The Singapore Law Gazette

Sterilising Intellectually Disabled Persons … In Their Best Interests or Ours? A Legal Primer

In this primer, we explain the current law in Singapore regarding the sterilisation of persons who lack mental capacity (P) and the relevance of the United Nations Convention on the Rights of Persons with Disabilities. 

This is adapted from a longer article: H Chua. “The Voluntary Sterilisation Act: Best Interests, Caregivers and Disability Rights” (2022) 00 Medical Law Review 1

1. In 2012, Singapore made major amendments to its law on the sterilisation of adults and children; the Voluntary Sterilisation Act 1974 (VSA), which was first enacted in 1969.¹Saw Swee-Hock, The Population of Singapore (3rd edn, ISEAS Publishing 2012) 202-203. The reason why? To “provide better protection for persons with disabilities and bring it in line with the United Nations Convention on the Rights of Persons with Disabilities” (CRPD), as declared by the then Minister for Health, Mr Gan Kim Yong, during the second reading of the amendment bill.²Singapore Parl Debates; Vol 89, Sitting No 9; Sitting Date: 16 October 2012, 981 The VSA had permitted a spouse, parent or guardian to give consent to sterilisations on behalf of persons “afflicted with any hereditary form of illness that is recurrent, mental illness, mental deficiency or epilepsy”.³AWARE, ‘Reproductive Rights’ (Women’s Action) https://www.womensaction.sg/article/reproductive (accessed 20 March 2023). ‘Mental illness’ was added as a separate category in 1974. A medical practitioner also had to certify that the procedure was “necessary in the interest of the person undergoing such treatment and of society generally”.⁴Voluntary Sterilization Act (Cap 347, 1985 Rev Ed), s3(2) This was changed in order to:
   1. Require court authorisation of all proposed surgical sterilisations of people who lack mental capacity, with reference to the “best interests” framework under the Mental Capacity Act 2008 (MCA);⁵VSA (2020 Rev Ed), ss3(2)(d)-(e)– 3(4) and
   2. Pave the way for Singapore’s accession to the CRPD in 2013.⁶Report of Singapore, ‘Initial Report Submitted by Singapore under Article 35 of the Convention, Due in 2015: Convention on the Rights of Persons with Disabilities’ (UN Human Rights Office of the High Commissioner 2018) CRPD/C/SGP/1, (1)
2. As a reader, you may ask: How do we apply the new legal framework? Does it comply with the CRPD? Have there been any court orders for permission to sterilise an intellectually disabled person in Singapore, since 2012? The answer to the last question is “no”, as far as we are aware.⁷Replies of Singapore, ‘Replies of Singapore to the List of Issues in Relation to Its Initial Report: Committee on the Rights of Persons with Disabilities’ (UN Human Rights Office of the High Commissioner 2021) CRPD/C/SGP/RQ/1, (63) In this primer, we will supply answers to the remaining questions.

 

The Amended VSA and the CRPD

3. Three main changes were made to the VSA in 2012. First, parents and spouses lost the power to give consent to sterilisation on behalf of mentally incapacitated persons without court oversight. Second, intellectually disabled persons are presumed to have capacity to give consent to these procedures.⁸VSA, s3(4); MCA, s3(2) Third, if a person is proven to lack capacity, he/she can only be sterilised if a spouse, parent or guardian obtains a court order “declaring that the treatment is necessary in [the person’s] best interests”.⁹VSA, ss3(2)(d)-(e) and s3(4) Importantly, the person’s wishes and feelings must be taken into account in assessing whether sterilisation is in his/her best interests.¹⁰MCA, s6(8)(a)
4. The Association of Women for Action and Research (AWARE) had played an active in lobbying for change.¹¹Wong Meng Ee and others, ‘Navigating Through the “Rules” of Civil Society: In Search of Disability Rights in Singapore’ in Jiyoung Song (ed), A History of Human Rights Society in Singapore: 1965–2015 (1st edn, Routledge 2017) 180 While these amendments have strengthened disability rights protection for persons with intellectual disabilities, the VSA does not fully comply with the CRPD. Article 12(4) of the CRPD requires state parties to ensure that measures relating to the exercise of legal capacity “respect the rights, will and preferences” of disabled persons. The Committee on the Rights of Persons with Disabilities has therefore criticised proxy decision-making based on the “best interests” principle and the denial of legal capacity to those who lack functional mental capacity.¹²Committee on the Rights of Persons with Disabilities, General Comment No. 1 (2014), ‘Article 12: Equal Recognition Before the Law’, 19 May 2014, CRPD/C/GC/1, (26)-(29) Singapore has maintained a reservation against Article 12(4). However, other rights of persons with disabilities, such as the right to mental and bodily integrity in Article 17, and the right to “retain their fertility on an equal basis with others” in Article 23(1)(c) of the CRPD are pertinent to court-ordered sterilisations under the VSA.

