Tsuchiya, Takashi* 1997
Newsletter of the Network on Ethics and Intellectual Disability@Vol.3, No.1, Fall 1997,pp.1-4.
* M.A., Lecturer, Department of Philosophy, Osaka City University, JAPAN
In Japan, a "eugenic" law permitted involuntary sterilization of people with intellectual or mental disability from 1948 to 1996. More than 16,500 women and men were sterilized against their will. On September 16, 1997, 17 civic groups, representing women and people with disability, and dozensof interested persons demanded from the Minister of Health and Welfare an apology, compensation, and investigation, but the Ministry refused with the excuse that these sterilizations were legal at that time.
1. THE EUGENIC PROTECTION LAW AND ITS ENFORCEMENT
The objective of the "Eugenic Protection Law (EPL)," established in1948, was "to prevent birth of inferior descendants from the eugenic point of view, and to protect life and health of mother, as well." (Article 1) This reflected the Japanese Government's worry not only about over-population and the predicament of mothers and pregnant women in the post-war baby boom,but also the "deterioration" in quality of offspring. In fact, EPL called sterilization a "eugenic operation," which was done either voluntarily or involuntarily.
In Article 3 EPL permitted a physician to sterilize the person withhis/her own and the partner's consent. Under this Article anyone could be voluntarily sterilized if: (1) he/she or the partner had hereditary "psychopathia," "bodily disease" or "malformation," or the partner "has mental disease or feeble-mindedness"; (2) he/she or the partner's relative within the fourth degree of kinship had hereditary "mental disease," "feeble-mindedness,""psychopathia," "bodily disease," or "malformation"; (3) he/she or the partner was "suffering from leprosy, which is liable to carry infection to the descendants"; (4) she was a mother whose life was "endangered by conception orby delivery"; or (5) she was a "mother actually having several children" whose health condition was "feared to be seriously affected by each occasion ofdelivery."
On the other hand, Articles 4 and 12 provided involuntary sterilization. It was performed without the patient's own consent. Article 4 required a physician to apply to the prefectural "Eugenic Protection Commission" toexamine the propriety of sterilization when a patient was suffering a disease on the Annexed List and the physician considered that sterilization was necessary "for the public interests in order to prevent hereditary transmission of the disease." All diseases on the Annexed List were those that were then regarded to be hereditary, such as schizophrenia, manic-depressive psychosis, epilepsy, "remarkable abnormal sexual desire," "remarkable criminal inclination," Huntington's disease, muscular dystrophy, albinism, achromatopsia, deafness, hemophilia, "rupture of hand," "rupture of foot," etc. Moreover, Article 12 (added in 1952) permitted a physician to apply for a patient with "psychosis or mental deficiency" that was neither hereditary nor on the Annexed List, provided the patient's parent or guardian gave consent.
On receiving the application from a physician, the prefectural Eugenic Protection Commission was to notify the patient, examine the case, decidethe propriety of sterilization, and finally notify both the patient and theapplicant physician (Article 5). The patient or applicant physician who objected to the decision could apply for review by the Central Eugenic Protection Commission within two weeks (Article 6). The Central Commission then would review the case, decide the propriety, and notify the patient, the applicant physician, the prefectural Commission, and the physician who was to perform the surgery (Article 7). Those who objected to the decision by the Central Commission could institute a lawsuit for its rescission (Article 9).
However, these provisions for notification, review, and lawsuit didnot apply to the patient with mental or intellectual disability mentioned inArticle 12. In this case notice was only sent to the applicant physician and the parent or guardian who had consented (Article 13). In addition, the Ministry of Health and Welfare (MHW) issued a guideline "On the Enforcement of the Eugenic Protection Law" in 1953 saying that "a eugenic operation can be performed against the patient's own will" when the commission had judged it necessary. This guideline stated "It is permissible to restrain the patient's body, to administer an anesthetic, or to deceive the patient, etc." These new provisions in the early 1950s enabled and authorized forcible and deceitful sterilization, which was the common way of practice.
EPL required physicians to send monthly records of performed sterilization and abortion to the Prefectural Governor. MHW annually published thestatistics of them. According to the statistics, from 1949 to 1994, 16,520sterilizations were performed applying Article 4 or 12, namely without the patient's own consent. 11,356 of these involuntary sterilizations were performed on women, and 5,164 on men.
In 1996 the eugenic provisions were repealed, and EPL was revised producing the "Maternal Protection Law," which allows only voluntary sterilization and abortion. This revision was formally done by accepting the proposal by National Family Members' Organization of the People with Mental Illness, but was stimulated by the criticism of foreign people who had heard aboutEPL from Japanese women with disabilities at the UN Conference on Populationand Development in 1994 and Beijing Conference on Women in 1995. But at thetime of the revision there was no criticism for the inhumane sterilizationsin the Diet.
2. THE REALITIES
Most of the involuntary sterilizations were performed on inmates ofpsychiatric hospitals and institutions for intellectually disabled people.Usually these inmates were deceived into having the surgery. For example, ayoung women with mental disability had surgery in the psychiatric hospital without being informed what it was for. When she came to know she was sterilized, she was greatly shocked and her mental condition deteriorated. In this case, her parents gave consent to the surgery (newspaper Asahi Shimbun 9/17/97, p.21). Sometimes they were asked but virtually forced to consent to it, because having sterilization was often a requirement for entering an institution, which was what the parents wanted badly. If she/he had not been sterilized at entrance, sterilization was required at leaving the institutionor moving to the "mixed" section in which men and women were institutionalized together.
