Blessed be the fruit: Indications of birth control in lawsuits about tubal ligation surgery in the santa catarina judiciary (2015-2016)

Abstract

Tubal ligation surgery in Brazil is regulated by Law n. 9.263/1996, the so-called Family Planning Law. This law establishes a series of requirements that, if completed, guarantee women the right to undergo sterilization surgery through the Unified Health System-SUS. However, complaints about the ineffectiveness of the Law are not uncommon, for even when these criteria are met, surgery is not performed. In such cases, the conflict may reach the Judiciary, which will decide on the dispute. This article focuses on a specific case: In the state of Santa Catarina, between the years 2015 and 2016, there were frequent refusals to perform a sterilization, which led to the prosecution of several requests. Thus, the objective was to identify both the arguments used by hospitals and health plans for refusing surgery and the ones used by the magistrates for authorization of the procedures: Whether the legal requirements were observed and whether the woman's wishes were taken into account. In order to do so, we analyzed judicial judgments given in this time-space, from which it was possible to conclude that the judges apply the law indiscriminately, sometimes ignoring and sometimes stressing the requirements established in it, and also that there are remnants, perhaps not intentional, of a controlling thought, concerned not to respect the individual desire of each woman or the established legal norms, but to effect the reproductive rights from a Neo-Malthusian logic: The surgery of ligature is deferred, but not on the argument that it is about the woman's desire, but rather because the woman is financially helpless.