by MP for Aljunied GRC, Sylvia Lim
Overall, this Bill takes an important step to better align our Voluntary Sterilization Act (VSA) with certain international norms concerning the rights of disabled persons. However, the proof of progress will be in its implementation. I will also raise a concern about the bill later in my speech.
The Explanatory Note to the Bill states that this amendment seeks to align the VSA with the UN Convention on the Rights of Persons with Disabilities (“CRPD”), “by removing provisions which may lead to discrimination against disabled persons”. Turning to the CRPD, Article 23 states that countries should ensure that “Persons with disabilities, including children, retain their fertility on an equal basis with others.” In other words, the amendment should put disabled persons on par with others, as far as the decision to undergo sexual sterilization is concerned.
To this end, I agree that the current law does require amendment, as it is not satisfactory in several respects.
Under the existing section 3 of the VSA, a person with “any hereditary form of illness that is recurrent, mental illness, mental deficiency or epilepsy” will be liable to be sterilized if two conditions are satisfied – first, that the spouse, parent or guardian consents, and second, that a doctor confirms that it is “in the interest of the person undergoing such treatment and of society generally”. The section seems to assume that any person with a recurrent hereditary illness or any mental deficiency would be incapable of making up his or her own mind about sterilization, thus justifying the spouse, parent or guardian and a doctor taking over that decision. The current law also states that the doctor is the final gatekeeper of whether such sterilization is in the best interest of the person and of society generally. It is not clear from section 3 itself what considerations the doctor should take into account or how decisions had in fact been made in the past. The need to consider “society generally” also appears ambiguous, and may open the floodgates to eugenics where we only allow the fit to reproduce and the weak are denied the right to be accorded full human dignity.
To that extent, Clause 3 of this amendment bill seems to improve things. First, there is no longer a sweeping assumption that a person with a recurrent hereditary disease, epilepsy or mental deficiency is automatically not able to make these decisions; the new section 3 will allow others to decide only if the person is considered to be “mentally incapable” as defined by the Mental Capacity Act (MCA). Secondly, potential sterilizations of persons without mental capacity must be approved by the High Court. Such judicial oversight in itself will introduce more transparency and consistency in decision-making, as reasoned judgments may be published in law reports and serve to guide future cases. Thirdly, the amendment now makes it irrelevant to consider the interests of “society generally” as this phrase will be deleted from the section. The decision now whether a mentally incapable person should be sterilized will be based on the consideration of the “best interests of the person” alone.
What then amounts to the person’s best interests? This is not defined in the Bill, which instead directs us to Part II of Mental Capacity Act for the relevant principles and definitions. Under S 6 of the MCA, determining the “best interests of the person” lists many considerations including the person’s past and present wishes and feelings; it also requires the decision-makers to place themselves in the shoes of the person, to ascertain what the mentally incapable person would have likely decided on his / her own, considering the person’s wishes, beliefs and values. In addition, in deciding whether sterilization should be done on a mentally incapable person, the MCA principles would suggest that decision-makers should not be motivated by a desire to bring about the person’s sterility; this is analogous to S 6(5) of the MCA, where decisions on life-sustaining treatment should not be tainted by a desire to bring about that person’s death.
Sir, the reference in section 6 of the MCA to respecting the person’s beliefs and values is vitally important in decisions concerning sterilization. As we are aware, there is a sizeable group of Singaporeans, particularly from the Muslim and Catholic faiths, who do not endorse sexual sterilization for contraceptive purposes. The Voluntary Sterilization Act itself at Section 10 recognizes that there are Singaporeans who have “conscientious objections” to sexual sterilization. While those with mental capacity can decide for themselves what they wish to do, those without mental capacity will have this very personal and intimate decision made by others. Extra care should therefore be taken in implementing these provisions. Those entrusted with assessing whether sterilization would be in the best interest of a person with mental incapacity should accordingly give due weight to the person’s beliefs and values.