Not only people with intellectual or mental disability but also people with physical disability were deceived or virtually forced to consent tohave sterilization. In 1996 at a public meeting in Osaka a woman with cerebral palsy told her story of being sterilized by radiation. She was requiredto be sterilized to enter an institution, and she could not refuse it underthe pressure by her parents and employees of the institution. In case the person was a minor, sterilization was performed merely on the parent's consent, without notifying that person at all.
Very often these sterilizations had been performed not by tying up the fallopian tube but by hysterectomy, because the purpose of the surgery was not only sterilization but also stopping menstruation in order to make thecare of the inmate women easier. To stop menstruation, the surgery needs totake either the ovary or the womb, but since taking the ovary causes "loss of femininity," physicians preferred taking the womb "on the patient's behalf." This procedure was illegal, because EPL permitted only the sterilization"without removing reproduction grands" (Article 2) and prohibited other kindof sterilization "without appropriate reason." (Article 28) It is apparentthat stopping menstruation for easy care can never be appropriate reason. But no physician has been accused or punished for this practice. Some such surgeries were performed by the professors of the national universities at the university hospitals. A professor told a newspaper reporter that he firmly believed it to be legal, ethical, and the best way for the patient (Mainichi Shimbun 6/12/93, p.26).
3. THE DEMANDS AND RESPONSES
Against these inhumane sterilizations, people with disability and their advocates have protested to the government over the years, but gained little public attention. But when the forced sterilization in Sweden was reported internationally at the end of August 1997 and the Swedish government apologized, protesters were very much encouraged. On September 16, dozens ofinterested persons and 17 groups of women, people with disability, employeesof institutions, lawyers, and researchers, sent representatives to the Ministry of Health and Welfare to meet officials and demanded from the government: (1) an official apology to all those who were forcibly sterilized and those who were insulted by being called "inferior descendants" under EPL, and consideration for compensation; (2) an investigation into the historical factsby setting up the special investigation committee, in order to make public the infringements of basic human rights of people with disability and to findthe necessary and proper form of apology and compensation, without infringing the privacy of the victims; and (3) an investigation into the facts of illegal hysterectomies of women with disability not only in the past but also at present, and proper measures to prevent such a practice and to give reliefto the victims, respecting their rights and the privacy.
But to these demands, Ms. Tomoko Kitajima, an official of MHW, replied: (1) There is no need to apologize, because sterilizations were performedin accordance with EPL and legal. As an administrative organ, MHW cannot compensate for legal cases; (2) Sterilizations without the patient's own consent were not necessarily forced, since EPL required an examination and provided review. We have never heard of a case in which sterilization was performed forcibly, and there is no victim here at the meeting. If you know of a case which was illegal (without the examination, etc.), please notify us. The Ministry cannot investigate until we know of an illegal case; (3) MHW haspublished annually the statistics regarding sterilization. Further investigation is impossible, because Article 27 of EPL requires protection of the privacy of the patient; (4) The hysterectomies of women with disability had nothing to do with EPL, because it was not performed in accordance with EPL.It is a matter of the propriety and legality of each case, and of whether ithad an appropriate reason. These must be judged individually by the court,not by MHW.
In response to the answers by MHW, the protesters organized "the Society for Demanding An Apology for Forced Sterilization" on October 6. It will hold public meeting on November 13 in Tokyo. It also plans to collect information about the cases of involuntary sterilization from the victims by telephone for a week.
In my view, Ms. Kitajima's reply is not at all sufficient to acquitMHW. First, it was MHW that officially permitted coercion and deceit in theguideline in 1953. Even if it was not MHW but the Diet that was responsiblefor the legislation and the negligent revision of EPL, MHW was clearly responsible for administration and negligent abolishment of this guideline. Second, saying that EPL required examination and provided review for all sterilizations without the patients' consent is false. As I mentioned above, Articles 12 and 13 permitted sterilization of people with mental or intellectualdisability only with the parent's or guardian's consent and without notifying the patient, and did not provide for review. It was these Articles that justified deceiving the patient. Third, MHW could not have been unaware of illegal cases, because a lot of hysterectomy cases had already been reportedin the newspapers and these cases seemed to have no appropriate reason. IfMHW was unaware of the reports, it must be awful negligent in its administration. Fourth, MHW must be able to investigate the records of the examination of the Eugenic Protection Commissions respecting the privacy of the patients. That is just what the citizens are claiming. Refusing to investigate simply with the excuse of protecting privacy is absurd. Fifth, although the matter of whether each hysterectomy was illegal should be decided finally by the court, MHW cannot say the judgment has nothing to do with an administrator's task. An administrator must judge the legality of its actions, even though its propriety is finally decided by the judiciary. If it had actually no judgment at all, MHW could not administrate at all.
*All quotations from EPL are translated by Fukio Nakane in Eugenic Protection Law, EHS Law Bulletin Series Vol. VIII, Tokyo: Japan, Eibun-Horeisha, Inc., 1962. Quotations from the 1953 guideline of MHW are translated by Tsuchiya. Special thanks to Mr. Osamu Nagase, Mr. Yasutaka Ichinokawa, Mr. Shinya Tateiwa, Ms. Aiko Tsutsumi, Ms. Kumiko Ogoshi, Ms. Tomoko Kitajima, Ms. Makiko Kato, Mr. Isao Morikawa, Ms. Junko Sakaiya, Ms. Makiko Ishihara, Prof. Robert M. Veatch, and Prof. LeRoy B. Walters.
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