Sex and the sacred: sterilization and bodily integrity in English and Canadian law.

• Author: Savell, Kristin

Through an examination of cases of nonconsensual sterilization for learning disabled persons in Canada and England, this article 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 Canadian and English law, while both claiming to protect bodily integrity, have reached opposing conclusions about whether non-therapeutic sterilization can be in a person's best interests. She hypothesizes that the answer could lie 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 in the sterilization cases is the containment of the sexuality of a learning disabled person perceived as "out of control" or "vulnerable to seduction", sterilization is cast as a just and humane solution that will advance the welfare 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 thought to be a violation of the bodily integrity of the person. The author shows that these two views engender very different legal and cultural discourses about best interests and bodily integrity. The debate highlighted by the sterilization cases and the commentary surrounding them reflect larger tension within legal discourse between the commitment to liberal values and the maintenance of a particular social order.

Par un examen des cas de sterilisation non consensuelle chez les handicapes de l'apprentissage au Canada et en Angleterre, cet article examine le role du droit dans la construction des pensees, croyances et normes qui faconnent la maniere par laquelle nous pensons au corps, au sexe, au genre et a la sexualite. L'auteure se demande pourquoi les droits canadien et anglais en sont parvenus a des conclusions opposees a propos de la sterilisation non therapeutique, meme si chacun affirme vouloir proteger l'integrite physique des personnes. Elle conjecture que la reponse pourrait se trouver dans la maniere dont les tribunaux ont, dans les cas des hommes et femmes souffrant de handicaps d'apprentissage, construit les corps de ces personnes dans la sphere de la sexualite et de la reproduction.

La ou la consideration primordiale dans les cas de sterilisation est l'endiguement de la sexualite de la personne handicapee de l'apprentissage percue comme > ou >, la sterilisation est presentee comme une solution juste et humaine propre a contribuer au mieux-etre de la personne concernee. A l'inverse, la ou la consideration principale est la preservation de l'integrite d'une loi consacree au principe de l'egalite, la sterilisation est consideree comme une violation de l'integrite physique de la personne qui la subit. L'auteure montre que de ces deux points de vue surgissent des discours juridiques et culturels fort differents concernant le meilleur interet et l'integrite physique. Le debat mis en lumiere par les cas de sterilisation et les commentaires qui s'y rattachent refletent une tension d'ordre plus general entre la souscription aux valeurs liberales et le maintien d'un ordre social donne.

Introduction I. The Body in Focus A. The Social Body B. The Body Politic C. Law, Discipline, and the Body D. The Discursive Production of Sexed Bodies E. Medical Categorizations and Welfare-Oriented Practices II. Sex, Bodily Integrity, and the Body Politic A. The Menacing Presence of Delinquent Bodies B. Citizenship and Reproduction C. Multiple Motives D. Imagining the Past III. Sex, Integrity, and the Individual Body A. Eve and the Sacred Body B. The Disordered Body C. Sexuality: The Available Body D. Reproduction: The Traumatized Body E. Parenting: The Gendered Body Conclusion Introduction

In 2002, the public trustee of British Columbia sparked a national debate when, after discovering that a twenty-five year old learning disabled man had been castrated without his consent, it decided to sue the man's mother, the health professionals, and the hospital involved in carrying out the procedure. (1) In addition to being unlawful, the public trustee alleged that the defendants' actions had subjected the man, known as A.R., to "embarrassment, humiliation, loss of sexual drive, psychological trauma and the opportunity to become a parent." (2) The man's mother, Sandra Crockett, saw things differently. She feared his "sexual urges" and "violent outbursts" would eventually lead to permanent institutional confinement. She also feared that he would father a child that he was unable to care for. For her, the decision to have her son castrated was borne out of genuine anxiety and concern for her son's liberty and future well-being.

A close reading of the public debate that followed this case reveals a profound lack of agreement about the issues at stake. In particular, there was disagreement about whether A.R.'s sexuality was problematic, whether castration could be justified, and whether the law was out of step with community sentiment on these matters. At a very fundamental level, these disagreements tended to converge around competing constructions of community and subjectivity, in which the body functioned as both a symbol and a norm. The integrity of the body, in particular, was used as a means of conveying competing ideas about the threat posed by A.R.'s sexuality, on the one hand, and the threat posed by compulsory castration on the other. Where A.R.'s body was constructed as threatening precisely because it could not be contained sexually, castration was viewed as a means of achieving integrity and, therefore, order at the level of the individual and the social body. Conversely, where A.R.'s body was constructed as emasculated and lacking integrity as a result of having been castrated, castration was viewed as a violation of the individual body and a threat to social cohesion. The multiplicity of meanings ascribed to the body in this debate suggests that the body, rather than simply a biological given, is open to cultural interpretation. It is also suggestive of the extent to which the body can be used to shape ideas about the social world. In a broader theoretical sense then, A.R.'s case, and others like it, issue the twin challenges of understanding the body as culturally determined and understanding law as having a key role to play in these processes of definition.

This article 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 legal analysis will centre on the common law with respect to non-consensual sterilization in Canada and England. There are two reasons for choosing these particular case studies. First, although both legal cultures place considerable importance on the principle of bodily integrity, each jurisdiction bas arrived at different conclusions about the lawfulness of non-consensual sterilization. This is suggestive of tensions surrounding the legal meaning of bodily integrity in the context of sexuality and reproduction. Accordingly, the comparison provides a rich source of material from which to draw in examining the way the body is constructed within these discourses and the relevance of these constructions to the question of legality. Second, these discourses can be understood as regulatory strategies in which bodies are produced and contained in the interests of a particular conception of social order. Although in a concrete sense these cases are concerned with what might be described as marginal bodies and expressions of sexuality, they can also be understood as constituting normative bodies and expressions of sexuality. It will be suggested that these cases form part of a larger set of discourses through which the norms of heterosexual reproduction are instantiated.

Part I sets out the theoretical framework for this analysis. Part II considers the ways in which the historical concerns with the health of the social body interpolate contemporary legal reasoning. It also examines some of the correspondences that exist between past and present discussions about compulsory sterilization, in particular the co-existence of individual and social reasons for sterilization. Part III focuses on the contemporary law as a regulatory strategy through which normative and deviant sexualities are constructed and acted upon (or not) by medical professionals. This analysis examines the tensions surrounding judicial interpretations of "best interests" in England and Canada. It will be argued that these competing interpretations reflect a larger tension within legal discourse between the commitment to liberal values and the maintenance of a particular social order. This tension is, in turn, played out through competing visions of the relationship between the body, law, and society.

1. The Body in Focus

   The body was central in the discussion surrounding A.R.'s castration. Atone level of analysis, A.R.'s physical body was the focus of debate. At another level, however, the discussion was concerned with the regulation, surveillance, and control of sexuality and reproduction. Thus, certain ideas about the individual and the collective (or social) body were expressed through thoughts and beliefs about appropriate sexuality and reproductive responsibility and, alternatively, anxieties about the sort of society that uses sterilization to control its members.

   1. The Social Body

      Anthropologists Margaret Lock and Nancy Scheper-Hughes have provided a useful framework for bringing together these varying levels of analysis of the body. They describe three levels of analysis--the individual body, the social body, and the body politic. The individual body refers to the lived experience of the body-self. Analysis at this level concerns the component parts of the body-self (mind, body, psyche, etc.) and the way in which these...