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childbirth, child-rearing, and that she will never achieve such
understanding.
Re HG [1993], p. 4
In both cases, the judges declared the sterilisation lawful. Couching the decision to
sterilise in terms of the medical response to the women’s ability to cope with
pregnancy, child birth or parenting justifies the surgical solution. By asking experts for
their opinions, which are then presented as fact, the hearing is in safe, certain territory.
The difficult questions about society’s response to, for instance, providing safe,
supportive environments for people with intellectual disabilities, are circumvented and
the onus is on preventing the woman from getting pregnant. Presenting contraception as
the primary imperative also evades any questions about the consequences of
sterilisation, sexual abuse or the potential for sexually transmitted diseases.
One case considered the potential problem of sexually transmitted diseases 18 . Two
cases concerned the sterilisation of women after they had been sexually abused. The
question of whether there would be any psychological damage following the abuse
appears to have been linked with the perceived level of capacity of the woman. Re H
[1993] (NZ) was a case about a 38 year old woman with intellectual disabilities who
lived in residential care. As a result of sexual abuse, she had become pregnant. The
evidence established that carrying a child to term would be detrimental for H and that
she would not be able to parent the child. The judge expressed concern for the
emotional impact on H of both the pregnancy and enforced sexual intercourse.
However, the judge also said that this consideration lost “some of its impact when it is
realised that H is mercifully insulated from any such emotional response” (Inglis J, p.
17). An abortion was found to be in her best interests, but the sterilisation was rejected.
A similar picture emerges from Re LC [1997] (England) regarding the sterilisation of a
woman who had been sexually abused. In that case, it was said that LC could not
understand the nature of the sexual attach or sterilisation and therefore, “there would be
no emotional or psychological repercussion” (Thorpe J, p. 261). In this way, the judge
disregards any potential emotional response to either the sterilisation or the sexual
abuse which then ceases to be a consideration.
18 Re A [2000]
155