Sterilization: Implications for mentally retarded and mentally ill Comments on the Canadian Law Reform Commission’s working paper 1983 The Law Reform Commission of Canada dealing with the Protection of Life Project has issued its second Working Paper: Sterilization: Implications for Mentally Retarded and Mentally Ill Persons (1979). The principal recommendations the Commission makes are these: Insofar as a mentally handicapped person is capable of giving informed and voluntary consent, he/she should have the same options to consent or refuse to consent to sterilization as do other persons. (116) Insofar as a mentally handicapped person is incapable of giving the requisite consent, he/she can be sterilized only with the authorization of a board composed of a multi-disciplinary team of persons qualified to evaluate the medical, social and psychological benefits of sterilization. (117-8) The Board can authorize involuntary sterilization only if: "the individual is probably fertile, and there is some evidence to that effect; "the individual is both of child-bearing age and is sexually active and other forms of contraception have proved unworkable under the particular circumstances of each case or are inapplicable so that pregnancy is a likely consequence; "there is more compelling evidence than age or mental handicap alone that childbirth itself or child rearing itself will probably have a psychologically damaging effect on the individual; "the sterilization will not in itself cause physical or psychological damage greater than the beneficial effects to the individual, based on a comprehensive medical, psychological, and social evaluation; "the views of the individual have been taken into account in the determination regarding whether or not to sterilize.” (113-9) The Commission’ recommendations of what constitutes consent, how incompetence is to be determined, and the composition of the Board seem to us to be sensitive and sensible. However, we find that the rationale for leaving it to the courts to determine incompetence, but to a Board to decide whether to sterilize is set out altogether too briefly. We have no principled objection to this, but do not find the position compelling. The ground the Commission gives for putting authority to sterilize in the hands of a Board rather than the court is that the decision must be made solely on the basis of benefit to the individual, and a board will "ensure that those persons most qualified to determine ’real’ benefit be given the most appropriate opportunity and forum to determine the most beneficial action". (112) But decisions concerning child custody and adoption, which also have as the primary end the welfare of the individual, are decided by the courts, and there is something to be said for following this practice in the case of compulsory sterilization decisions. If protection against abuse of legislation is a serious consideration—and, as we shall see in what follows, it is of crucial importance—we should demand strict due process provisions, and those are best provided by requiring that decisions to sterilize are the outcome of a full adversary hearing in a court of law. Our primary concern in this brief, however, is with the Commission’s recommendation of the conditions under which involuntary sterilization may be authorized. We must ask what arguments the Commission has for that recommendation, and whether they support it. There is a standing prima facie case against compulsory sterilization: it is always prima facie wrong to do anything to anyone without the consent of that person. Thus if one wants to defend the practice, one needs to show that there are overriding considerations to be taken into account. On the face of it, two kinds of arguments are available to defenders of involuntary sterilization: those which allege benefits to the handicapped, and those which allege benefits to others. The Commission reviews a number of arguments falling under both heads. It rejects all of the latter sort, and accepts some of the former. But the Commission’s handling of these arguments is very unsatisfactory. Not only are the pro-sterilization arguments and their replies so separated in the text that it is not always clear what is supposed to cancel what, but also, as will be seen in the sequel, the Commission’s arguments do not support its conclusion. That said, here are the arguments, together with their replies, beginning with those which allege benefits to others. The genetic argument Sterilization of the mentally handicapped will reduce the proportion of genetically defective persons. (24-7) Reply: The effectiveness of this will be very limited. Not all mental handicaps are genetically transmitted, so there is no question of eliminating mentally handicapped persons by this method. And of those handicaps which are inherited, an estimated 89% of them are transmitted by persons who are not themselves affected, so even if (as could not realistically be the case) all mentally handicapped persons were sterilized, the reduction would not be significant. (37) The economic argument The mentally handicapped place a financial burden on the community that is greater than the benefit they provide. A sterilization policy will help to relieve that burden. (29-31, esp. 30) Reply: Distribution of social services should not be based on a cost-benefit analysis, but rather on considerations of promoting the fullest development of each individual. Since depriving a person of the right to procreate hampers such development, economic consideration should not motivate sterilization policies. (69-70, esp. 68-9) Benefits to future generations argument Sterilization should be enforced for the sake of possible children, specifically, to prevent children from coming into being who will suffer because of (i) serious genetic defects or (ii) poor parenting. (35) Reply: No reply is given to (i). Consideration (ii) is dismissed on two grounds: first, to sterilize for such a reason is to act discriminatorily, for all sorts of persons, not considered as fit subjects for involuntary sterilization, display clear evidence of inability to parent (62), and, second, there are milder measures provided by child welfare laws to remedy the evil: the child could be removed from the care of incompetent parents. (64) Prevention of social problems argument Mentally handicapped persons are likely to make poor parents; poor parents tend to produce children prone to crime and other problems; thus prohibiting procreation by these individuals protects against this eventuality by not placing the responsibility of parenthood on those incapable of