Sex and the Sacred: Sterilization and Bodily
Integrity in English and Canadian Law
Kristin Savell*
Through an examination of cases of non-
consensual sterilization for learning disabled persons in
Canada and England, this article considers the role that
law plays in framing the thoughts, beliefs, and norms
that fashion the way we think about bodies, sex,
gender, and sexuality. The author asks how it is that
Canadian and English law, while both claiming to
protect bodily
integrity, have reached opposing
conclusions about whether non-therapeutic sterilization
can be in a persons best interests. She hypothesizes
that the answer could lie in the manner in which courts
have constructed the bodies of learning disabled men
and women in the sphere of sexuality and reproduction.
Where the overriding concern in the sterilization
cases is the containment of the sexuality of a learning
disabled person perceived as out of control or
vulnerable to seduction, sterilization is cast as a just
and humane solution that will advance the welfare of
the
the
overriding concern is the preservation of the integrity
of a law committed to the principle of equality,
sterilization is thought to be a violation of the bodily
integrity of the person. The author shows that these two
views engender very different legal and cultural
discourses about best interests and bodily integrity. The
debate highlighted by the sterilization cases and the
commentary surrounding them reflect larger tension
within legal discourse between the commitment to
liberal values and the maintenance of a particular social
order.
individual concerned. Conversely, where
Par un examen des cas de strilisation non
consensuelle chez les handicaps de lapprentissage au
Canada et en Angleterre, cet article examine le rle du
droit dans la construction des penses, croyances et
normes qui faonnent la manire par laquelle nous
pensons au corps, au sexe, au genre et la sexualit.
Lauteure se demande pourquoi les droits canadien et
anglais en sont parvenus des conclusions opposes
propos de la strilisation non thrapeutique, mme si
chacun affirme vouloir protger lintgrit physique
des personnes. Elle conjecture que la rponse pourrait
se trouver dans la manire dont les tribunaux ont, dans
les cas des hommes et femmes souffrant de handicaps
dapprentissage, construit les corps de ces personnes
dans la sphre de la sexualit et de la reproduction.
L o la considration primordiale dans les cas de
strilisation est lendiguement de la sexualit de la
personne handicape de lapprentissage perue comme
hors de contrle ou vulnrable la sduction, la
strilisation est prsente comme une solution juste et
humaine propre contribuer au mieux-tre de la
personne concerne. linverse, l o la considration
principale est la prservation de lintgrit dune loi
consacre au principe de lgalit, la strilisation est
considre comme une violation de lintgrit physique
de la personne qui la subit. Lauteure montre que de
ces deux points de vue surgissent des discours
juridiques et culturels fort diffrents concernant le
meilleur intrt et lintgrit physique. Le dbat mis en
lumire par les cas de strilisation et les commentaires
qui sy rattachent refltent une tension dordre plus
gnral entre la souscription aux valeurs librales et le
maintien dun ordre social donn.
* Lecturer, Faculty of Law, University of Sydney; B.Sc., Macquarie University (1992); LL.B.
(Hon.), Macquarie University (1993); LL.M., McGill University (1997); Ph.D., Cambridge
University (2001). The author would like to thank John Keown for his comments on an earlier
version of this paper and the editors of the McGill Law Journal for their valuable assistance.
McGill Law Journal 2004
Revue de droit de McGill 2004
To be cited as: (2004) 49 McGill L.J. 1093
Mode de rfrence : (2004) 49 R.D. McGill 1093
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 49
1094
Introduction
I. The Body in Focus
A. The Social Body
B. The Body Politic
C. Law, Discipline, and the Body
D. The Discursive Production of Sexed Bodies
E. Medical Categorizations and Welfare-Oriented Practices
II. Sex, Bodily Integrity, and the Body Politic
A. The Menacing Presence of Delinquent Bodies
B. Citizenship and Reproduction
C. Multiple Motives
D. Imagining the Past
III. Sex, Integrity, and the Individual Body
A. Eve and the Sacred Body
B. The Disordered Body
C. Sexuality: The Available Body
D. Reproduction: The Traumatized Body
E. Parenting: The Gendered Body
Conclusion
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K. SAVELL STERILIZATION AND BODILY INTEGRITY
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Introduction
In 2002, the public trustee of British Columbia sparked a national debate when,
after discovering that a twenty-five year old learning disabled man had been castrated
without his consent, it decided to sue the mans mother, the health professionals, and
the hospital involved in carrying out the procedure.1 In addition to being unlawful, the
public trustee alleged that the defendants actions had subjected the man, known as
A.R., to embarrassment, humiliation, loss of sexual drive, psychological trauma and
the opportunity to become a parent.2 The mans mother, Sandra Crockett, saw things
differently. She feared his sexual urges and violent outbursts would eventually
lead to permanent institutional confinement. She also feared that he would father a
child that he was unable to care for. For her, the decision to have her son castrated was
borne out of genuine anxiety and concern for her sons liberty and future well-being.
A close reading of the public debate that followed this case reveals a profound
lack of agreement about the issues at stake. In particular, there was disagreement
about whether A.R.s sexuality was problematic, whether castration could be justified,
and whether the law was out of step with community sentiment on these matters. At a
very fundamental level, these disagreements tended to converge around competing
constructions of community and subjectivity, in which the body functioned as both a
symbol and a norm. The integrity of the body, in particular, was used as a means of
conveying competing ideas about the threat posed by A.R.s sexuality, on the one
hand, and the threat posed by compulsory castration on the other. Where A.R.s body
was constructed as threatening precisely because it could not be contained sexually,
castration was viewed as a means of achieving integrity and, therefore, order at the
level of the individual and the social body. Conversely, where A.R.s body was
constructed as emasculated and lacking integrity as a result of having been castrated,
castration was viewed as a violation of the individual body and a threat to social
cohesion. The multiplicity of meanings ascribed to the body in this debate suggests
that the body, rather than simply a biological given, is open to cultural interpretation.
It is also suggestive of the extent to which the body can be used to shape ideas about
the social world. In a broader theoretical sense then, A.R.s case, and others like it,
issue the twin challenges of understanding the body as culturally determined and
understanding law as having a key role to play in these processes of definition.
This article considers the role that law plays in framing the thoughts, beliefs, and
norms that fashion the way we think about bodies, sex, gender, and sexuality. The
1 For a selection of media reports on the case, see Mindelle Jacobs, Sterilization Issue in Courts
Hands Edmonton Sun (2 June 2002) 27; W. Gifford Jones, Sterilization Can Be Decision of a
Loving Mother The Halifax Daily News (8 October 2002) 28; Helen Henderson, Case Reignites
Debate on Forced Sterilization Toronto Star (8 June 2002) M15; Alastair Jamieson, Parents
Wrestling with Sterilization Issues Deserve Compassion Vancouver Sun (5 June 2002) A15; Jackie
Smith, Burden of Care v. Burden of Proof National Post (1 June 2002) A23.
2 Jacobs, ibid.
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legal analysis will centre on the common law with respect to non-consensual
sterilization in Canada and England. There are two reasons for choosing these
particular case studies. First, although both legal cultures place considerable
importance on the principle of bodily integrity, each jurisdiction has arrived at
different conclusions about the lawfulness of non-consensual sterilization. This is
suggestive of tensions surrounding the legal meaning of bodily integrity in the context
of sexuality and reproduction. Accordingly, the comparison provides a rich source of
material from which to draw in examining the way the body is constructed within
these discourses and the relevance of these constructions to the question of legality.
Second, these discourses can be understood as regulatory strategies in which bodies
are produced and contained in the interests of a particular conception of social order.
Although in a concrete sense these cases are concerned with what might be described
as marginal bodies and expressions of sexuality, they can also be understood as
constituting normative bodies and expressions of sexuality. It will be suggested that
these cases form part of a larger set of discourses through which the norms of
heterosexual reproduction are instantiated.
Part I sets out the theoretical framework for this analysis. Part II considers the
ways in which the historical concerns with the health of the social body interpolate
contemporary legal reasoning. It also examines some of the correspondences that
exist between past and present discussions about compulsory sterilization, in
particular the co-existence of individual and social reasons for sterilization. Part III
focuses on the contemporary law as a regulatory strategy through which normative
and deviant sexualities are constructed and acted upon (or not) by medical
professionals. This analysis examines the tensions surrounding judicial interpretations
of best interests in England and Canada. It will be argued that these competing
interpretations reflect a larger tension within legal discourse between the commitment
to liberal values and the maintenance of a particular social order. This tension is, in
turn, played out through competing visions of the relationship between the body, law,
and society.
I. The Body in Focus
The body was central in the discussion surrounding A.R.s castration. At one level
of analysis, A.R.s physical body was the focus of debate. At another level, however,
the discussion was concerned with the regulation, surveillance, and control of
sexuality and reproduction. Thus, certain ideas about the individual and the collective
(or social) body were expressed through thoughts and beliefs about appropriate
sexuality and reproductive responsibility and, alternatively, anxieties about the sort of
society that uses sterilization to control its members.
A. The Social Body
Anthropologists Margaret Lock and Nancy Scheper-Hughes have provided a
useful framework for bringing together these varying levels of analysis of the body.
K. SAVELL STERILIZATION AND BODILY INTEGRITY
2004]
They describe three levels of analysisthe individual body, the social body, and the
body politic. The individual body refers to the lived experience of the body-self.
Analysis at this level concerns the component parts of the body-self (mind, body,
psyche, etc.) and the way in which these components relate to one another.3
1097
The social body is a concept that concerns the representational uses of the body
as a natural symbol with which to think about nature, society, and culture.4 Mary
Douglas regarded the body as a natural symbol in the sense that it is used as a
medium for describing social relations and perceiving the social world.5 The body, she
observes, is a model which can stand for any bounded system. Its boundaries can
represent any boundaries which are threatened or precarious.6 The converse is also
true. Thoughts and beliefs about the social world impact upon the way in which the
physical body is understood:
The social body constrains the way the physical body is perceived. The
physical experience of the body, always modified by the social categories
through which it is known, sustains a particular view of society. There is a
continual exchange of meanings between the two kinds of bodily experience so
that each reinforces the categories of the other.7
the
The arena of human sexuality is especially amenable to an examination of the
symbolic equations8 between
individual and social bodies. Medical
anthropologists have observed that symbolic equations can be used to construct the
two bodies with respect to notions of health and illness: The body in health offers a
model of organic wholeness; the body in sickness offers a model of social
disharmony, conflict, and disintegration. Reciprocally, society in sickness and in
health offers a model for understanding the body.9 In the discussion surrounding
A.R.s castration, symbols were an important means of communicating beliefs about
the individual and social body and the relationship between them. Several
commentators who appeared supportive of Sandra Crocketts actions described A.R.
as the man/child or the man/boy and many commentators described A.R. as a
juxtaposition of his mental and chronological ages. These images evoke a failure of
the usual order of human development and, in particular, the failure of A.R.s
embodiment to observe the boundary between child and adult. In other words, the
3 Margaret Lock & Nancy Scheper-Hughes, A Critical-Interpretive Approach in Medical
Anthropology: Rituals and Routines of Discipline and Dissent in Thomas M. Johnson & Carolyn F.
Sargent, eds., Medical Anthropology: Contemporary Theory and Method (New York: Praeger, 1990)
47 at 50.
4 Ibid.
5 Mary Douglas, Natural Symbols: Explorations in Cosmology (New York: Pantheon, 1970) at xiv
[Douglas, Natural Symbols].
6 Mary Douglas, Purity and Danger: An Analysis of the Concepts of Pollution and Taboo (New
York: Praeger, 1966) at 115 [Douglas, Purity and Danger].
7 Douglas, Natural Symbols, supra note 5 at 65.
8 Lock & Scheper-Hughes, supra note 3 at 61.
9 Ibid. at 50.
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man/boy image expresses the transgressive nature of A.R.s embodiment, and in
particular, his sexuality. A.R.s sexuality, both unrestrained and potentially
reproductive, threatened to upset the social order with respect to proper heterosexual
relations and responsible reproduction and, accordingly, became the focus of social
concern. For some, that concern was sufficiently serious to justify castration.
[Vol. 49
For those commentators who did not condone the actions of Sandra Crockett, the
violated body of A.R. operated as a symbol for a society that lacked cohesion and
failed to offer the necessary support to its struggling members:
A.R. was horribly violated. Still, one cant help but feel compassion for his
mother. A financially strapped, single mother of five, Ms. Crockett lacked the
means to care for a handicapped adult. Had A.R. been born into a richer
household, with a supportive network of family, friends and community, he
might be a whole man today. … [I]t is a shame in which we all share.10
This commentary illustrates well the operation of a symbolic equation between the
physical and social bodies. The castration of A.R.s body was regarded as a horrible
violation, in part, because it involved an assault on the integrity of his body. The
removal of A.R.s testicles relegated him to something less than a whole man,
altered physically and psychologically, humiliated, and embarrassed. These images
not only convey the sense in which A.R.s body was vulnerable and depleted, they
also convey something of the importance of the notion that bodies should be whole.
Furthermore, the image of A.R.s violated, castrated form was symbolic of a broken
society that, lamentably, was no longer able to look after its vulnerable members.
The violation of A.R.s body also recalled the widespread violations of countless
numbers of people who were subjected to compulsory sterilization by governments
under the auspices of eugenics:
For much of the 20th century, the actions of Ms. Crockett and her sons doctors
would barely have raised an eyebrow. Medical paternalism was rife, and
discrimination against the mentally disabled rampant. Government eugenics
boards in many countries were only too willing to give their nod of approval to
forced sterilization. Respect for the bodily integrity of people with mental
disabilities was dismissed in less time than it took to get scalpel to skin. That is,
until so many people were sterilized and so many atrocities committed during
the Second World War that the pendulum swung the other way, and
governments started to put a halt to the whole sorry mess.11
In this passage, the whole body operates as a symbol for an enlightened society
that, in contrast to those societies that have committed atrocities, is committed to
respect for the bodily integrity of all its members. Significantly, the collective bodies
being invoked in the above passage exercise actual (not merely symbolic) control in
10 Compassion and Castration: A Retarded Mans Testicles Were Removed. Was There a Better
Choice? The Ottawa Citizen (13 June 2002) A16.
11 Smith, supra note 1.
K. SAVELL STERILIZATION AND BODILY INTEGRITY
2004]
relation to individual bodies. This speaks to the third level of analysis, also known as
the body politic.
1099
B. The Body Politic
The concept of the body politic, like the social body, concerns the relations
between the individual and social bodies. It does not, however, focus on symbolic
representations of the body but rather, the manner in which power and control is
exercised in relations between the individual and the collective body, in particular,
control over fertility and reproduction.12 As Browner and Sargent observe:
Human reproduction is never entirely a biological affair; all societies shape
their members reproductive behavior. This cultural patterning of reproduction
includes the beliefs and practices surrounding menstruation; proscriptions on
the circumstances under which pregnancy may occur and who may
legitimately reproduce … the circumstances under which interventions occur
and the form such interventions may take … 13
Non-consensual sterilization, especially when carried out pursuant to government
objectives or, at any rate, under the aegis of law, provides a clear illustration of one
way in which the body politic exercises power over the bodies of individuals. Indeed,
non-consensual sterilization often raises the spectre of state tyranny, due in large
measure to its association with fascist states and its service in the cause of eugenics in
the early decades of the twentieth century. There is also evidence, however, that the
practice continued as a means of controlling the fertility of certain individuals well
after the demise of eugenic thinking. In Peru, it is alleged that more than 250,000
indigent women were sterilized in the period 1995-1998 pursuant to a government
campaign to reduce poverty by cutting family sizes.14 In Australia, the government has
conceded that two hundred young learning disabled women were illegally sterilized
between 1992 and 1997, and this may be a conservative estimate.15 In France, it is
12 Lock & Scheper-Hughes, supra note 3 at 65.
13 Carole H. Browner & Carolyn F. Sargent, Anthropology and Studies of Human Reproduction
in Johnson & Sargent, supra note 3, 215 at 215.
