Medical Law Essays

Medical Law Essays Medical Law Paper Medical Law Paper In case a woman is extremely mentally retarded, English courts have allowed non-consensual sterilizations. However, the courts have balanced their stand points by recognizing the right of a woman to have a child as a basic right. In cases where the non-consensual sterilizations have assumed the role of a therapy, the courts have allowed non-consensual sterilizations. Still, through caution and watchfulness the justices have prevented non-consensual sterilizations from becoming coercive and successfully limited the involuntary sterilizations. To an extent, the application of the English law has depended on the application the courts with respect to non-consensual sterilisation. The application of non-consensual sterilization is used in case of mentally handicapped females. The courts have disallowed non-consensual sterilization of a mentally handicapped female in cases where she is likely to have the legal capacity to marry (Re D [1976] 1 All ER 326). Courts have allowed non-consensual sterilizations only in those cases where it has been accepted that the female will not legally be able to enter into marriage (Jackson. J, 2006),. Similarly, in case the court can use its â€Å"parens patriae† powers and authorize the non-consensual sterilisation of a mentally handicapped young woman. This was done in L v. L’s Curator and Litem (1997 SLT 167). The extent to which the legal framework has been able to stop non-coercive sterilization depends on the decisions that have been taken by the English courts. In general there has been a number of cases in courts that have come up relating to learning disabilities where the need for non-consensual sterilisation have been debated in the court. In these cases the purpose of sterilization has been for contraception. The court has granted permission for sterilizations in some cases. (C. f. T v. T and another [1988] 1 All ER 613; In re B( A Minor)(Wardship: Sterilization) [1990] 2 AC 1 (HL)). What the court sees is the severity of the handicap and then decides. The moot point is that if there is a treatment of a mentally incapacitated woman, if the court feels that it is in the best interest of the woman to be sterilized then the courts have given their consent. Are these sterilizations coercive? This can only be ascertained by examining the assumptions made by the court regarding the interests in parenting or about the sexuality of the ‘mentally incapacitated persons’ If these assumptions are not backed by adequate evidence then we would need to re-examine the decisions of the court (Chinkin. C, 2006),. If these suppositions are backed by solid validation then we could conclude that non-consensual sterilizations were warranted and these sterilizations were not coercive. It is important the non-consensual sterilization should be coercive and strictly limit involuntary non-consensual sterilizations because otherwise these will be viewed as a image of state oppression. In addition, this creates an impression that the state is somehow involved in the eugenics and the body politic exercises power over the choice of individuals (The Law Reform Commission 2005). The question that is related to non-consensual sterilizations is whether there is still any factor related to eugenics when the courts sanction non-consensual sterilizations for the mentally challenged. The very small number of instances when the court has permitted non-consensual sterilizations refutes this claim. In the UK there are a number of situations in which non-consensual sterilizations have been disallowed. For example in 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. ] the Lordships ruled out that social or eugenic reasons can be used for non-consensual sterilizations. However, the judges allowed wardship jurisdiction to justify non-consensual sterilizations as it involved a seventeen-year old woman who had substantial mental difficulties. In this case her overseers felt that pregnancy at this point would lead to severe difficulties and other forms of contraception were ruled out. In such extreme cases non-consensual sterilizations are allowed by the law (Cook. R, Dickens. B Fathalla. M 2003). It seems that the law has been successful in avoiding coercive sterilizations and to limit involuntary non-consensual sterilizations. During judgements it has been established that non-consensual sterilizations could be lawful only if it was in the best interests of the woman to become permanently sterilized (Mason, J. K. and McCall Smith, R. A. , 1994). In case of minor women the law gives wardship jurisdiction to the court, so that it can act in the best interests of the ward [1990] 2 A. C. 1 (H. L. ) [Re F. ]. In the application of the law it has been observed that the courts have been able to limit involuntary non-consensual sterilizations and have acted as mediators between the individuals and society. There are two perspectives. From one standpoint, every individual has the right to protect his body from imposition, on the other hand pregnancy and birth can affect the body of the individual and that may be against the interests of the person or the society. Originally the laws that were framed for non-consensual sterilizations had been written for protecting the interests of the society; however, the current use of these laws has been mainly to protect the interests of the individual. In other words, the law has been successful in avoiding coercive sterilizations because the law has allowed non-consensual sterilizations mainly to ensure bodily integrity of the woman. The one area where the UK courts have given permission for non-consensual sterilizations is where the mental condition of the woman is very grave. Now if the body should not be intruded, why should the courts allow non-consensual sterilizations? The explanation is that the woman’s body need medical treatment. The sterilization is characterized as a saving the woman. The woman cannot claim protection against intrusion if the intrusion into her body has been perceived as benevolent. The principles of dignity and freedom do not provide this protection. The ailment lies in the body of the woman whose reproductive ability is not under control. Once this characterization by the law is in place, then eliminating the threat of pregnancy is a liberating and empowering. However, the law has held that parents or guardians cannot give consent to surgical procedures for contraception on a mentally retarded person. In other words the therapeutic validity of the surgery should be established in court. The general principle that has been followed in UK courts is that physical integrity has been given greater importance than ‘right to be protected against pregnancy’. This has helped avoid coercive sterilizations and limit involuntary sterilizations. What has helped the law avoid coercive sterilizations and limit involuntary sterilizations is the recognition of the fact that non-consensual sterilizations is an irreversible operation and takes away the fundamental human right of the woman to reproduce. The court should not take away this basic human right. However, the right to develop a family is dependent upon the court’s evaluation of the individual’s ability to appreciate that right. In this manner the court reserves the right to decide if the individual can comprehend the right to start a family. It is to be understood that the courts in UK have not asserted that non-consensual sterilizations are lawful. On the other hand the bodily integrity of the individual and freedom of the woman is perceived to have been enhanced by the sterilizations. The circumspection of the court prevents coercive sterilizations and limits involuntary sterilizations. The basic premises on which the English law was framed related to the belief that relating sterilizing women who were mentally disabled was advisable because they were inept at parenting and that the lives of the mentally disabled would be enhanced if they did not have parenting responsibilities. To sum, the English law has been able to avoid coercive sterilizations and strictly limit involuntary but non-coercive sterilizations. Where the woman has been found capable of marrying, the courts have not allowed non-consensual sterilizations. In addition, the courts have recognized the importance of inviolability of the woman’s body, her freedom and her right to found a family. This balanced perspective of the courts has ensured that coercive sterilizations are avoided and involuntary non-consensual sterilizations are limited to the minimum. References: Chinkin. C, (2006), Health and Human Rights, Retrieved on February 22, 2007 from: nuffieldtrust. org. uk/uploadedFiles/Grants/Chinkin_52-59. pdf. Cook. R, Dickens. B Fathalla. M (2003), Reproductive Health and Human Rights: Integrating Medicine, ethics, and Law, Oxford University Press. Jackson. J, (2006), Ethics in Medicine, Blackwell Publishing Mason, J. K. and McCall Smith, R. A. , (1994) Law and Medical Ethics, (4th Ed), London, Butterworths, . The Law Reform Commission (2005) Consultation Paper on Vulnerable Adults an the Law: Capacity, Retrieved on February 22, 2007 from: lawreform. ie/files/Consultation%20Paper%20on%20Capacity%20_final%20version_. pdf