Vasectomy and comparative law

This work provides a comparative overview of the legal status of vasectomy in some developed countries and the need for informed consent. In recent years worldwide demand for contraceptive vasectomy has increased because of its speed efficacy and safety. Men wishing to terminate procreation whose wives have experienced contraindications to or failures of contraceptive methods have turned to vasectomy. But because vasectomy is not strictly speaking a preventive of curative medical act its legality is in question. Classically an intervention on a healthy man was not legal unless it improved his wellbeing in some way. French law permits therapeutic vasectomy but considers contraceptive or eugenic sterilization separately. Frances highest court ruled in 1937 that purely contraceptive sterilization is not legal and it reaffirmed the position in 1961. Nontherapeutic sterilization in France despite the absence of a specific legislative text does not occur in a legal vacuum; it has been considered a form of voluntary assault and battery. Elsewhere in Europe and in many other countries vasectomy for contraceptive purposes appears not to be illegal and may be specifically authorized by legislation or court decisions. Vasectomy does not appear to be practiced in Eastern Europe. Forced sterilization is a direct violation of the recognized human right to procreate. In France forced sterilization would be illegal because of its quality of cruel and unusual punishment sanctioned by international instruments. Apart from the universally condemned practice of forced sterilization by the Nazis some northern European states including Sweden Denmark and Germany impose surgical or chemical sterilization as a treatment for habitual sex offenders. The US state of Virginia and British Columbia and Alberta in Canada passed laws in the 1920s permitting sterilization of mental defectives without their consent. Consent of the subject is however ordinarily a requirement for sterilization. In French law an incapable person can only consent to a vasectomy if it is both therapeutic and urgent. In Great Britain it has been held that involuntary sterilization is not truly in the interests of the subject and is hence illegal. The consent of the spouse is considered desirable but not legally required. Informed consent appears to require that the subject be informed both of the risks inherent in any surgery and also of the possibility of failure. In the case of vasectomy the patient must be counseled to wait several weeks for sperm to pass out of the system and for tests to confirm sterility. Various court cases considering the legal liability of practitioners in cases of vasectomy failure have the effect of demonstrating that nontherapeutic sterilization is not absolutely illegal.