SOME PARENTS, doctors and social workers might believe that they themselves should be able to decide whether or not to sterilise a mentally handicapped teenager who is under their care. But the Court of Appeal and the House of Lords have both rightly rejected the view. To that extent, their judgements are to be welcomed so, as tightening of the law and principles.
Yet all the judges who heard his case at all levels were prepared to authorise the sterilisation of this particular 17 year old. They said that they were acting in "the best interests of the girl" as a matter of last resort.
At this point, several objections could be made. First, some critics believe that sterilisation, or at least compulsory sterilisation of those unable to give or refuse consent is always unacceptable. Second, some believe that sterilisation should only have been contemplated for therapeutic or medical reasons, and not merely as a form of contraception.
Third, some would accept other forms of contraception but believe that the irreversible nature of sterilisation makes it the wrong choice. Fourth, some accept the need for sterilisation in some such cases but fear a drift down the path towards eugenics (a link which the judges strenuously denied) and bemoan the insensitive, demeaning discussion which lumps together people under labels such as "the mentally handicapped".
Fifth, some critics regret the Law Lords' failure to specify the criteria implicit in their vague "best interests" test and wish that their Lordships had examined the human rights at stake in greater detail. Sixth, some critics feel that the judges missed an opportunity to clarify the law's responsibilities towards the mentally handicapped in adult life, since the ruling was based on a statutory jurisdiction which ends at the age of 18.
Seventh, some critics think that the real blame lies at Parliament's doors where legislators consistently duck sensitive moral dilemmas and leave the judges to resolve the ensuing mess. Finally, some people are disturbed by the facts of the particular case and in particular by the fact that the girl in question will be sterilised only days before her 18th birthday, at which point the authority of this judgement would expire.
' Professor Ian Kennedy and I raised many of these concerns in an article in The Times on the day before the Law Lord's hearing. That article was . discussed in the course of counsel's argument but in the end the judges rejected any alternatives to the approach of the lower courts.
In contrast to the wide range of public concern, the Law Lords themselves had no doubts at all about their decision last week to authorise the sterilisation. Lord Bridge, for example, claimed that "It is clear beyond argument that for her pregnancy would be an unmitigated disaster. The only question is how she may best be protected against it. The evidence proves overwhelmingly that the right answer is by a simple operation for occlusion of the fallopian tubes... I find it difficult to understand how anybody examining the facts humanely, compassionately and objectively could reach any other conclusion."
But one might perhaps reach other conclusions for a variety of humane, compassionate and objective reasons. First, would pregnancy really be such a' disaster? Second, if it would be disastrous, should she not be protected against sexual exploitation so that the question of pregnancy would never arise? Third, even if one was prepared to tolerate a contraceptive solution to her problems, is irreversible sterilisation the right option?
On the first claim that pregnancy would be a disaster, Lord Oliver, for instance, says that "Should she become pregnant, it would be desirable that the pregnancy should be terminated". But why? The baby would not be at risk. The mother according to the specialist evidence, "would tolerate the condition of pregnancy without undue distress".
Admittedly, she would have to be delivered by Caesarean section since she would panic unduly during normal childbirth. The Law Lords were worried that she would pick at the post-operative scar but that hardly seems a ground for an abortion, even with the present legislation!
On the second question of sexual experience, none of their Lordships takes the point that she ought to be protected against sexual exploitation whether or not she could become pregnant. They seem to be contrasting the fear of an unsterilised girl becoming pregnant causing her to lead a restricted life with the greater freedom that they would allow her once sterilised. Are these really the alternatives?