coping with it. (32) No reply We now pass to those arguments which allege benefits to the handicapped. The personal hygiene argument The lives of those who have problems managing their own menstruation would be enhanced by a complete hysterectomy. (34) Reply: It is not clear that the benefits are worth such a major intrusion, and, in any case, those who require a great deal of assistance in managing this matter will also likely require assistance with urinary and fecal control. Since care must be provided for the latter anyway, providing care for the former does not substantially add to the burden. (34) Frustrations of parenting argument Parenting is difficult at the best of times, and mentally handicapped persons may suffer such frustration that it would benefit them not to be put in such a situation. (33) Reply: The Commission makes it clear that while it regards this argument as insufficient to routinely sterilize all the mentally handicapped, it thinks it sufficient to justify compulsory sterilization in selected cases. (60) The financial burden argument The overwhelming majority of the mentally handicapped are on welfare or work at low-paying jobs. For them to bear the additional costs of child rearing may be impossible, or work such a hardship as to trigger psychological or emotional adjustment problems. (33-6) Reply: Same as for (6). The trauma of birth argument The trauma of childbirth could cause severe stress which the mentally handicapped could do well without, and hence sterilization would be a justifiable protective measure in some cases. (60) Reply: "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 that it is for others. Considering the generally known wide range of post-partum response would likely render this a difficult case to prove." (60) Given the recommendations of the Commission, this reply must be intended to refute only the view that all mentally handicapped may be sterilized as a matter of course to prevent the trauma of giving birth, not the view that this sometimes constitutes a sufficient reason. The Commission also provides three arguments against the practice of involuntary sterilization in any form, none of which it offers replies to. The abuse of legislation argument Any legislation permitting involuntary sterilization is open to serious abuses. The law may be unevenly applied, and a disproportionally high number of special classes of persons (such as, e.g., those who are women, single, unemployed, or non-Caucasian) may be sterilized. (42-5) The psychological effects argument There is evidence that enforced sterilization is often accompanied by a reduced self-image: the subject views himself/herself as deviant and unworthy of the rights of parenthood. This sometimes leads to an end of all attempts to live a normal life and a retreat into institutions. (49-52) The human rights argument Involuntary sterilization violates the natural right of procreation, which is implied by the Universal Declaration of Human Rights, the 1968 Proclamation of Teheran, and supported by English case law. (52-55) On the basis of the above pro and con arguments, the Commission drew its conclusion that, under the conditions specified earlier, involuntary sterilization should be permitted only to prevent serious harm to the mentally handicapped due to problems in child rearing or childbearing. But it is hard to see how this conclusion follows. Specifically, it is not clear how the Commission can endorse involuntary sterilization at all, given that it does not refute arguments 9-11; how it can refuse to endorse any sterilization to prevent harm to possible children, given its treatment of arguments 3 and 4; how it can endorse compulsory sterilization to prevent psychological problems of child birthing, given its reply to 8; and how it can draw the limited conclusions it does from 6-8 and yet not do the same for some of the other arguments, e.g., most strikingly, 3 and 4. Finally, once must be puzzled by the quick dismissal of the relevance of economic considerations. The Commission is no doubt right to claim in 2 that a cost-benefit analysis should not be allowed to decide the policy, but it does not follow that economic/social costs are irrelevant to the question. No social service does, or could reasonably be expected to do, whatever is in the best interest of its clients whatever the costs may be, and it is not clear why sterilization policies should be insulated from limitations of money, time, energy, and other social resources. Such considerations may not be as important as others, but they are surely not irrelevant. Thus the Commission does not fully air the case for compulsory sterilization of the mentally handicapped for other reasons. Given this, we need to look afresh at the question of the conditions under which compulsory sterilization would be justified. There are two principles, both surely true, which are relevant to the discussion of compulsory sterilization of the mentally handicapped. The first is what we can call the Principle of Paternalism. According to this, if persons lie under some impediment which disqualifies them from making fully rational decisions in their own interest, society can properly—indeed, has a prima facie obligation to—step in to help smooth the way. The second. is what we call the Harm Principle: if persons are doing or threatening harm to others, society has a prima facie duty to interfere. Each of these principles makes out a prima facie case for compulsory sterilization of the mentally handicapped in selected instances. There can be no doubt that sterilization will, in certain cases, improve the quality of lives of mentally handicapped individuals, and this, together with the Principle of Paternalism, makes out a prima facie case for compulsory sterilization. There can likewise be no serious doubt that sterilization can also sometimes prevent harm to possible children due to genetic faults or poor parenting, and this, together with the Harm Principle, again makes out a prima facie case for compulsory sterilization. And the other-directed considerations need not be limited to these. Sometimes sterilization of the mentally handicapped will not be in their interest, and yet it may also not be in their interest to have children. Again, sometimes we could avoid harm to possible children due to poor parenting while at the same time not injuring the interest of the mentally handicapped by leaving the handicapped unsterilized and removing any offspring from their care. The controls necessary in the former case, and the expedient resorted to in the latter, place demands on the time, energy and