Sterilisation of the Mentally Incapacitated: Harsher to Women than to Men

Mental incapacity or an unsound mind is legally considered as equal to insanity. It exists when there is a significant poverty in a person’s reasoning ability or when there is a failure to understand and act discretely in common life situations. Due to the social stigma brought about by the words “insanity” and “incompetence” the term used nowadays is “incapacity”. On the other hand, mental disability any disorder or disability of the brain or mind that leads to disturbance or impairment of the functioning of the mind.

A person who is diagnosed as senile, mentally-retarded, mentally ill, or who experience from some other mental debilitation that stops him/her from managing his/her own concerns, most especially child bearing and rearing. Sterilisation refers to the procedure performed to stop fertility permanently, with aim of removing the capacity to reproduce (or become infertile), and can be in the form of a surgical procedure or pharmacological management. In most cases, surgery is the procedure of choice for sterilisation as it provides effective results but also permanent mutilation and irreversible damage.

There is a long list of reasons made to defend the considerable intensity of control used on individuals with mental disabilities versus normal people, such as the impression that mental disability is a danger to the general public. Another is the eugenics-based argument that by removing their reproductive capability, mental disability can be controlled. Most believe that mentally disabled people badly needs support in order to survive, thus making them burden to societies and families.

In sum, all these perspectives suggest that the need to address the burden of supporting the mentally-incapacitated can be legally alleviated through methods like sterilisation instead of looking for options in lifestyles. At present, mentally-incapacitated people stereotyped as sexual deviants is highly accepted everywhere, with the related notion that removing their reproductive capacity is tantamount to having a safer and much better community. Childrearing is seen as beyond the capacities of the mentally incapacitated person since such process requires physical and emotional capabilities with overpowering difficulties.

People with disabilities face many obstacles in their struggle for their rights as individuals and for equality with mentally capable persons. Although men and women with disabilities are subject to discrimination because of their disabilities, women with disabilities are at a greater disadvantage because of the double discrimination based on gender and discrimination based on disability. Sterilisation of the mentally incapacitated is governed by the best interests of the individual.

However, the principle can operate much more harshly on women’s lives than those of men. This paper argues against the measure of employing surgical procedure to sterilize mentally-incapacitated women. After introducing the topic, sterilisation of the mentally incapacitated as espoused by eugenics is discussed. The following sections discuss pertinent legal precedents and arguments. The legal rights of insane women are discussed in the following section. The last part presents the conclusions and recommendations. Why Sterilise the Mentally Incapacitated?

Eugenics is the study of the method of improving the quality of the human race, particularly through selective breeding. The theoretical framework was developed during the 19th Century and it was during the 20th Century that eugenics was first practiced legally in some Western States—including Germany, the United States and the United Kingdom. At present, there is an obvious gender bias as scholarly studies on mandatory sterilisation and gender concentrates almost solely on women as the objects of these endeavours. However, in the past, men tend to be sterilized more than women before 1928.

After that year, the trend has radically changed in gender preference for mandatory sterilisation, particularly in the U. S. , Sterilisation of mentally incapacitated individuals has historically been generally considered as an acceptable practice. Under the Buck vs. Bell precedent, it is estimated, for instance, that over 70,000 mentally-incapacitated people were sterilized in the U. S. Between 1969 and 1989, a total of 212 sterilisation procedures was conducted in a large residential institution in the State of Virginia involving 125 women and 87 men.

In Australia, there is no record on the prevalence of sterilisation of mentally-incapacitated individuals in the past. Nonetheless, recent studies conducted in Queensland report of a 50 percent rate (15 for every 30) of sterilisation of young females with mental incapacity and high support requirements. For the same cohort, a further 33 percent of these young women’s families either were considering sterilisation or had used hormones to suppress the young girls’ menstruations. From the above discussions, it can thus be averred that mentally-incapacitated individuals are at risk of being sterilised for several improper reasons—most especially eugenics, which promotes the usually misinformed and inaccurate supposition that the children of mentally-disabled persons will likely have similar disabilities. In fact, the persisting social acceptance of sterilisation is continually being reinforced by using this historical acceptability in its arguments.

