Eugenics and Reproductive Rights
What was the first successful claim for wrongful sterilization in Canada?
Muir v. Alberta (1996), 132 DLR (4th) 695 (Alta QB)
This legal doctrine gives the state power to protect vulnerable people where legislation is silent
Parens Patriae
The Royal Commission on New Reproductive Technologies (1993) conducted an investigation in Assisted Reproductive Technologies. What demographic did the Commision find to be viewed as “less deserving” of access to ARTs?
The Commission found that women with disabilities, single women, and lesbians were viewed as less deserving. Meanwhile, affluent, white, heterosexual couples were viewed as more favourable for accessing ARTs
What are some benefits to having a parent with a disability?
Children raised by disabled parents may develop:
○ Patience, adaptability, and resilience
○ Awareness of difference, empathy, and appreciation for diversity
○ Skills of independence and interdependence through early responsibility
How would you define reproductive rights in comparison to parental rights?
These rights are similar, but reproductive rights deal with the right to reproduce, covering topics such as (in)fertility and sexual and reproductive autonomy. Someone exercising their reproductive rights could lead to them having a child and subsequently having parental rights to exercise, though parental rights are not mutually exclusive with reproductive rights. Reproductive rights might concern the right to become a parent through natural or artificial conception. Parental rights are concerned with the rights a parent of a child has regarding their choices in child rearing.
What are the two provincial Acts that perpetuated eugenics ideologies?
Alberta’s Sexual Sterilization Act (1928) and British Columbia’s Act Respecting Sexual Sterilization (1933)
How did parens patriae apply in Eve?
Parens patriae was inapplicable in Eve - because Eve could not consent to the sterilization, parens patriae power was unable to be used to authorize the sterilization
In a U.S. context, what two acts must ART providers comply with in order to receive federal funding?
The Americans with Disabilities Act (ADA) and Rehabilitation Act
What is the difference between the conclusions that child welfare services and intellectual disabilities services come to?
Child welfare services finds parents with disabilities lack capacity to parent, whereas intellectual disability services recognizes parenting capacity while noting needing supports
Are reproductive and parenting rights a positive or negative right?
They are both negative rights: the state permits you to exercise these rights and cannot interfere. However, the state is not entitled to assist with reproduction or parenting.
What were the three reasons behind repealing Alberta’s Eugenics Statute?
(1) The Act was based on medical and genetic theories which were now of questionable scientific validity.
(2) The Act was riddled with legal ambiguities.
(3) There were serious human rights concerns, as the Act was described as embodying “a reprehensible and intolerable philosophy and program for this province and this government”.
What principle is at the heart of parens patriae doctrine?
The best interest of the individual
Did Cameron consider infertility as an “individual” or “couple” issue?
The Court treated the couple in Cameron as one “infertile unit”
What recommendation does West Coast Leaf’s Executive Summary provide?
The report recommends that governments provide the support necessary to ensure children remain with their parents when that is in their best interest, free of negative biases towards disabilities.
Which of the cases covered today demonstrates an example of reproductive rights and parental rights at odds? How is this evidenced based on the facts and decision?
E (Mrs.) v Eve, [1986] 2 SCR 388
Mrs. E’s concerns as a parent are shown to go beyond her parenting rights: while Mrs. E is concerned for Eve’s wellbeing, sterilization goes beyond the scope of what a parent can demand from their child. Eve’s reproductive autonomy is upheld above Mrs. E’s parental rights.
What case demonstrates the need for reparations for historical injustices and how does it do so?
Muir, through damage awards, the precedent that the case sets, and the province’s equivalent of an apology:
“the Province voluntarily gave up what would have been a complete defence to Ms. Muir's action: Ms. Muir did not start her action soon enough. Had the Province used this defence - called a limitations of action defence - that would have put an end to Ms. Muir's claim. The effect of choosing not to use this defence is more than equivalent to an apology - it constitutes a real attempt to make things right. As a matter of policy, government apologies and initiatives of this sort to redress historical wrongs should be encouraged; punishing governments for their historical behaviour would have the opposite effect.”
How does reproductive autonomy differ from reproductive rights?
Reproductive rights can encompass reproductive autonomy - reproductive autonomy is the freedom to make sexual and reproductive decisions; if and when to have children, or to take birth control, or elect for sterilization, for example. Reproductive rights uphold reproductive autonomy by ensuring the individual can maintain their bodily integrity as they so choose.
According to Gilbert and Majury, is Cameron better viewed through a medical model or a social model of disability? Why?
The Court in Cameron adopted a medical model; infertility was cast as a biological defect in need of treatment. Gilbert and Majury argue a social model is a better perspective, even if it does not qualify infertility as a disability.
Parentification suggests a concern that children of disabled parents will take on a caregiver role towards their parents.
What is the mutual care theory of parentification?
The mutual care theory suggests that disabled parents and their children will have a mutually caring relationship. Children will provide age appropriate assistance, under supervised parental authority. This subsequently builds trust, competence, and community.
“They helped me stand on my own two feet”
What does this statement reflect concerning parental rights for persons with disabilities?
This phrase demonstrates how parents with intellectual disabilities were able to build confidence and autonomy with support. It goes against negative biases against parents with disabilities, which often result in child welfare systems interfering with parental rights. Instead, it supports parental rights by providing greater support systems.
Forced sterilization was a means of controlling reproductive rights. In what ways has confinement impacted forced sterilization? Are modern era boarding schools for people with disabilities analogous; do they pose similar risks?
We see the impacts of Albert’s Act and forced confinement on Ms. Muir in Muir. Muir was forcibly confined, sterilized without consent, and treated inhumanely. The facts of her case reflect her childhood in the 50s and 60s, before the Act was repealed.
Eve is an earlier case, but the facts being tried are nearly contemporary to the time of the decision. Unlike Alberta, PEI had no sexual sterilization or eugenics legislation. As such, the court was left to look to other laws, the Charter, and parens patriae as a means of determining if sterilization was allowed.
What precedent does Eve set regarding judicial use of parens patriae in disability law and reproductive autonomy circumstances?
The decision reinforces the best interest of the individual. The court recognizes that due to Eve’s inability to consent, the sterilization would be equivalent to battery, making the procedure not in Eve’s best interests. Parens patriae remains a doctrine to be used to fill in legislative gaps while respecting the autonomy of vulnerable people.
“One’s inability to participate in this great plan [of reproduction] must… be a major and deep felt disappointment.”
What case is this quote from, and what does it tell us about infertility as disability?
This comes from Cameron, it refers to the recognition of infertility as a physical disability due to its emotional and social impact
What kind of adaptive tools do disabled parents use to meet the basic needs of their children? How might this make disabled parents adequate, or even better, parents than abled parents?
There are many tools, adaptations, and supports in place for disabled parents:
○Tools: magnifiers, label readers, accessible cribs, tactile labels, and adaptive plungers
○Environmental adaptations: alarms on doors, squeaky shoes for tracking children, occupational therapy training
○Support: partners, family, and peer groups help ensure the child’s well-being
Disabled parents may subsequently be better attuned to their child’s needs than an abled parent.
Leading up to the Assisted Human Reproduction Act’s enacted, the following principle was proposed, though ultimately omitted:
“persons with disabilities can lead full and satisfying lives and enrich the lives of those around them”
What does this principle suggest about parental rights? About reproductive rights?
Within the context of the AHRA, this principle suggests that “people with disabilities are lead full and satisfying lives” to the extent that they can also exercise parental and reproductive rights. However, this phrase could be polarizing, or even paternalistic.