WASHINGTON, August 18, 2013 — Worldwide sterilization laws have focused largely on women. But such laws can pertain to men as well.
This past week, a British Court ruled that a man who does not have the capacity to give informed consent should have a vasectomy because it is in his “best interests.”
DE, a man with an IQ of 40, lives with his parents and his long-term girlfriend. She also has severe learning disabilities. After they had a child in 2009, DE proclaimed he did not want any more children. When efforts to teach birth control failed, his parents went to court to get permission to get a vasectomy for DE. The judge ruled that it was “overwhelmingly in DE’s best interests, because fatherhood was not.”
While addressing the procedure for a man is not absolutely new, DE’s story renews the discussion about reproductive rights for those deemed mentally unable to make decisions for themselves.
There are two legal conversations going on here. The first concerns government-ordered sterilization. The second involves a parent or guardian wanting a procedure on someone they are responsible for.
With regard to the first, in the current century, government forced procedures have mostly been eliminated worldwide. Nonetheless, atrocities beyond imagination are still going on in places like China and India in the name of population control. China’s One-Child policy, in place since 1979, accounts for approximately 336 million forced sterilizations.
In February, more than 100 women in India, many of them unconscious, were placed in “recovery” in an outside field after a mass sterilization. In 2012, approximately 4.6 million women were sterilized due to government imposed quotas and financial incentives for doctors. Routinely, mostly poor women in India are sterilized with dirty instruments and in unsanitary conditions.
Most nations now look to basic human rights concepts and declare government ordered forced sterilization illegal, regardless of the potential “consequences.”
Forced government sterilization in the United States has been outlawed after a shameful history that mostly ended in the 1960’s and 1970’s. Our Supreme Court was responsible for a great deal of the “legitimacy” of this barbaric practice.
In 1927, the Supremes decided Buck v. Bell. They held that Carrie Buck’s sterilization was necessary to prevent the birth of more “defective” individuals. Sit down when you read Justice Oliver Holmes rationalization: “Three generations of imbeciles are enough.”
Closer to our own times, the Supreme Court’s 1954 ruling in Brown V. Board of Education brought about a resurgence of racist eugenics called “Massive Resistance” to prevent desegregation.
Thirty-two states had “eugenics” programs. Eugenics theory suggests that intelligence and personality traits are genetically based and are predictably inherited by children from their parents. The existing laws were said to protect and improve society by preventing reproduction by those who might produce “defective” offspring.
California was the worst offender. From 1909 to 1963, over 20,000 state residents were forcibly sterilized. The stated goal was to rid society of people believed to be “undesirable.” These were people called “feeble-minded” or “defective.”
Virginia was the second worst offender and its practices lasted longer than anywhere in the country. Between 1924 and 1979 over 8,000 individuals were sterilized. Of those, about half were deemed “mentally ill” and the other half “mentally deficient.”
North Carolina was a close runner-up to Virginia. Between 1929 and 1974, North Carolina sterilized 7,600 people deemed socially or mentally unfit. To its credit, last month, North Carolina approved a $10 million compensation program for men and women who were victims of its eugenics program. The fund will begin paying in 2015. To date about 177 living recipients have been identified.
It is almost universally agreed: government forced sterilization is a violation of human rights, and human dignity, regardless of mental capacity and regardless of the potential problems bringing new life into the world might create for society, for the newborn or for those who would step up to care for that child.
It is thus beyond belief that last year, in Norfolk, Massachusetts, Family Court Judge Christina Harms, a Harvard Law graduate and a former attorney in the state’s welfare services group, ordered a woman to have an abortion and to undergo a sterilization procedure. The judge ordered the woman to be sterilized “to avoid this painful situation from recurring in the future.’’ Harms found the woman not competent because of her “substantial delusional beliefs.”
The woman was on psychiatric medications and her doctors advised keeping her on them would harm the fetus. Conversely, stopping them, they said, would place her in serious risk and “plunge her deeper into madness.”
Harms’ decision was overruled. “The personal decision whether to bear or beget a child is a right so fundamental that it must be extended to all persons, including those who are incompetent,’’ said the state appeals court. Justice Grainger wrote: “No party requested this measure and the judge appears to have simply produced the requirement out of thin air.”
With regard to the second legal conversation noted above, in a situation where a parent or guardian wishes to sterilize an individual they are responsible for, such a choice generally remains legally palatable.
In the United States, sterilization laws vary from state to state. Generally, these procedures can be performed only on the direct request of a legal guardian with physician recommendation and/or court approval.
But there are a number of legitimate concerns that courts must decide before ordering sterilization.
For example: Is the individual in question competent to make the decision? Is it his or her wish? Is it in his or her best interests? Will the incompetent person’s physical health be affected? What psychological affect or trauma will sterilization cause? Can the incompetent person care for the child?
Most state laws are strict and have a presumption against the need for sterilization. Usually an attorney is appointed to represent the incompetent person and this attorney will play “devil’s advocate” and object to the procedure to make sure all factors are considered.
Courts generally order sterilization upon findings of need supported by clear and convincing evidence. Additionally, some courts will ask if the individual is “imminently” likely to engage in sexual activity. Findings of alternative methods of contraception will be considered.
With regard to our second legal conversation and given the current legal climate on this issue, it appears that DE’s wishes were obliged and that the British court made the correct decision.
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