14 Christina Lamb, Peru Condemned Over Mass Sterilisation Abuses The Daily Telegraph (10
January 1999), online: The Telegraph Group
Peruvian government set quotas for regional administrators of the program with the result that
coercion, threats, bribery, and fraud have been used to ensure the co-operation of women. She cites
evidence that women (especially mixed-race women) have been bribed with offers of food,
threatened with arrest, taken by force to health facilities, and misled about the permanence of the
procedure.
15 Barbie Dutter, 200 Impaired Girls Illegally Sterilised in Australia The Daily Telegraph (25
August 1998), online: The Telegraph Group
Commissioner reported that 1,045 sterilizations had been performed on girls with learning difficulties
under the age of 18 during the five-year period. The Minister for Health admitted that 202
sterilizations had been performed in breach of the law but said that the remainder had comprised
routine gynaecological procedures.
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estimated that fifteen thousand learning disabled women were illegally sterilized
without their knowledge between the 1970s and the 1990s.16 In Austria, where it is not
illegal to sterilize mentally handicapped children with parental consent, it is alleged
that hundreds of women and children have been sterilized against their will.17 And in
Japan, more than sixteen thousand learning disabled women were compulsorily
sterilized with government approval between 1949 and 1995.18 In other words, there
is evidence that the practice of compulsory sterilization has been used in a repressive
fashion in order to curb the fertility of certain individuals in the perceived interests of
society. Equally, there is evidence that compulsory sterilization has been practiced
lawfully in accordance with notions of individual welfare and, finally, by health
professionals in accordance with notions of welfare, but in the absence of legal
justification. These various manifestations of the practice of compulsory sterilization
are not comparable from a legal perspective. Clearly, some enjoy the legitimacy
conferred by law, while others do not. But, although these situations may be analyzed
differently, they also share a common basis, namely, they each involve the exercise of
power over the body. This raises a question of considerable significance: how are we
to understand the workings of power in the field of compulsory sterilization? In
particular, to what extent can law and medicine be understood as mechanisms of
power in this field?
C. Law, Discipline, and the Body
The question of precisely how power is exercised over bodies has been the
subject of sustained discussion in the social sciences and, in this field, the work of
Michel Foucault has been very influential. His understanding of the manner in which
power operates in relation to the body provides a useful starting point for a theoretical
examination of cases like A.R.s.
The classic or liberal conception of power tends to equate power with law:
In the case of the classic, juridical theory, power is taken to be a right, which
one is able to possess like a commodity, and which one can in consequence
transfer or alienate … Power is that concrete power which every individual
16 Susannah Herbert, 15,000 Forcibly Sterilised in France The Daily Telegraph (11 September
1997), online: The Telegraph Group
are surprising given that French law prohibits sterilization except where the operation is justifiable on
strong medical grounds. The women concerned were lightly afflicted individuals with learning
difficulties, below average IQs or social adjustment problems [and] were sterilised at the request of
their parents or on the initiative of supervising institutions.
17 Mike Leidig, Austria Guilty of Child Sterilisation The Daily Telegraph (31 August 1997),
online: The Telegraph Group
18 16,000 Disabled Japanese Women Sterilized Since 1949 The Seattle Times (17 September
1997) A17.
2004]
K. SAVELL STERILIZATION AND BODILY INTEGRITY
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holds, and whose partial or total cession enables political power or sovereignty
to be established.19
Foucault was critical of this liberal conception of power on the basis that it makes
certain erroneous assumptions, in particular, that power can be possessed, that it is
repressive, and that it emanates from a central source.20 Through a series of major
historical studies in the arenas of mental illness,21 medicine,22 crime,23 and sexuality,24
Foucault traces transformations in the organization and growth of new knowledges
(referred to as the disciplines) and analyzes these discourses, and the practices
associated with them, as new mechanisms of power. Thus, he offers an alternative
conception of power which focuses on the relationship between knowledge and the
body.
The concept of discourse is key to understanding the connections that Foucault
emphasizes between truth, knowledge, and power. Discourses are particular domains
of language-usethat is, particular ways of talking, thinking, and writing based on
shared assumptions.25 They comprise legitimized and sanctioned knowledge and are,
accordingly, one of the mechanisms by which power operates (in combination with
practices and their effects):26
[I]n a society such as ours … there are manifold relations of power which
permeate, characterise and constitute the social body, and these relations of
power cannot themselves be established, consolidated nor implemented
without the production, accumulation, circulation and functioning of a
discourse. There can be no possible exercise of power without a certain
economy of discourses of truth which operates through and on the basis of this
association. We are subjected to the production of truth through power and we
cannot exercise power except through the production of truth.27
19 Michel Foucault, Power/Knowledge: Selected Interviews & Other Writings, 1972-1977, ed. by
Colin Gordon (New York: Pantheon, 1980) at 88 [Foucault, Power/Knowledge].
20 Alec McHoul & Wendy Grace, A Foucault Primer: Discourse, Power, and the Subject (Carlton:
Melbourne University Press, 1993) at 60.
21 Michel Foucault, Madness and Civilization: A History of Insanity in the Age of Reason, trans. by
Richard Howard (New York: Vintage, 1973).
22 Michel Foucault, The Birth of the Clinic: An Archaeology of Medical Perception, trans. by A.M.
Sheridan Smith (New York: Vintage, 1994).
23 Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. by Alan Sheridan
(London: Penguin, 1977) [Foucault, Discipline and Punish].
24 Michel Foucault, The History of Sexuality: Volume I: An Introduction, trans. by Robert Hurley
(New York: Vintage, 1978) [Foucault, History of Sexuality, Vol. I]; Volume Two: The Use of Pleasure,
trans. by Robert Hurley (New York: Random House, 1985); Volume Three: The Care of the Self,
trans. by Robert Hurley (New York: Random House, 1986).
25 Catherine Besley, Critical Practice (London: Methuen, 1980) at 5.
26 Elizabeth Grosz, Contemporary Theories of Power and Subjectivity in Sneja Gunew, ed.,
Feminist Knowledge: Critique and Construct (London: Routledge, 1990) 59 at 89.
27 Foucault, Power/Knowledge, supra note 19 at 93.
the relationship
is symbiotic.28 This method
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In other words, Foucault argued that it is not possible to distinguish power from
involves
knowledge because
understanding truth and knowledge not as determinate concepts, but rather as
products of these processes of inclusion and exclusion. Thus, when Foucault uses the
concept of truth, he does not mean that which is discovered and accepted as being
fact.29 Rather, he means the ensemble of rules according to which the true and the
false are separated and specific effects of power attached to the true.30 Foucault is
interested in discovering how certain discourses claim to speak the truth and thus can
exercise power in a society that values this notion of truth.31
There are a number of implications that flow from the claim that discourses
shape, rather than merely reflect, reality. One important implication is that the
capacities, habits, and desires of the physical body are produced through the processes
of investigating, talking about, and representing them in discourses.32 The ways in
which discourses about the body are producedobservation, normalizing judgment,
and examinationare collectively referred to by Foucault as techniques of power.
Examination combines the techniques of an observing hierarchy and those of a
normalizing judgement33 making it possible to extract and constitute knowledge.34
It is the technique by which power … instead of imposing its mark on its subjects,
holds them in a mechanism of objectification.35 Thus, the power of examination lies
in its ability to objectify individuals by describing, judging, measuring, and
comparing them with others.36 It also focuses attention on the individual who has to
be trained or corrected, classified, normalized, excluded, etc.37
These techniques of power are less spectacular than juridical forms of power over
the body but they are effective nonetheless:
28 This can thus be seen as part of a larger attempt to rethink the relationship between power, truth,
and knowledge. He states:
We should admit … that power produces knowledge (and not simply by encouraging it
because it serves power or by applying it because it is useful); that power and
knowledge directly imply one another; that there is no power relation without the
correlative constitution of a field of knowledge, nor any knowledge that does not
presuppose and constitute at the same time power relations (Foucault, Discipline and
Punish, supra note 23 at 27).
29 Foucault, Power/Knowledge, supra note 19 at 132.
30 Ibid.
31 Carol Smart, Feminism and the Power of Law (London: Routledge, 1989) at 9 [Smart, Feminism
and Law].
32 Foucault, Power/Knowledge, supra note 19 at 26.
33 Ibid. at 184.
34 Ibid. at 185.
35 Ibid. at 187.
36 Ibid. at 191.
37 Ibid.
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K. SAVELL STERILIZATION AND BODILY INTEGRITY
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Disciplinary power … is exercised through its invisibility; at the same time it
imposes on those whom it subjects a principle of compulsory visibility. In
discipline, it is the subjects who have to be seen. Their visibility assures the
hold of the power that is exercised over them. It is the fact of being constantly
seen, that maintains the disciplined individual in his subjection.38
Disciplinary control over bodies finds its ultimate expression in what Foucault
sees as the emergence of the disciplinary society, marked by an increasingly
medicalized discourse with health, well-being, clinical supervision, and surgical
intervention [becoming] ever more crucial to legal, juridical, and political domains.39
His argument, is that power in its juridical form, that is, a form based on the
distribution of rights and penalties through centralized state instrumentalities, has
largely given way to a new form of power. This change has been brought about by the
growth of new knowledges
(medicine, psychiatry, criminology, pedagogy,
epidemiology) which have create[d] new fields of exploration and bring within them
new modes of surveillance and regulation of the population.40
To return to A.R., it was not the state that compelled his castration. Accordingly, it
is not plausible to analyze this case in terms of any simple equation between state
power and the repression of sexual potentiality. As we know, it was Ms. Crockett,
together with a group of medical professionals, who implemented the decision to use
castration as a means of pacifying A.R. and rendering him infertile. This measure
may, however, be rendered sensible in a context within which A.R.s sexuality is
understood as threatening and in need of containment, and the surgical means of
achieving this result, framed as humane. Those commentators who supported the
decision expressed their justifications for castration by reference to larger discourses
about appropriate sexual expression and responsible reproduction. A.R.s mother
explained that as he entered his teens he became sexually aggressive. She saw
castration as a way of curbing that aggression. She also explained the personal
benefits that he enjoys as a result:
Most of his caregivers are female and around his age. He goes now to places
where hes alone with them. He couldnt do that before, because we couldnt
trust he wouldnt have aggressive sexual behaviours.41
The is struck a chord with at least one commentator who remarked:
Advocates for the disabled argue that what happened to this man/boy was a
violation of human rights. But doesnt this man also have a right to be protected
from being a parent? Or from being ridiculed? Or perhaps going to jail?42
38 Ibid. at 187.
39 Elizabeth Grosz, Space, Time, and Perversion: Essays on the Politics of Bodies (New York:
Routledge, 1995) at 35.
40 Smart, Feminism and Law, supra note 31 at 7.
41 Mitchell Gray, Mother Defends Sterilizing Her Son Calgary Herald (13 May 2002) A9.
42 W. Gifford-Jones, The Doctor Game: Sterilization Is Not Always Inhumane Windsor Star (10
October 2002) B5.
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This commentator is expressing the idea that castration offered a beneficent means of
protecting the man/boy from the likely consequences of his problematic sexuality
(being incarcerated for his sexual urges and becoming a parent). Whether or not these
outcomes would have eventuated cannot be known. It is, however, clear that, within
this framework, these outcomes were enough to justify radically altering A.R.s body.
The same commentator continued:
[Vol. 49
Today, everyone talks about the need for responsible sex. But how can a 25-
year-old man with the mental age of four who has sexual desires know the true
meaning of sex or the responsibility that goes with it?43
A fertile man engaging in sexual activity implies parenthood and, therefore,
reproductive responsibility. A.R.s sexual urges were, by contrast, uncivilized, and he
was innocent of this true meaning of sex. The significance of this notion of
reproductive responsibility becomes even more apparent when this commentator
asked how could any reasonable person believe he could be a responsible parent? …
And who among us would elect to have him as a parent?44 These questions imply a
norm, that is to say, they imply that there is some general understanding about the sort
of person who will make an adequate parent. And since A.R. was not a person who
could or would ever engage in reproductive sex responsibility, he was not such a
person. This truth not only provides the justification for sterilization, it also has the
effect of framing sterilization as a beneficent measure. These commentaries provide
some insight into the way in which norms concerning sexuality were central to the
case in favour of castrating A.R.
D. The Discursive Production of Sexed Bodies
Foucault was interested in how particular kinds of subject (the mad, the ill, the
criminal, the sexual pervert, for example) were produced as effects of discursive and
power relations.45 His ideas about power and the body have been a fertile source of
critical and feminist legal theorizing.46 Perhaps the most significant contribution made
by these theorists has been to reject the claim that there is a natural body, which is
overlain with cultural meanings. Lacey explains that law plays an active role in
43 Ibid.
44 Ibid.
45 McHoul & Grace, supra note 20 at 91.
46 See Judith Butler, Bodies That Matter: On the Discursive Limits of Sex (London: Routledge,
1993); Rosalyn Diprose, The Bodies of Women: Ethics, Embodiment, and Sexual Difference (London:
Routledge, 1994); Elizabeth Grosz, Volatile Bodies: Toward a Corporeal Feminism (Bloomington:
Indiana University Press, 1994); Anthony Synott, The Body Social: Symbolism, Self and Society
(London: Routledge, 1993); Elaine Scarry, The Body in Pain: The Making and Unmaking of the
World (New York: Oxford University Press, 1985); Margrit Shildrick, Leaky Bodies and Boundaries:
Feminism, Postmodernism and (Bio) Ethics (London: Routledge, 1997); Brian S. Turner, The Body &
Society: Explorations in Social Theory, 2d ed. (London: Sage, 1996).
K. SAVELL STERILIZATION AND BODILY INTEGRITY
2004]
producing its subjects as sexual beings.47 It does this both by constructing certain
sexualities, practices, and identitites as having particular social meaning48 and by
constituting the actual shapes, powers, and capacities of human bodies, in their
sexual and other spheres of being.49 The argument here is that discourses, including
legal discourses, construct bodies each time they assign certain qualities to the body,
seeing the body in terms of some things and not others, seeing some bodies in certain
ways and other bodies in others.50 A further implication of this analysis is that bodies
are not always constructed, symbolically or literally, in the same way.
1105
Hyde argues that law has no coherent conception of the body. The body has been
analogized to a machine, a zone of privacy, as property, and as a right to bodily
integrity. He argues that an assortment of representations and vizualizations51 are
deployed to solve political problems internal to legal discourse.52 In other words,
legal discourses are replete with symbolic representations of the body, and these
representations can be central to legal outcomes. With echoes of Mary Douglas
theorizing of the body, Hyde claims that laws traditional liberal conception of the
body is an individuated entity with distinct boundaries, an outside and an inside.53
Within the framework of liberalism, [d]efining those boundaries is an individuated
judgment that calls for no consideration of other legal subjects.54
The frequently cited origin of the common law principle of bodily integrity is
William Blackstone. Blackstone conceptualized the body as sacred and this
conception formed the basis of the claim that no one has a right to meddle with55
anothers body in any the slightest manner.56 Although the term sacred is no
longer used in modern jurisprudence, more recent formulations of the principle of
bodily integrity have retained the essence of Blackstones claim, characterizing the
body as inviolate, that is, not to be violated or dishonoured. In Collins v. Wilcock,
the English Court of Appeal articulated the nature and breadth of this principle:
47 Nicola Lacey, On the Subject of Sexing the Subject… in Ngaire Naffine & Rosemary J.
Owens, eds., Sexing the Subject of Law (Sydney: Law Book Company, 1997) 65 at 67.