The Law in Singapore

5. The VSA is Singapore’s principal statute on sterilisation, which contains rules on when this may lawfully be performed on adults and children, with or without capacity. Under section 2 of the VSA, “treatment for sexual sterilisation” refers to “the surgical sterilisation of a male or female that does not involve removal of the reproduction glands or organs unless the removal is necessary for medical or therapeutic reasons”. Therefore, all non-therapeutic procedures to remove sexual organs are unlawful. This would prohibit a hysterectomy (surgery to remove the womb) of a healthy woman simply to prevent menstruation for hygiene control. However, the VSA does not define what is a “therapeutic” purpose of sterilisation.
6. Pursuant to sections 3(2)(d) and 3(2)(e) of the VSA, a person who lacks mental capacity may be sterilised (i.e. undergo a vasectomy, tubal ligation, or medically necessary surgery to remove sexual organs) if a court “makes an order declaring that the treatment is necessary in the best interests of that person”. If the person is unmarried, at least one parent or guardian must make the application. If the person is married, the applicant must be the person’s spouse. Parents, guardians, donees of a lasting power of attorney, and court-appointed deputies have no power to give or revoke consent to treatment for sexual sterilisation on behalf of such a person: see section 26(g) of the MCA.
7. The application must be made to the General Division of the High Court or the Family Court. Under rule 291 of the Family Justice Rules 2014 (FJR), the court may require the person who lacks mental capacity (P) to attend the hearing of the matter. An intervener may seek permission from the court to object to the application, and P may act as intervener through a litigation representative.¹³FJR, rr293, 654 and 656 If P is below 18, the court may appoint an independent child representative to make submissions on P’s best interests and present his/her views to the court.¹⁴ibid, rr30-31 Independent representation is ideal to better allow P to express his/her perspective and participate in the decision as fully as possible.¹⁵MCA, s6(4)
8. Section 3(4) of the VSA provides that Part 2 of the MCA applies, with the necessary modifications, for determining whether a person lacks capacity to consent to sterilisation and whether the procedure is in his/her best interests. This comprises the principles in section 3, the test for mental incapacity in sections 4 and 5, and the best interests checklist in section 6 of the MCA. Given that there has yet to be a test case in Singapore, we propose a framework for the courts to approach the best interests evaluation, below.

Assessing Mental Capacity

9. There is a starting presumption of mental capacity, and a person is not to be treated as unable to make a decision unless all practicable steps to help him/her do so have been taken without success: see sections 3(2) and 3(3) of the MCA. This supports the principle of providing “reasonable accommodation” to disabled persons, under Article 2 of the CRPD, such as “easy read” materials on sterilisation. The presumption may be rebutted if pursuant to section 4(1) of the MCA, the person is unable to make a decision for himself or herself in relation to undergoing sterilisation because of an impairment of, or a disturbance in the functioning of, the mind or brain.
10. The statutory test for mental incapacity is the same in the English Mental Capacity Act 2005: see sections 2 and 3 therein. In A Local Authority v JB, the UK Supreme Court clarified that the person’s inability to make a decision for himself should be established first, before the causative nexus between this inability and his condition is assessed.¹⁶A Local Authority v JB (2021) UKSC 52, (67), (78)-(79) This reinforces section 4(3) of the MCA, which states that a person should not be judged to lack capacity merely by reference to his/her age, appearance, condition or unusual behaviour. Under section 5 of the MCA, a person is unable to make a decision for himself or herself if they are unable to understand the information relevant to the decision, retain that information, use or weigh that information as part of the process of making the decision, or communicate his/her decision. The Court will make the final assessment on this matter, with reference to expert evidence for the clinical component of the test.¹⁷Re BKR (2015) 4 SLR 81, (134)

