Comprehensive notes compiling lecture notes, textbook reading, case law summaries and further reading. Includes legal and ethical evaluation and critique.
STERILISATION & CONTRACEPTION
A fundamental question for this topic is to what extent does, and should, the law guarantee procreative freedom?
PROCREATIVE LIBERTY?
It is useful to compare the lack of a ‘rights culture’ in Britain with the American position.
Procreative Liberty and the Control of Conception, Pregnancy and Childbirth
Robertson (1983)
‘Women in the United States began their long struggle for reproductive freedom with the birth control movement
of the mid-nineteenth century. The U.S Supreme Court’s contraception and abortion cases [noted below] marked
a victorious end to one phase of that struggle. By making a woman’s decision not to conceive or bear a child a
constitutional right, these cases removed most legal barriers to sex without reproduction and thus gave women
control over a major part of their biological destiny.’
Eisenstadt v Baird (1972)
American case
Baird was charged with a felony for distributing contraceptive foams and condoms after lectures on birth control
and population control at Boston University. Under Massachusetts law on ‘Crimes against chastity’
contraceptives could be distributed only by registered doctors or pharmacists, and only to married persons.
The Court struck down the Massachusetts law on prohibiting the distribution of contraceptives to unmarried
people for the purpose of preventing pregnancy, ruling that it violated the Equal Protection Clause of the
Constitution.
Brennan J stated ‘if the right of privacy means anything, it is the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child’.
Roe v Wade (1973)
American case
Concerned federal action against the District Attorney of Dallas, Texas asserted an absolute right to terminate
her pregnancy in any way and at any time, attempting to balance a woman’s right of privacy with a state’s
interest in regulating abortion.
Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an
abortion without excessive government restriction. The generalised right of privacy protected by the Constitution
was broad enough to encompass the woman’s decision whether or not to terminate a pregnancy.
An important aspect of the right to reproduce is the right to control one’s fertility. In the UK, the absence of a
written constitution or Bill of Rights, one must consider the futility of the Human Rights Act 1998 and the
incorporation of the ECHR into English law.
MINORS
Re D (A Minor) (Wardship: Sterilisation) [1976]
D, aged 11, suffered from Sotos syndrome and was mentally retarded. A year earlier, she had reached puberty
and her mother and paediatrician sought for her to be sterilized for reproductive and eugenic reasons. There was
professional testimony that by age 18, D would understand the implications of a hysterectomy and be able to
give informed consent.
, The Court found that the proposed hysterectomy for nontherapeutic purposes was neither medically indicated
and refused to consent to D’s sterilization. Heilbron J described the right to reproduce as a ‘basic human right’.
From the following case law, there is ambiguity as to whether the judgments afford any express common law
recognition of a right to reproduce or simply a right (subject to capacity) not to have your autonomy violated by
interference with reproductive organs?
Re B [1988]
17-year-old girl who was severely disabled, and her caregivers requested that she undergo a sterilization
operation. She showed no signs of ever being able to give informed consent as she could only communicate at a
two-year-old’s level. She was epileptic and known to have violent outbursts, particularly around children. It was
established that she would never be able to totally care for herself or make the link between intercourse and
childbirth.
It was unanimously decided that the pregnancy would result in harm to the concerned woman. Options of
invasive birth control are not realistic because their chance of success is unknown and there may be harsh side
effects with her current epilepsy medication. Further, she was so obese that a pregnancy might not be
discovered until it’s too late for an abortion.
Lord Oliver stated that the distinction of ‘therapeutic’ surgery is of no use in this case as all that is concerned is
whether or not the surgery is in the best interests of the individual or not. He acknowledged the emotive
connotations that the term sterilization carries. ‘It is important at the very outset, therefore, to emphasise as
strongly as it is possible to do so, that this appeal has nothing whatever to do with eugenics. It is concerned with
one primacy consideration and one alone, namely the welfare and best interests of this young woman’.
S. Trombley considers the immorality concerned with sterilization issues – ‘Is it not condoning immorality? I
suppose it is. But which is the lesser evil, until we are able to remoralize whole groups and classes of people,
undergoing the harm done when already weak restraints on strong instincts are further weakened by
permissiveness in television, in films, or bookstalls?’
Critiquing Re B, Lee & Morgan state that it is difficult to see what is ‘human’ on this analysis of a basic human
right. They assert that it does not seem to attach by virtue of a person’s humanity and is capable of being pushed
aside for certain classes of person. ‘Nor is this right “basic”. It is contingent upon the person having the capacity
to value that right’.
Re P [1988]
A mother made her 17-year-old daughter a ward of court and sought leave for a sterilisation operation to be
carried out. The ward was attractive and normal looking but had the intellectual capacity of a six-year-old. That
made her particularly vulnerable to seduction. The risk of pregnancy and of the child being taken away at birth
would be disastrous. Medical opinion differed as to whether the ward would ever have sufficient mental capacity
to consent to a sterilisation.
It was held that it would be disastrous if the ward were to fall pregnant given her vulnerability. Accordingly, it was
in her best interests to have the operation and leave would be given for it to be carried out.
ADULTS
F v West Berkshire HA [1989]
36-year-old woman who had the mental age of a minor. The woman in question lived permanently at a mental
hospital under medical care. Her mother sought a declaration from the court to the effect that it would be lawful to
sterilize her daughter even though she is incapable of consenting to the operation.
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