My first blog post, https://andreasdimopoulos.wordpress.com/2013/08/17/some-contrarian-thoughts-on-re-de-2013-ewhc-2562-fam/, was a philippic.
I criticised the court’s reasoning in Re DE, which can be found here http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/de-judgment-16082013.pdf
I feel I have to go back and write some more on this issue from a comparative perspective. Sterilisation for persons with intellectual disability is sadly practised in many, many places around the globe.
In Germany, the equivalent to the MCA is part of the German Civil Code (BGB). Article 1905 BGB specifically regulates sterilisation in the following terms (taken from(http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p6301) :
4. as a result of this pregnancy a danger for the life of the pregnant woman or the danger of a serious adverse effect on her physical or psychological state of health were to be expected which could not be prevented in a reasonable way, and
A serious danger for the psychological state of health of the pregnant woman also includes the danger of serious and persistent suffering which would threaten her because custodianship court measures which would entail separating her from her child (sections 1666 and 1666a) would have to be taken against her.
(2)The consent must be approved by the custodianship court. The sterilisation may not be carried out until two weeks after the approval takes effect. In the sterilisation, preference is always to be given to the method that permits a refertilisation.
German law focuses on the danger of pregnancy, which may cause physical or psychological harm to the pregnant woman. This, I believe, is a flaw in legislative design, because it can be construed as sexist. The woman is left carrying the baby, but the law cannot exclude considerations of grave (psychological) harm to the man, which may be caused by the pregnancy.
At any rate, the sterilisation can be authorised if there is a concrete risk of pregnancy, which may create a concrete risk for the physical or psychological well-being of the woman. However, the sterilisation may apply equally to either the male or the female incapacitated partner. This was clarified in a German case which involved the sterilisation of an adult male.
The gist of the court’s reasoning is that the sterilisation of the male partner cannot take place because it is a disproportionate interference to take away his fertility for ever, when the female partner will not suffer any physical or psychological harm from carrying to term and at any rate, she can be injected with a 3-month contraceptive injection. Those who value relational autonomy will see a vindication of this concept in the ruling.
However, for the purposes of this blog post, this ruling highlights, for me at least, how strict the control of proportionality has to be when we are faced with non-therapeutic sterilisation. It simply cannot be done.