Best Interests

11. Once the Court determines that P lacks mental capacity to consent to sterilisation, section 6 of the MCA will apply. It specifies a non-exhaustive list of considerations that must be taken into account in deciding whether sterilisation is necessary in P’s best interests. The MCA does not define “best interests”, so the various factors will need to be balanced and guidance can be drawn from overseas cases on sterilisation.

Evaluating the Reasons for Sterilisation

12. First, it is important to evaluate the intended purpose(s) of the proposed sterilisation procedure. Parents / spouses may want P to undergo sterilisation for therapeutic, contraceptive, or eugenic reasons.¹⁸Penney Lewis, ‘Legal Change on Contraceptive Sterilisation’ (2011) 32 Journal of Legal History 295, 295. Therapeutic reasons include removing reproductive organs affected by cancer or preventing a potentially-life threatening pregnancy. If the requested procedure involves the removal of reproductive glands or organs, there must be a therapeutic basis for this under section 2 of the VSA. Contraceptive reasons may arise from concerns about finances or P’s ability to raise a child. Eugenic reasons are concerned with preventing P from passing a hereditary condition to the next generation, and this motivation is plainly discriminatory and unacceptable.
13. In the Canadian case of Re Eve, a mother applied for permission to sterilise her daughter (Eve), a 24-year-old woman with extreme expressive aphasia and mild to moderate intellectual disability, who was thought to be unable to shoulder the responsibilities of motherhood or understand the connection between intercourse, pregnancy, and birth.¹⁹Eve, by her Guardian ad Litem, Milton B Fitzpatrick, Official Trustee v Mrs E (1986) 2 SCR 388 (Re Eve), (2)-(4) The Canadian Supreme Court reversed the lower court’s decision to allow sterilisation by way of hysterectomy. La Forest J held that non-consensual sterilisations for non-therapeutic purposes are a “grave intrusion on a person’s rights” and should never be authorised.²⁰ibid, (86) This is stricter than the position in Singapore. Yet the following observations of La Forest J are apt in Singapore:
    1. The aim of protecting a person’s mental and physical health should not be used as a “subterfuge or for treatment of some marginal medical problem”; ²¹ibid, (54), (93)
    2. For example, a hysterectomy to prevent menstruation because P has a phobia of blood is “dangerously close to the limits of the permissible”.²²ibid; Re K and Public Trustee (1985) 19 DLR (4^th) 255
14. Social reasons for sterilisation should also be scrutinised. For example, in the English case of Re A, a mother applied for permission to sterilise her intellectually disabled son to prevent him from having sex and fathering a child. However, the application was dismissed because the evidence showed that he would be supervised to such a degree that this would not occur.²³Re A (Medical Treatment: Male Sterilisation) (2000) 1 FLR 549 (Re A), 557-58 per Butler-Sloss P Importantly, sterilisation would not prevent a disabled person from engaging in sexual relations or becoming a victim of sexual abuse: adequate supervision and education of P on how to take precautions is required.

The Least Restrictive Alternative

15. Section 3(6) of the MCA states that before an act is done or decision is made, “regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.” This involves considering alternatives to sterilisation, such as:
    1. Educating P about reproductive health and contraception in a manner tailored to P’s age and understanding;
    2. Financial assistance that may help P access better supervision and social support services; and
    3. Less invasive forms of contraception, like Depo-Provera injections.