48 Ibid.
49 Lacey warns that laws contribution to the production of sexed legal categories must be
understood as continuing process and therefore contingent. She also urges feminists engaged in the
sexing project to assume the intellectual responsibility of thinking beyond the particular history of
laws sexing in order to re-imagine legal categories … in less hierarchical and more heterogeneous
terms (ibid. at 68).
50 Ngaire Naffine, The Body Bag in Naffine & Owens, supra note 47, 79 at 84.
51 Alan Hyde, Bodies of Law (Princeton: Princeton University Press, 1997) at 84.
52 Ibid.
53 Ibid. at 258.
54 Ibid. at 258-59.
55 William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of
1765-1769, vol. 3 (Chicago: University of Chicago Press, 1979) at 120.
56 Ibid.
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The fundamental principle, plain and incontestable, is that every persons body
is inviolate. It has long been established that any touching of another person,
however slight, may amount to battery. … The breadth of the principle reflects
the fundamental nature of the interest so protected.57
Indeed, the principle of bodily integrity is so fundamental that even socially
desirable activities, such as the provision of medical treatment, are not excluded from
its scope: Any treatment given by a doctor to a patient which is invasive (i.e.
involves any interference with the physical integrity of the patient) is unlawful unless
done with the consent of the patient: It constitutes the crime of battery and the tort of
trespass to the person.58 Trespass is a term that is commonly used to describe the
unlawful transgression of privately owned land and it vividly evokes the idea of a
body that is marked off by distinct physical boundaries. In this sense, the principle of
bodily integrity posits a normative physical body that occupies a bounded space.
Furthermore, as Douglas observed, the boundary metaphor also speaks to broader
notions of order and disorder. The purpose of a boundary is to contain and delineate
and, in so doing, simulate a sense of order. When boundaries are breached or
threatened, so too is the sense of order they denote. Within this framework, unwanted
bodily intrusions disrupt order and thus warrant legal prohibition.
At this level of abstraction, these claims about the principle of bodily integrity are
unlikely to provoke radical disagreement. It is by no means clear, however, that the
model of the bounded, physical body will always provide an adequate model for
describing human experience or, for that matter, laws attitude to the integrity of
particular bodies. It is not surprising therefore that, in addition to the bounded
inviolable body, Hyde finds evidence of alternative, less inviolable bodies:
The legal subject must, however, tolerate or consent to some fairly massive
social uses of the body, which law facilitates by constructing that body so as to
permit such social use. … While all these represent permissible social uses or
invasions of the body, law facilitates these by constructing various discursive
bodies, sometimes defined as interests in liberty or property, sometimes as
things or property, sometimes through euphemistic language that makes the
body disappear.59
Sexual connection and pregnancy are two spheres of human experience in which,
arguably, the symbol of the bounded body does not offer an adequate model. Haraway
contends that pregnancy places women in a more shocking relation than men to
doctrines of unencumbered property in the self.60 This is because:
In making babies, female bodies violate western womens liberal singularity
during their lifetimes and compromise their claims to full citizenship …
57 [1984] 1 W.L.R. 1172 at 1177, [1984] 3 All E.R. 374 (Q.B.).
58 Airedale N.H.S. Trust v. Bland, [1993] 1 All E.R. 821 at 881-82, [1993] A.C. 789 (H.L.) [Bland
cited to All E.R.].
59 Hyde, supra note 51 at 259.
60 Donna Jeanne Haraway, Primate Visions: Gender, Race, and Nature in the World of Modern
Science (New York: Routledge, 1989) at 353.
2004]
K. SAVELL STERILIZATION AND BODILY INTEGRITY
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Ontologically always potentially pregnant, women are both more limited in
themselves, with a body that betrays their individuality … 61
Haraways analysis implies a comparison between the maternal body and an abstract
ontological understanding or personhood which, like laws principle of bodily
integrity, fixes upon a distinct, individuated body. In this comparison, women are
never really able to meet the requirements of the normative physical body and are
politically compromised as a result. Indeed, it is suggestive of the power of the
normative inviolate body that Haraway describes the maternal body as an entity that
violates liberal singularity.
Naffine applies a similar analysis to the law of assault. She argues that because
laws principal concern is (the policing of the boundaries of) the bounded
heterosexual male body. Bodies that are not like this, or are not allowed to be like this,
are somehow deviant and undeserving bodies. They are unnatural, even loathsome
because they have apparently lost their clear definition.62
Naffine claims that the criminal law of human contact presupposes … a standard,
uniform, bounded human body which is really an extrapolation from a certain liberal
conception of the male body, not a womans body.63 Thus, the body implied by the
principle of bodily integrity, is not only a bounded body, it is a masculine body. This
raises the question of what the unbounded body represents. Smart contends that
[w]omens bodies have given rise to a problem of order. She argues that
womens bodies are constituted as the archetypal site of irrationality64 because the
female body has historically been constructed as failing the test of subordinating
desire to reason.65 This idea can be reformulated in light of Naffines framework to
argue that female bodies pose the problem of order because they have not been
perceived as bounded in an equivalent manner to mens bodies. In this sense,
menstruation and pregnancy might be regarded as a failure on the part of women to
keep their bodies separate and hidden. This might also explain why womens bodies
tend to be regarded as open, pierced, or otherwise incomplete66 and thus produced in
law as non-standard or aberrant (not-male) bodies.67
61 Ibid.
62 Ibid. at 84.
63 Supra note 50 at 86. She goes on to say: Inevitably, this is very much a matter of construction,
not a literal reading of the body, for, to my mind, the body does not possess a nature which can simply
be read off (ibid.).
64 Carol Smart, Law, Crime & Sexuality: Essays in Feminism (London: Sage, 1995) at 227.
65 Ibid.
66 Naffine, supra note 50 at 88.
67 Ibid.
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[Vol. 49
E. Medical Categorizations and Welfare-Oriented Practices
The notion that the inviolable or sacred body functions as an ideal against which
real bodies are compared offers further clarification of the manner in which legal
discourses construct bodies. But law does not necessarily operate autonomously in
these processes of examination, classification, and comparison. Non-juridical
discourses also have a role to play both in identifying bodies as deviant or
problematic in some way and in providing authoritative solutions to the dilemmas
these bodies pose. It is here that the tensions and connections between juridical and
disciplinary power are most obvious.
Although Foucault arrives at a different understanding about the manner in which
power operates in modern society than that envisaged by liberal conceptions of
power, he concedes that juridical power still appears to have force. He speculates that
the apparent tenacity of juridical power might be explained by the fact that the two
forms of power are intertwined.68 The result, according to Foucault, is that power is
exercised simultaneously through the discourses of right and the discourses and
techniques of normalization to which the disciplines g[a]ve rise.69 However, he sees
disciplinary power invad[ing] the area of right so that the procedures of
normalisation come to be ever more constantly engaged in the colonisation of those of
law.70 He specifically uses the extension of medicine71 to illustrate this point:
It is precisely in the extension of medicine that we see, in some sense, not so
much the linking as the perpetual exchange or encounter of mechanisms of
discipline with the principle of right. The developments of medicine, the
general medicalisation of behaviours, conducts, discourses, desires, etc., take
place at the intersection between the two heterogenous levels of sovereignty
and discipline.72
It is thus possible to incorporate Foucaults conception of power operating through
discourses of normalization, without ignoring the operations of traditional forms of
juridical power. Smart contends that discourses of rights and discourses of
normalization constitute two parallel systems of power that merge in the context of
laws relationship to the body:
Through the appropriation of medical categorizations and welfare-oriented
practices, rather than judicial practices, law itself becomes part of a method of
regulation and surveillance. Law, therefore, has recourse to both methods,
namely control through the allocation of rights and penalties, and regulation
68 For a discussion of the relationship between medical power and law in the context of medical
killing, see Kristin Savell, Human Rights in the Age of Technology: Can Law Reign in the Medical
Juggernaut? (2001) 23 Sydney L. Rev. 423.
69 Foucault, Power/Knowledge, supra note 19 at 107.
70 Ibid.
71 Ibid.
72 Ibid.
2004]
K. SAVELL STERILIZATION AND BODILY INTEGRITY
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through the incorporation of medicine, psychiatry, social work and other
professional discourses of the modern episteme.73
The law, therefore, can be seen as stand[ing] in a symbiotic relationship to other
forms of disciplinary power relations.74
Foucaults suggestion that juridical and medical forms of power are intertwined
provides a surprisingly useful staring point for a consideration of the common law
concerning compulsory sterilization in England and Canada. The specific points of
connection and departure between these bodies of law will be discussed in some
detail in Part III. On the broader question of how medical and juridical forms of
power operate within these discourses, however, it is desirable to make some general
observations at this stage.
In Canada, the parens patriae jurisdiction empowers courts to make decisions in
the best interests of an incapacitated adult.75 On one analysis, the very existence of a
welfare jurisdiction is illustrative of an exchange between juridical and disciplinary
power. In this field, there is a mingling of concerns about individual rights and
notions of welfare. This mingling, however, does not always lead to predictable
results. Thus, in Re Eve, where the question of whether compulsory sterilization could
be justified on welfare grounds arose for determination, the Court of Appeal of Prince
Edward Island and the Supreme Court of Canada reached opposing conclusions on
the matter.76 A striking difference between the approaches taken by each court
concerned the weight to be accorded to the physical integrity of the body. The
Supreme Court of Canada was extremely resistant to arguments that sought to
diminish Eves legal right to physical integrity on the basis of speculative judgments
about the medical and social benefits of sterilization. In particular, the Supreme Court
appeared to have been greatly influenced by historical abuses of sterilization and the
normalizing judgments that supported them. Accordingly, the Supreme Court of
Canada rejected welfarist discourses that declared Eve to be better off sterilized, in
favour of a rights-based approach that prohibited non-consensual surgical sterilization
as an infringement of Eves bodily integrity. In Foucauldian terms, this might be
regarded as a triumph of the discourses of right over the discourses of normalization.
Further evidence of the unpredictability of the confrontation between juridical
and medical power can be found in the approach taken by English courts, which have
reached substantively different conclusions on the question of whether the practice of
non-therapeutic sterilization can be justified in terms of best interests. In contrast to
Canada, there is no parens patriae jurisdiction over incapacitated adults in English
73 Smart, Feminism and Law, supra note 31 at 96.
74 Annie Bunting, Feminism, Foucault and Law as Power/Knowledge (1992) 30 Alta. L. Rev. 829
at 837-38.
75 E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, 31 D.L.R. (4th) 1 [Re Eve cited to S.C.R.].
76 Ibid. See Part III (Sex, Integrity, and the Individual Body) for a full discussion of these
decisions.
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law. This jurisdiction was abolished by the Mental Health Act, 1959.77 In Re F.
(Mental Patient: Sterilisation),78 the House of Lords was confronted with the question
of whether and, if so, how to legitimate the non-consensual medical treatment of
incapacitated adults in the vacuum created by the abolition of the parens patriae
jurisdiction. This case involved an application for a declaration from the court that it
would be lawful to sterilize F., a learning disabled adult woman.79
[Vol. 49
Lord Bridge noted [a] paucity of clearly defined principles in the common
law,80 which could be applied to the question before the court.81 But he thought it
axiomatic that treatment which is necessary to preserve the life, health or well being
of the patient may lawfully be given without consent.82 Lord Brandon noted that the
common law would be seriously defective if it failed to provide a solution to the
problem … [o]therwise [incapacitated patients] would be deprived of medical care
which they need and to which they are entitled.83 Lord Jauncey was also compelled
by the potential injustice of depriving incapacitated patients of medical treatment. He
cautioned against erecting … legal barriers against the provision of medical treatment
for incompetents84 lest they be deprived of treatment which competent persons
could reasonably expect to receive in similar circumstances. The law must not convert
incompetents into second class citizens.85
In a manner consistent with this concern that the medical and nursing needs of
incapacitated patients should not be unduly constrained, it was decided that a doctor
can lawfully operate on, or give other treatment to, adult patients who are incapable …
provided that the operation or other treatment concerned is in the best interests of such
patients.86 This still leaves unanswered the question of what constitutes best
interests and, more importantly, who will decide this question. Lord Brandon thought
that treatment is in a patients best interests if, but only if, it is carried out in order
either to save their lives, or to ensure improvement or prevent deterioration in their
physical or mental health.87
Thus, if the medical treatment is in the best interests of the patient, it is lawful,
with the result that the consent of the court is not necessary. This, as Lord Brandon
pointed out, was just as well otherwise the whole process of medical care for such
77 (U.K.), 7 & 8 Eliz. II, c. 72.
78 [1990] 2 A.C. 1 (H.L.) [Re F.].
79 In the case of a minor, an English court has power to order a sterilization in the exercise of its
wardship jurisdiction: Re B. (a Minor) (Wardship: Sterilisation) (1987), [1988] 1 A.C. 199, [1987] 2
All E.R. 206 (H.L.) [Re B. (H.L.) cited to A.C.].
80 Re F., supra note 78 at 51.
81 Ibid.
82 Ibid. at 52.
83 Ibid. at 55.
84 Ibid. at 83.
85 Ibid.
86 Ibid. at 55.
87 Ibid.
K. SAVELL STERILIZATION AND BODILY INTEGRITY
2004]
patients would grind to a halt.88 There was, however, disagreement about whether
there might be special situations, sterilization being one of them, where the courts
consent should be obtained. Lord Griffiths thought that leaving the sterilization
decision to doctors, acting in the best interests of their patients, was not adequate to
safeguard the rights of the patient:
1111
I cannot agree that it is satisfactory to leave this grave decision with all its
social implications in the hand of those having the care of the patient with only
the expectation that they will have the wisdom to obtain a declaration of
lawfulness before the operation is performed. In my view the law ought to be
that they must obtain the approval of the court before they sterilise a woman
incapable of giving consent and that it is unlawful to sterilise without that
consent.89
Lord Griffiths was aware that in order to achieve this result a new common law rule
would need to be developed. He thought that the public interest could justify such a
rule. The other members of the court thought it impossible to extend the common law
in this manner90 and rejected the proposal. They did, however, agree that, even though
it was not required as a matter of law, it was desirable as a matter of good practice that
a court declaration be sought prior to the performance of a sterilization operation.
