“Don’t let babies get in the way of your crack habit”

She has her father’s eyes… and her mommy’s addiction.”
“Get birth control… Get ca$h”

And so go the slogans perched high on US billboards advertising a sterilisation program run by Project Prevention. The not-for-profit organisation offers addicts $300 cash to be sterilised, in an attempt to  reduce the number of babies born addicted to drugs. In 2010, Project Prevention spread from the US into the UK, and as was reported, expects to be in Australia ‘real soon’[i].

To many it is simply a eugenics program, preventing the ‘undesirables’ of society from breeding. But those involved see it as a public service, improving the lives of drug addicts, who they say don’t usually want to be pregnant in the first place, and preventing harm to newborn babies.

But sterilisation is always a touchy subject because it was, for a period, the tool of eugenics movement[v]. Sterilisation of ‘undesirables’ was quite common in the 1920s in the US, UK and even Australia, but when the Nazi’s took it too far with the whole mass genocide thing, eugenics quickly fell out of favour. There are countless ethical issues that could be discussed, but for this post I will focus on what would happen legally (since laws are meant to be a reflection of a society’s morals) if Project Prevention expanded to Australia.

Today, sterilisations are freely available to competent adults, but the issue here is whether or not drug-dependent adults can be considered ‘competent’ and whether paying cash to addicts is financial coercion.

Since the addicts are being rewarded with cash, it is likely that they will use that money to purchase drugs. In Sydneyfor example, a payment of $300 would buy a whole gram of heroin, enough for 10 hits[vi]– an offer perhaps too good for an addict to refuse. The logic follows that if an addict would sacrifice anything to get their next hit, their ability to voluntarily consent is in question. It is based on the presumption that drug addicts have little regard for the fact that they are forfeiting their ability to have children, instead focusing only on their desperation to secure their next score.

However, one study found that 43% of ‘hard-core’ heroin users were employed with steady incomes[vii]. There is also the argument[viii] that we cannot consider financial coercion relevant since the heroin addict could get $300 in other ways. Even unemployed addicts are still capable of getting another hit through different means – they will have done so for months or even years before the offer from Project Prevention. Since the addicts face a choice – between sterilisation for money, or using their normal methods – it cannot be argued that the addicts were coerced. It is also unlikely that $300 is enough of an incentive to outweigh the large decision of never being able to have children, though whether this is rationalised in the decision process is uncertain and a matter of competency.

Competency refers to the ability to understand and assess consequences of decisions. The most widely accepted model for testing such competence is the Macarthur Model[ix] which requires all of the following:
1. The ability to understand a choice
2. The ability to appreciate a choice
3. The ability to rationally manipulate information
4. The ability to communicate a choice.
The question is, do addicts have these capacities while intoxicated or in withdrawal?

One argument is that addicts are always within two frames of mind: intoxicated, or in a constant state of craving, both which cloud their ability to consent[x].This idea of the overwhelming power of cravings and withdrawal is supported by the idea that heroin addiction by nature involves a loss of ability to resist the desire for heroin[xi]. As the famous Cynthia’s dilemma [xii] goes, “if you’re addicted to heroin, by definition you can’t say no to the stuff.”

The argument is that heroin addicts care too much about the benefits of the sterilisation (the cash). In a similar way, depressed people are often deemed incompetent for medical procedures because they care too little about the risks (who cares if I die?).  The idea is that addicts cannot rationally weigh the risks and benefits of the trial, since “their sense of value is so warped and biased by addiction.[xiii]

It is a valid point, but in Australia, the courts have often stated that addiction does not make you incapable of decision making and thought-processing. For example, in R v Henry Barber Tran Silver Tsoukatos Kyroglou Jenkins, Chief Justice Wood stated that “the need to acquire funds to support a drug habit is not an excuse to commit an armed robbery, and of itself, not a matter of mitigation.” [xiv]

“Individuals do emerge from addiction. They do so with difficulty and generally need significant amounts of help. The decision to persist with an addiction, rather than to seek assistance, is also a choice.”