financial resources of the community. There is no reason why these demands should not count as preventable harm, and thus the Harm Principle once again tells us we have a prima facie case for selective sterilization. The question now arises as to whether these prima facie cases are sufficient to justify compulsory sterilization for both the self- and other-regarding reasons specified, or whether there are some countervailing considerations sufficient to cancel those cases. We will consider the adequacy of the appeal to the Harm Principle first. There are two difficulties facing any appeal to the Harm Principle. First, there are all sorts of non-mentally-handicapped persons who place possible children at risk of serious genetic defects or poor parenting, or who will otherwise cause society to bear burdensome costs by having offspring. Thus one may urge that by limiting legislative provision for the mentally handicapped for this reason is discriminatory. On this view, either anyone who puts others at risk in the above ways should be a candidate for sterilization, or no one who does so should be. But it is not clear that this objection is decisive. There is a long-standing principle to the effect that the law can properly do what it can when it can where it can. And this, conjoined with the fact that the risks in question increase appreciably in the case of the mentally handicapped, is enough to override the charge of discrimination. But even if we can so overcome this difficulty, there is another one. One may urge that the number of cases in which such legislation would be beneficial is small. The chance of genetic faults being transmitted is slight, and damage to possible children can typically be avoided by the less drastic measure of removing them from the environment. Thus, so the argument may run, the bulk of the case for compulsory sterilization for other-regarding reasons rests on considerations of costs to the community, but the possibility of abuse of the legislation offsets those. The legislation opens the door to a return to the bad old days of routine sterilization of the mentally handicapped, and would certainly produce some cases in which the interests of the mentally handicapped are wrongly trampled by consideration of possible harm to others. But it is far from clear that these consideration should be taken to cancel the prima facie case generated by the Harm Principle. There can be no doubt that the transmission of some serious genetic faults can be so prevented. There is no guarantee that adequate alternative environments will always be able to be easily found for offspring: a prolonged recession may close up the adoption market, and make state-run institutions inadequate to the task. Finally, it is not clear that with suitable monitoring and penalties the potential for the abuse of the legislation cannot be brought to an acceptable level. From the above, it should be clear that we cannot decide whether the law should allow compulsory sterilization of the mentally handicapped for other-regarding reasons in the absence of empirical evidence. At a minmum, we need to know: what the incidence of transmission of genetic defects by the mentally handicapped is how many children now have to be taken away from mentally handicapped parents what the social costs of relocating those children are and the extent of injury done those children by the removal and relocation. The B.C. Civil Liberties Association does not have this information, and thus does not wish to take sides on the issue. We would, however, like to suggest that insofar as the Commission has not produced any of the requisite data either, it too should adopt an agnostic position. Clearly the Commission has not provided any cogent principles sufficient to rule out compulsory sterilization for other-regarding reasons. Certainly the Commission cannot deny the Harm Principle, or the prima facie case generated by it. Certainly it would be unacceptable to decide such an issue on the basis of how things appear from one's armchair. Certainly the Commission has not produced any statistical or even anecdotal evidence concerning the need or risks of such legislation. We now pass to the case for sterilizing the mentally handicapped in their own interest. Since this case is made out by appeal to the Principle of Paternalism, we do not have the same problem of discrimination. For while many non-mentally-handicapped persons are at risk of hurting themselves by giving birth or the rigors of childrearing, society has no warrant to interfere. If a person is a competent adult, he/she cannot be protected from him/herself by compulsory measures. But abuse of legislation considerations do pose a problem. By allowing compulsory sterilization of the mentally handicapped for self-regarding reasons, we thereby expose the mentally handicapped to all the dangers attending sterilization for other-regarding reasons, for sterilization may be performed for the latter reasons in the name of the former. And, given the history of sterilization programmes, it would be naive to suppose that such abuse will not occur. Perhaps one may claim that the advantages will outweigh the disadvantages. But what is the evidence for that? We do not know, and the Commission does not help. It does not provide any statistical or anecdotal evidence to show that there is a pressing need to sterilize the handicapped in their own interest. Nor does the Commission discuss the evidence there is for abuse of legislation in a satisfying way. If we inspect the Commission's report, we find that argument 9—The Abuse of Legislation Argument—which invites just such a discussion, goes unanswered. We do not wish to deny that it may be advisable to sanction compulsory sterilization in the patient’s interest. We do, however, wish to deny that the issue can properly be settled in the absence of a detailed examination of the evidence. Thus, to sum up, the Commission rightly rejects the routine sterilization of all the mentally handicapped. The Commission is also to be congratulated on its attempts to safeguard the mentally handicapped from ill-use. But the Commission provides insufficient grounds for excluding sterilization of the mentally handicapped for other-regarding reasons, and insufficient grounds for endorsing sterilization of the mentally handicapped in their own interest. Such recommendations can only properly be made on the basis of evidence which the Commission does not marshall. And, in the absence of such evidence, the question of the conditions, if any, under which compulsory sterilization should be allowed must be left open.