STC 215/1994

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The parents of a mentally-disabled woman requested that the court authorize the sterilization of their daughter.  According to the Article 428 of the Criminal Code made in accordance with Article 6 LO 3/89 of 21 June (the “challenged provision”), sterilization of a disabled person who suffered from serious psychological deficiency would not be unlawful if the sterilization was approved by a judge upon the request of the legal representative of the disabled person, having first considered the reports and opinions of two medical specialists and the Office of Public Prosecutor and the situation of the disabled person.

Considering the guarantee to the right to life and physical integrity set forth in Article 15 of the Spanish Constitution and concerns that the sterilization of disabled persons might contravene such guarantee, the lower court referred a question regarding the constitutionality of the challenged provision to the Constitutional Court.

The Court held that the challenged provision was constitutional.

First, the Court noted that mentally retarded persons enjoyed the same rights as other citizens and that non-voluntary sterilization violated the fundamental right to physical integrity for mentally disabled persons under Article 15 of the Spanish Constitution. However, the Court also noted that competent individuals were able to consent to voluntary sterilization and a mentally-disabled person should also be able to “consent” through her legal representative in order to enjoy the same right to self-determination as others.

The Court also discussed the dangers of both a government policy allowing sterilization of the mentally disabled and unscrupulous legal representatives seeking a dependent’s sterilization for their own comfort, but held that the guarantees of having (a) an independent and impartial judge (b) who can only act upon the request of the legal representatives (c) where the psychological deficiency is so serious that the mentally disabled is unable “to understand the organic aspects of his/her sexuality and of the extent of body intervention”  and (c) with mandatory intervention of the Office of the Public Prosecutor, offered sufficient safeguards that the mentally disabled person’s fundamental rights would be respected and that such sterilization would only be in her best interests.

The Court also found that the challenged provision was both legitimate and proportional in means. With respect to legitimacy, the Court noted that sterilization could be medically indicated for the benefit of the mentally disabled where  such person could be further mentally damaged by the inconvenience, suffering, or changes that her body would experience during pregnancy or birth; that a mentally disabled person would be unable to fulfill her obligations as a parent; and that sterilization would free a mentally disabled person from constant supervision which would allow her greater exercise over her sexuality. With respect to proportionality the Court determined that sterilization, while cumbersome, was not an unreasonable measure to attain the safety and certainty of the aim pursued, could prove less traumatic than an abortion or constant surveillance over sexual activities; it rejected the argument that such sterilization was inhumane or degrading treatment.

Ultimately, the Court held that the challenged provision better aided mentally disabled persons enjoy the rights afforded to all citizens, in terms of both the standard and the purpose behind the provision.

Judge Gabaldón López dissented with the judgment, arguing that the legislation effectively permitted physical injury to be authorized by a third party, that the displacement of the mentally disabled person’s will was disproportionate and that concerns regarding the welfare of the mentally disabled person did not outweigh her fundamental rights. Judge  Gimeno Sendra concurred with the judgment, arguing that there should be no greater focus on the sterilization of mentally disabled women that mentally disabled men and that the majority did not correctly apply the proportionality analysis. Judge González Campos dissented, arguing that the guarantees were inadequate to safeguard the fundamental rights of the mentally disabled. Judge Mendizábal Allende concurred with the judgment, expressing his concern over the eugenic  history of sterilization of the mentally disabled and argued that the means were disproportionate and that the guarantees for the protection of the disabled were too limited.


“At the beginning, if, in relation with those psychological disabled, there is the constitutional duty of protecting in a particular way so they can enjoy the rights that Title I CE gives every citizen (art. 49 CE), a precept that goes in accordance with art. 1 of the Declaration on rights of mentally retarded persons, passed by the United Nations General Assembly on December 20 1971 ("The mentally retarded person must enjoy, until the maximum degree of viability, of the same rights than the rest of human begins"), it will be necessary to conclude that the questioned digression of art. 428 CP does not really expose a problem of a possible infringement of art. 15 CE, as far as this "right integrity" is concerned —although it really affects this right—, but it has a different aspect: specifying if the right to self-determination that this second paragraph of art. 428 CP is recognized to those competent people is subject to being given also to the request of their legal representatives and, with regard to what the question digression is established, to disabled people that, because of a serious psychological deficiency, cannot give a valid consent. ” Page 14.

"So, foreseen in the precept the unavoidable intervention of the family through the legal representative of the disabled; of the Judge through the authorization he/she can give or not and which is preceded by the exploration of the disabled and of a previous statement of disability also legally agreed; of the specialists that must report about the seriousness of the psychological disability of the disabled and about the consequences to his/her physical and psychological health that could appear from the sterilization and, finally, the intervention of the Office of Public Prosecutor about the performance of all of the guarantees foreseen in the rule, lets state that such guarantees are enough to lead a judicial decision that, for not other objective than the benefit of the disabled, favors his/her living conditions” Page 15.

“First –the justification- for the sterilization of the disabled, of course always subject to the requirements and guarantees already discussed that requires judicial authorization for the art. 428 CP, it allows the disabled not to be under constant surveillance that could be contrary to their dignity (art. 10,1 CE) and moral integrity (art. 15,1 CE), enabling the exercise of their sexuality - if it can be supported by their psychic condition- but without the risk of possible consequences of procreation that they can not anticipate neither consciously take into account because of their mental illness and, for the same reason, they would not be able to enjoy the satisfactions and rights of paternity and maternity neither meet the duties (art. 39,3 CE) inherent in such situations.” Page 18

“A severe psychic disabled person would not reach to understand the changes that her body experiences, or the inconvenience and even suffering it entails gestation and, even less, the final traumatic and painful birth. Therefore, if we understand justification for sterilization under subsection questioned in both sexes, the psychic handicapped woman is even more justified to avoid consequences that are incomprehensible to her, can further damage the psychic state because of the physical consequences produced by the pregnancy.” Page 18

“In the STC 76/90, although referred to art. 14 CE, is not strange the case here presented, we stated that "... the relationship between the measure, the result and the intended purpose by the legislature pass a judgment of proportionality in the constitutional court, avoiding results particularly onerous and unconscionable". Analysis made from this perspective of the rule in question, it is clear that between the aim pursued by the legislator and the means provided for it, it exist a proportionality because the result certainly cumbersome to the disabled, it is not unreasonable to attain safety and certainty the aim pursued.” Page 18