If the courts maintain that addicts have a choice in deciding whether or not to conduct robbery to fund their addiction, it follows that it they are capable of consent to other decisions, even if it results in money for their next hit.

Some may argue that addicts could be considered mentally ill- addiction does cause significant physical changes to the brain for example. However, section 16.1 (k) of the Mental Health Act (NSW) states that having taken alcohol or drugs does not make a person mentally ill. It’s almost a pity because if they were classified as mentally ill they would be covered by section 68 (a) which says that: the prescription of medicine to a person with a mental illness or mental disorder should meet the health needs of the person and should be given only for therapeutic or diagnostic needs and not as a punishment or for the convenience of others.

And isn’t that essentially what Project Prevention is going? Punishing addicts for their decisions in life, for the convenience of the rest of us who have to pay for the treatment, and care for, their potential children.

In summary, under current Australian case law and legislation, there is nothing that overtly criminalises the payment of drug addicts to undergo sterilisation. Addicts are not afforded the protections given to the mentally ill, their decisions regarding their actions are considered a choice by the courts and they are considered autonomous agents with rights and liberties. 

This is not to say however that the courts would not assess the scenario differently in terms of its social consequences. The project makes the underlying statement that babies born to addict mothers are better to have not been born at all. It is for a similar reason that the courts disallow wrongful birth claims (after all, who wants to live in a society where parents can bring law suits to say that their child is better off dead? Oh right, Americans…)

*This looks solely at the legality of sterilisation in Austrlian law. It should be noted that Project Prevention also offers long term birth control to addicts, but with reduced payments.

[i] Carey, A. 2010. Charity `preys on weak, addicted`. The Age, Australia. Available: http://www.theage.com.au/national/charity-preys-on-weak-addicted-20101019-16sjp.html?from=age_sb

[ii] Black, K., Stephens, C., Haber, P., and Lintzeris, N. 2012. Unplanned pregnancy and contraceptive use in women attending drug treatment services. The Australian and New Zealand Journal of Obstetrics and Gynaecology, 52(2): 146-150

[iii] National Institute of Drug Abuse.2011. Topics in Brief: Prenatal expose to drugs of abuse. National Institutes of Health, United States. Available: http://www.drugabuse.gov/publications/topics-in-brief/prenatal-exposure-to-drugs-abuse

[iv] Sawine, J. 2010. Drug addict sterilised for cash – but can Barbara Harris save our babies. The Telegraph,UK.

[v] O`Neill, N and Peisah, C. 2011. `Sterilisation` in, Capacity and Law. Sydney University Press, Australia. Available: http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/SydUPLawBk/2011/

[vi] Edwards, M. 2008. Opium production surge ends. ABC Radio, Australia. Available: www.abc.net.au/pm/content/2008/s2182610.htm

[vii] Faupel, C.E. 1988. Heroin Use, Crime and Employment Status. Journal of Drug Issues, 18 (3): 467-479

[viii] Foddy, B. And Savulescu, J. 2006. Bioethics, 20 (1): 1-15. Available: http://www.neuroethics.ox.ac.uk/__data/assets/pdf_file/0013/16060/Foddy_and_Savulescu_-_Addicts_Consent.pdf

[ix] Hoge, S., Bonnie, R., Poythress, N., Monahan, J., Eissenberg, M. And Feucht-Haviar, T. 1997. The MacArthur Adjudicative Competence Study. Law and Human Behaviour, 21 (2): 141-179

[x] Charland, op cit

[xi] Charland, L. 2002. Cynthia`s Dilemma: consenting to heroin prescription. American Journal of Bioethics, 2 (2): 37-47

[xii] Ib id, p.37

[xiii] Ib id, p. 40

[xiv] R v Henry Barber Tran Silver Tsoukatos Kyroglou Jenkins [1999] NSWCCA 111 (12 May 1999) Available: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCCA/1999/111.html?stem=0&synonyms=0&query=mental%20illness%20addiction

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