Council of State Ruling on Sterilization of Protected Adults

Extract

[...] The judgment rendered by the Council of State on September seized of an action for annulment brought by the Collectif contre l'handiphobie association with a view to obtaining the annulment of the implementing decree of Article L. 2123-2, questions the compatibility of this system with France's international human rights obligations, as enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights. The applicant argued that the contested provisions infringed the fundamental rights of disabled persons by potentially facilitating non-consensual interventions. [...]

[...] Sterilization as a last resort measure: a regulation guaranteeing the preservation of physical integrity and personal autonomy The restrictive conditions governing the sterilization decision: a requirement of proportionality and necessity. Article L. 2123-2 governs the sterilization of protected adults by subordinating it to strict conditions, such as the necessity of an absolute medical contraindication to other contraceptive methods or the proven impossibility of implementing them effectively5. The judgment V.C. v. Slovakia, no. 18968/07 of 08 November 2011 emphasizes the importance of ensuring robust procedural protections to prevent forced or non-consensual sterilization, stressing the need for strict regulation to respect fundamental rights. [...]

[...] Compliance of the legal regime with France's international commitments: a balance between the requirements for protecting rights and the imperatives of public health The Council of State checks that the regime governing sterilization respects the standards of the European Convention on Human Rights, particularly with regard to the right to private and family life (Article the prohibition of inhuman or degrading treatment (Article and the principle of non-discrimination (Article 14). The procedural guarantees put in place allow for the avoidance of any discrimination against people with disabilities. [...]

[...] This position highlights the inherent limits of the jurisdictional power of the administrative judge, particularly when it comes to verifying the conformity of internal norms with France's international commitments, particularly in the field of protection of fundamental rights. These jurisdictional constraints are particularly acute in the context of the sterilization of disabled persons, a sensitive subject that involves both the principles of human dignity, respect for physical integrity and personal autonomy, while taking into account public health imperatives. Indeed, the legal framework governing the sterilization of protected adults is set out in Article L. 2123-2 of the Public Health Code, introduced by Article 26 of the Law of July on voluntary termination of pregnancy and contraception. [...]

[...] The theory of the law-screen: an obstacle to the control of constitutional validity of administrative acts The consecration of the principle of separation of powers and the theory of the law-screen. The Council of State, in accordance with its classical jurisprudence Arrighi, 1936), affirm its impossibility to rule on the conformity of a decree taken in application of a law with the Constitution1. Recent developments and the introduction of the priority constitutional question If the QPC, introduced in 2008, now offers the possibility of contesting the constitutional lawfulness of a law a posteriori, this mechanism was not applicable at the time of the ruling2. [...]