This report recommends the draft legislation Competence and Human Reproduction Act to create a decision-making process regarding sterilization for those not legally competent to make the decision themselves. The Act replaces the blanket prohibition of Re Eve with legislation that allows for a judgment based on the best interest of the individual and an empathy for her situation. The Institute concluded that no person should be denied access to sterilization because she is not competent to consent.
The draft Competence and Human Reproduction Act, allows a judge of the Court of Queen’s Bench to make an order authorizing an elective sterilization or a hysterectomy for menstrual management where the subject is either a minor or an adult who is not competent to consent to the proposed sterilization. Where a judge finds an adult subject is competent to consent to a proposed sterilization, he may make an order allowing her to consent to the procedure.
The Act creates three categories of sterilization: sterilization for necessary medical treatment; elective sterilization; and hysterectomy for menstrual management. The Act implements procedural protections requiring a lawyer to be appointed to provide independent representation, considers the wishes of the person concerned, thus involving her in the decision-making process to the full extent to her intellectual capacity, and outlines factors the judge must consider regarding elective sterilization.