The Admissibility of Non-Consensual Sterilization Continues to Be Debated - Essay Example

Running head: NON - CONSENSUAL STERILIZATION RESULTS IN SEVERE APPREHENSIONS Sterilization of the of the If consensual sterilization raises ethical raises misgivings, then non - consenual sterilization can be seen as a minefield of powerful objection (Mason & Laurie, 2006). In respect of mentally disabled persons, birth control results in the emergence of several arguments to the fore. These issues depend on the people involved and their physical and mental condition. The situation is so complicated that on several occasions the course adopted has been to curtail debate to arriving at a decision as to whether the sterilization procedure is to be adopted or discarded (Opinion on the contraception for the mentally handicapped. Document Number 49, 1996). In France medical practitioners, who receive applications from the family members of such retarded persons will refer the same to the National Consultative Committee of Ethics for Health and Life Sciences to pronounce their formal opinion. The reason for these elaborate procedures is that a great deal of concern exists in respect of the acceptance of requests for such sterilizations, due to the current legal position (Opinion on the contraception for the mentally handicapped. Document Number 49, 1996). Article 16-3 of the Code Civil permits injury to a person's body, only if it is essential for curing some inherent disease. Further, such legal sanction is available only if the individual, who will be affected by such treatment, expresses willingness to undergo such medical procedure (Civil Code of 1804 - Napoleon Code, 2005). A number of issues have to be addressed, namely, it is evident that it is difficult if not impossible to vindicate a medical course of action whose objective is to bring about contraception; mental retardation constitutes insufficient justification for contraception and it is well nigh impossible to obtain the voluntary and educated willingness of a mentally retarded person. Moreover, the possibility of young, mentally retarded women being subjected to abusive action is a palpable risk (Opinion on the contraception for the mentally handicapped. Document Number 49, 1996). In order to address these issues several eugenic sterilization laws were enacted in some of the countries. In the year 1907, the state of Indiana enacted such laws for the first time in the United States. The subsequent decade saw the enactment of analogous legislation by fifteen more states. By the year 1936, around twenty - seven states had enacted such legislation (Opinion on the contraception for the mentally handicapped. Document Number 49, 1996). In the case of Buck v. Bell, the US Supreme Court had to decide about the constitutional validity of a law that had been enacted in 1924, in the State of Virginia. Of the nine justices who heard this case, eight held that sterilization could be enforced by a State for eugenic causes. Further, they held that birth control was not a type of cruel or unusual punishment. In Buck v. Bell the callousness of the judiciary is clearly depicted. In this case Oliver Wendell Holmes, the presiding judge, had Carrie Buck sterilized for being an imbecile. Later on he wrote stating that this decision afforded him immense pleasure. This eugenic sterilization statute of the State of Virginia violated constitutional rights of individuals. The ramification of this unfortunate decision were that it served as a precedent for similar laws and decisions in thirty other states, which resulted in the sterilization of around fifty thousand people. This case was cited as a justification for their similar evil deeds by the Nazis during the Nuremberg Trials, after World War II. In the German endeavour, named the Rassenhygiene, two million people were sterilized (Buck v. Bell. 274 U.S. 200 (1927), 1999). However, in some States, these sterilization laws were applied very rarely and quite a few of these laws were repealed. Nevertheless, in the States of Virginia and California, approximately sixty thousand persons were sterilized (Opinion on the contraception for the mentally handicapped. Document Number 49, 1996). In the province of Alberta, Canada, legislation to enforce eugenic sterilization was enacted in 1928 (Alberta Sexual Sterilization Act 1928). Within a span of forty - four years, almost three two thousand, nine hundred sterilizations were performed with official sanction. This draconian law was finally abandoned in the year 1972, as a result of a huge public outcry, in which eminent judges and geneticists participated. During the struggle to get this law repealed, it was emphasized with great success that the bogey of genetic risk remained unfounded and that a major violation of human rights had transpired. The Commission for the Reform of Canadian Law submitted its observation that the legislation that had permitted such sterilization had trampled over the rights of the ethnic minorities and economically backward members of society (Opinion on the contraception for the mentally handicapped. Document Number 49, 1996). In Canada, a mother wanted to get her daughter, Eve sterilized. Eve was mentally retarded to such an extent that she was unable to communicate what she was thinking to others. Further, her intellect was so poor that the concepts of marriage, pregnancy and birth were incomprehensible to her. Subsequently, Eve expressed a desire to marry a co - student in the school for the mentally disabled that she attended. Her mother apprehending that her daughter could not take proper care of children approached the Supreme Court of Prince Edward Island in order get Eve sterilized. The Court did not grant her this request and she made an appeal against this judgment in the Supreme Court of Canada Court which upheld the previous Court's judgment and also opined that sterilization on the basis of non - medical reasons was prohibited by law (E.