Forbes, Peter R.

English

Via Sapientiae: The Institutional Repository at DePaul University

DePaul Law Review Volume 18 Issue 2 Issue 2 & 3 Summer 1969 Article 13 Voluntary Sterilziation of Women as a Right Peter R. Forbes Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Peter R. Forbes, Voluntary Sterilziation of Women as a Right, 18 DePaul L. Rev. 560 (1969) Available at: https://via.library.depaul.edu/law-review/vol18/iss2/13 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact digitalservices@depaul.edu. VOLUNTARY STERILIZATION OF WOMEN AS A RIGHTPETER R. FORBES*ONTRACEPTION IN the United States is an ever-increasing part ofthe national scene. Although we have not yet felt the bite ofeither the world over-population or the reproductive explosion inthis country, if everyone married and had only two children, the popu-lation would double in a generation. Regardless of conscious awarenessof the problem, most Americans use some technique to avoid or deferpregnancy. Simple techniques such as rhythm, withdrawal, or coituswhile lactating have a high failure rate and many women are dismayedto have infants in rapid succession. Mechanical barriers erected bycondoms, diaphragms, jellies and foams have a lower but still signi-ficant failure rate. The intrauterine devices, of assorted plastic ormetal design, have no patient error except failure to report expulsion,but all have a greater or lesser method failure of roughly threepregnancies per one hundred women each year. Such devices also havea morbidity rate associated with hemorrhage or infection and an oc-casional reported death. The contraceptive pills, of varying chemicalformulae, are a striking success. As a rule of thumb, no one gets preg-nant on the pill, and responsibility for conception can usually be laidat the patient's door. However, the side effects can be miserable. Inthe short run, one sees nausea, easy weight gain, fluid retention andbloating, breakthrough bleeding, facial pigmentation and a tendencyto fungus infection of the vagina. Long run side reactions includesevere headache, personality changes of irritability and depression,and possible intravascular clotting defects. Fortunately, these are re-versible upon discontinuing the medication. None of the precedingtechniques is both reliable for contraception and free from danger,and therefore, more particularly, all are unsuitable for families wherea decision has been made to terminate childbearing permanently.Voluntary surgical sterilization is a permanent approach which can* DR. FORBES is the Chairman of the Department of Obstetrics and Gynecology at theValley Presbyterian Hospital in Van Nuys, California. He is an Assistant Clinical Pro-fessor of Obstetrics and Gynecology at the University of California Medical School atIrvine. DR. FORBES received his A.B. and M.D. from George Washington University. Heis a Diplomate in Obstetrics and Gynecology.VOLUNTARY STERILIZATIONbe performed upon either men or women. The operation upon a man,vas ligation, is a quick and simple office procedure, but it has severaldisadvantages. First, coitus should not be performed until no spermcan be seen in the ejaculate under the microscope. Secondly, recanaliza-tion of the vas deferens with the re-establishment of fertility is a slimpossibility. Thirdly, men who remarry after their spouses' death orafter divorce seem to favor younger childless women who want toconceive and surgical anastomosis of the cut vas, particularly afterthree or four years, carries a low success rate for pregnancy even whensperm are present, as they are usually in markedly diminished num-bers. Finally, men are often emotionally unstrung by the surgery.Confusing fertility, virility and masculinity, otherwise indolent hus-bands feel compelled to lift weights, wear crew cuts, jog, and flextheir muscles to demonstrate their equality with men who can stillimpregnate their wives.Women, on the other hand, are much more sensible from a psy-chological point of view. They do not usually confuse the femininerole with reproductive capacity after they have given birth to a num-ber of children. By the time they seek relief from their physician, theyhave already decided that they want no more offspring, even if be-cause of death or divorce they were to remarry. They do, however,in most of the states face a legal stone wall. Three states expresslyprohibit voluntary elective sterilization except for medical indica-tions.1 Forty-four states have no law, except statutes relating to in-voluntary sterilization, which are not pertinent to this discussion.Only a few states have legislation that provides a procedure to obtainthe voluntary operation.2 The purpose of this article is to explore therationale behind the lack of availability of doctors and hospitals forthe sterilization surgery and suggest a remedy under the law to alle-viate that vacuum.Technically, the surgical sterilization of a woman is more difficultthan that of a man because it involves entering the abdominal cavity,either through the abdominal wall or in the upper reaches of thevagina. The former method is the simplest if done immediately at thetime of delivery, using the same anesthetic. A small inch long incision1 CONN. GEN. STAT. REV. §§ 17-19, 53-33 (1958); KAN. GEN. STAT. ANN. § 76-149(1964); UTAH CODE ANN. § 64-10 (1953).2 See, e.g., N.C. GEN. STAT. §§ 35-36 to 35-57 (1966); VA. CoDE AN. §§ 32-423 to32-427 (1950).DE PAUL LAW REVIEWin the midline or in the transverse crease of the umbilicus will sufficefor exposure to cut and tie the fallopian tubes, preventing, simultane-ously, access of the sperm to the egg proximally and of the egg to thesperm distally. The vaginal approach is done through a colpotomy in-cision and may be used after the uterus has shrunk to a size toosmall for easy access through the abdominal wall, which may occur somedays or some weeks after delivery. Both approaches carry a morbidityrate if not performed with great care, due to hemorrhage from the largeblood vessels close to the tube, or due to infection. There is even amethod failure rate of about one per cent where the cut tube opens andallows passage of the sperm or ovum. Nevertheless, tubal ligation is thebetter method for surgical sterilization of women, if performed at de-livery and under the same anesthetic used for childbirth. It is fast(usually less than twenty minutes operating time) and ninety-nine percent sure. Such surgery does not prolong hospital stay and eliminatespatient failure with minimum subsequent morbidity. In actual practice,however, tubal ligation is difficult for the patient to secure because ofresistance by physicians and hospitals in the states which have no legis-lative guide lines.In most hospitals, a doctor with a patient who wants a tubal liga-tion performed with delivery must submit the evaluation of the caseto a committee of physicians. Such committee is usually a combinedtherapeutic abortion-sterilization committee which immediately setsthe tone. Because the two are equated, there is an unfortunate blend-ing of the moral problems of abortion with an unrelated technique offamily planning. Most of the board doctors are quite reluctant to ac-cept an opinion on the part of the woman, her husband and her doc-tor that for socio-economic reasons alone the couple wants no morechildren. They will reject most proposals out of hand for unstated orobscure reasons. When the reasons are mentioned for rejecting appli-cants they include age, total number of pregnancies, "not enough"living children, possible improvement of economic level, possible deathof a living child, and regret of loss of reproduction with present or subse-quent marriage. The committee members often suggest a vas ligationfor the husband because that does not appear in the hospital recordssince it is done in a private physician's office and almost never as anin-patient case. They often will suggest that the couple return to con-ventional contraceptives that have failed in the past, without consider-ing that an additional mouth to feed dilutes the material support of theparents proportionately and creates economic injury. This dilution[Vol. XVIII: 560VOLUNTARY STERILIZATIONcould be enough to create a public charge at a time when we are inter-ested in diverting public support of families from its spiral of increase.The American College of Obstetricians and Gynecologists has rec-ommended socio-economic sterilizations on an age/parity (number ofchildren) ratio of 5 children at 25 years of age, 4 at 30 years, and 3at 35 years. Befor~e these guidelines were published, I had a patientwho at age 29 wished a tubal ligation with the birth of her sixth livingchild and was denied by a sterilization committee because she had nomedical illness. This is typical in hospitals that have not changed toor do not use the A.C.O.G. suggestions. At the other end of the spec-trum, there are hospitals using such standards where because thepatient does not fit the age-parity criteria, intellectual dishonesty iswidely practiced. Minimal medical problems such as varicose veins areinflated to become medical indications for sterilization. Or a hysterec-tomy is done some weeks after childbirth for "prolapse of the uterus."This is literally a falling out of the uterus as if the vagina had begunto turn inside out like the finger of a glove. Many of these cases haveno requisite relaxation of pelvic supports nor other clear indication forsurgery, and are done primarily for sterilization, substituting the lowmorbidity technique of tubal ligation for one with much higher mor-bidity and even mortality.Here is the quandary: We assume everyone has the "right" to marryand procreate. Can we not assume that the adult woman of sound mindwith the consent of her spouse has the right not to procreate? Sincetubal ligation is a surgical procedure quite like any other, how can onejustify the attitude of the doctors sitting in commitee, who feel theycan tell the patient that she may not decide to turn off her reproductivecapacity by this means? The fact is that they do so tell her, withoutany direction from the American Hospital Association, the AmericanMedical Association, their own hospitals (except where religion pro-hibits such operation), or the legislature of their states.There exists a remedy. If a patient were to apply well in advance ofdelivery, setting forth her knowledge of the availability of alternativecontraceptive techniques and of the possible method of failure of theoperation, requesting with the consent of her husband for socio-eco-nomic reasons only a surgical sterilization following the impendingbirth, and the request were rejected, action could and should be insti-tuted in the state courts for relief. The nature of the