Lord Brandon enumerated some of the reasons for this decision including the risk that
the operation could be carried out for improper reasons or with improper motives91
and the need to protect the doctors involved from subsequent adverse criticisms or
claims.92
The role of the court in such an application is to satisfy itself that the proposed
treatment is in the best interests of the patient. Lord Brandon thought that the best
interests of the patient should be determined by reference to the professional standard
(known in English law as the Bolam standard),93 which is to say, the treatment must
88 Ibid. at 56.
89 Ibid. at 70.
90 Ibid. at 63, Brandon L.J.
91 Ibid. at 56.
92 Ibid.
93 The professional standard was elaborated in Bolam v. Friern Hospital Management Committee,
[1957] 1 W.L.R. 582, [1957] 2 All E.R. 118 (Q.B.) [Bolam cited to W.L.R.]. The plaintiff in Bolam
was a voluntary psychiatric patient whose doctor had recommended electro-convulsive therapy
(ECT). During the course of that treatment, the patient sustained fractures. He alleged that the
doctor was negligent in failing to provide an adequate form of restraint and/or administer muscle
relaxant drugs prior to the ECT. In addition, he alleged that the doctor was negligent in failing to
disclose the risks involved in the treatment. In his direction to the jury, McNair J. stated that the test
that they were required to apply in order to determine whether the doctors practice had been
negligent was the standard of the ordinary skilled man exercising and professing to have that special
skill … it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that
particular art (ibid. at 586). In other words, a doctor was not negligent if he had acted in accordance
with a practice accepted as proper by a responsible body of medical men skilled in that particular art
(ibid. at 587).
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1112
be in accordance with a practice accepted as proper by a responsible body of medical
opinion. If a more stringent test was applied, he reasoned, the result would be that
some incapacitated adults would be deprived of the benefit of medical treatment that
competent patients could enjoy.94
[Vol. 49
More recently, the Court of Appeal has sought to re-assert judicial authority over
the determination of best interests. In Re M.B., the Court of Appeal held that best
interests are not limited to best medical interests95 and in Re A. (Medical Treatment:
Male Sterilisation),96 Butler-Sloss P. added that best interests encompasses medical,
emotional and all other welfare issues.97 Furthermore, in Re A., Butler-Sloss P. made
it clear that in the case of an application for approval of a sterilisation operation, it is
the judge, not the doctor, who makes the decision that it is in the best interests of the
patient that the operation be performed.98 Thus, in Re S.L. (Adult Patient)(Medical
Treatment),99 the Court of Appeal held that where there were two responsible bodies
of medical opinion, each supporting different remedial treatment for excessive
menstruation, it was for the court (rather than the patients mother in consultation with
doctors) to decide which of the two treatments was in the patients best interests.
Thus, within English law, the confrontation between juridical and medical power
appears to have produced a dynamic field. But, despite the Court of Appeals concern
to assert greater authority over the determination of best interests, it is nonetheless
clear that English courts have been comparatively deferential to medical testimony
concerning the risks associated with pregnancy, the extent to which labour would
deviate from the norm, and the benefits accruing to certain learning disabled women
as a result of sterilization. Accordingly, English courts have been considerably more
willing to perceive sterilization as a welfarist intervention.100
II. Sex, Bodily Integrity, and the Body Politic
The connections between legal and medical discourses concerning the body have
deep roots. In the context of non-consensual sterilization, it is possible to show how
eugenic theory inspired law reform agendas in both England and parts of Canada. The
relationship between the sexuality of certain individuals and the health of the social
body was a primary concern for the reformers of the 1920s and 1930s who agitated,
with success in Alberta and British Columbia, for the legalization of eugenic
sterilization. Similar arguments circulated in Britain and these animated the
94 Supra note 78 at 68.
95 Re M.B. (Medical Treatment), [1997] 2 F.L.R. 426 at 439 (C.A.) [Re M.B.].
96 (1999), [2000] 1 F.L.R. 549, [2000] 1 F.C.R. 193 (C.A.) [Re A. cited to F.L.R.].
97 Ibid. at 556. The question is whether this expansion might lead to the recognition of third party
interests. The President and Thorpe L.J. each left this question open (ibid. at 556, 558).
98 Ibid. at 556.
99 Re S.L. (adult patient) (medical treatment), [2000] 3 W.L.R. 1288, [2000] 2 F.C.R. 452 (C.A.).
100 These matters are discussed in some detail in Part III.
K. SAVELL STERILIZATION AND BODILY INTEGRITY
2004]
recommendations of the 1934 Departmental Committee on Sterilisation (Brock
Committee or Committee),101 although eugenic law reforms were never ultimately
adopted in England.
1113
A. The Menacing Presence of Delinquent Bodies
Eugenic theory became popular in the early twentieth century and was concerned
with reducing the number of people in society with hereditary deleterious
characteristics for the purpose of improving the race.102 At the time that eugenic
sterilization enjoyed widespread support, it was described as a purposeful attempt,
consciously made by a group of the species man, to direct, in some small degree, their
own evolution.103 This theory became the inspiration for legislative reform in a range
of jurisdictions including Alberta and British Columbia and, most notoriously,104
Germany.105 In Sweden, a racial hygiene program instituted in 1935 and not
dismantled until 1976, saw 63,000 Swedes (mainly women) sterilized without their
consent.106 In
the United States, many states enacted eugenic sterilization
legislation,107 and these statutes even survived constitutional challenge. In Buck v.
101 U.K., Report of the Departmental Committee on Sterilization, Cmd 4485 in Sessional Papers,
vol. 15 (1933-34) 611 (President: Brock) [Brock Report].
102 The Canadian Oxford Dictionary (1998) defines eugenics as the science of improving the …
population by the controlled breeding for desirable inherited characteristics.
103 Harry H. Laughlin, Eugenical Sterilization, 1926: Historical, Legal and Statistical Review in the
United States (New Haven, Conn.: American Eugenics Society, 1926) at 1.
104 It is estimated that within the first year of the enactment of the Third Reichs Law to Prevent
Offspring with Hereditary Diseases ((14 July 1993) Reichsgesetzblatt (Reich Law Gazette) 1933, I.,
No. 86, Berlin: 25 July 1933, 529, trans. online:
56,244 people were compulsorily sterilized. Although there are no official records for the total
number of people sterilized before the law was repealed in 1945, the estimates range from 200,000 to
2 million. See Natasha Cica, Sterilising the Intellectually Disabled: The Approach of the High Court
of Australia in Department of Health v. J.W.B. and S.M.B. (1993) 1 Med. L. Rev. 186 at 225.
105 Law to Prevent Offspring with Hereditary Diseases (ibid.) provided that a person could be
sterilized if medical opinion considered it probable that his or her offspring would suffer from serious
heritable physical or mental defects. A person was considered to be hereditarily diseased within the
meaning of the law if they suffered from congenital feeble-mindedness, schizophrenia, manic-
depression, congenital epilepsy, Huntingtons chorea, hereditary blindness or deafness, or a serious
hereditary physical abnormality (ibid., art. 1(2)). In addition to these categories, a person suffering
from chronic alcoholism was also subject to the law (art. 1(3)). Article 6 established the Hereditary
Health Court, which was responsible for determining sterilization applications, and was constituted
by a
(online: document Archiv de
two doctors
lower court
judge and
106 See Stephen Bates, Sweden Pays for Grim Past The Guardian (6 March 1999), online:
Guardian Unlimited
the Race Purity Victims The Daily Telegraph (26 August 1997), online: The Telegraph Group
107 By 1 January 1934, 27 states had enacted eugenic sterilization laws pursuant to which 9,067
women and 6,999 men had been sterilized. See Brock Report, supra note 101, Appendix VIII. For a
review of the legislative regimes current at 1926 and statistics recording the numbers of men and
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1114
Bell, an unsuccessful Supreme Court challenge to the constitutionality of Virginias
sterilization law, Justice Oliver Wendell Holmes infamously said:
[Vol. 49
It is better for all the world, if instead of waiting to execute degenerate
offspring for crime, or to let them starve for their imbecility, society can
prevent those who are manifestly unfit from continuing their kind. The
principle that sustains compulsory vaccination is broad enough to cover cutting
the Fallopian tubes. … Three generations of imbeciles are enough.108
Glanville Williams, a British proponent of eugenic sterilization, noted that the
obvious social importance of preventing the births of children who are affected by
congenital diseases has naturally given rise to the proposal to use sterilisation of the
unfit as a means of racial improvement.109 To this, he added that [w]hether or not a
genetic decline has set in, the fact remains that the community is burdened with an
enormous number of unfit members, and that every humane person must concur with
the eugenist in wishing to see an improvement.110
As these passages show, the vocabulary of eugenics spoke to a profound concern
with the health of the social body. The groups targeted as mental defectives or
subnormals, to use the language of the day, were constructed as unhealthy bodies that
posed a threat to social order and the continuing health of the social body. As such,
society needed to consider what measures might be taken to prevent further
deterioration of its health and, as Glanville Williams contends, perhaps even effect
some kind of overall improvement.
Alberta and British Columbia enacted sexual sterilisation statutes in 1928 and
1933 respectively.111 Under these statutes, a board was established for the purpose of
authorizing the surgical sterilization of inmates of psychiatric institutions. The board
could authorize the sterilization of an inmate in circumstances where it was satisfied
that the patient might safely be discharged if the danger of procreation with its
attendant risk of multiplication of the evil of transmission of the disability to progeny
were eliminated … 112 In Alberta, the board constituted under the act was called the
women sterilized to that point, see Laughlin, supra note 103. For a slightly more critical assessment
of the principal arguments for eugenical sterilizations, a review of the scientific literature, and the
recommendations of the Committee of the American Neurological Association for the Investigation of
Eugenical Sterilization, see American Neurological Association Committee for the Investigation of
Eugenical Sterilization, Eugenical Sterilization: A Reorientation of the Problem (New York:
MacMillan, 1936).
108 274 U.S. 200 at 207 (1927), 47 S. Ct. 584. According to Robert Lee and Derek Morgan, the
principle elaborated in Buck v. Bell was being applied well into the 1970s. See Robert Lee & Derek
Morgan, Sterilisation and Mental Handicap: Sapping the Strength of the State? (1988) 15 J. L. &
Socy 229 at 244, n. 10.
109 Glanville Llewelyn Williams, The Sanctity of Life and the Criminal Law (New York: Knopf,
1957) at 80.
110 Ibid. at 81.
111 The Sexual Sterilization Act, S.A. 1928, c. 37 [Sexual Sterilization Act (Alta.)]; Sexual
Sterilization Act, S.B.C. 1933, c. 59.
112 Sexual Sterilization Act (Alta.), ibid., s. 5.
K. SAVELL STERILIZATION AND BODILY INTEGRITY
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Board of Examiners, and it comprised four members, two of whom were medical
practitioners. In British Columbia, the board was called the Board of Eugenics, and it
comprised three members, a Judge of the Court of Record, a psychiatrist, and a person
experienced in social work. Under both statutes, the written consent of the person to
be sterilized was required. If, however, the relevant board found that that person was
incapable of consenting, the consent of the spouse if married, parent or guardian, or
the Minister for Health (in Alberta)113 or provincial Secretary (in British Columbia)
would suffice.
1115
There is evidence to support the contention that, in Alberta at least, concerns
about the health of the social body were compounded by racial antipathy and a
preoccupation with crime and delinquency:
Like all eugenicists, the proponents of the Act considered their ultimate goal to
be the improvement of the overall gene poolthe betterment of the human
race, by reducing or eliminating procreation by individuals with undesirable,
hereditary characteristics, primarily mental illness and deficiency. Important
though this objective was to eugenists, their more immediate goal in
advocating and ultimately securing passage of the Act was to address what was
perceived to be a serious and growing problem of public order and public
healthnamely the problem of the feebleminded as a menace to society, as a
source of rampant crime and moral delinquency. The perception was rooted in
the belief that criminality was either hereditary or closely linked to mental
deficiency, that mental deficiency and criminality were especially prevalent
among immigrants, and that they were increasing at an alarming rate.114
Robertson concludes that the act was a social control measure, aimed at preventing
(or at least reducing) criminal and morally delinquent behaviour in Alberta.115 This
analysis suggests that the sterilization program in Alberta was motivated by complex
social relations in which race, class, gender, disability, and sexuality played a part.
Moreover, in a larger sense, sterilization was a response to a perceived threat to the
integrity of Albertan society. Mary Douglas describes the idea of society116 as a
powerful image with a particular formexternal boundaries, margins, internal
structure117and she demonstrates how the bodys boundaries can be used to
113 The act was subsequently amended twice, first in 1937 (The Sexual Sterilization Act Amendment
Act, 1937, S.A. 1937, c. 47) and then in 1942 (The Sexual Sterilization Act, R.S.A. 1942, c. 194).
Following the 1937 amendments, the grounds for sterilization were expanded to include the risk of
mental injury to the individual or to his or her progeny. The consent requirements were also amended
so that although consent was required in order to sterilize a psychotic individual, it was no longer
needed in order to sterilize a mentally defective person. The 1942 amendments expanded the
classifications of mental disability or illness to which the act applied and thus, the power of the board
to authorize the sterilization for a broader range of individuals: Muir v. Alberta (1996), 179 A.R. 321
at 360-61, 132 D.L.R. (4th) 695.
114 Ibid. at 370.
115 Ibid.
116 Douglas, Purity and Danger, supra note 6 at 114.
117 Ibid.
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express danger to the boundaries of the group.118 Drawing on Douglas work, Lock
and Scheper-Hughes observe that:
[Vol. 49
[W]hen a community experiences itself as threatened, it will respond by
expanding the number of social controls regulating the groups boundaries.
Points where outside threats may infiltrate and pollute the inside become the
focus of regulation and surveillance. The three bodiesindividual, social, and
body politicmay be closed off, protected by a nervous vigilance about exits
and entrances.119
This would seem to dovetail with Robertsons analysis of the operation of the Sexual
Sterilization Act in Alberta. By locating the threat of mental deficiency
predominantly in the immigrant classes, sexual sterilization was a means of
simultaneously closing off certain individual bodies (to reproduction) and of
surveilling and regulating the boundaries of the body politic.
B. Citizenship and Reproduction
the hereditary
illness and
Although Britain did not ultimately legislate to permit compulsory sterilization
for eugenic or social reasons, the theme of regulating the boundaries of the body
politic permeates the Report of the Departmental Committee on Sterilisation.120 The
Brock Committee was established by the Minister for Health in 1934 to review the
evidence concerning
to make
recommendations about the use of sterilization as a preventative measure. The
Committee recommended a liberalization of the law in respect of persons who would
(or might) transmit deleterious genetic characteristics to their children. This
recommendation was based on two major conclusions. The first concerned the social
harm engendered by the reproductive capacities of people who were classified as
mentally defective.121 The second concerned the injustice of denying mental
transmission of
118 Ibid. at 122-28.
119 Supra note 3 at 65.
120 Brock Report, supra note 101. The terms of reference for the committee were:
To examine and report on the information already available regarding the hereditary
transmission and other cause of mental disorder and deficiency; to consider the value
of sterilisation as a preventative measure having regard to its physical, psychological,
and social effects and to the experience of legislation in other countries permitting it;
and to suggest what further inquiries might usefully be undertaken in this connection
(ibid. at 3).
121 The Mental Defective Act 1913 (3 & 4 Geo. V, c. 28) established powers and procedures for
ascertaining, certifying, and detaining mental defectives. Section 1 established four classes of persons
who were deemed to be defectives within the meaning of the act. These were:
(a) Idiots; … persons so deeply defective as to be unable to guard themselves against
common physical dangers;
(b) Imbeciles; … mental defectiveness not amounting to idiocy, yet so pronounced that
they are incapable of managing themselves or their affairs, or, in the case of
children, being taught to do so;
K. SAVELL STERILIZATION AND BODILY INTEGRITY
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defectives the right to be sterilized. Accordingly, the Committee framed its
recommendations both in social and individual terms.
