This is my first blog post and I have been moved to write it by an issue I deeply care about: non-consensual sterilisation for persons with intellectual disability.
Re De is a judgment I do not agree with. I will not punch about whether DE had capacity or not. The crux of the case relates to best interests.
Under English law, non-consensual sterilisation, of either male, or female incapacitated person, has to be in the person’s best interests.
The analysis of best interests in Re De is problematic.
From a human rights perspective, the judgment mentions Art. 8 of the ECHR and Arts. 23 and 26 of the CRPD. Sterilisation is seen as an infringement of the right to respect of private and family life under Art. 8 of the ECHR. The mention of the CRPD rights, not having been incorporated in English Law, is of no binding force.
However, an analysis of non-consensual sterilisation only on the basis of Art. 8, or the extensive case law cited and followed in Re DE, does not give the full picture of what is at stake here, in human rights law.
In Issues in the Human Rights Protection of Intellectually Disabled Persons (Ashgate: 2010, 184-191) I have argued that non-consensual sterilisation undercuts a very different, and often very neglected right under the ECHR. Art. 12 of the ECHR protects the right to marry and found a family. Insofar as sterilisation is concerned, Art. 12 has to be regarded as lex specialis in relation to any other interferences with bodily integrity, which are caught by Art. 8. When a non-consensual sterilisation is authorised, Art. 12, in the part that relates to founding a family, is annihilated. It is for this reason, under human rights law, that non-consensual sterilisation is inherently problematic.
The problem with non-consensual sterilisation has to do with proportionality of interference. Art. 12 of the ECHR is a qualified right, which can be exercised according to the national laws governing the exercise of this right. This means that the right of Art. 12 can be interfered with, in accordance with the law, for a legitimate aim and if the intensity of the interference is proportionate to the legitimate aim to be achieved.
All things being equal therefore, if the intensity of the interference is so high as to extinguish the right, then the legitimate aim to be achieved has to be very high indeed. (My personal view is that the interference can never abolish a human right). Since non-consensual sterilisation extinguishes the right to marry and found a family, then the reasons for authorising it have to be grave and serious. This is were the distinction between therapeutic and non-therapeutic, non-consensual sterilisation becomes crucial. Non-therapeutic, non-consensual sterilisation can never be justified under human rights law.
Ultimately, Re De is disappointing because it does not offer a convincing analysis of the distress that becoming a father would cause DE. Short of jumping off a cliff or developing serious mental illness, I cannot subscribe to an inflation of psychological distress which may justify non-consensual sterilisation in the best interests of DE.
But, I can hear you argue, DE actually does not want to become a father again. He has no wish to found a family. Aren’t you being paternalistic?
I can understand this argument, in human rights terms, as a conflict of rights. Authorising the non-consensual sterilisation for DE will satisfy his right to respect for his private and family life under Art. 8 of the ECHR (continuing his sexual relationship without the fear of becoming a father again) to the detriment of his right to marry and found a family under Art. 12.
My position, when faced with competing rights, is to strike a balance between the two, in a way which affords as much protection as possible to both. For me, it is clear that DE’s fertility should be safeguarded, even if this may cause him distress in his private life.
Persons with intellectual disability are not immutable or static. Like any person, their wishes and personality change and grow. DE does not want to be a father again, now. What about the future? Ask yourselves then, what safeguards DE’s best interests: authorising a non-consensual sterilisation in the absence of grave and imminent medical harm for his convenience and the convenience of others around him, or preserving his fertility in order to safeguard his right to marry and found a family, should DE form such a wish in the future?