On the contrary, advocates for the mentally incapacitated are opposing this argument disputing that it does consider advances and changes of the recent years in lifestyle opportunities and educational options for people with intellectual incapacities. Nonetheless, in dialogues on existing issues that mentally incapacitated individuals must live with, it is often discussed that “living an ordinary life is a challenge but living an ordinary sexual life, in the sense of exercising rights over your own sexuality, is to live a life of defiance”.

Such discussions typically cover concerns on social behaviour, health, hygiene and physical appearance, which families and staff consider as important, but exclude personal issues and particularly sexuality. It is commonly noted that fertility in persons with mental incapacity is controversial and there are generalised apprehensions regarding the independence of mentally incapacitated individuals due to their capability to procreate, and thus these people are maintained in suspended adolescence. The Universal Right to Procreate

The legal system argues that the constitutional right to privacy protects a person’s choices, such as the option whether to have children or not. In Davis v. Davis, the Supreme Court of Tennessee stressed that “a right to procreational autonomy is inherent in our most basic concepts of liberty…. ” This Court went on to elucidate that: “For the purposes of this litigation it is sufficient to note that, whatever its ultimate constitutional boundaries, the right of procreational autonomy is composed of two rights of equal significance—the right to procreate and the right to avoid procreation”.

While Davis v. Davis is an obligatory precedent for Tennessee law, it is firmly founded upon prior decisions of the U. S. Supreme Court and is often cited in the legal text. There is, thus, sufficient evidence to support that the constitutional right to procreate is an option right—a right that the holder of the right owns, which is either to procreate or not procreate. The Supreme Court of California, in Conservatorship of Valerie N. , was asked to determine if a statute disqualifying the sterilization of a conservatee who is severely retarded was valid in all situations.

The Court described the constitutional right at issue as “the right of women to exercise procreative choice ‘as they see fit”’ and “the right of procreative choice”. The Court’s opinion then ascribed this right to incompetent mentally incapacitated women. It should be noted that such court reasoning did not consider the application to severely mentally incapacitated men. Since eligibility for welfare benefits is usually temporary, it would be morally unjustified to use sterilization.

Nonetheless, some have contended that requiring long-term contraception, such as Norplant, should be made mandatory to all female welfare recipients. This would, however, evidently make up medical treatment without consent and therefore go against the welfare recipient’s legal right “to determine what shall be done with his own body” as Justice Cardozo held in Schloendorff. Sometimes called the right to bodily integrity, this right is a limited protection of the human right to personal security established in Universal Declaration of Human Rights (Article 3).

This human right is most probably a progeny of the natural right to personal security that William Blackstone depicted more thoroughly: “The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation. ” This basic human right grounds a moral right of each human being not to undergo medical treatment, or any form of ‘bodily invasion’, without her or his consent. Thus, any legal regulation that would compel obligatory contraception of welfare recipients would go against their moral right to personal security.

Should individuals who carry the most serious genetic defects still have the full constitutional right to procreational autonomy? While there is a common human right to procreational autonomy, its constituent moral liberties of procreating and of abstaining from preventing procreation are restricted by a person’s moral duty not to procreate when that person’s offspring would likely become heir to a defect that is very serious as to make his/her life not worth living.

Therefore, a law permitting sterilization of people determined to be carriers of the most serious genetic defects would seemingly not go against the human right to procreational autonomy. This is not to recommend that it might be allowable to sterilize all or even majority of carriers of genetic defects. It is very possible that every individual carries a couple of genetic defects, and that more individuals are carriers of comparatively serious defects.

It is only individuals whose genetic code is such that there is a high risk that any child they might bear would assume a destructive genetic defect or disease or who might probably be denied the full right of procreational autonomy. Any recommendation to permit the sterilization of carriers of the most serious genetic defects gives rise to the phantom of eugenics, a threat that the Supreme Court aimed to put to stop in Skinner v. Oklahoma.

In this case, Justice Douglas, delivering the opinion of the Court, argued that that an Oklahoma law permitting the sterilization of people convicted of three crimes was an unconstitutional violation of the Equal Protection Clause. However, this physical invasion without their consent would plausibly violate their human right to personal security. Is the state interest in averting the birth of children with lives not worth living, children condemned to undergo intolerable suffering, enough to justify violating the human right to personal security by sterilizing individuals who lack the complete human right to procreational autonomy?