1117
The Committees first conclusion reads:
In the first place we were impressed by the dead weight of social inefficiency
and individual misery which is entailed by the existence in our midst of over a
quarter of a million mental defectives and of a far larger number of persons
who without being certifiably defective are mentally subnormal. This mass of
defectives and subnormals is being steadily recruited and is probably growing.
Certainly nothing is being done to diminish it beyond the segregation of a
portion of those more obviously unfitted for community life.122
The above passage provides an example of the symbolic use of the body to sustain a
view of society as sick and burdened. The targeted bodies were a dead weight that
was threatening to bring down the ailing social body. Similarly, the metaphor of
contagion (evoked by the threat in our midst … being steadily recruited and probably
growing) is a potent means of communicating the relationship between individuals
thought to be unhealthy and a dysfunctional and endangered society. These symbolic
equations between the individual and social body are evidenced by the Committees
explicit concern with the impact of mental deficiency on citizenship. The Committee
was all but unanimously in agreement as to the disastrous social and economic
results of ignoring defect and allowing defectives to undertake the ordinary
responsibilities of citizenship.123 This characterizes the question of mental defect as
a matter of grave social and economic concern and then projects this concern onto
overtly political terrain. The social world is thus divided into normal and defective,
where the former enjoys the benefits (and bear the worries) of citizenship, and the
latter are literally cast to the margins of civil society.
(c) Feebleminded persons; … mental defectiveness not amounting to imbecility, yet so
pronounced that they require care, supervision and control for their own protection
or the protection of others …
(d) Moral imbeciles; … persons who from an early age display some permanent
mental defect coupled with strong vicious or criminal propensities on which
punishment has little or no deterrent effect.
The meaning of mental defectiveness received further statutory elaboration with the passage of
the Mental Deficiency Act 1927 (17 & 18 Geo. V, c. 33) which, among other things, amended section
1 of the principal act. The definitions of idiot, imbecile, and feeble-minded persons were substantially
returned, although the requirement that the defect have been present from birth or an early age was
removed. The class moral imbecile was replaced by moral defective which was defined as
persons in whose case there exists mental defectiveness coupled with strongly vicious or criminal
propensities and who require supervision and control for the protection of others. Furthermore, a
new subsection (2) provided that for the purposes of section 1:
mental defectiveness means a condition of arrested or incomplete development of
mind existing before the age of eighteen years, whether arising from inherent causes or
induced by disease or injury.
122 Brock Report, supra note 101 at 55.
123 Ibid. at 31.
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This construction of sterilization as a question of civil responsibility also
encompassed a notion of reproductive responsibility. This responsibility was framed
in economic terms. The Committee observed that many of the mental defectives
were economically disadvantaged and living in slum conditions.124 It found further
that mental defectives made inefficient parents and the vast majority of [them] are
temperamentally and socially unfitted for parenthood.125 This alone was reason
enough for sterilizing them:126
[Vol. 49
We know also that mentally defective and mentally disordered parents are, as a
class, unable to discharge their social and economic liabilities or create an
environment favourable to the upbringing of children, and there is reason to
believe that sterilisation would in some cases be welcomed by the patients
themselves. This knowledge is in our view sufficient, and more than sufficient,
to justify allowing and even encouraging mentally defective and mentally
disordered patients
the only certain method of preventing
procreation.127
to adopt
These passages disclose a significant overlapping of eugenic, social, and individual
best interests as grounds for sterilization. Within the Committees framework,
sterilization was not only good for society and the family, it was also good for the
individuals being sterilized.
C. Multiple Motives
Although eugenic sterilization was commonly endorsed in terms that focused on
the urgent need to relieve the social burdens associated with mental deficiency, this
was not exclusively so. There is evidence to suggest that compulsory sterilization was
also framed as a measure that would serve the best interests of the individuals
concerned. In a report entitled Some Aspects of Sterilization in British Columbia with
Special Reference to Patients Sterilized at Essondale Provincial Mental Hospital
124 The Brock Report adopts the classification social problem group to describe the concentration
of mental defectives and subnormals in lower socio-economic conditions:
High grade mental defect occurs proportionately more frequently in the lowest social
stratum than in the rest of the population. In this stratum there appears to be an unduly
high incidence of mental defect, insanity, intellectual dulness [sic], epilepsy, as well as
tuberculosis and other physical defects. Cause and effect of the conditions found in the
social problem group are debatable, but it is possible that selective mating may to a
large extent account for this concentration of physical defects and mental defects and
disorders. There is evidence that in the poorest districts neighbour marries neighbour,
and like marries like (ibid. at 21).
125 Ibid. at 37.
126 Defectives make inefficient parents; if only for social reasons they should not have children
(ibid. at 31).
127 Ibid. at 39.
K. SAVELL STERILIZATION AND BODILY INTEGRITY
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since 1935,128 the perceived benefits of the British Columbia legislation were
articulated in the following way:
1119
It is a protection, not a punishment, it therefore carries no stigma or
humiliation. …
It permits many patients to return to their homes, who would otherwise be
confined to institutions for years. …
It protects children from being born to be brought up by mentally diseased or
mentally deficient parents or by the state. …
It takes a great burden of expense off the taxpayers, and enables the state to
care for more patients than would otherwise be possible. …
It enables many handicapped persons to marry and have a life normal in most
respects. …
It is a practical and necessary step to prevent racial deterioration.129
As this list indicates, there was a preparedness to rationalize compulsory sterilization
in terms of individual benefit. Indeed, three of the six reasons offered as justifications
for compulsory sterilization concerned benefits that would accrue directly to the
individual, namely, protection, autonomy, and normality.
The second major conclusion of the Brock Report also illustrates this point:
In the second place, we were increasingly impressed by the injustice of
refusing to those who have good grounds for believing they may transmit
mental defect or disorder and who are in every way unfitted for parenthood the
only effective means of escaping from a burden which they have every reason
to dread. … Without some measure of sterilisation these unhappy people will
continue to bring into the world unwanted children, many of whom will be
doomed from birth to misery and defect. We can see neither logic nor justice in
denying these people what is in effect a therapeutic measure.130
The switch in focus from the social body to the individual body highlights some
interesting interpretations both of sterilization as a social practice and of its value to
the individual bodies targeted. The Committee interpreted sterilization as a therapeutic
measure because it would unburden the targeted groups from the onerous
responsibility of child bearing and rearing.131 Moreover, as a therapy that would
128 [Stewart Report]. This report, dated 17 August 1945, was authored by M. Stewart. The Stewart
Report was discovered in the provincial archives among documents catalogued as records of the
Provincial Secretary from 1929 to 1947. Extracts of the Stewart Report appear in D.E. (Guardian ad
litem of) v. British Columbia, [2003] B.C.J. No. 1563 (QL), 18 C.C.L.T. (3d) 169, 2003 BCSC 1013
(Sup. Ct.) at paras. 40-55 [D.E. v. B.C.].
129 D.E. v. B.C., ibid. at para. 48, citing the Stewart Report. In this quotation, the Stewart Report
quotes passages from a paper published by the Human Betterment Foundation of Pasadena,
California, describing the perceived benefits of eugenic sterilization.
130 Brock Report, supra note 101 at 55.
131 It is worth bearing in mind that reliable contraception was not available at the time that the
committee compiled its report.
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1120
improve individual well-being, it was considered unjust to deny access to the
procedure. There are clear echoes of this thinking in the commentary surrounding the
sterilization of A.R. This reading of the Committees report demonstrates the extent to
which the practice of compulsory sterilization, even within the framework of eugenic
theory, was simultaneously justified as a social benefit and as an individual benefit.
[Vol. 49
D. Imagining the Past
Eugenic theory has been roundly discredited as scientifically invalid and is
widely regarded as morally repugnant. But, as mentioned already, it remains a critical
reference point for contemporary sterilization discussions. Arguments on both sides of
the sterilization debate are framed in ways that draw upon the collective sense of
repugnance aroused by the spectre of eugenic sterilization. In the media flurry that
surrounded the castration of A.R., for example, one commentator observed:
We have a sad history of eugenics in this country, especially in Alberta, where
thousands of people were sterilized against their will between 1928 and 1972
because they were deemed mentally incompetent.
Alberta, in fact, was the model for the eugenics movement that sprang up in
Nazi Germany and led to the slaughter of six million Jews as well as countless
others considered sub-human.
Perhaps in a bid to assuage our guilt, we have let the pendulum swing too far to
the other side.132
The contention here appears to be that, notwithstanding a history of abuse that truly
shocks the conscience, compulsory sterilization may not be problematic in every case.
Indeed, the implication seems to be that A.R.s case may well be one in which the
Canadian law with respect to sterilization has led to injustice. The manner in which
the issue has been framed in the passage above acknowledges the historical
misapplication of compulsory sterilization, but does not take the additional step of
questioning its legitimacy per se.
This distinction between the basic legitimacy of compulsory sterilization and its
practical application appears to underpin the manner in which English courts have
approached its legality. Re B.,133 the first House of Lords case of its kind, held that the
wardship jurisdiction could be used to justify the non-consensual sterilization of an
incapacitated minor.134 The case involved an application for the sterilization of a
132 Jacobs, supra note 1.
133 Supra note 79.
134 The Law Lords decided that non-consensual sterilization could only be lawful if it was in the
best interests of the woman concerned to become permanently prevented from becoming pregnant. In
relation to women under the age of majority, the juridical basis for the declaration was the courts
wardship jurisdiction, which confers the court with power to act in the best interests of the ward. The
later decision, Re F., supra note 78, found that in the case of an adult woman with learning
difficulties, the sterilization may also be declared by a court to be lawful if it is shown to be in her best
K. SAVELL STERILIZATION AND BODILY INTEGRITY
2004]
seventeen-year-old woman, who had significant learning difficulties. She was
showing signs of sexual awareness, and her caregivers thought that pregnancy would
be an unmitigated disaster for her. They also thought that other contraceptive
options were unsuitable. The Law Lords emphatically rejected that social or eugenic
reasons might be relevant to the decision to sterilize:
1121
My Lords, none of us is likely to forget that we live in a century which, as a
matter of relatively recent history, has witnessed experiments carried out in the
name of eugenics or for the purpose of population control, so that the very
word sterilisation has come to carry emotive overtones. 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.135
Lord Olivers disclaimer is repeated with equal force in the speeches of Lords
Hailsham and Bridge.136 The sterilization of B. was in her best interests and had
nothing whatsoever to do with eugenic theory.137 Insofar as the Law Lords had in
mind the sort of sterilization program that was implemented in Alberta in 1933, there
is obvious force in the disclaimer. However, as the above analysis shows, the eugenic
reforms of that era were not without supporting arguments that spoke to the question
of individual best interests. The House of Lords did not address the possibility that
best interests might not always be clearly distinguishable from other reasons for
sterilization:
[T]his case is not about sterilisation for social purposes; it is not about
eugenics; it is not about the convenience of those whose task it is to care for the
ward or the anxieties of her family; and it involves no general principle of
public policy. It is about what is in the best interests of this unfortunate young
woman and how best she can be given the protection which is essential to her
interests. The juridical basis for the sterilization of an adult woman in these circumstances is the
doctrine of necessity. This permits a doctor to provide medical treatment to a person who is unable to
consent if the treatment is in their best interests. Medical treatment is thought to be in a persons best
interests when it is necessary to preserve the life or prevent a deterioration of the physical or mental
health of the person.
135 Supra note 79 at 207, Oliver L.J.
136 Lord Hailsham says, In particular there is no issue of public policy other than the application of
the above [best interests] principle which can conceivably be taken into account, least of all (since the
opposite appears to have been considered in some quarters) the question of eugenics (ibid. at 202).
137 A further point that emerges from Lord Olivers passage concerns the labelling of potential
critics of sterilization practices as emotive. This has a familiar ring about it. In 1957, Glanville
Williams said [s]o deeply is the sexual instinct implanted within us that the word sterilization, until
one gets used to it, gives an unpleasant emotion (supra note 109 at 74). Eugenics campaigners in the
1920s also adverted to the irrationality of their detractors by labelling objections to the practice as
emotive. As a measure of its continuing resonance, it is worth noting that this reference has also found
its way into subsequent judgments. In Re D. (a Minor) (Wardship: Sterilisation) (1975), [1976] 1 All
E.R. 326, 2 W.L.R. 279 (Fam. Div.) [Re D.], Heilbron J. records the view of D.s doctor that
[s]terilisation is now an emotive word, and we must try to change its image (at 331). Similarly, in
Re M. (a Minor) (Wardship: Sterilization) (1987), [1988] 2 F.L.R. 497 (Fam. Div.) [Re M.], the court
records an expert witnesss opinion that he regards the operation more as one of contraception than
sterilization, with all the emotive feelings that the use of the word sterilization arouses (at 298).
1122
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[Vol. 49
future wellbeing so that she may lead as full a life as her intellectual capacity
allows.138
There are two important points that emerge from this passage. The first is that there
are legitimate (best interests) and illegitimate (social, eugenic) reasons for non-
consensual sterilization. The second important point is that the Law Lords seem to
have assumed that the two sets of considerations (best interests and eugenic or social
interests) were conceptually distinct, so that the latter were merely irrelevant to the
best interests test.
Like the House of Lords, the Supreme Court of Canada was also conscious of the
problematic application of eugenic theory in the recent past. Accordingly, past
eugenic practice was a reference point in the courts deliberations in Re Eve139 on
whether the parens patriae power could be used to justify compulsory sterilization of
an incapacitated woman. Unlike the House of Lords, however, the Supreme Court
was more circumspect about the discontinuity between sterilization for eugenic
reasons and sterilization in an individuals best interests:
There are other reasons for approaching an application for sterilisation of a
mentally incompetent person with the utmost caution. To begin with the
decision involves values in an area where our social history clouds our vision
and encourages many to perceive the mentally handicapped as somewhat less
than human. This attitude had been aided and abetted by now discredited
eugenic theories whose influence was felt in this country as well as the United
States.140
The approach taken here is quite different from the approach taken by the House of
Lords. Both courts acknowledge the wrongness of eugenically or socially motivated
sterilization. But whereas the House of Lords sought to establish two distinct
conceptual spacesone for problematic sterilization practices and one for
sterilization in an individuals best interests, the Supreme Court of Canada resisted
such distinctions. It did so on the basis that the problematic sterilization practices,
and the theories that underpinned them, have an enduring legacy. This legacy echoes
in the manner in which disabled people are constituted as less than human and are,
therefore, more susceptible to reproductive regulation.
Whether the strategy is to disclaim or acknowledge connections with the past, it
seems apparent that eugenic practices, and the theories of subjectivity that sustained
them, are particularly difficult to escape. The bodies politic that encouraged eugenic
sterilization continue to function symbolically for modern law as a terrifying
reference point, which either demands containment or serves as a reminder of the
need for vigilance. In this sense, the abhorrent body politic operates as a limit and a
threat to the self-image of legal cultures wishing to present themselves as liberal,
open, and democratic.
