Court-ordered contraceptive sterilization of the mentally-handicapped should become unknown in Canada following a Supreme Court of Canada ruling in late October.
Judge Gerard La Forest wrote that such cases should be approached with “the utmost caution,” adding later in the judgement that “it is difficult to imagine a case in which non-therapeutic sterilization could possibly be of benefit to the person on behalf of whom a court purports to act…And how are we to weigh the best interests of a person in this troublesome area, keeping in mind that an error is irreversible?”
The precedent-setting ruling came in the case of “Eve,” whose mother “Mrs. E” applied to the Prince Edward Island Supreme Court eight years ago to have them authorize her daughter’s sterilization. Eve had been living in a community school for retarded adults, where she had formed a close relationship with a young man. Although the couple talked of marriage, school authorities intervened and ended the relationship. Mrs. E, however, was worried that her daughter might become pregnant in the future. She was concerned about the emotional effect a pregnancy and birth might have on Eve, and felt that she would not adequately cope with the duties of a mother. Mrs. E, a widow, and then approaching 60, felt that the responsibility of caring for Eve’s child would cause her great difficulty.
Mrs. E’s application was denied by the PEI Supreme Court and then granted by the province’s court of appeal, who ordered that a hysterectomy be performed. Eve’s court-appointed guardian then launched an appeal for the Supreme Court of Canada before the operation could take place.
In reversing the lower court’s decision, Mr. Justice La Forest wrote that major surgery, such as hysterectomy, without the patient’s consent would constitute battery. Since Eve’s level of retardation prevented her from fully understanding abstract principles, the court had to consider “whether the purposes underlying the operation are necessarily for Eve’s benefit and protection.” While noting that “one may sympathize with Mrs. E” in her worry that she would have judge to care for any child Eve may have, Judge La Forest stated that this was a secondary consideration and that Eve’s well-being was the major concern. Eve’s well-being in the Supreme Court’s opinion would not be best served by such a sterilization.
“The court’s function to protect those unable to take care of themselves ,” Justice La Forest warned, “must not be transformed so as to create a duty obliging the court, at the behest of a third party, to make a choice between two constitutional rights – that to procreate and not to procreate – simply because the individual is unable to make that choice.”
Applications for sterilization of the “mentally incompetent” should also be approached with “utmost caution,” said the judge, because “the decision involves values in an area where our social history clouds our vision and encourages many to perceive the mentally handicapped as somewhat less than human. This attitude has been aided and abetted by now discredited eugenic theories whose influence was felt in this country as well as the United States.”
The Judge went on to note that there is “considerable evidence” that sterilization without informed consent has a “significant negative psychological impact on the mentally handicapped.” He quoted from the 1979 working paper on sterilization issued by the Law Reform Commission of Canada.
“It has been found that, like anyone else, the mentally handicapped have individually varying reactions to sterilization. Sex and parenthood hold the same significance for them as for other people and their misconceptions and misunderstandings are also similar. Rosen maintains that the removal of an individual’s procreative powers is a matter of major importance and that no amount of reforming zeal can remove the significance of sterilization and its effect on the individual psyche.
“…sterilized mentally retarded persons tend to perceive sterilization as a symbol of reduced or degraded status. Their attempts to pass for normal [emphasis in original] were hindered by negative self perceptions and resulted in withdrawal and isolation rather than striving to conform…
“The psychological impact of sterilization is likely to be particularly damaging in cases where it is a result of coercion and when the mentally handicapped have had no children.”
Judge La Forest disagreed that childbirth would prove traumatic fro Eve. Referring again to the Law Reform Commission’s working paper, he quoted ,
“For this argument to be held valid would require that it could be demonstrated that the stress of delivery was greater in the case of mentally handicapped persons than it is for others. Considering the generally known wide range of post-partum response would likely render this a difficult case to prove.”
Similarly, the Judge had difficulty with assumptions about Eve’s capability as a parent. A person’s capacity to successfully fulfil parental duties involves “many value-loaded questions,” he wrote. “Studies conclude that mentally incompetent parents show as much fondness and concern for their children as other people;…Many, it is true, may have difficulty in coping particularly with the financial burdens involved. But this issue does not relate to the benefit of the incompetent; it is a social problem, and one, moreover, that is not limited to incompetents.”
The Supreme Court decision was hailed as a victory by advocates for the handicapped. “Women with all types of disabilities have been sterilized simply because it was more convenient for the authorities,” Cathy McPherson of the Coalition of Provincial Organizations for the Handicapped told the Globe and Mail.
Dr. Andre Blanchet of the Canadian Association for Community Living said that the Eve case had already had an impact on sterilization policies, even before the Supreme Court Ruling. Contraceptive sterilizations were routine in some large institutions as recently as two years ago, he said. Public trustees stopped the practice when the Eve case came to public attention.
One critic of the Supreme Court ruling is pro-abortion Dr. Kenneth Walker. Writing in the Globe and Mail under the name W. Gifford-Jones M.D., he called the decision “incredible and arrogant,” and “legal garbage, a senseless and callous degree.” In a parody of a prayer, he asked God to give the handicapped advocacy groups, “that invariably applaud the illogical edicts” of the courts, some “wisdom and tolerance.”
Gifford-Jones asserted that a social worker had told him of “one retarded girl who by the age of 21 had given birth to five retarded children,” and went on to describe some handicapped women as “…children who cannot place one block on top of another. They are unable to feed themselves or look after their own bodily functions.”
In fact, Justice La Forest had specifically referred to Eve’s level of retardation in his ruling. He repeated the PEI Supreme Court’s analysis of Eve’s condition as
“extreme expressive aphasia. She is unquestionably at least mildly to moderately retarded. She has some learning skills, but only to a limited level. She is described as being a pleasant and affectionate person who, physically, is an adult person, quite capable of being attracted to, as well as attractive to, to opposite sex.”
The PEI Supreme Court concluded that,
“Eve is not capable of informed consent, that her moderate retardation is generally stable, that her condition is probably non-inheritable, that she is incapable of effective alternative means of contraception, that a psychological or emotional effect would probably be minimal, and that the probable incidence of pregnancy is impossible to predict.”
The Supreme Court also cautioned that court applications to authorize contraceptive sterilization should be approached on an individual basis and that the woman involved should be independently represented in court. “If sterilization of the mentally incompetent is to be adopted as desirable for general social purposes,” Judge La Forest wrote, “the legislature is the appropriate body” to make such policy.