It most likely would rationalize this restriction of their constitutional right to procreational autonomy if any such statute could encourage this state interest safely and efficiently. Nonetheless, it is suspected that it would be probable to specify those types of people to be subjected to obligatory sterilization in order to efficiently achieve this goal. There are simple very numerous variables that determine the genetic inheritance of a person’s offspring. For instance, the risk of procreating a seriously defective child rests upon the genetic code of a person’s sexual partner as well as his/her own genetic code.

Moreover, numerous inherited defects differ in degree from intolerably serious to relatively mild. Likewise, how severely should an individual assume the risk of inheriting a disposition to become defective or ill later in life, usually after numerous years of happy productive activity? While it relatively easy to question the earlier scientific theories that were used to substantiate comparable laws in the past, it is all very simple to see that modern medical science offers a concrete basis for eugenics nowadays.

The verdict that some life is not worth living—a life so far unusual from our own that it is almost inconceivable—is usually unreliable and commonly prejudicial. Witness the propensity to abort fetuses “suffering” from Down’s syndrome although many people with this genetic defect live long and plausibly happy lives and even those most seriously defective actually experience no pain and are not able to know how disadvantaged they are. Indubitably, they do need special services and extra care that compel financial and psychological burdens upon their families and, usually, also upon government institutions.

Nonetheless, this fact should be considered as an additional justification for abuse due to our propensity to amplify these psychological burdens and our persuasion to lessen the cost of social services even when most required. There is a wide range of mentally incapacitated individuals with different kinds of retardation and to very diverse degrees. As Justice Pashman has recognized, conveying the opinion of the Supreme Court of New Jersey, Many mentally impaired persons and others with legal disabilities are capable of making their own decisions regarding procreation and sterilization…. We emphasize that there are widely different degrees of mental retardation. The fact that a person is legally incompetent for some purposes…does not mean that he lacks the capacity to make a decision about sterilization. ” Consequently, it would be a blunder to accept any sweeping statement regarding the moral rights of mentally incapacitated individuals as a social class.

Perhaps, some intellectually incapacitated individuals have the complete human right to procreational autonomy, albeit probably with not as much moral weight than normal, others with more partial psychological capacities may have a restricted right to procreational autonomy, and the most severely incapacitated perhaps have no human right to procreational autonomy at all. Would a state law permitting obligatory sterilization of slightly incapacitated people violate their human right to procreational autonomy?

It perhaps would if it were employed to the most of such individuals. Many people with restricted psychological capabilities can fairly understand the effect to their lives whether they prevent having their own child, refrain from procreating, or have children of their own. Albeit these individuals may value the significance of these choices for their lives and for the lives of others less clearly and fully than mentally normal persons can, this would simply lessen the basis of the grounds of the human right to procreational autonomy, and not remove them altogether.

Nonetheless, some might attempt to justify this violation of the human right to procreational autonomy by pleading to the state interest in avoiding the birth of a child who would suffer from intellectual incapacitation. Commenting on an opinion of a U. S. District Court, Circuit Judge Craven accepted this state interest as lawful and a partial justification of a North Carolina law that legalised the sterilization of intellectually incapacitated individuals.

Yet, he also supposed that the law would not be used to the greater majority of intellectually incapacitated people. While it allows initiation of the sterilization process against any and all members of the class, it does not consider that all members of the class will be subjected to sterilisation, nor is the selection standard so unclear that it cannot be understood and used. If this interpretation of the law is correct, then presumably it would rarely if ever be applied to a person who is only slightly mentally incapacitated.

However, it appears difficult to agree to such conjecture that the state interest in preventing the birth of a retarded child is ever adequate to defend the obligatory sterilization of mentally incapacitated individual. It is too difficult to predict when mentally incapacitated individuals would give birth to a gravely retarded child, and the danger of abusing any such law is too great. The other state interest North Carolina specified to justify its statute was the state interest in preventing the birth of a child that the retarded parent would be incapable of caring for adequately.

