The international medicolegal status of sterilization for mentally handicapped people
Gonzales, B.
Journal of Reproductive Medicine 27(5): 257-258
1982
ISSN/ISBN: 0024-7758 PMID: 7108860 Document Number: 186364
Civil libertarians and other conservatives who are interested only in protection against involuntary sterilization argue that a mentally incompetent individual is incapable of ever giving an informed consent. Yet, other liberal thinkers and those who are interested in reproductive freedom for all sexually mature persons maintain that no group of persons should be categorically denied the benefits of sterilization. Rather than clarify, the laws tend to confuse. In most countries, legislation pertaining to voluntary sterilization is nonexistent or nonspecific. Where laws exist, they appear to fall into 3 groups: one group permits consent for surgical treatment to be given by the parents or guardians of incompetent persons without apparent regard to the wishes of the individual; another group considers eugenic sterilization to be legal; and the 3rd group takes into account the probability that there is serious limitation in the capacity of the person concerned to care for a child. In the U.S. 24 states have laws providing for some form of sterilization of persons suffering from mental disorders. The statutes vary in their provisions with some distinguishing between mental illness and mental retardation and others failing to do so. Some laws allow relatives, guardians, physicians, welfare boards or others to initiate sterilization proceedings. Only Colorado allows the mentally retarded individual to petition for his/her own sterilization. The U.S. Department of Health and Human Services was unable satisfactorily to come to terms with the difficult question of sterilization for mentally incompetent persons. The department was not willing to establish a mechanism that would permit some sterilizations under proper safeguards. It chose, instead, to ban all federal funds for programs or projects that would provide sterilization for persons who have been declared mentally incompetent by a court. The department's intention was to protect people from involuntary sterilization, but the unintended effect is also to deny others access to sterilization. From the legal perspective, the most pressing issue is how to ensure that any decision to be sterilized is both informed and unpressured. The purpose and effect of a voluntary sterilization law should be to permit sterilization to be used by all adults who are capable of giving informed consent and who request the procedure. Consent is the central legal issue, and the Association for Voluntary Sterilization model statute authorizes only voluntary sterilization. This model statute permits sterilization after the person requesting it has received counseling and has given consent in writing.