Conference and the population tribune, Studies in Family Panning, 5(12): 35795. doi: 10.2307/1965198

    • Search Google Scholar
    • Export Citation
  • Menandro, L.M.T., Barrett, H.R. and Garcia, M.L.T. (forthcoming) The debate concerning female sterilisation in Brazil.

  • Mies, M. (2014) Patriarchy and Accumulation on a World Scale: Women in the International Division of Labour, London: Zed Books.

  • Minayo, M.C.S. (1992) O Desafio do Conhecimento: Pesquisa Qualitativa em Saúde, 2nd edn, São Paulo: Hucitec.

  • Nassif, L. (2018) Laqueadura foi consentida, afirma juiz de Mococa, GGN, 11 June, https://jornalggn.com.br/noticia/laqueadura-foi-consentida-afirma-juiz-de-mococa

    • Search Google Scholar
    • Export Citation
  • Netto, J.P. (2006) Capitalismo Monopolista e Serviço Social, 5th edn, São Paulo: Cortez.

  • Osis, M.J.M.D. (1998) PAISM: um marco na abordagem da saúde reprodutiva no Brasil, Cadernos de Saúde Pública, 14(1): 2532, doi: 10.1590/S0102-311X1998000500011.

    • Search Google Scholar
    • Export Citation
  • Pinto, C.R.J. (2003) Uma História do Feminismo no Brasil, São Paulo: Fundação Perseu Abramo.

  • Rangel, G.L.N. (2018) Histórias não contadas: acolhimento institucional de recém- nascidos de mulheres usuárias de drogas, MSc dissertation, Universidade Federal do Espírito Santo, Brazil.

    • Search Google Scholar
    • Export Citation
  • Sadek, M.T. (2001) The Public Prosecutor’s Office and legal change in Brazil, IDS Bulletin, 32(1): 6573, doi: 10.1111/j.1759–5436.2001.mp32001008.x.

    • Search Google Scholar
    • Export Citation
  • Therborn, G. (2004) Between Sex and Power: Family in the World, 1900–2000, New York: Routledge.

  • Toledo, M. (2018) Esterilização de mãe de 8 foi consentida e mulher não se arrepende, diz OAB, Folha de São Paulo, 12 June, https://www1.folha.uol.com.br/cotidiano/2018/06/esterilizacao-de-mae-de-8-foi-consentida-e-mulher-nao-se-arrepende-diz-oab.shtml

    • Search Google Scholar
    • Export Citation
  • Vieira, E. (2003) Políticas públicas e contracepção no Brasil, in E. Berquó (ed) Sexo & Vida: Panorama da Saúde Reprodutiva no Brasil, Campinas: Unicamp, pp 15196.

    • Search Google Scholar
    • Export Citation
  • Vieira, O.V. (2018) Justiça ainda que tardia, Folha de São Paulo, 9 June, https://www1.folha.uol.com.br/colunas/oscarvilhenavieira/2018/06/justica-ainda-que-tardia.shtml

    • Search Google Scholar
    • Export Citation
  • World Bank (2019) Fertility rate, total (births per woman), https://data.worldbank.org/indicator/SP.DYN.TFRT.IN?locations=BR

  • Zaccone, O. (2011) Acionistas do Nada: Quem são os Traficantes de Drogas, 3rd edn, Rio de Janeiro: Revan.

Leila Marchezi Tavares MenandroUniversidade Federal do Espírito Santo, Brazil

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Hazel Rose BarrettCoventry University, UK

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