This is a much more plausible justification because one can predict much more reliably when a person lacks the psychological capacities required for even minimally acceptable childcare than when one’s genetic code would result in the birth of a seriously defective child. However, this would almost never be true of persons who are only mildly retarded. “…the statute presumes that some persons may be so severely retarded that they would be unable to properly care for a child should they conceive one.

When this is the case, compulsory sterilization would not violate the individual’s human right to procreational autonomy because his or her moral duty not to procreate limits the general liberty of procreation. It is very probable that generally it would not do so merely because most severely mentally incapacitated individuals do not have any human right to procreational autonomy. As Justice Pashman observed: “What is at stake is not simply a right to obtain contraception or to attempt procreation.

Implicit in both these complementary liberties is the right to make a meaningful choice between them. Yet because of her serious intellectual mutilation, Lee Ann does not have the ability to make a choice between sterilization and procreation, or between sterilization and other methods of contraception…. ” Because most severely mentally incapacitated individuals are incapable of making meaningful choices regarding either procreation or the prevention of procreation, it is inoperative and ambiguous to assign any human right of procreational autonomy to these people.

When best understood, moral rights concern who must have control, freedom and dominion over some important foundation in several potential dispute with one or more second parties. Therefore, only persons with the ability of using control and freedom can have moral rights, while persons with restricted capabilities can have moral rights only where their capabilities are adequate to allow them to perform significant choices.

It thus follows from this line of argument that most seriously mentally incapacitated persons have no basic moral right to procreational autonomy. However, some of the seriously mentally incapacitated could have a human right to personal security and this may not be the complete human right to personal security that normal adults possess since seriously intellectually incapacitated persons likely cannot understand a lot of the threats to their persons or know the available ways to protect themselves.

But most probably many seriously intellectually incapacitated are able to make significant choices between being mutilated or mauled and not being hurt in those ways. Almost all seriously intellectually retarded people, however, are not capable to make informed choices except only on the most basic medical interventions. Apparently, severely incapacitated people are not capable of deciding if sterilization is in their best interests. Thus, their human right to personal security would not be infringed if they are sterilised without their consent.

Despite being considered that seriously intellectually retarded people do not have the human rights usually protected by the constitutional right to procreational autonomy, this does not suggest that a law allowing their sterilization would be justified morally. Since the moral duty of the state to protect its citizens from injury most significantly concerns the most vulnerable individuals, mandatory sterilization can only be justified when it is in the best interests of people who must undergo such medical treatment. Could sterilization ever justify this criterion?

Consider, for instance the case of Lee Ann Grady. As this young girl becomes 20 years old—the time when she will leave her special class in a public school—her family have began thinking more to what the future will bring to her. Lee Ann’s parents become anxious they will die first before her and that it will be extremely difficult to live by herself. Logically, they have sought to attain for her a life less dependent on her family. Her parents hope to put her in a sheltered work group and then in a group home for mentally incapacitated adults.

Lee Ann’s parents, however, think that permanent sterilisation as a precondition to such future changes in Lee Ann’s life. Think about also of Valerie N. , an incapable developmentally incapacitated young female who does not care about having a fulfilling or satisfying life without the responsibilities of an unwanted pregnancy that only her normal sister wants…. If the government denies from her the only reliable and safe way of contraception fitting to her medical condition, it inevitably restricts her chance for habilitation and, in the process, her freedom to lead a fulfilling future.

Obviously, there are numerous other cases in which the state’s duty is to protect slightly intellectually incapacitated persons from mandatory sterilization. But a law allowing the sterilization of seriously intellectually incapacitated persons when it is in their best interests would be justified morally. Thus, the question stays as to how the law could best allow the sterilization of the seriously incapacitated while simultaneously stopping the wrongful sterilization of slightly incapacitated individuals.

The apparent solution could be to restrict the ownership of the constitutional right to procreational autonomy to slightly intellectually incapacitated persons and to disallow its ownership to severely retarded people. Consequently, the issue is that this would need determining the clear and general differences between severely intellectual incapacitated and slightly intellectually incapacitated individuals. There are basically too numerous types of intellectual incapacitation, present in lesser or greater levels and endured by individuals living under very diverse situations.

