Plea for son's sterilisation refused
30 August 1999
A recent High Court Family Division action before Mr Justice Sumner has introduced a new dimension to litigation aimed at obtaining orders for the mentally handicapped to be sterilised.
A string of cases in which sterilisation orders have been sought, and often granted, in respect of mentally handicapped women has built up since 1976.
Now, for the first time, an application has been made to obtain an order that a 27-year-old Down's syndrome man be sterilised.
The application, which was refused by the judge, was made by the man's mother, who believes that it would be in his best interests to be sterilised.
Lawyers for the mother describe the case as a "landmark action", and say that an appeal against the High Court ruling is expected to be heard before Christmas.
From there it is thought that the case could ultimately go on to the House of Lords.
A spokesman for the mother's legal team, which was represented in court by Alan Levy QC, says: "It is a case which raises very important public policy issues.
"The action has been brought to improve this young man's quality of life."
In court it was argued on behalf of the 63-year-old mother that her son, who has sexual awareness though is unable to associate the act of sex with procreation, would be better off sterilised.
She is worried that, as she gets older, he will ultimately have to go into residential care and that this will render him even more vulnerable than he is now if he is not sterilised.
Experts who were called to give evidence in support of the application were firmly of the view that the man's quality of life would be improved by sterilisation.
However, the Official Solicitor, Laurence Oates, who represented the man, took the view that, while in many cases sterilisation may be the correct course to adopt for sexually aware handicapped women, the same arguments could not be applied in the case of men.
A psychiatric expert for the Official Solicitor disputed the assertion that sterilisation would improve the man's quality of life.
The case comes in the wake of a long line of cases in which mothers of mentally disabled women have asked the courts for their daughters to be sterilised.
The first of these was in 1975 in respect of an 11-year-old girl. It was refused.
The first successful application was in 1987. Since then, 70 similar applications have been launched; around 50 of them have resulted in orders for sterilisation being made.
However, lawyers in the case say that applications involving young men are far different to those involving young women.
The central question is: what is best for the young man? It was this point that prompted Oates to take the stance he did.
With a mentally handicapped young woman, the problems of an unwanted pregnancy are more obvious.
She would not understand the fact of her pregnancy, and going through childbirth would be very stressful, as would the prospect of the child being removed from her after birth.
In the recent case, the question for the court was to decide what detriment a handicapped man would suffer if he made a woman pregnant.
One argument was that the young man would suffer if he established a bond with the child and it was then removed.
But lawyers say that this scenario carries with it many uncertainties.
Oates says: "We did not feel, and the judge agreed, that the facts of this case could justify an order.
"You have to remember that if such an order was made, the young man would have to be put under general anaesthetic and undergo an invasive procedure which would leave him in pain that he would not be able to understand for a week or two.
"A psychiatrist, called on behalf of his mother, argued that it would be better for the young man if he could have a less restricted lifestyle, and that more freedom would be good for him.
"But we felt that the evidence showed that he actually lives a very full life already.
"However, we had independent psychiatric advice that the operation would not be in his best interests."