(Mrs.) v. Eve, 1986). Further, the Supreme Court held that despite Canadian courts being empowered to take decisions on behalf of individuals who could not decide for themselves, it was not permissible to order their sterilization on non - medical grounds, in the absence of their assent. Moreover, the immediate benefits that were visible were much less in comparison to the gross violation that would be perpetrated on the rights of individuals. It held that it was more important to ensure that freedom of choice and individual rights were not violated (E.(Mrs.) v. Eve, 1986). This case serves to illustrate the balance between refusal to furnish health care and rendering health care. This constitutes an important aspect of the denial of health care and the mentally disabled. Either the denial of health care or the creation of difficulties in order to make health care difficult to obtain, constitute discrimination. However, the very methods that are employed by the law to rectify this situation can cause discrimination. An instance of this is the argument in respect of the right to decline psychiatric treatment. In Re F, their Lordships held that treatment could be administered to mentally sick patients who were unable to consent or refuse treatment (Re F, 1989). They also held that a court order was not necessary for such medical intervention. Initially the court refused to permit sterilization. Subsequently, the Prince Edward Island Supreme Court set aside the lower court's decision and permitted the sterilization operation. However, on appeal the Supreme Court of Canada annulled the decision of the Prince Edward Island Supreme Court. This decision was unanimous and the judges opined that the sterilization of a mentally retarded person on the basis of non - therapeutic grounds should always be set aside in conformity with the court's parens patriae jurisdiction. With this decision, the despicable practice of sterilizing mentally retarded people has come to an end with the exception of extremely rare cases where the gravity of the patient's medical condition requires such sterilization (E.(Mrs.) v. Eve, 1986). The case of Skinner v. Oklahoma concerned Arthur Skinner a habitual criminal, who had been convicted on several occasions. In the year 1935, the Oklahoma state enacted a law that permitted habitual criminals to be sterilized. Skinner contended that the Oklahoma State law that authorized sterilization for some convicts was in violation of the law assurance regarding the due process of as enshrined in the Fourteenth Constitutional Amendment (The Oklahoma Habitual Criminal Sterilization Act , 1935). The Court, unanimously accepted Skinner. With this decision, the right to wed and have children was deemed to be a fundamental civil liberty that was accorded protection by the U.S. Constitution (Skinner v. Oklahoma Ex Rel. Williamson, Attorney General, 1942). In the Griswold v. State of Connecticut case, the appellant claimed that the State's birth-control laws infringed the constitutional rights of the citizens of Connecticut. The U.S. Supreme Court set aside the conviction of Griswold and her collaborator Buxton. They had been convicted for making available to married couples information that helped them to avoid conceiving (Griswold v. Connectitut, 1965). With this decision, the constitutional right to privacy was construed to imply that unmarried persons could employ birth control techniques (Eisenstadt v. Baird, 1972). Moreover, in Roe v. Wade, it was contended that the Ninth Constitutional Amendment guarantees the right to privacy (Roe v. Wade, 1973). In addition, it was argued that in conjunction with the decision in Griswold v. Connecticut, it was lawful for women to terminate pregnancy. The Court accepted this contention (Garrow, 1999). The importance of the Griswold v. Connecticut lies in the fact that it ushered in significant reproductive rights. With this case a Connecticut statute that banned the use of contraceptives was set aside, by the Court, because it violated the Constitution. It was for the first time that the Court accepted the existence of the right to privacy. Despite the fact that this case was restricted to privacy in the context of marriage, the judgment had a major effect on a number of right to privacy matters. The beneficial outcome of this case was that all manner of reproductive rights were properly and comprehensively categorized in the legal system of the United States of America. Eisenstadt v. Baird, permitted unmarried persons to use contraceptives and Roe v. Wade, established the fact that the right to privacy included the right to undergo an abortion. In the State of Virginia there was a law that abortion services could not be made known to the public, this was set aside by the Court (Bigelow v. Virginia, 1975). The very next year a statutory requirement that parental consent was essential for terminating the pregnancy of minors who were not married was annulled (Planned Parenthood of Central Missouri v. Danforth, 1976). In the same fashion, a Missouri law that made it essential for a married woman to obtain her husband's permission in order to undergo an abortion was deemed to