The importance of education should not be disregarded simply because P has a disability: see Article 23(1)(b) of the CRPD. These measures should be compared with the burdens and benefits of sterilisation to decide what is in P’s best interests.

Balancing the Relevant Considerations

Presumption in Favour of Bodily and Mental Integrity

16. We suggest that the courts should adopt a starting presumption in favour of preserving P’s bodily and mental integrity. In Yong Vui Kong v Public Prosecutor, the Court of Appeal held that while the CRPD (which has not been transposed into domestic law) does “not give rise to individual rights and obligations in the domestic context”, through interpretive incorporation, domestic laws may be interpreted to be consistent with Singapore’s international obligations as far as possible.²⁴(2015) 2 SLR 1129, (29), (50) This is subject to the proviso that a clearly inconsistent piece of domestic legislation would prevail over the Convention. The courts may adopt a CRPD-cohesive approach to best interests evaluations, because Parliament had expressed an intention to “provide better protection for persons with disabilities and bring [the VSA] it in line” with the CRPD during the second reading of the Voluntary Sterilization (Amendment) Bill 2012.
17. Therefore, in line with parliamentary intent, the VSA provisions on non-consensual sterilisation can be interpreted to uphold CRPD obligations, specifically, Articles 17 (right to respect for physical and mental integrity on an equal basis with others) and 23(1)(c) (right to retain one’s fertility on an equal basis with others). There is also empirical evidence which supports adopting a presumption in favour of bodily and mental integrity. Studies have shown that sterilisation can have negative psychological implications for an intellectually disabled person’s sense of identity and self-esteem.²⁵Secretary, Department of Health and Community Services v JWB and SMB (1992) HCA 15; (1992) 175 CLR 218 (Marion’s Case) (51) per Mason CJ, Dawson, Toohey and Gaudron JJ. Some women have reported their negative feelings of “humiliation”, “devastation” and deep sadness at the inability to have children after being sterilised without their consent.²⁶Elizabeth Tilley and others, ‘“The Silence is Roaring”: Sterilisation, Reproductive Rights and Women with Intellectual Disabilities’ (2012) 27 Disability & Society 413, 420-1

Strengthening the Presumption

18. When determining the best interests of P, pursuant to section 3(4) of the VSA, the checklist of considerations in section 6 of the MCA should be applied. Section 6(1) states that the determination should not be based solely on P’s age, appearance, or condition,²⁷MCA, s6(1) This requirement aligns with Article 23 of the CRPD, which prohibits disability discrimination in all matters relating to family and parenthood. By not allowing these factors to prejudice the judgment of P’s best interests, the presumption in favour of preserving bodily integrity is strengthened. Importantly, courts should be careful not to adopt unsubstantiated prognostic pessimism towards P’s future prospects and developmental capabilities, especially if P is still a child.
19. The possibility of P gaining capacity as he/she gets older should be considered. In the English case of Re D, the court held that sterilisation was not in the best interests of an 11-year-old girl with Sotos Syndrome, who was likely to gain the necessary capacity to make a decision about sterilisation in the future.²⁸Re D (A Minor) (Wardship: Sterilisation) (1976) 1 All ER 326, 335 In this determination, expert evidence and P’s access to support, like education about reproductive health and whether this could help P eventually make an informed decision, should be addressed.²⁹MCA, s3(3) Section 6(3) of the MCA also mandates consideration of whether it is likely that P will have capacity, and if it is likely, when that is likely to be.
20. Under section 6(8) of the MCA, it is important to consider P’s wishes and feelings, beliefs, and values. Even if P lacks capacity, this is not an “off-switch” for his/her point-of-view to be automatically discounted.³⁰Wye Valley NHS Trust v Mr B (2015) EWCOP 60, (11) Consulting P for his/her views on sterilisation, relationships, marrying, and starting a family; or inferring this information from P’s personal history, is therefore important, as highlighted by the studies mentioned in paragraph 17 above.