action or pro-ceeding would be determined by the procedural laws of the jurisdiction.Relief from capricious and arbitrary action by the medical commit-1969]DE PAUL LAW REVIEWtees would seem to be available by virtue of the decision of the Su-preme Court in Griswold v. Connecticut,8 establishing the constitu-tional protections afforded by the ninth amendment and by the dueprocess clause of the fourteenth. The lines of reasoning in the courtopinion reversing the Connecticut contraception law were diverse, butto my non-legal mind, the several routes followed were orderly andsequential in arriving at the same conclusion. The first eight amend-ments to the Constitution were presented as spelling out certain rights,which have been broadened to include certain other "rights" by priordecisions of the court. The first route, pursued by Mr. Justice Douglas,implied that a law forbidding the use of a contraceptive violates themarried couple's right of privacy as protected under the first amend-ment, has a "destructive impact upon their relationship, '4 and "sweepsunnecessarily broadly."5 Mr. Justice Harlan did not agree with this,but felt that the Connecticut law infringed upon the due process clause ofthe fourteenth amendment by violating basic values "implicit in theconcept of ordered liberty."6 Mr. Justice White similarly felt that thefourteenth amendment was infringed.The opinion of Justice Goldberg, with Justices Warren and Brennanconcurring, was even more germane to the present discussion. JusticeGoldberg contended that a law outlawing voluntary birth control"would unjustifiably intrude on rights of marital privacy which areconstitutionally protected." 7 Such reasoning was based on a previousCourt decision which held that among the rights not spelled out in thefirst eight amendments is "the right.., to marry, establish a home andbring up children,"" thus confirming marital privacy as constitutionallyprotected. The protection is additionally extended by the ninth amend-ment, which reads: "The enumeration in the Constitution, of certainrights, shall not be construed to deny or disparage others retained bythe people." Further, Justice Goldberg's evaluation of the intent of theframers of the Constitution was that the first eight amendments didnot exhaust the basic fundamental rights guaranteed to the people.8 381 U.S. 479 (1965).4 Id. at 485.5Id.Id. at 500; see also Palko v. Connecticut, 302 U.S. 319, 325 (1937).7 Supra note 3, at 497.8 Meyer v. Nebraska, 262 U.S. 390, 399 (1923).[Vol. XVIII:560VOLUNTARY STERILIZATIONTo hold that a right so basic and fundamental and so deep-rooted in our society asthe right of privacy in marriage may be infringed because that right is not guaranteedin so many words by the first eight amendments to the Constitution is to ignore theNinth Amendment and to give it no effect whatsoever. 9Since the fourteenth amendment has been held to prohibit the statesfrom abridging fundamental personal liberties, this application of theninth would similarly protect penumbral rights from state infringement."The entire fabric of the Constitution and purposes that clearly under-lie its specific guarantees demonstrate that the rights to marital privacyand to marry and raise a family are of similar order and magnitude asthe fundamental rights specifically protected."'" If one believed thatmarital privacy was not protected from infringement, state legislatureswould be free to experiment with the fundamental liberties of citizens.This argument is hypothetically advanced to include the possible pas-sage of a law demanding sterilization after two children, which theCourt holds to be a shocking violation of personal liberty.Yet, if upon a showing of a slender basis of rationality, a law outlawing voluntarybirth control by married persons is valid, then, by the same reasoning, a law requir-ing compulsory birth control also would seem to be valid. . . . [B]oth types oflaw would unjustifiably intrude upon rights of marital privacy which are constitu-tionally protected."Accordingly, if the Supreme Court believes that a law preventingvoluntary birth control, in the absence of compelling state interest, isunconstitutional and violates fundamental human rights, a suit in thestate courts would be similarly decided against a hospital committeewhich usurped legislative function by denying a petitioner a voluntarysurgical sterilization. This would leave the field clear for state legis-latures to enact laws spelling out the procedural techniques. A modellaw would hopefully include: requirements for initial application some-time in advance of delivery, allowing a cooling off period; an informedconsent in non-technical language, detailing possible failure of the pro-cedure; alternative methods of family limitation; and a clear statementthat usually the patient will never again be able to have a child. Underthese circumstances, the law would then prohibit doctors and hospitalsfrom barring a voluntary surgical sterilization upon a patient.9 Griswold v. Connecticut, 381 U.S. 479, 491 (1965).lo Id. at 495.11Id.1969]

Voluntary Sterilziation of Women as a Right

https://via.library.depaul.edu/cgi/viewcontent.cgi?article=3080&amp;context=law-review

Voluntary Sterilziation of Women as a Right

Abstract

Similar works

Full text

Available Versions

Via Sapientiae: The Institutional Repository at DePaul University