Justice, albeit belated
Author: Oscar Vilhena Vieira for Folha de São Paulo
Janaina is a poor woman who is homeless and has children. That’s why a member of the Public Prosecutor’s Office believed she should be sterilized.
As Janaina did not consent or voluntarily agree to undergo the surgery, the prosecutor filed two lawsuits against her and the city of Mococa, with the aim of forcing her to undergo compulsory sterilization.
The judge, without even holding a hearing, appointing a defender, or demanding documents proving her consent, ordered the woman to be coercively taken to the surgery. By the time the municipality’s appeal reached the São Paulo Court of Justice, the mutilation had already occurred.
The case is scandalous. Firstly, the prosecutor used a public civil action, which is an instrument aimed at protecting diffuse, collective, or individual non-disposable rights, to deprive a person of their right to dignity and integrity, in addition to coercing the municipality to carry out a manifestly illegal act.
It is enough to remember that the Constitution expressly prohibits the Brazilian state from coercively interfering in the decision on paternity (Article 226, paragraph 7), and also, Law 9.263/96, which regulates family planning, prohibits birth control that has a demographic nature.
It is also perplexing that the judge, given Janaina’s vulnerability, did not appoint a special guardian, in this case a public defender, to represent her interests in court.
As expressed in the São Paulo Court of Justice’s decision, the surgery was ordered without Janaina being heard or defended, and without even a hearing being held.
To crown this bizarre process, the first-instance court ordered Janaina to be “coercively” taken to the surgical procedure.
It is worth noting that this is a measure provided for in the Code of Criminal Procedure, only for witnesses or defendants who refuse to comply with a summons.
Moreover, by an interim decision of the Supreme Court, this measure of a criminal procedural nature is suspended (ADPF 444). None of this was an obstacle for the judge to employ coercive transportation to impose the suppression of this woman’s fundamental right.
Coercive sterilization, with eugenic purposes and race assessment, was widely used by the Nazi regime. China used mass coercive sterilization to curb population growth. The United States used it to punish criminals.
Even in Brazil, as pointed out by a parliamentary inquiry commission in 1991, there was tolerance for mass coercive sterilization policies for demographic purposes.
This case, although it may be considered a legal aberration, offers a glimpse of the perverse impact that deep and persistent inequality has on the recognition of individuals as subjects of rights.
Although the principle of dignity requires that everyone be treated with equal respect and consideration, poverty and marginalization seem to make large portions of our society morally invisible in everyday life, losing their status as rights holders in reality.
May the decisive decision of the São Paulo Court of Justice, which unfortunately cannot turn back time for Janaina, serve as a warning and inspiration for those who are responsible for protecting rights and not violating them.