138 Supra note 79 at 212.
139 Supra note 75.
140 Ibid. at para. 78, La Forest J.
1123
K. SAVELL STERILIZATION AND BODILY INTEGRITY
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III. Sex, Integrity, and the Individual Body
At the very least then, the practice of non-consensual sterilization poses a
challenge to liberal understandings of the role of law as a mediator between the
individual and the social body. Non-consensual sterilization prima facie offends the
principle that individuals are entitled to have their bodies protected from intrusion. On
the other hand, pregnancy and birth involve considerable bodily changes, which may
negate the best interests of the individual or social body. Thus, another notable
correspondence between past and present sterilization practices is the theme of bodily
integrity and, in particular, the relationship between the notion of integrity and social
order. In the past, sterilization was framed primarily as a measure necessary to protect
the integrity of the social body. That primary focus has now shifted to the individual
body, with the result that the Canadian common law prohibition on non-therapeutic
sterilization has been framed in terms of laws commitment to the bodily integrity of
all individuals. English law also respects the bodily integrity of individuals, although
this has not prevented English courts from deciding that the non-therapeutic
sterilization of learning disabled women is permissible. How is it that Canadian and
English law, while both claiming to protect bodily integrity, have reached opposing
conclusions about whether non-therapeutic sterilization can be in a persons best
interests? The answer could lie in the manner in which courts have constructed the
bodies of learning disabled men and women in the sphere of sexuality and
reproduction.
The manner in which a dilemma is framed involves political and moral
judgments.141 It follows that the solutions offered to resolve the dilemma will, in large
measure, have been shaped by the original conception of the problem and the
perceptions upon which this conception relied.142 Perceptions are not, of course,
uniform and nor, accordingly, are the ways in which dilemmas are framed. This much
has already been demonstrated in the discussion of A.R., where the dilemma was
framed differently according to the dominant concerns of the commentators. Thus,
when a commentator agreed that A.R. was a subject in need of control in his own and
others interests, the legal action taken against his mother seemed unjust and unfair.
Conversely, when a commentator was concerned about the implications for society of
allowing castration to control individual members, the legal action taken against
A.R.s mother seemed just.
Robert Cover conceptualizes narratives as models through which we study and
experience transformations that result when a given simplified state of affairs is made
141 See Carl Elliot, Where Ethics Comes From and What To Do About It? (1992) 22:4 Hastings
Center Report 28. Elliot observes that in describing a given case, one has done much of the ethical
work already. A persons moral judgement is reflected in what he [or she] chooses to include in a
description (at 28).
142 See Mary Segers, Abortions and the Culture in Sidney Callahan & Daniel Callahan, eds.,
Abortion: Understanding Differences (New York: Plenum Press, 1984) at 247.
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1124
to pass through the force field of a similarly simplified set of norms.143 This form of
analysis is relevant to law because narratives serve the purpose of locating and giving
meaning to legal prescriptions.144 Perhaps this can explain why English and Canadian
courts tell different versions of the story of compulsory sterilization, which is to say,
different ways of conceptualizing the learning disabled body and relating that
conception to norms and values as a basis for formulating a legal response.145
[Vol. 49
There are two narratives that have been developed by English and Canadian
courts in respect of applications for contraceptive sterilization. The invasion
narrative prevents doctors from interfering with bodies without consent, in anything
other than exceptional circumstances. This narrative engages the concepts of
dignity, inviolability of the person, and bodily integrity and deploys metaphors
of invasion to problematize the imposition of sterilization without consent. This
narrative is framed by Blackstones sacred body.
The second narrative gives a different complexion to non-consensual sterilization.
Like the inviolate body of the invasion narrative, the body is in need of medical
attention. Within
this narrative, however, sterilization constitutes a rescue.
Accordingly, the body within this framework does not (indeed, cannot) resist medical
interference in the name of inviolability, freedom, or dignity, in large measure because
the interference itself has been re-characterized as benign, even virtuous. Within the
rescue narrative, the body represents disorder because its reproductive capacities
are not contained. Once characterized as disordered in this symbolic sense, attempts to
restore order (by removing the threat of pregnancy) can be cast as acts of liberation
rather than invasion. In this larger sense, actions that might, at first blush, appear
oppressive, are recast as freedom-enhancing and thus brought within liberal
understandings of the relationship between the individual and the state.
A. Eve and the Sacred Body
The inviolability of the person was a central concern in Re Eve, the leading
Canadian decision on non-consensual sterilization. Eve was a twenty-four-year-old
woman who suffered from a condition known as extreme expressive aphasia. The
condition made it difficult for her to communicate with others and, according to the
143 Robert M. Cover, The Supreme Court 1982 Term-Forward: Nomos and Narrative (1983) 97
Harv. L. Rev. 4 at 10.
144 While Cover seems more interested in the broader point that narratives give meaning to legal
institutions and their processes, he also acknowledges the relationship between narrative and legal
prescriptions: We constantly create and maintain a world of right and wrong, of lawful and unlawful,
of valid and void … No set of legal institutions or prescriptions exists apart from the narratives that
locate it and give it meaning (ibid. at 4).
145 According to Cover, [t]he codes that relate our normative system to our social constructions of
reality and to our visions of what the world might be are narrative. The very imposition of a
normative force upon a state of affairs, real or imagined, is the act of creating narrative (ibid. at 10).
1125
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medical evidence, she was at least mildly to moderately retarded.146 From the age of
twenty-one, Eve had been attending boarding school during the week and spending
weekends with her mother, Mrs. E. While at the school, Eve had struck up a close
friendship with a male student that was brought … to an end147 by the school
authorities. Nonetheless, Mrs. E. became anxious that [Eve] might quite possibly and
innocently become pregnant. She felt that Eve would be adversely affected by
pregnancy and birth and, moreover, that Eve could not adequately cope with the
duties of a mother.148 Mrs. E. was concerned that the responsibility to care for Eves
prospective child would fall on her. However, as a widow approaching sixty, she felt
unable to assume this role.
Mrs. E. decided that Eve should be sterilized so that she would be protected from
the consequences of pregnancy and birth. She applied to the Supreme Court of Prince
Edward Island for an order recognizing that she could consent to a tubal ligation
being performed on Eve. The application was denied. McQuaid J. concluded that:
the court had no jurisdiction to authorize a surgical procedure on a mentally
retarded person, the intent and purpose of which was solely contraceptive. It
followed that, except for clinically therapeutic reasons, parents or others
similarly situated could not give a valid consent to such a surgical procedure
either, at least in the absence of clear and unequivocal statutory authority.149
The fact that the sterilization was not medically necessary persuaded McQuaid J. that
no basis existed for the granting of Mrs. E.s application. At the root of this objection
lay McQuaid J.s conviction that Eve, like other individuals, was entitled to the
inviolability of her person.150 As Mrs. E. had contended that Eve had a right to be
protected from pregnancy, McQuaid J. resolved the apparent conflict by appealing to
physical integrity as the higher right.151
This decision was overturned by the Prince Edward Island Court of Appeal,
which held that the courts parens patriae power did confer jurisdiction to authorize a
non-therapeutic sterilization. But although the judges agreed on the question of
jurisdiction, there were differences in approach to the substantive question. McDonald
J.A., dissenting, would not have authorized Eves sterilization on the evidence before
the court. Large and Campbell JJ.A., thought that the sterilization offered Eve
protection from pregnancy and that this outweighed her interest in bodily
inviolability. Campbell J.A. thought that a court could only reach a decision about
contraceptive sterilization by examining the particular circumstances. He took the
view that:
146 Supra note 75 at para. 4.
147 Ibid. at para. 2.
148 Ibid. at para. 3.
149 Ibid. at para. 7.
150 Ibid.
151 Ibid.
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The real and genuine object of the proposed sterilization was [Eves]
protection. There was no overriding public interest in it. And there was a
likelihood of substantial injury to her if the operation was not performed. … In
the absence of permanent sterilization, the protected environment Eve enjoyed
would become a guarded environment. This would deprive her of social
options and relative freedom.152
It is apparent from this passage that the court regarded pregnancy as a substantial
injury. Furthermore, it is implied that Eves fertility was also a source of injury to her
to the extent that it prevented caregivers from allowing her to explore social options
and relative freedom. Framed in this way, the sterilization operation was not
primarily an infringement of her rights and bodily integrity. It was, rather, a measure
adopted to enhance her freedom and well-being. Finally, it is also noteworthy that the
court mentioned the absence of any overriding public interest in Eves sterilization.
This observation echoes with the disclaimers issued by the House of Lords in Re B.,
and it would appear that the intention is the same, namely to dismiss any suggestion
that there is a social or eugenic dimension to the authorized sterilization.
The Supreme Court of Canada overturned this decision and, accordingly, refused
to exercise its parens patriae jurisdiction to authorize the compulsory sterilization of
Eve. It held that although the jurisdiction was broad enough to cover the provision of
medical treatment necessary to protect the mental or physical health of a person,153 it
would not extend to non-therapeutic sterilization. This is because it was doubtful
whether sterilization for contraceptive purposes could be in the best interests of a
woman.154 Sterilization involved irreversible and, in the case of hysterectomy,155 major
invasive surgery. It also involved a deprivation of the great privilege of giving
birth.156 There was also evidence before the Court that sterilization had a
considerable negative psychological impact:
Sex and parenthood hold the same significance for [learning disabled people]
as for other people and their misconceptions and misunderstandings are similar.
Rosen maintains that the removal of an individuals procreative powers is a
matter of major importance and that no amount of reforming zeal can remove
the significance of sterilization and its effect on the individual psyche.
In a study by Sabagh and Edgerton it was found that sterilized mentally
retarded persons tend to perceive sterilization as a symbol of reduced or
degraded status. …
152 Ibid. at para. 16.
153 Ibid. at para. 77.
154 To begin with, it is difficult to imagine a case in which non-therapeutic sterilization could
possibly be of benefit to the person on behalf of whom the court purports to act, let alone one in
which that procedure is necessary to his or her best interest (ibid. at para. 87).
155 A majority of the Court of Appeal held that it was in Eves best interests to be sterilized and
reserved its approval for the method of sterilization to be followed, pending further submissions.
Notably, although Mrs. E. originally applied for authorization for a tubal ligation, after hearing
submissions regarding the medically preferred procedure, the court ordered a hysterectomy.
156 Supra note 75 at para. 79.
2004]
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The psychological impact of sterilization is likely to be particularly
damaging in cases where is a result of coercion and when the mentally
handicapped have no children.157
Many of the arguments advanced to support the contention that sterilization was in
Eves best interests were rejected. In response to the claim that Eve needed protection
from the trauma of birth, the Court found that there is no evidence that giving birth
would be more difficult for Eve than for any other woman.158 In response to the
claim that Eve was not fit to parent a child, the Court was equally circumspect:
Studies conclude that mentally incompetent parents show as much fondness
and concern for their children as other people. Many, it is true, may have
difficulty coping with the financial burdens involved. But this issue does not
relate to the benefit of the incompetent; it is a social problem, and one,
moreover, that is not limited to incompetents. … Indeed, there are human rights
considerations that should make a court extremely hesitant about attempting to
solve a social problem like this by this means. It is worth noting that in dealing
with such issues, provincial sterilization boards have revealed serious
differences in their attitudes between men and women, the poor and the rich,
and people of different ethnic backgrounds.159
Thus, the Court was acutely aware of the intersection of sex, ethnicity, and class with
disability in the manner in which sterilization decisions had been made in the past,
casting doubt on the impartiality of the unfitness to parent ground for seeking
sterilization. This particular anxiety dovetailed with the Courts broader concern about
the impact of history and social disadvantage in shaping negative beliefs about the
personhood of learning disabled people. One of the key concerns for the Supreme
Court of Canada in Re Eve was the manner in which learning disabled men and
women had been socially constructed as qualitatively different from other people in
terms of sexuality, reproduction, and capacity to fulfill the social roles of parenting.
These constructions developed against a legal and social background in which the
bodily integrity of learning disabled people was disregarded and their reproductive
contributions to the social body considered unnecessary and undesirable.
The Law Reform Commission of Canada found evidence to suggest that disabled
people have been constituted in social terms as less than human. In the Working Paper
on Sterilization, the Commission uses the phrase presumption of qualitative
difference to describe one of the most problematic features of social perception
concerning disability:160
Mental handicap becomes translated as a characterization of the whole person
rather than just one aspect of that person. The danger in such characterization is
that all problems that arise in relation to this class of people are seen as a
157 Ibid. at para. 80.
158 Ibid. at para. 21.
159 Ibid. at para. 84 [references omitted].
160 Law Reform Commission of Canada, Working Paper 24: Sterilization: Implications for Mentally
Retarded and Mentally Ill Persons (Ottawa: Law Reform Commission of Canada, 1979) at 66.
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function of the handicap. Such persons are thereby a priori defined as deviants
and the implication is that they cannot be entrusted to understand their own
situation or to make decisions concerning their own welfare.161
One of the forms that this presumption might take concerns the identification of the
mentally disabled person with a subhuman organism162 with different needs and
feelings and therefore not entitled to the same rights and privileges as others.163
According to the Commission, this presumption denies the unique identity of the
person and it denies them social status.
The Supreme Court was quite obviously careful to avoid perpetuating the
presumption of qualitative difference. There was no attempt to frame Eves
procreative powers as less important to her than other women, nor to minimize the
significance of her bodily integrity:
The grave intrusion on a persons rights and the certain physical damage that
ensues from non-therapeutic sterilization without consent, when compared to
the highly questionable advantages that can result from it, have persuaded me
that it can never safely be determined that such a procedure is for the benefit of
that person. Accordingly, the procedure should never be authorized for non-
therapeutic purposes under the parens patriae jurisdiction.164
Thus, sterilization was not a protective but rather an intrusive measure that caused
physical damage and a grave intrusion on rights. In short, the court interpreted the
right to bodily integrity strictly so that Eves body was inviolable to the social and
medical pressures to render it closed off to reproduction.
B. The Disordered Body
In contrast to the Supreme Court of Canada, the House of Lords in Re B. rejected
the therapeutic/non-therapeutic distinction as a basis for determining the lawfulness of
sterilization. Lord Hailsham found this distinction totally meaningless, and, if
meaningful, quite irrelevant to the correct application of the welfare principle.165
Lord Bridge also thought it unhelpful and likely to divert attention from the true
issue, which is whether the operation is in the wards best interest, and remove it to an
area of arid semantic debate as to where the line is to be drawn between therapeutic
and non-therapeutic treatment.166 The House of Lords, unlike the Supreme Court,
accepted the conceptual possibility that a non-therapeutic sterilization could be in a
womans best interests, and seemed to have few (if any) doubts about the courts
ability to make the correct assessment.
161 Ibid.
162 Ibid.
163 Ibid.
164 Re Eve, supra note 75 at para. 86.
165 Supra note 79 at 204.
166 Ibid. at 205.
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Since Re B., English courts have heard a number of applications for non-
consensual sterilization of learning disabled women, many of which have been
granted.167 There has been one application in respect of a learning disabled man,
which was refused.168 In other words, to date, only women have been the subject of
declarations that sterilization is in their best interests. This alone raises some
interesting questions in light of the foregoing analysis concerning the masculinity of
the inviolable body of law. Three considerations have almost always formed part of
the best interests determination: the risk of pregnancy, the trauma of pregnancy and
childbirth, and the unfitness of the woman to parent. In each of these categories,
norms of sexual behaviour and reproductive responsibility function to produce the
learning disabled woman as marginal and, therefore, in need of sterilization for her
own protection.
