Sterilisation of mentally handicapped people: judges rule ok?
In the field of comparative law, it is always wise to temper cross-cultural comparisons of legal developments with a keen awareness of the contrasting legal, political, social and philosophical heritages of different States and legal systems. This caveat applies equally in the field of medical law where many Western legal systems of both the Common law and Civil law families have been confronted with a broad common complex of moral, social and legal issues generated by the ever increasing use of medicine and medical technology. Strikingly different solutions to similar social problems are often adopted: there is, for instance, no consensus among judges, legislators and other policy makers on recourse to or rejection of nonconsensual sterilisation as an appropriate technological response to the social 'problem' of sexual activity by those unable by reason of mental disability to conform to the norms and demands of modem society; the divergence of responses to the issues thrown up by the development of reproductive technology offers another example of the differential operation of conditioning factors such as religion, family formation and gender politics. There is, nonetheless, much to be gained by transnational comparisons of approaches to medical law issues, since they offer an unrivalled opportunity to throw the domestic experience into broader perspective and to widen the perceived range of available policy options. It is the primary purpose of this note to examine the House of Lords decision in Re F on the legality of nonconsensual sterilisations of mentally handicapped adults. However, where appropriate, comparisons will be drawn with legislative developments in the Federal Republic of Germany. It aims to contrast the statutory framework for such medical interventions currently before the West German Bundestag for debate, with the ad hoc judicial law-making which has occurred in the United Kingdom. Although some steps towards broadening the arena of debate have been taken in the Federal Republic, neither legal system has succeeded in shedding all traces of deep-rooted discriminatory assumptions about mentally handicapped people; it is implicit throughout this article that effective solutions to the perceived problems of sexuality will be of a social and political nature, not a legal one.