be null and void by the Court (Reproductive Rights, 1999). The word eugenics was coined by British scientist Francis Galton in 1883 to describe methods employed to exterminate the mentally deprived of Great Britain. Subsequently, the Americans decided to adopt this practice and several efforts were made to prevent the mentally enfeebled from procreating, while at the same time all efforts were employed to make the mentally better endowed persons to have more children. Since, the so called mentally handicapped persons were unwilling to restrict their production of children; legislation was made to compel such persons to abstain from procreation. The first State to commit this abomination on humanity was the State of Indiana in 1907, which enacted legislation to prohibit criminals, idiots, imbeciles and rapists from having children. This unfortunate trend was reversed in the path breaking case of Buck v. Bell, in which the U.S. Supreme Court annulled the State of Virginia's Sterilization statute (Prothero, 2004). Gene manipulation, human genome mapping, pre - natal genetic screening, commercial trade in the sperm and eggs of exceptional donors and the danger that exists due to misuse of genetic information are the modern methods of engendering eugenics (Regan, 2006) . The problem of contraception, sterilization and mental retardation is one the main problems faced by medical professionals in the field of mental ethics. Although contraception and sterilization challenge the independence of a person n the context of sexuality and motherhood, it has to be borne in mind that they are dissimilar. This is due to the fact that in terms of reversibility, they showed a significant difference. The crucial question that arises is with regard to individual freedom and its defense where the subject is unable to defend himself either in the short term or in the long term. The delicate difference between individual and collective interests raises queries as to where the line of demarcation is to be drawn and the manner of its description in care situations. From this perspective carers like doctors, nurses and social workers and the patients' entourage have an extremely important role to play not only in theory but also in the day to day reality (Lachaux & Renaud, 1998). Justified concerns on the part of parents and guardians could result in requests for the sterilization of their mentally retarded offspring or wards that are in their care. Further, it is essential to ensure that they are not subjected to treatment that does not serve their best interests. If such persons are capable to take reproductive decisions then they should not be sterilized. Moreover, if these persons possess the capacity to raise a child or provide valid consent to matrimony, then they should not be sterilized. Sterilization is an option to be exercised only if such capability is lacking. The implication is that sterilization is to be performed only if it is absolutely essential and would serve the best interests of such mentally retarded persons. References Alberta Sexual Sterilization Act 1928 . Alberta, Canada. Bigelow v. Virginia, 73 - 1309. 421 U.S. 809 (Supreme Court of the United States June 16, 1975). Buck v. Bell, Superintendent of State Colony Epileptics and Feeble Minded, 274 U.S. 200 (U.S. Supreme Court May 2, 1927). Buck v. Bell. 274 U.S. 200 (1927). (1999). Retrieved March 12, 2007, from In Great American Court Cases, Gale: http://www.xreferplus.com/entry.jspxrefid=5015915&secid=.5 Civil Code of 1804 - Napoleon Code. (2005, March 17). Retrieved March 12, 2007, from Lgifrance: http://translate.google.com/translatehl=en&sl=fr&u=http://ledroitcriminel.free.fr/la_legislation_criminelle/lois_speciales/code_civil.htm&sa=X&oi=translate&resnum=1&ct=result&prev=/search%3Fq%3Darticle%2B16-3%2Bof%2Bthe%2BCode%2BCivil%26hl%3Den E.(Mrs.) v. Eve, 2 S.C.R. 388 (Supreme Court of Canada 1986). Eisenstadt v. Baird, 405 U.S. 438 (U.S. Supreme Court March 22, 1972). Garrow, D. J. (1999). Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. Retrieved March 12, 2007, from In Great American Court Cases: http://www.xreferplus.com/entry/5015556 Griswold v. Connectitut, 381 U.S. 479 (U.S. Supreme Court June 7, 1965). Lachaux, B., & Renaud, V. (1998). Contraception, sterilization and the mentally ill: beyond Manicheanism, some reference points. European Psychiatry , Vol. 13, Supplement 3, pp. 125s - 128s. Mason, J. K., & Laurie, G. T. (2006). Mason & McCall Smith's Law and Medical Ethics. Oxford University Press. P. 131. Opinion on the contraception for the mentally handicapped. Document Number 49. (1996, April 3). Retrieved March 12, 2007, from http://www.ccne-ethique.fr/english/avis/a_049.htm Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (Supreme Court of the United States July 1, 1976). Prothero, S. (2004, April 22). Bad Science, Misplaced Faith. The Wall Street Journal , p. D. 10. Re F, 2 W.L.R. 1025 (H.L.) (House of Lords 1989). Regan, J. (2006, January 18). The eugenics movement, and its relevance today. The Christian Science Monitor. Boston, Mass , p. 25. Reproductive Rights. (1999). Retrieved March 12, 2007, from In Great American Court Cases: http://www.xreferplus.com/entry/5015912 Roe v. Wade, 410 U.S. 113 (Supreme Court of the United States January 22, 1973). Skinner v. Oklahoma Ex Rel. Williamson, Attorney General, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (Supreme Court of the United States June 1, 1942). The Oklahoma Habitual Criminal Sterilization Act . (1935). S. L. 1935. P. 94 . Oklahoma, United States of America. Read More