Eve was a 24 year-old mentally retarded woman living in PEI with a condition that made it very difficult for her to communicate with others. She was sent away from her mother, who cared for her, during the week so that she could attend a special school. Her mother was seeking the court's permission to perform a sterilization procedure (hysterectomy) on her daughter. There was considerable evidence that the daughter would be incapable of handling the burdens of motherhood. Eve had struck up a friendship with a boy from school, and discussed marriage, and her mother is afraid of the burden that would be placed on Eve, and ultimately upon herself to look after a child if pregnancy ensued. Permission was denied at trial, but granted at the Court of Appeal.
- Can a caregiver for someone incapable of giving informed consent make decisions about surgeries for the incapable individual?
La Forest, writing for a unanimous court, discusses the history of parens patriae jurisdiction, which states that the state is responsible for decisions concerning those that cannot give informed consent themselves. He says that the test is generally that the only procedures that will be allowed are ones that are in the "best interests" of the protected person. He focuses his criticism in this case on the fact that Mrs. E. is claiming that the burden on her to look after the child should be considered in making the decision. La Forest states that this should be given no consideration, as it is only the best interests of the protected person that are of concern.
He also says that arguing about the protected person's fitness as a parents involves value-loaded questions that result in a designation of disabled persons as less competent parents, even though there is significant evidence showing that they show as much fondness and concern for their children as anyone else. He also considers that the procedure of a hysterectomy is serious surgery and quite invasive, and further that Eve does not require assistance caring for her reproductive cycle, which is a concern in other cases. Perhaps most importantly, this surgery is not therapeutic.
La Forest concludes that "the grave intrusion on a person’s rights and the certain physical damage that ensues from non-therapeutic sterilization without consent, when compared to the highly questionable advantages that can result, [show that] it can never safely be determined that such a procedure is for the benefit of the person." The procedure should never be authorized for non-therapeutic purposes under the parens patriae jurisdiction.
- Non-therapeutic surgeries can never be determined to be for the benefit of a person who is incapable of giving informed consent.
- It is only the best interests of the disabled person concerned that are of importance; concerns of others should not be considered.