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Sterilization Policy

Policy Issue

The Sexual Sterilization Act, which was in effect in British Columbia from 1933 to 1979, gave the B.C. Eugenics Board the right to make decisions to sterilize people living in government-run institutions without their consent and without their knowledge of what was happening. This treatment was approved as a means of controlling behaviour and ensuring the disability was not passed on to future generations. The Act was repealed in 1979, but the practice continued in the community for a number of years until the Supreme Court of Canada made a decision in E. (Mrs.) vs. Eve (1986).

The Eve decision provides the common law basis for this policy. The decision stated:

"Sterilization should never be authorized for non-therapeutic purposes under the parens patriae* jurisdiction. In the absence of the affected person's consent, it can never be safely determined that it is for the benefit of that person. The grave intrusion on a person's rights and the ensuing physical damage outweigh the highly questionable advantages that can result from it. The court, therefore, lacks jurisdiction in such a case."

"The importance of maintaining the physical integrity of a human being ranks high in our scale of values, particularly as it affects the privilege of giving life. I cannot agree that a court can deprive a woman of that privilege for purely social or other non-therapeutic purposes without her consent. The fact that others may suffer inconvenience or hardship from failure to do so cannot be taken into account. The Crown's parens patriae jurisdiction exists for the benefit of those who cannot help themselves, not to relieve those who may have the burden of caring for them."

The Supreme Court of Canada clearly stated that non-therapeutic sterilization without consent of the individual does not provide a benefit to the individual and that any inconvenience suffered by a third party is not sufficient justification for a decision to sterilize an adult with a developmental disability.

Myths and judgments abound concerning the effect of sterilization on a person with a developmental disability. A common assumption is that decisions of this nature are in the "best interest" of the individual and that the decision has no lasting psychological affect. A common judgement has been that people with developmental disabilities should be prevented from having children.

Experience has shown that decisions regarding sterilization have significant psychological impacts on people with developmental disabilities. As a society, we do not have the right to impose such damages on individuals for reasons of convenience to a third party or as a means of controlling behaviour or the consequences of behaviour.

In some cases, sterilization may be a necessary and unavoidable consequence of a health care treatment. In such cases, individuals should not be denied treatment because sterilization is an outcome of the procedure.

Purpose

To ensure that no person with a developmental disability is sterilized without their consent.

Guiding Principles

  • Men and women with developmental disabilities have the right to choose or refuse sterilization.
  • Non-therapeutic sterilization without the person’s consent is a violation of a person’s rights.
  • People with developmental disabilities have the right to choose whether to have children.

Background

The Consumer Advisory Committee of the Canadian Association for Community Living, with the aid of lawyers David Vickers, Dulcie McCallum, Orville Endicott and Harvey Savage, was heavily involved in preparing arguments against involuntary sterilization for the Supreme Court of Canada in the Eve case. The Supreme Court agreed with the arguments and ruled that no person could be sterilized for non-therapeutic reasons without his or her consent.

Alberta and British Columbia both had statutes providing for the sterilization of people with developmental disabilities that have since been repealed. In November 1999, the Alberta government reached an out-of-court settlement with 246 claimants in the amount of $82 million. The Alberta government also offered a statement of regret to the women and men who were sterilized.

Since the Supreme Court of Canada decision in 1986, physicians have been less willing to perform the procedure at the insistence of a third party. However, this has not completely stopped the practice of performing non-therapeutic sterilization of people with developmental disabilities without their consent. While eugenics** legislation may have been repealed, there are still some in our society who hold and perpetuate the belief that the lives of people with developmental disabilities have no value, and that sterilization is a legitimate way of controlling reproduction in people with disabilities.

As recently as 1997, a parent in B.C. succeeded in having her 21-year-old son sterilized by castration, in the belief that it was a justifiable means of controlling his aggressive behaviour and preventing him from reproducing. The doctor who performed the procedure was reprimanded for unprofessional conduct by the College of Physicians and Surgeons but allowed to continue practising on condition that he take a course on ethical and legal responsibilities. The Public Guardian and Trustee of B.C. sought to have the parent removed as the committee of person for her son, but the B.C. Supreme Court rejected the suit. A civil suit against the parent and physicians is still pending.

In January 2001, the Public Guardian and Trustee of B.C. filed a lawsuit against the government of British Columbia on behalf of 13 women who were sterilized under the Sexual Sterilization Act. The outcome of the lawsuit is still pending.

Policy Statements

  1. The decision to have or refuse non-therapeutic sterilization belongs to the individual.
  2. A substitute decision-maker should never authorize sterilization for non-therapeutic purposes.
  3. No person should be denied health care treatments where therapeutic sterilization is a necessary and unavoidable consequence of the health care treatment.

* parens patriae: the parens patriae jurisdiction of the courts gives the authority to make a decisions to do what is necessary to ensure the benefit and protection of persons under a disability.

** eugenics: A science that purports to improve the human race through the control of reproduction.