Rebutting the Presumption

21. If P freely expresses views which support sterilisation as a contraceptive option, the presumption in favour of bodily integrity might be rebutted. The English case of DE concerned a man with learning disabilities who had unwittingly fathered a child with his girlfriend. His parents reacted by restricting his freedom of movement and increasing their supervision of him to prevent a further pregnancy. DE deeply valued his relationship with his girlfriend, but he did not want more children and was unable to effectively use contraception.³¹An NHS Trust v DE (2013) EWHC 2562 (Fam) (DE) (3), (43), (59), (66) The Court ruled that sterilisation was in his best interests.
22. An influential factor in King J’s decision was that DE could resume the independence he once had if he were sterilised, as his parents would relax their control over him and allow him to visit town with his friends and resume sexual relations with his girlfriend.³²ibid (65), (94) Barton-Hanson has criticised the case for allowing DE’s parents to engineer a situation where his independence was contingent on sterilisation.³³Renu Barton-Hanson, ‘Sterilization of Men with Intellectual Disabilities: Whose Best Interest Is It Anyway’ (2015) 15 Medical Law International 49, 65 Yet it is possible to think of a non-coercive situation where someone like DE is free to socialise and wishes to engage in intimate relationships, but does not desire any children and could benefit from sterilisation as a contraceptive option. For example, one study found that a minority of single, disabled men who were sterilised considered it a benefit because it allowed them to “play around with the girls” without getting into trouble.³⁴Tilley and others 2012, 421 Such views, if freely expressed, could support sterilisation being in P’s best interests.
23. The presumption in favour of bodily integrity may also be rebutted if sterilisation carries proven therapeutic benefits for P. In Singaporean family law cases involving children and the English case of Re A concerning an incapacitated adult, the courts have held that best interests encompasses medical, social, psychological, and emotional considerations.³⁵Re A, 555; UKM v Attorney-General (2019) 3 SLR 874, (45); Tan Siew Kee v Chua Ah Boey (1987) SLR(R) 725, (12)
24. It is noted that mere assertions of therapeutic benefit should not suffice to rebut the presumption in favour of bodily integrity. Based on Re Eve, we propose that only where the therapeutic benefits of sterilisation outweigh the short- and long-term risks to P’s health (including psychological well-being), can the procedure be considered in P’s best interests. For example, in DD, P was likely to suffer life-threatening complications if she had another pregnancy, which was a real possibility because she was sexually active and other forms of contraception were not ideal for her.³⁶Re DD (No 4) (Sterilisation) (2015) EWCOP 4
25. Under section 6(9)(b) of the MCA, caregivers’ views can be considered. Although it has been held in Canada that the “inconvenience or hardship” of caregivers cannot be taken into account,³⁷Re Eve, (92) the English courts have considered actions which benefit other people as long as they are in the best interests of P.³⁸DE, (84(i)), (92(iii)). Given that Singapore is a largely communitarian society, the English approach may be adopted.
26. Foster and Herring’s theory of “relationship-based welfare” argues that healthy relationships which comprise a degree of give-and-take between family members are crucial to a person’s wellbeing.³⁹Charles Foster and Jonathan Herring, Altruism, Welfare and the Law (Springer International Publishing 2015) 34-35 On this basis, it may be in P’s overall welfare interests to make sacrifices for the good of mutually beneficial, caring relationships. Nevertheless, a simplistic dichotomy of “happy caregiver equals happier care-recipient” must be avoided, so that P’s interests in bodily integrity are not easily displaced. The court must therefore consider whether the caregivers’ burdens can be alleviated by less restrictive measures than sterilisation (in line with section 3(6) of the MCA) and ensure that the harm caused by sterilisation to P does not exceed the negative impact on the caregiver from forgoing it.

Conclusion

27. In this primer, we have explored the current law in Singapore regarding the sterilisation of mentally incapacitated persons and the relevance of the CRPD. As Singapore has yet to have a test case regarding this issue, we have proposed a framework to guide a best interests analysis. To summarise, there should be a starting presumption in favour of preserving bodily and mental integrity, which may be rebutted if other factors like therapeutic benefit would support sterilisation being in P’s best interests, as evaluated in its widest sense.