In 1986 the Supreme Court of Canada rendered its decision in E. (Mrs.) v. Eve. In that case, an application was made by the mother of Eve asking the Court to consent under its parens patriae jurisdiction to the sterilization of her daughter for both menstrual management and contraceptives purposes. Eve was described by the trial judge as a 24 year old "mild to moderately" mentally incompetent person who "might be able to carry out the mechanical duties of a mother under supervision... [but] incapable of being a mother in any other sense." The Supreme Court of Canada concluded that an involuntary sterilization for a mentally incompetent woman for non-therapeutic reasons was unavailable in Canada. In rendering the Court's judgment, Justice LaForest stated, "...the procedure should never be authorized for non-therapeutic purposes under [the Court's] parens patriae jurisdiction." The "best interests" test has been widely adopted in Canada by both the courts and the legislatures as the standard of review when dealing with whether a substitute decision maker should be permitted to consent to a sterilization procedure for an incompetent person. The question asked is usually whether this procedure is in the best interests of the particular patient in question; if so, then a substitute decision maker may consent to the procedure on the patient's behalf. However, as will be shown, the courts have generally misapplied the criteria concerning what is in a patient's "best interests" and have focused on what is medically necessary or "therapeutic." Sadly, other important practical considerations affecting the social and mental well-being of the patient in question as well as those persons closely connected to this person have been discarded. This comment challenges the current "best interests" criteria as developed in the Eve case. The criteria are used to determine when it is appropriate to grant an involuntary sterilization order on behalf of a mentally incompetent person. It should be acknowledged at this point that my personal experience with my mentally incompetent sister is a factor in my discussion and additionally was an impetus for addressing this issue. It will be suggested that the "best interests test," in its current form, has not been properly applied by the courts as it ignores important realities of physical and mental trauma surrounding childbirth for some mentally incompetent adults. In addition, it is my view that the current "best interests" standard is insufficient in that it fails to consider the resulting burdens on a third party to care for the child where a mentally incompetent adult cannot. Both the history of eugenics in Canada and the requirement of informed consent have influenced the development of the "best interests" test and will thus be examined. Although valid in a contextual sense, I will argue that a more complete analysis of the best interests of a mentally incompetent person is needed - one that will examine the particular circumstances of the individual and those of a materially affected third party.
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Laura Fraser, "Sterilization: Choice, Right, or Requirement? A Comment on the Best Interests Test in Re Eve" (1998) 7 Dal J Leg Stud 163.