Sex and the Sacred: Sterilization and Bodily Integrity in English and Canadian Law

51 Pages Posted: 31 Jul 2008  

Kristin L. Savell

The University of Sydney Law School

Date Written: July, 24 2008

Abstract

This article examines English and Canadian jurisprudence concerning the non-consensual sterilization of learning disabled men and women and considers the role that law plays in framing the thoughts, beliefs, and norms that fashion the way we think about bodies, sex, gender, and sexuality. The author asks how it is that each body of jurisprudence has reached contrary conclusions about the lawfulness of non-consensual sterilization, notwithstanding a mutual commitment to the legal protection of bodily integrity. The answer lies in the manner in which courts have constructed the bodies of learning disabled men and women in the sphere of sexuality and reproduction. Where the overriding concern of courts is to contain the sexuality of a learning disabled person perceived as "out of control" or "vulnerable to seduction", sterilization is framed as a just and humane solution that will advance the best interests of the individual concerned. Conversely, where the overriding concern is the preservation of the integrity of a law committed to the principle of equality, sterilization is framed as a violation of the bodily integrity of the person. These two views engender very different legal and cultural discourses about best interests and bodily integrity, and reflect a larger tension within law between a commitment to liberal values and the maintenance of a particular social order.

Keywords: bodily integrity, sexuality, reproduction, non-consensual sterilisation, best interests, learning disabled men and women

JEL Classification: K10, K30, I10, I18, K33

Suggested Citation

Savell, Kristin L., Sex and the Sacred: Sterilization and Bodily Integrity in English and Canadian Law (July, 24 2008). McGill Law Journal, Vol. 49, No. 4, pp. 1093-1142, 2004; Sydney Law School Research Paper No. 08/30. Available at SSRN: https://ssrn.com/abstract=1175730

Kristin L. Savell (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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