She was sterilized without her consent at 14. Now she wants the practice made a crime
Women who say they were sterilized without consent overwhelmingly Indigenous, says lawyer
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Author and activist Morningstar Mercredi is calling for the criminalization of forced and coerced sterilization, in the hopes that women — especially First Nations, Inuit and Métis women — will never suffer the physical and mental trauma it inflicted upon her.
"I knew that lending my voice to my experience as a survivor was critical and important. Not only for my own process [but also] to let other survivors know that they can come forward. They are not alone," she told White Coat, Black Art host Dr. Brian Goldman.
When Mercredi was 14 years old and in her seventh month of pregnancy, she went to a hospital in Saskatoon after experiencing cramping and spotting. She ended up having a C-section.
What she didn't know, however, was that the surgeon also performed a tubal ligation, removing her left ovary and fallopian tube, without her knowledge or consent.
She didn't find out about it until a visit to a gynecologist decades later, when she was in a relationship and wanted to have children.
"This trauma was such that … I went into a catatonic state and had a nervous breakdown," said Mercredi, now 58, who tells her story in the 2021 book Sacred Bundles Unborn.
"How do I feel now about it? At my age, at this point in my life, and I look back at the 14-year-old child that I was, I'm a bit beyond rage."
Senate committee hearings
While that was nearly 50 years ago, a report in July 2022 by the Senate Committee on Human Rights found that the practice is still happening.
A representative for Boyer, who in 2019 called on the federal government to act on these reports, said it's likely many more women are either too afraid to go public with their stories, or may not yet realize they had been sterilized in the first place.
In November 2022, researchers at a Quebec university released a report that found forced sterilization of Indigenous women had happened in the province as recently as 2019. The Université du Québec en Abitibi-Témiscaminque (UQAT) report said at least 22 Indigenous women underwent forced sterilization in Quebec from 1980 to 2019, a practice it attributed to systemic racism.
Class actions across the country
Lawyer Alisa Lombard is part of a class action lawsuit, which is currently in the certification stage, to compensate several women in Saskatchewan and Manitoba who say they were subjected to forced or coerced sterilization. Mercredi is one of the plaintiffs.
Other class actions are under way in Alberta, B.C., and Quebec, as well as an individual action case filed last year in N.W.T.
Lombard says the vast majority of women who have come forward to her are Indigenous, though she's also heard stories from others, mostly women of colour.
Some women described being forcibly sterilized, to the point where they were "tied down against their protests," said Lombard.
Others describe coerced sterilization, with surgeons asking them during labour or another procedure whether they want tubal ligation.
Dr. Unjali Malhotra, medical director for women's health at the First Nations Health Authority in British Columbia, says that consent cannot properly be given under duress, whether it's due to high levels of stress, trauma or sedation.
"When a woman is giving birth, a lot is happening at that time, physically, mentally and emotionally. And it's important for us to remember it isn't the best time to be having that conversation with someone about their future reproductive health," she said.
What's more, she added, the forms that are typically signed to record consent for such a procedure are "very complex and very difficult to understand," and would be even more so if presented during childbirth, let alone if the individual isn't fluent in the form's language.
According to Lombard, it doesn't make much difference whether someone was physically forced to undergo the procedure or if a physician asked them while under heavy duress such as during childbirth.
"If you're telling a woman: you don't get to see your baby until you agree to this, or you don't get the leave until you agree to this, or if you don't agree to this you'll die if you get pregnant again, that measure of coercion has the effect of forcing a decision which otherwise may not be so," she said.
Barriers to reporting, pursuing charges, say experts
Lombard says either forced or coerced sterilization could be considered aggravated assault under the Criminal Code's current form, pointing to a section that relates to female genital mutilation.
"Just add a few anatomical body parts into that section and you can specifically criminalize non-consensual sterilization very effectively," she explained.
Naming the act in the Criminal Code could serve as a greater deterrence against practitioners who may otherwise perform these non-consensual surgeries, said Mercredi.
Erin Nelson, law professor and Katz Group Chair in Health Law at the University of Alberta, said she wasn't aware of any cases of women reporting their experiences of forced or coerced sterilization to police with the intent of pursuing criminal charges.
"It takes a long time, sometimes, for people to feel like they want to come forward and pursue this," she said. "If you look at how the police tend to handle sexual assault allegations as an example, it's not the type of thing that a lot of people are prepared to pursue."
'Why ... is it still not a crime?'
Malhotra says that if someone was subjected to a forced or coerced sterilization, it might sow the seeds of fear of the health-care system throughout their entire community.
If someone is referred to a health-care provider outside of their own community, "they don't feel like they can access that care because someone in their community has suffered coerced sterilization and they're worried that it'll happen to them," she said.
Malhotra also pointed to old sterilization laws, such as one that existed in B.C. until the 1970s, that empowered doctors in the province to sterilize people without their knowledge or consent, as one reason that some people have little trust in the health-care system, even today.
Malhotra and other physicians in Canada are working to change consent practices for contraception, including sterilization surgery, to take greater account of a woman's beliefs and bodily autonomy over time.
In a statement, the Saskatchewan Health Authority told White Coat, Black Art that it established a new tubal ligation policy. It's meant to "to recognize the importance to women of choosing their preferred method of contraception in an unhurried and supported manner prior to the labour experience."
To Morningstar Mercredi, these are welcome developments. But she's still calling on forced and coerced sterilizations to be explicitly criminalized, in the hopes that in the future, Indigenous women won't have to suffer in the same way she has.
"Why in 2022 is it still not a crime? What is Canada's point behind this? I don't need to answer that. I think that the audience has enough intelligence to make that observation for themselves," she said.
"It's just shocking, is what it is."
Written by Jonathan Ore. Produced by Amina Zafar, with files from Brian Goldman and Verity Stevenson.