C. Sexuality: The Available Body
The claim that sterilization will promote sexual autonomy in an individuals best
interests requires some analysis. In order to understand and test the claim, it is
important to consider the ways in which English courts have conceived of the
sexuality of learning disabled women. In Re B., the House of Lords regarded B.s
sexuality as dangerous. Lord Hailsham stated that B. has all the physical sexual drive
and inclinations of a physically mature young woman of 17169 and moreover, that
she has already shown that she is vulnerable to sexual approaches, she has already
once been found in a compromising position in a bathroom.170 Lord Oliver added
that the signs of B.s sexual awareness were exemplified by provocative
approaches to male members of the staff and other residents and by touching herself
in the genital area.171 Lord Hailsham expressed the view that B. would not be able
to give informed consent to any act of sexual intercourse and would thus be a danger
to others.172 Although it is not clear what Lord Hailsham meant by this,173 it is
possible that he was adverting to one of two possibilities: either to the possibility that
a man who did not recognize B.s incapacity may be exposed to an allegation of
sexual assault, or that this man, or society generally, would be exposed to the
danger of becoming responsible for a child.
McCarthy suggests that historically, learning disabled people have been
constructed as either oversexed or eternally childlike. The former is based on the
idea that they were unable to control themselves and historically it had sometimes also
167 These cases are discussed in some detail below in Sections C-E.
168 Re A., supra note 96.
169 Supra note 79 at 202, Hailsham L.J.
170 Ibid.
171 Ibid. at 208, Oliver L.J.
172 Ibid. at 202.
173 Dillon L.J. also adverted to the possibility that B. could be a danger to others.
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been believed that they possessed a super-human strength, so they could not easily
be controlled by others.174 McCarthy adds that
[Vol. 49
[w]ithin the belief system that saw people with learning disabilities as
potentially dangerous, the effect this had on ideas about their sexuality are
clear: it was thought that people with learning disabilities would have an
uncontrolled sexuality, that they would be over-sexed, sexually promiscuous.
In short, they were thought to be a potential sexual threat to others.175
There are traces of this thinking in A.R.s case as well as Re B.
The second of these historical constructions is the stereotype of the eternal
child. The effect of this stereotype is to associate people with learning difficulties
with child-like interests and pursuits and to treat them as if they were children.
This stereotype stands in contradiction to the first, so that within the eternal child
framework, people with learning disabilities were thought quite simply not to be
sexual beings.176
The English sterilization cases decided since Re B., have not openly embraced
either the oversexed or eternal child stereotypes. But they have hinted at
imagined sexual promiscuity on the one hand, and childlike vulnerability, on the
other. Many courts have adopted the descriptive phrase normal sexual urges to
describe the sexual drive of the woman in respect of whom the application has been
made. This assessment of normality of sexual drive is, however, juxtaposed with the
abnormality of the womans intellectual development, suggestively expressed in
equivalences to the mental age of children. To the extent that the juxtaposition of
adult sexual feeling with child development creates a sense of incongruity, this
approach may fall somewhere between the stereotypes outlined by McCarthy.
To illustrate, in Re P. (a Minor) (Wardship: Sterilization) T. was described as
having an intelligence limited to that of a child of 6 … [but] the sexual libido
appropriate to a girl of 17 … 177 There were some differences of opinion between the
psychiatrists who gave evidence, but the court preferred the view of psychiatrist Dr.
Michael Heller that:
She appears to be the possessor of a normal libido (sexual drive) and when in
an unsupervised setting with a sexually active male the likelihood of
intercourse is high, especially if he should be unscrupulous and ready to take
advantage of her. Theoretically, she might be warned off but girls like T are
readily seduced, particularly if their inhibitions are allayed by alcohol. I rate
her as very vulnerable in this context.178
174 Michelle McCarthy, Sexuality and Women with Learning Disabilities (London: Jessica Kingsley,
1999) at 53.
175 Ibid.
176 Ibid.
177 Re P. (a Minor) (Wardship: Sterilisation) (1988), [1989] 1 F.L.R. 182 at 183 (Fam. Div.) [Re P.].
178 Ibid. at 192.
K. SAVELL STERILIZATION AND BODILY INTEGRITY
2004]
He also attested that [T.] is quite an attractive girl and could be at risk of
influence or exploitation.179 The court concluded the evidence is that she is
attractive, her sexual urges are appropriate to her age and people of her limited
intellect are particularly vulnerable.180 In short, this woman was regarded as sexually
suggestible and, therefore, vulnerable to seduction. A similar construction is at work
in Re W. (Mental Patient) (Sterilisation).181 W. was described as a friendly outgoing
girl182 who, although not promiscuous, might be led into a position where
someone might take advantage of her.183
1131
One of the disconcerting aspects of these judicial engagements with the
vulnerable/suggestible woman is the extent to which this body is constructed as an
object of sexual gratification for a man. In Re P., T. was described as a perfectly
normal and reasonably attractive young lady of 17.184 Given that T. was specifically
before the court because she lacked capacity, it is reasonable to assume that the use of
the term normal here should be read as a reference to her physical appearance. In
another case, L.C. was described as physically very attractive.185 She was,
furthermore very demonstrative and accordingly … vulnerable to abuse.186 Similarly,
S. was described as a charming and attractive young woman and to all outward
appearances entirely normal187 so that the anxiety is that … some man will be able to
contrive a situation in which S is subjected to sexual intercourse and may become
pregnant.188 The suggestion is that women who, in the courts estimation, are
physically attractive to men will engage in sexual activity with men. Furthermore, the
assumption seems to be that such sexual activity will be welcomed.
In T. v. T., T. was already fourteen weeks pregnant. She was described as
attractive to look at and therefore in need of protection to avoid further
pregnancies.189 According to the evidence, T. was completely dependent, her
communication extremely limited, doubly incontinent and in need of changing six to
eight times a day. She had no understanding of the physical workings of her body,190
and she was often destructive and uncooperative. Yet she was pregnant despite the
179 Ibid. at 191.
180 Ibid. at 194.
181 (1992), [1993] 1 F.L.R. 381, [1993] 2 F.C.R. 187 (Fam. Div.) [Re W. cited to F.L.R.].
182 Ibid. at 382.
183 Ibid. at 383.
184 Supra note 177 at 182.
185 Re L.C. (Medical Treatment: Sterilisation) (1993), [1997] 2 F.L.R. 258 at 258 (Fam. Div.).
186 Ibid.
187 Re S. (Medical Treatment: Adult Sterilisation), [1998] 1 F.L.R. 944 at 944, [1999] 1 F.C.R. 277
(Fam. Div.) [Re S. cited to F.L.R.].
188 Ibid. at 945.
189 T v. T (1987), [1988] 1 All E.R. 613 at 616, [1988] 1 F.L.R. 400 (Fam. Div.) [T. v. T. cited to All
E.R.].
190 Ibid. at 615.
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excellent care of all those around her.191 This case, in particular, highlights limitations
in the manner in which English courts have constructed learning disabled women as
attractive and therefore vulnerable to seduction. Another possible interpretation of the
evidence is that T. was sexually assaulted rather than seduced.
[Vol. 49
Admittedly, the distinction between welcome and unwelcome sexual activity is
often difficult to draw. Even so, the issue of sexual assault appears to be secondary to
the question of whether or not sexual intercourse will happen. In Re H.G. (Specific
Issue Order: Sterilisation), T. who was seventeen-years-old and not sexually active,
was described as a happy person with a great fund of sociability and very trusting
because she has been dealt with throughout her life lovingly.192 The court did not
distinguish between voluntary and non-voluntary sexual intercourse in the decision to
sterilize:
She is physically mature. She is a woman. She is sexually at risk from hostile
strangers. She is, more encouragingly, ableand perhaps more so as time
passesperhaps to form a sexual relationship, perhaps amongst her peer group
at the school where she lives, from which she will derive satisfaction and of
which no one would seek to deprive her.193
This passage echoes vividly with Frugs contention that the female body as it is
constituted in law is a body for sex with men.194 Moreover, this attitude of resignation
to the possibility of sexual assault obviated the need to look to the quality of care she
was receiving to judge whether more could be done to protect her from the openly
recognized risk of sexual assault.
The questions raised by the sexuality of learning disabled women are complex. At
one end of the spectrum, a court may identify the woman as unable and unlikely to
engage in voluntary sexual intercourse with men so that the risk of pregnancy is only
likely to arise from a sexual assault. Since sexual encounters of this sort are
unwelcome it might be persuasively argued that supervision to prevent sexual assault,
rather than sterilization, is in the womans best interests. At the other end of the
191 Ibid. at 614.
192 (1992), [1993] 1 F.L.R. 587 at 590 (Fam. Div.).
193 Ibid. at 590-91.
194 In her analysis of the relationship between legal rules and the body, Frug identifies three
meanings for the female body: the terrorized, the sexualized, and the maternalized body. Each of
these is in turn rationalized by an appeal to … natural differences (Mary Joe Frug, Commentary:
A Postmodern Feminist Legal Manifesto (An Unfinished Draft) (1992) 105 Harv. L. Rev. 1045 at
1049). Frug contends that laws that inadequately protect women against physical abuse and …
encourage women to seek refuge against insecurity support the meaning of a female body as a body
that is in terror (ibid. at 1049). Similarly, laws that concern the prohibition or regulation of
commercial sex, rape, homosexuality, and pornography support the meaning of a female body as a
body that is for sex with men, a body that is desirable and also rapable (ibid. at 1050). Finally,
laws that reward women for child-bearing and rearing and penalize them for having abortions or
working when they have dependent children, support a meaning of the female body as a body that is
for maternity (ibid.).
K. SAVELL STERILIZATION AND BODILY INTEGRITY
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spectrum, a court may decide that the woman can claim some sexual autonomy for
herself and that sterilization will protect her from pregnancy.
1133
In both Re B. and Re F., the House of Lords was satisfied that the women
concerned wished to engage in sexual intercourse with men. At first instance, the
court found that B. is one of those small band of people in the mentally handicapped
range in respect of whom it is desired to give as much freedom as in the
circumstances is possible.195 The Court of Appeal and the Law Lords agreed. Dillon
L.J. spelt out the implications of this position:
Not that many years ago the risk [of pregnancy] would have been avoided
because a girl with her disabilities would have been strictly institutionalised all
her life. Now the best opinion is that such a person should be allowed as much
freedom as possible to enjoy such a quality of life as her limited abilities will
permit, with no danger to others and as little danger to herself as reasonable
care can achieve.196
This analysis places considerable weight on the desirability of increasing B.s sphere
of liberty as she matured. But the greater the freedom she is given, the greater the risk
that she will have sexual intercourse and become pregnant.197 This view was also
accepted by the House of Lords. Lord Oliver made reference to the increasing
freedom which must be allowed her as she grows older and the consequent difficulty
of maintaining effective supervision.198 Lord Hailsham stated that [t]o incarcerate
her or reduce such liberty as she is able to enjoy would be gravely detrimental to the
amenity and quality of her life.199 Putting the matter this way, one can see an
argument that not sterilizing her could be characterized as contrary to her interests.
In her empirical research on the sexuality of women with learning disabilities,
McCarthy found that most of the women she interviewed did not consider
themselves to be sexual, despite regularly engaging in sexual activity.200 McCarthy
attributed this generally negative view of sex to four main factors. First, a lack of
sexual agency among the women (meaning a deficit of women deciding for
themselves what they wanted to do, with whom, when, and how);201 second, the
nature of the sexual activity (half the study reported having only penetrative sex and
the remainder, predominantly penetrative sex; over half reported anal sex which was
rated negatively by all of them);202 third, the women were not generally
psychologically engaged by the sexual experience; and finally, eighty-two per cent of
195 Re B. (a Minor) (Wardship: Sterilisation), [1987] 2 All E.R. 206 at 207, Bush J. (Fam. Div.)
196 Re B. (a Minor) (Wardship: Sterilization), [1987] 2 All E.R. 206 at 209 (C.A.).
197 Ibid.
198 Re B. (H.L.), supra note 79 at 209.
199 Ibid. at 203.
200 McCarthy, supra note 174 at 202.
201 Ibid. at 203.
202 Ibid. at 205.
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the women interviewed described at least one act of sexual abuse. McCarthy observed
that
[Vol. 49
it was often difficult to distinguish between what was abusive and what was
not. This must also have been difficult for the women themselves. Consider
KN, for example, who would give in to mens demands and pressure and
have sex she neither liked nor wanted, to shut them up and stop the pressure.
Or EY who said she sometimes let men continue to have sex with her, even
though it was painful, because of fears that they would hit her if she told them
to stop. Or TC who was quite sure the price to be paid would be physical
violence and the end of the relationship if she refused to have sex with her
boyfriend. Are these acts of consented sex, pressured sex or sexual abuse?203
These findings suggest that the expression of sexuality is far more ambiguous than the
reductive framework adopted by English courts suggests. It is undoubtedly the case
that sexual intercourse will have different meanings for the same woman at different
times according to the context. It does not necessarily follow that because a woman is
sexually aware, she desires penetrative intercourse with men of her choosing, let
alone men generally. Nor does it follow that because she obtains pleasure from
particular sexual encounters, she obtains pleasure from them all. The central problem
is that it is very difficult to know whether facilitating sexual intercourse is going to
promote sexual autonomy or whether it will multiply the possibilities for the women
to fall victim to sexual assault. Unfortunately, English courts are yet to engage with
these complexities and have effectively only considered the womans sexuality to the
extent that it bears upon the issue of pregnancy. This means that the questions of
whether sexual encounters will be welcomed or not, or how they might be managed,
is subordinated to the primary question of whether they are likely to occur.
D. Reproduction: The Traumatized Body
The second set of reasons that have persuaded English courts that sterilization is
in the womans bests interests concerns the physical aspects of pregnancy and
childbirth. In Re B., Lord Bridge found it clear beyond argument that for her
pregnancy would be an unmitigated disaster.204 The evidence was that although B.
would tolerate the condition of pregnancy without undue distress,205 she would not
have understood the process of childbirth. According to Lord Oliver:
[T]he process of delivery would be likely to be traumatic and would cause her
to panic. Normal delivery would be likely to require heavy sedation, which
could be injurious to the child, so that it might be more appropriate to deliver
her by Caesarean section. If this course were adopted, however, past
experience of her reactions to injuries suggests that it would be very difficult to
203 Ibid. at 211.
204 Re B. (H.L.), supra note 79 at 205.
205 Ibid. at 208, Oliver L.J.
2004]
K. SAVELL STERILIZATION AND BODILY INTEGRITY
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prevent her from repeatedly opening up the wound and thus preventing the
healing of the post-operative scar.206
Lord Hailsham reached a similar view on the evidence, adding that she would be
terrified, distressed and extremely violent during normal labour.207 The apparent
paradox is that although sterilization constitutes an interference with the subjects
bodily integrity, the measure protects her from an even greater level of interference,
namely, pregnancy and birth.
