As an Obstetrician-Gynecologist, and as a member of the Society of Obstetricians and Gynaecologists of Canada (SOCG), I have had the opportunity to see the development of a law on forced sterilization as it has made its way through the legislative process. I understand the concerns of my fellow OB-GYNs. I would like to take this opportunity to provide reassurance and clarification from my own perspective.
I am not a legal expert; I am a clinically practicing general OB-GYN. The points below come from that perspective, and I hope my colleagues across the country will have the opportunity to learn what the amendment to the Criminal Code actually means.
The SOGC has raised concerns that unintended consequences may result from the passage of Bill S-228. While this could be true, the SOCG specifically has raised the possibility of hesitation during the provision of emergency care (such as massive postpartum hemorrhage or ruptured ectopic pregnancy). I would direct my colleagues across the country to the testimony provided by the legal experts of the Department of Justice who provided clarification on the interpretation and intention of this amendment.
In this testimony, the experts explained that care provided during life-threatening emergencies is protected from criminalization, specifically under Section 45 of the Criminal Code of Canada. OBGYNs may rest assured that when they are saving lives, they will not be held criminally accountable if those lifesaving measures result in permanent sterilization as a byproduct of that care. These situations are clearly excluded from the intent of the amendment as outlined in Bill S-228.
Secondly, the SOGC has raised the concern of “a chilling effect” on the provision of reproductive care out of fear of future reprisal. I quote the SOGC executives from their article in this publication: “If physicians fear criminal prosecution when providing consensual elective sterilizations or prescribing medications that could – at some future point – result in sterilization, some may choose to stop offering this care altogether.”
Once again, I direct my colleagues to the testimony from the Department of Justice experts who stated that Bill S-228 protects practitioners from criminalization, even in the event of future regret for voluntary sterilization or accidental sterilization when care is provided with free, prior and informed consent. They also stated that Section 45 of the Criminal Code remains in full force and will not be altered by the passage of the bill. The Department of Justice Canada states: “Section 45 of the Criminal Code of Canada protects individuals from criminal responsibility for performing surgical operations, provided the procedure is for the benefit of the patient, performed with reasonable care and skill, and is reasonable given the patient’s health and all circumstances.”
Another concern the SOGC raised in that same article was that decisions about reproductive health care do not belong in legislatures or courtrooms: “They must remain a medical decision made between a woman and her clinician. Using a blunt legislative instrument to address an acknowledged history of systemic racism and discrimination within the health system against Indigenous, racialized and marginalized populations is not the answer.”
I heartily agree that health-care decisions must remain between physicians and patients. However, criminal acts remain under the purview of the Criminal Code. Nonconsensual, forced or coerced sterilization is classified as aggravated assault. Prior to the clarification provided by Bill S-228, no survivor of forced or coerced sterilization has ever been criminally convicted under the law as it currently stands. Bill S-228 provides critical clarification and allows for a clear legal path forward for survivors to access the recognition of the harms they have endured; acknowledgment of these harms; and the legal accountability that survivors have requested to be present in the Criminal Code.
So, contrary to the SOGC’s statement, Bill S-228 sharpens the law so that it recognizes forced and coerced sterilization for what it is – aggravated assault. I would also remind Canadians and the SOGC that addressing an acknowledged history of systemic racism and discrimination within the health-care system against Indigenous, racialized and marginalized populations requires clear changes to how we approach health care, including legal clarification as to when such discrimination crosses into criminal actions.
This is an uncomfortable reality for us as physicians, who have hitherto operated under the illusion the status quo is adequate, whereas survivors of forced and coerced sterilization have fought for more than a decade for the recognition of the harms perpetrated against them to be recognized clearly and unmistakably as criminal acts. Bill S-228 centres the wishes of survivors and not the ongoing comfort of physicians.
Lastly, the SOGC has stated that the legal clarification provided by Bill S-228 might result in harms to patients: “Our concern is that this bill could paradoxically undermine the goal of safe reproductive care by eroding access to reproductive health services, putting women at real risk of harm.”
This concern is laudable. However, in my opinion, this concern highlights the critical importance of rapid, effective and widespread education of the profession so that OBGYNs can be reassured the care they provide while respecting the norms of free, prior and informed consent, as well as emergency care, are not targeted by Bill S-228.
The intention of Bill S-228 is to clarify the law on aggravated assault and not create any laws to accidentally or inadvertently target physicians providing care under currently accepted norms and methods.
