Region: Europe
Year: 2005
Court: Conseil d'Etat [Council of State]
Health Topics: Child and adolescent health, Disabilities, Informed consent, Mental health, Sexual and reproductive health
Human Rights: Freedom from discrimination, Freedom from torture and cruel, inhuman or degrading treatment, Right to bodily integrity, Right to family life
Tags: Abortion, Compulsory sterilization, Compulsory treatment, Contraception, Forced abortion, Forced sterilization, Forced treatment, Incapacity, Incompetence, Involuntary sterilization, Involuntary treatment, Judicial bypass, Mandatory treatment, Mental competence, Mental disability, Mental retardation, Minor, Non-consensual testing and treatment, Parental consent, Pregnancy, Sterilization, Termination of pregnancy
In 2002, the ASSOCIATION AGAINST HANDIPHOBIA brought this challenge to Article L. 2123-2 of the Public Health Code, which allows for a guardian judge to impose contraception, sterilization and pregnancy termination on people with mental disabilities after rigorous review. The Association claimed the law was unconstitutional, a violation of the Declaration of the Rights of Man and of the Citizen of 1789 and a violation of France’s international obligations (the obligations from the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights).
The Court the request from the ASSOCIATION AGAINST HANDIPHOBIA and upheld Article L. 2123-2.
The Court found that the multiple rules and guarantees Article L. 2123-2 requires a guardian judge to go through before the judge can order sterilization satisfied the requirements of the Code of Public Health and did not “promot[e] the involuntary sterilization of people with disabilities….”
The Court also held that the law does not violate the “the right to marry and to start a family”, the “prohibition of inhuman and degrading treatment” or the “the right to private and family life” nor amounts to discrimination as recognized in international human rights conventions.
“Considérant, en troisième lieu, que les stipulations de l'article 12 du pacte international relatif aux droits économiques, sociaux et culturels du 19 décembre 1966 aux termes duquel les Etats parties (...) reconnaissent le droit qu'a toute personne de jouir du meilleur état de santé physique et mentale qu'elle soit capable d'atteindre sont dépourvues d'effet direct dans l'ordre juridique interne ;”
“Fourth, considering that it is clear from the wording of Article L. 2123-2 that sterilization cannot be performed on a minor; that the existence of an absolute medical contraindication against methods of contraception or a proven inability to effectively implement them must be recognized; that, if the person is able to express her/his will, sterilization can not be imposed; that the conditions under which the guardianship judge is called upon to decide are precisely defined; that the judge is required to hear the person, her/his parents or legal representative and to obtain the opinion of a committee composed of medically qualified experts and representatives of associations for disabled persons, which evaluates the medical justifications for the procedure, its risks and its reasonably foreseeable consequences on the physical and psychological levels;”