Should a person ever be sterilised against their will?

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Baby hand

If someone has an intellectual disability and could not take care of children, would it ever be justified to order their sterilisation?

It’s a question that poses an ethical and moral dilemma; requiring a careful consideration of several competing interests.

It has been reported that a UK court recently ordered a 36-year-old woman to be sterilised against her will.

The woman had been diagnosed with autism spectrum disorder and had a learning disability, with an IQ of 70.

She already has six children, all of whom have been taken into care following a series of allegations concerning her inability to care for them.

Social services and health authorities asserted that the children were born at the woman’s home in a ‘grossly unhygienic environment,’ and that neither the woman nor her partner, who also has an intellectual disability, has shown any interest in caring for them.

Her partner is alleged to have used kitchen tongs to deliver one of one of the children, which allegedly caused cuts to the child’s head.

Concerned health officials and social services personnel made an application to the court seeking approval to force entry to the woman’s home and have her sterilised against her will.

The court heard evidence from a variety of experts who were of the opinion that future pregnancies may endanger the woman’s life as she has a thin uterus which could easily rupture, leading to her death.

Previous pregnancies had also been fraught with medical complications which posed a risk to both the woman and her child.

In ruling that authorities could forcibly sterilise her, the court held that the woman’s intellectual impairment meant that she was unable to make sound decisions about the risks of pregnancy.

But while this case concerned an application by government authorities to have a person forcibly sterilised, there are cases where the parents of intellectually disabled children have indicated a desire to consent to sterilisation on their behalf.

So what does the law say about those situations?

Can a child’s parents consent to sterilisation on their behalf?

In 1992, the High Court of Australia heard Marion’s Case, which involved a 14-year-old intellectually disabled girl whose parents wished to have her sterilised.

The case highlights the different considerations that a court must have regard to when deciding whether or not to allow sterilisation to take place.

Marion was a young woman who suffered severe disabilities.

Her parents sought to have her sterilised by presenting evidence to the court that she was unable to maintain appropriate hygiene standards or care for a child.

They applied to the Family Court for an order enabling them to consent to the procedure on behalf of Marion.

Under the law, if a medical procedure is performed without a person’s consent, it can amount to an assault.

Therefore, the High Court had to determine who had the ability to give consent to the procedure – Marion or her parents.

To answer this question, the court proposed a four-step approach.

This involves firstly determining whether the child has the ‘competence’ to give consent.

The High Court essentially found that a child’s ability to give consent depends on their intelligence, maturity and ability to understand the procedure in question.

This means that while very young children lack ‘competence,’ they generally become more competent and able to make important decisions as they grow older.

However, where the child has an intellectual disability, it is harder to determine whether or not they have the necessary ‘competence’ to make these types of choices.

The court cautioned against making a blanket assumption that intellectually disabled children lack the competence to make decisions, because there are different types and levels of disability.

Instead, the court said that each case has to be assessed on an individual basis, and that the ‘rate of development’ of each child needs to be considered.

Where a child is assessed as being incompetent to make decisions, the court then has to ask whether the child’s parents have the power to give consent.

While a child’s parents can give consent on behalf of an intellectually disabled child for ‘therapeutic purposes,’ they cannot consent to serious, irreversible medical procedures such as sterilisation.

In these types of situations, where parents are unable to give consent to the procedure, the matter has to be referred to the Family Court, which will decide whether or not the decision is in the best interests of the child.

In making that decision, the court will consider a whole range of factors including the child’s condition, the nature of the proposed treatment, the reasons in support of that treatment, the possibility of alternative treatments, the impact that the treatment may have on the child and so on.

Because of the availability of a wide range of alternatives to sterilisation, the court has recognised that sterilisation can only be authorised by the court as a ‘last resort.’

The court also said that sterilisation can only be authorised when it would enable the child in question to ‘lead a life in keeping with [their] needs and capacities.’

Accordingly, the court did not allow Marion to be sterilised.

The Court’s findings were supported by the 2012 Senate Inquiry into Involuntary and Coerced Sterilisation of People with Disabilities in Australia.

That Inquiry found that the sterilisation of intellectually disabled women is a form of torture which breaches human rights and international treaties.

It recommended making the practice entirely illegal.

However, many parents of intellectually disabled children struggle to reconcile the tribunal’s findings with reality.

For many, the decision to sterilise comes from a yearning to protect their intellectually disabled child from unwanted pregnancies where the child is entirely unable to care for a baby.

Supporters of this approach argue that sterilisation of intellectually disabled children would prevent further cases like that of the UK woman discussed above – where the children may suffer abuse or neglect before being placed into the care of strangers.

On the flip side, it is argued that women have a right to bear children and should not be forced to undergo complex medical procedures that they cannot understand or consent to.

No matter which way you look at it, it is a contentious debate which evokes emotion and concern from all persons involved.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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