A specific factor that courts have taken into account in determining pregnancy
and labour to be dangerous for the woman concerned is the long term psychological
effects of a forced medically assisted delivery. This was raised by the psychiatrist in
Re P. who took the view that although T. would be as capable of carrying a pregnancy
and giving birth as any other very dull girl, special measures might need to be
adopted during labour. He added that there was small reason to suppose that the
psychological effects of these would be particularly detrimental in the long term.208
In Re M. (a Minor) (Wardship: Sterilization), this view was put with greater force,
Bush J. stating that [f]rom the point of view of J, to go through the experience of
pregnancy, possibly leading at the end to a caesarean operation, would be a traumatic
experience which might harm her mental health.209
There are also concerns about the efficacy of antenatal care from the perspective
of the medical profession. The consultant in T. v. T. gave evidence that T. was unable
to understand the concept of pregnancy, a matter that presented the following
problems:
It was thought that she could not cope with the difficulties or complications
which might arise during the pregnancy and certainly could not cope with
labour. It would be impossible to provide the usual level of antenatal care, as
the defendant would not allow examination of her abdomen or allow blood
samples to be taken … 210
It was further noted that the difficulties which could be expected in monitor[ing
the] progress in pregnancy and the delay[s] in recognizing any complications that
may develop, increased the risks associated with proceeding with the pregnancy.211
There is an important, broader point to be considered here. Quite apart from
whether it was in T.s best interests to have her pregnancy terminated and for her to be
sterilized, it seems clear that her participation in antenatal care is perceived as a
necessary precondition to considering her as a suitable candidate for reproduction. A
norm of maternal co-operation with medical staff is thus instantiated. The same
206 Ibid. at 208-209.
207 Ibid. at 202.
208 Re P., supra note 177 at 192.
209 Re M., supra note 137 at 498.
210 Supra note 189 at 616.
211 Ibid.
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argument can be made for the medical monitoring of her pregnancy. It is arguable that
T.s deviance from this norm of maternal co-operation with doctors during the
antenatal period, contributed to the courts decision to terminate her pregnancy and
permit her sterilization. A final point to note is that the courts willingness to account
for the trauma associated with a non-consensual Caesarean section in these
sterilization cases is not reproduced in the English case law concerning non-
consensual Caesarean sections.212
[Vol. 49
These discourses construct the bodies of the women concerned as inappropriate
for reproduction on the basis that they would suffer as a result. Their bodies would
suffer, in some cases, through the pregnancy, but in most, through the labour unless
sedated or delivered surgically. The surgical delivery is constructed as a further form
of assault on the suffering body of the labouring woman. In Re X. (Adult
Sterilisation),213 the court notes that the anticipated Caesarean section would be no
less invasive than sterilisation itself.214 The suggestion is that an interventionist
labour is itself an infringement of bodily integrity that the learning disabled woman
should be spared in her own best interests.
In contrast, the sterilization procedure referred to variously as sterilisation by
occluding the fallopian tubes and a simple operation for occlusion of the fallopian
tubes,215 was not conceived as traumatic for the body. It was a relatively minor
operation carrying a very small degree of risk to the patient, a very high degree of
protection and minimal side effects.216 Lord Hailsham echoed this with the view that
apart from its probably irreversible nature, the detrimental effects are likely to be
minimal.217
E. Parenting: The Gendered Body
The third consideration examined by English courts in the determination of best
interests is the womans ability to parent a child. The courts analyses typically
include a consideration of whether the woman has the capacity to marry, whether it is
likely that she will find a mate, and whether she could care for a child with that mate.
It was held that the women in Re B., Re F., Re P., Re M., Re H.G., and Re W. were all
212 See Re L. (Patient: Non-consensual Treatment) (1996), [1997] 1 F.L.R. 837 (Fam. Div.); Re
M.B., supra note 95; Norfolk and Norwich Healthcare (N.H.S.) Trust v. W., [1996] 2 F.L.R. 613 (Fam.
Div.); Rochdale Healthcare (N.H.S.) Trust v. C., [1997] 1 F.C.R. 274; St Georges Healthcare N.H.S.
Trust v. S., R. v. Collins, ex parte S., [1998] 3 All E.R. 673, 2 F.L.R. 728 (C.A.). For an extended
analysis of these cases, see Kristin Savell, The Mother of the Legal Person in Stephanie Palmer &
Susan James, eds., Visible Women: Essays on Feminist Legal Theory and Political Philosophy
(Oxford: Hart, 2002) 29.
213 [1998] 2 F.L.R. 1124 (Fam. D.).
214 Ibid. at 1127.
215 Re B. (H.L.), supra note 79 at 205, Bridge L.J.
216 Ibid. at 209, Oliver L.J.
217 Ibid. at 203, Hailsham L.J.
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unfit to mother children and were subsequently sterilized in their best interests. There
are two factors that make the judicial assessment of the social interests of the woman
problematic. The first is that the claim unfitness to parent can reflect the problems
that women might genuinely experience in a parenting role. But it can also reflect a
belief that mentally handicapped women as a category cannot be good parents
and/or that the community is burdened by their parenting either because their children
are disadvantaged by their disabilities or because the support needed to assist them in
parenting is costly. In this sense, the claim unfitness to parent can be regarded as
concerning the individual and social body.
It will be recalled that fitness to parent was cited as a basis for sterilization by the
Brock Committee, which espoused the belief that mental defectives make
inefficient parents. In Re B., the evidence of the consultant child and adolescent
psychiatrist was that there was no prospect of her being capable of forming a long-
term adult relationship, such as marriage, which is within the capacity of some less
mentally handicapped persons.218 Lord Oliver noted that:
She has displayed no maternal feelings and indeed has an antipathy to small
children. Such skills as she has been able to develop are limited to those
necessary for caring for herself as the simplest level and there is no prospect of
her being capable of raising or caring for a child of her own. If she did give
birth to a child it would be essential that it be taken from her for fostering or
adoption although her attitude towards children is such that this would not
cause her distress.219
The measurement of maternal feelings is surely a difficult one at best, especially
given that many of the applications are in respect of young women. It does not seem
unlikely that there are many women between the ages of seventeen and nineteen who
show little or no maternal instinct and who would not make ideal parents.
Nonetheless, it is not unreasonable to consider whether the presence of a child might
disturb or cause distress to the woman concerned.
At the same time, there will be learning disabled women who, with additional
help, could raise children, and who may wish to do so. The issue in Re P. was that T.
did show maternal instinct, so much so that it was thought that removing the child
would constitute an emotional trauma of an extreme kind which should be
avoided.220 The view of another expert was that the removal of a child at birth or
after a period of time when she had grown attached to it is likely to be as difficult for
T as any other mother.221 It was thought that T. may have had the intellectual capacity
to marry and, in the view of both psychiatric experts, could have married and founded
218 Ibid. at 208, Oliver L.J. It is interesting to note, by contrast, that the sterilization decision went
the other way in Re D. (supra note 137), where the evidence indicated that D. was of intellectual
capacity to marry and would in the future be able to make her own choice (ibid.).
219 Re B. (H.L.), ibid. at 208.
220 Supra note 177 at 192.
221 Ibid. at 191.
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a family if she had a competent partner to support her. In other words, what T. needed
to enable her to care for children was extra help. But the preferred view was that T.
had no realistic prospect of … entering into a marriage of any meaningful kind.222
This stemmed from the belief that her marriage to a competent man was only a
theoretical possibility because such a man is singularly unlikely to show sustained
interest in her.223 Thus, in the opinion of the expert whose evidence was ultimately
accepted, it would be indefensible to allow the faint possibility of a[n appropriate
mate] entering her life to influence the decision.224
By implication, the decision to sterilize T. was influenced by the speculations of a
group of psychiatrists as to whether any competent man would want to love and
support her and start a family. The court only briefly considered whether T. might
have been furnished with the needed assistance from other sources or people. T.s
mother said that she would be prepared to care for any child that T. might have, but
that she would not tolerate the three of them living together. Her view was based on
the belief T. would become difficult if her mothers attentions were divided between
T. and a child.225 In any event, the court showed obvious preference for a family unit
based on heterosexual marriage. The possibility that T. would ever find any such
situation was too remote for a court to take into account.
The question of whether non-consensual sterilization might nonetheless constitute
an infringement of a persons right to found a family has received judicial
consideration. In Re D.,226 Heilbron J. thought that such a right existed at common law
and, on that basis, refused to order the sterilization of D. The decision was cited with
approval by the Lord Hailsham in Re B. (H.L.):
We were invited to consider the decision of Heilbron J. in In Re D. … when
the judge rightly referred to the irreversible nature of such an operation and the
deprivation, which it involves, of a basic human right, namely the right of a
woman to reproduce. … I have no doubt whatsoever that that case was correctly
decided … 227
Lord Bridge also thought that Heilbron J. had correctly described the right of a
woman to reproduce as a basic human right,228 and Lord Templeman referred to the
fundamental right of a girl to bear a child.229 Notwithstanding this, their Lordships
thought that the right to reproduce was contingent upon the woman being able to
value their right. Lord Bridge stated that: [t]he sad fact in the instant case is that the
mental and physical handicaps under which the ward suffers effectively render her
222 Ibid. at 192.
223 Ibid.
224 Ibid.
225 Ibid. at 184.
226 Supra note 137.
227 Supra note 79 at 203, Hailsham L.J.
228 Ibid. at 205, Bridge L.J.
229 Ibid. at 206, Templeman L.J.
K. SAVELL STERILIZATION AND BODILY INTEGRITY
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incapable of ever exercising that right or enjoying that privilege.230 The reasoning is
perhaps even clearer in the judgment of Lord Hailsham who said that the right is
only such when reproduction is the result of informed choice of which this ward is
incapable.231 In short, the common law right to found a family, as understood by the
House of Lords, would appear to be contingent upon the courts assessment of an
individuals ability to appreciate that right. In the result, the right to found a family
posed no barrier to the lawfulness of non-consensual sterilization.
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It is interesting to note that English law appears to distinguish the sexuality and
reproductive responsibility of learning disabled men and women. In Re A.232 an
application for a declaration that it would be lawful to sterilize a mentally disabled
adult man was denied. The evidence was that A. did not understand the connection
between sexual intercourse and pregnancy, nor did he understand the purpose of the
sterilization operation. He was, however, sexually active and fertile. A.s mother was
concerned about the possibility that he might father a child that he would not
subsequently care for. Although A. was not capable of consenting to the procedure, he
had expressed his opposition to it.
The principal argument in support of the application concerned A.s freedom of
movement. It was argued that his quality of life should not be unnecessarily cut
down233 by imposing restrictions on his ability to develop relationships of a sexual
nature. At first instance, the court rejected the application:
It will not protect him from being exploited or from a risk of sexually
transmitted diseases. … It follows that because there are other risks involved in
any sexual relationship that A may have with a young woman, the degree of
vigilance and supervision is not likely significantly to decrease, whether he is
or is not at home … Thus I do not accept that the operation would add value to
the quality of As life to any significant extent… Faced with the alternative of an
invasive operation not without risk, I do not regard the risks that would
otherwise face A as warranting such a course, nor the advantages to A as
sufficiently positive.234
The Court of Appeal affirmed this decision. Butler Sloss P. distinguished the case
from the sterilization of learning disabled women on the basis that A. could not
become pregnant. There were obvious biological differences between men and
women. She remarked further that there is no direct consequence for a man of sexual
intercourse other than the possibility of sexually transmitted diseases.235 She also
suspected that A.s mother was motivated by the concern to protect vulnerable women
from the consequences of an unintended pregnancy and possibly the undesirability in
230 Ibid. at 205.
231 Ibid. at 203.
232 Supra note 96.
233 Ibid. at 550.
234 Ibid. at 551.
235 Ibid. at 554.
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the public interest of allowing a pregnancy or birth to occur. These were clearly
identified as third party concerns:
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Those are understandable concerns in the wider context of society but are not
relevant in themselves to the issue before this court. Social reasons for carrying
out of non-therapeutic invasive surgery is not part of the present state of the
law.236
Arguments that appeal to natural differences between the sexes can be especially
difficult to critique precisely because they appear to rest on facts that are beyond
social control. It is curious, however, that two key reasons commonly cited by English
courts to justify female sterilizationliberty to claim sexual autonomy and unfitness
to parentappear to have little force in Re A. The liberty argument, which was so
important in the leading cases, Re B. and Re F., did not persuade the court that
sterilization was in A.s best interests. It was thought that because A. was vulnerable
to sexually transmitted diseases he would be closely supervised in any event. Perhaps
more startlingly, A.s unfitness to parent was regarded as a social reason for
sterilization and therefore outside the ambit of the best interests test. Finally, the
sterilization procedure was described as invasive, a description rarely applied in the
cases concerning women.
Conclusion
There is ample evidence that the social and legal meaning of compulsory
sterilization remains contested today. For the Supreme Court of Canada, the practice
is a violation. It is an intrusion into the body of the woman, it is a permanent
deprivation of her capacity to have children, and it is, at least potentially, an
infringement of her human and constitutional rights. The Court demanded a strict and
compelling justification in order to sanction what it saw as a violative act, and it was
unable to find any. Eves body was sacred in the Blackstonian sense and the common
law of Canada would not permit her body to be surgically altered in an effort to
contain her sexuality.
For the House of Lords, sterilization offers protection to learning disabled
women. The intrusion into the body is minimal, the capacity to have children is of
marginal importance to her, and her right to found a family cannot be valued by her in
any event. The significant considerations, as far as the Law Lords were concerned,
were the discomforts, traumas, and intrusions that the woman would experience if she
were to become pregnant. From this perspective, maternity posed risks to the learning
disabled woman far greater than the simple occlusion of the Fallopian tubes. Thus,
sterilization was given the meaning of an act done for her, rather than to her; an act of
protection rather than violation.
236 Ibid. at 553.
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At the heart of this legal disagreement lie competing constructions of body,
sexuality, and community. Where the overriding concern is the question of how to
contain the sexuality of a learning disabled person perceived as out of control or
vulnerable to seduction, sterilization is cast as a just and humane solution that will
advance the welfare of the individual concerned. Legal and cultural discourses that
understand the sexuality of learning disabled individuals within this frame of
reference tend to be heavily influenced by medicalized notions of the body, especially
as regards pregnancy and birth. In this sense, these discourses illustrate the perpetual
exchange between juridical and normalizing discourses. They constitute a site of
production for norms of maternal co-operation with medical professionals in the
antenatal period and during labour. They are also laden with moral concerns about
fitness to parent and single motherhood and, in this sense, instantiate a normative
heterosexual family. Against this background, the legal right to bodily integrity,
though proclaimed to be a fundamental right ascribed to all persons, has not prevented
English courts from declaring non-consensual sterilization to be lawful, at least in
relation to women. Within this discourse, there does not appear to be a conflict. It is
arguable that the right to bodily integrity does not trouble the English courts precisely
because sterilization is understood as protecting the bodily integrity and enhancing
the freedom of the learning disabled woman.
Conversely, where the overriding concern is the question of how to preserve the
integrity of a law committed to the principle of equality, sterilization is thought to be a
violation of the bodily integrity of the person. Legal and cultural discourses that
attempt to understand the sexuality of learning disabled people against a background
of legal and social discrimination tend to frame the dilemma in terms that emphasize
the potential for creating an oppressive and overbearing body politic. These
discourses engage less with the specific mechanisms of sexuality and they are
skeptical about welfare-oriented claims. They focus instead on the legal right of every
person to be free from non-consensual bodily interferences. Within these discourses,
there is a direct conflict between compulsory sterilization and the right to bodily
integrity such that the only way to resolve the dilemma is to dismiss the possibility
that compulsory sterilization can be in an individuals best interests.
It may be that the Supreme Court of Canadas circumspection was justified. It was
once thought that sterilizing people with mental disability was desirable because they
made inefficient parents and, moreover, that sterilizing learning disabled people was
desirable because their lives would be enriched by the absence of parenting
responsibilities. There are clear echoes of these historical arguments in modern
English law. These echoes may represent limits on laws capacity to better understand
the sexuality of learning disabled men and women. In the absence of greater attempts
at genuine understanding, however, courts can only speculate whether non-consensual
sterilization will be beneficial or violative. Attempts to improve the lives of men and
women by removing their fertility requires a sensitivity to the significance of the
bodily incursion and the deprivation entailed. It also requires a sensitivity to our own
assumptions about sexuality and disabled bodies and an openness to the possibility
that negative assumptions about these may taint our reasoning.