Nonetheless, courts have opted to tread a different path in addressing this issue. They have presumed that all intellectually incapacitated persons have the constitutional right to procreational autonomy, although specified procedures by which a court, commonly acting on a parent’s or a guardian’s appeal, has the legal power to allow or order the sterilization of some seriously incapacitated people. Justice Pashman, thus, argued: “The right to choose among procreation, sterilization and other methods of contraception is an important privacy right of all individuals.

Our courts must preserve that right. Where an incompetent person lacks the mental capacity to make that choice, a court should ensure the exercise of that right on behalf of the incompetent in a manner that reflects his or her best interests”. Similarly, Justice Grodin averred: “True protection of procreative choice can be accomplished only if the state permits the court-supervised substituted judgment of the conservator to be exercised on behalf of the conservatee who is unable to personally exercise this right.

By presuming that all intellectually incapacitated persons have the constitutional right to procreative autonomy, the courts wish to limit the misuse of the practice of sterilization by putting a significant burden of proof on individuals who would impose it upon intellectually incapacitated persons who are not capable of giving their consent. However, by providing specific procedures by which a court could allow the sterilization of a seriously intellectually person, the legal system have aimed to protect the best interests of those few persons for whom this would be justified—but not all agree with this solution.

For one, Justice Lucan, dissenting and concurring in Conservatorship of Valerie N. , disputed: “I find fundamentally problematic my colleagues’ conclusion that there is a constitutional right to “substituted consent” in this context…. I worry whether the “rights” which we are “protecting” are in fact more likely to become those of the incompetent’s caretaker”. Chief Justice Bird, who also dissented, even more strongly objected: “Today’s holding will permit the state, through the legal fiction of substituted consent, to deprive many women permanently of the right to conceive and bear children….

The majority opinion opens the door to abusive sterilization practices which will serve the convenience of conservators, parents, and service providers rather than incompetent conservatees. The ugly history of sterilization abuse against developmentally disabled persons in the name of seemingly enlightened social policies counsels a different choice”. A parent’s, guardian’s or conservator’s request or consent cannot be factually considered to replace the request or consent of a person thoroughly not capable of requesting or consenting.

In this context, the key question is whether this can serve the best interests of individuals who may reasonably be sterilized while at the same time protecting the best interests and moral rights of individuals who should not to be subjected to mandatory sterilization. Justice Pashman argued that substituted judgment can serve both purposes: “We do not pretend that the choice of her parents, her guardian ad litem, or a court is her own choice. But it is a genuine choice nevertheless—one designed to further the same interests she might pursue had she the ability to decide herself.

We believe that having the choice made in her behalf produces a more just and compassionate result than leaving Lee Ann with no way of exercising a constitutional right”. However, can the dogma of substituted judgment regarding a person’s reproductive capabilities be allowed without eliciting unbearable exploitations? Commenting vividly of the squalid history of sterilisation in the United States, Pashman disputed that stringent procedural guidelines can and would only safeguard slightly intellectually incapacitated persons from undergoing the sterilisation procedure.

The issue of who can justifiably represent, aside from the parents, the supposed interests of the intellectually incapacitated can await further resolution. Nonetheless, most believe that a suitable court should execute the final resolution whether consent to sterilization must be provided on behalf of an intellectually incompetent person. It must be the judgment of the court, and not just the good faith decision of the parents, that takes the place for the consent of the incompetent.

Pashman then went on to detail the procedure a court should pursue so as to allow the sterilisation of an intellectually incapacitated person, which include: “…the trial court must be persuaded by clear and convincing proof that sterilization is in the incompetent person’s best interests. To determine those interests, the court should consider at least the following [nine] factors…. These factors should each be given appropriate weight as the particular circumstances dictate”.

Every intellectually retarded person must have the constitutional right to procreational autonomy, although the courts must be legally sanctioned to order or permit sterilisation but only after strictly undergoing the procedures drawn to safeguard the personal interests and moral rights of all mentally incapacitated persons. While it is not possible to equitably restrict the ownership of the constitutional right to procreational autonomy universally, it is pragmatic to determine the conditions a court must utilise when making a decision on whether a mentally incapacitated person may be justly sterilised.