Appeals Against Sterilization

Appeals from the order for sterilization come before a special court. In many cases there will have been a preliminary examination and report such as has been described. However, many other points have arisen than the question of diagnosis, and a number of appeals have been reported and discussed in a paper by Bostroem. Bostroem, in his introduction, criticizes the haphazard practice of doctors in regard to notification. There is no point in worrying the authorities with 60-year-old alcoholics and 10-year-old idiots, when the really dangerous - in regard to propagation - are not being touched. The pressing cases are the physically healthy men and women from sixteen to forty, young schizophrenics and manic-depressives in remissions, young subjects of hereditary blindness and deafness, etc. It is important to make sure of the capacity for procreation. It must not happen in future that, after months of proceedings costing a lot of money, it appears that the case should never have been brought. Further, everyone is entitled to be heard in his own defence. If not capable of taking steps himself, he must be represented. The doctor must see to this. The following are some of the more interesting cases:

1. A man under guardianship for mental defect was held by the court to be a psychopath [1] and not sterilizable. The difference between guardianship and sterilization laws is made clear. Guardianship depends entirely on social irresponsibility. Liability to sterilization is governed by other, biological, considerations.

2. A woman at the menopause, last period some months ago, still theoretically capable of bearing children, but not likely to. Sterilization not enforced. Compelling grounds must be shown for necessity of sterilization, not merely a theoretical possibility.

3. A man, aged 50, wife at menopause. Appellant has adult children. The theoretical possibility of producing children by extramarital intercourse held not sufficient to justify sterilization. There are a number of similar decisions.

4. A man, aged 57, is in an institution, and usually allowed out only in company. He has an interest in the other sex, but only as an exhibitionist. He looks so repulsive that it is inconceivable that any woman should wish to have to do with him. Sterilization was rejected on the grounds that he was under adequate supervision. His personal appearance was held to be beside the point, and no grounds for not enforcing the law.

5. A man, stupid, but a useful agricultural labourer. His brother, like himself, attended a special school. Previous history shows early death of the mother and a neglectful stepmother. He was held to lie on the boundary between normal stupidity (" landlaufige Unbegabtheit ") and deficiency. Sterilization not enforced. The court wished to postpone decision for a year. This is not permitted. On the other hand it is allowed to reintroduce proceedings at a later date if new facts, e.g. altered behaviour, justify it.

6. Woman of limited intelligence, husband the same. Although it was to be expected that only children of limited intelligence would be the result of this union, the limitation was not held to amount to mental defect. Sterilization rejected.

7. Three imbecile males, 14, 15, 19 years. The court allowed the appeal, because they can work on the land and show themselves useful members of society. The reduction in numbers of such people is not socially desirable. Bostroem remarks that it is all very well to be tender of "primitive personalities," but if they are imbecile they ought to be sterilized.

8. Female, aged 25, Normal school career, could never do any useful work, wanted to write stories and poems. In a girls' home was incapable even of finding her place at table, if it was changed. The court held mental defect proven on the following grounds: (a) Development uniform and continuous from childhood up. If she is mentally defective now, she was so congenitally. (b) Father is a psychopath. (c) Mother was for ten years in an asylum. Appeal dismissed.

9. Man. No proven mental defect, but he is an habitual criminal and recidivist of a bad type, guilty of crimes with violence. The court held that his abnormal behaviour justified the assumption of mental defect.

    In commenting on the above cases one notes, as indeed was to be expected, a certain lack of uniformity between court and court. One sees three imbeciles, who are capable of simple work on the land, encouraged to propagate their kind, and a criminal psychopath sterilized for mental defect. One notes the admission of irrelevant evidence. It is no good evidence of hereditary mental defect to show that the parents were respectively psychopathic and insane. In fact one is inclined to doubt the diagnosis of mental defect here altogether. The child was apparently normal in schooldays, and later developed a progressive change simulating a dementia. It seems not unlikely that this was a schizophrenia of the simplex type. Of course this also justifies sterilization, but it is poor law to do the right thing on the wrong grounds. One may note also a difference of principle between English criminal law and German sterilization law. One completed trial does not protect against a second charge for the same "offence." In the case of the three imbeciles, there may be grounds for assuming the influence on social psychiatry of the national-socialist Weltanschauung. Those "zuverlässige und treue Arbeitskrafte" and useful members of the "Volksgemeinschaft" are perhaps members of the party, and have demonstrated in that way their social desirability and suitability for procreation. This is pure supposition, but would at least be congruous. One notes that the law in its operation is tender of the merely stupid. Mental defect appears to have to be of considerable degree before becoming operative as a ground for sterilization. One remembers political speeches in which intelligence is rudely decried, and the ideal for the people is held out to be physical health and a capacity for unquestioning, uncritical obedience. For such a make-up, too high a degree of intelligence would be, if anything, a disadvantage. With this official attitude, the whole attitude towards mental defect is bound to undergo a change. Of the first importance to the German Government is that every citizen should be a good nationalsocialist. While no hereditary constitutional tendency to national-socialism has yet been demonstrated, one may hardly blame the judges for attempting to estimate the value of the individual as a whole. One case is known to me where hospital authorities arranged that an officer in the S.A. should not be sterilized merely for a slight attack of dementia pracox.

    As far as my information goes, the operation of the sterilization law is likely to prove costly. On an average it costs per woman 1,000 marks (£80) and 100-200 marks (£8-£16) each for men, inclusive of operation charges. In cases where there is an appeal, or where the patient is held in a psychiatric clinic for some weeks' observation, the cost would be considerably higher. The whole of these charges are borne by the State, which must mean, at the present rate of sterilization, a sum of about £2,000,000 a year. The patient, even if wealthy, pays nothing himself. Certain alterations are possible in the law. Criminals are not covered by it. It is very possible that a special law will be brought into force to cover them, or certain classes of them, which will be called by a different name, be administered by different officers, have a different procedure. Criminals were purposely omitted from the present sterilization law, as far as possible to obviate the idea that sterilization is a sort of punishment. There is no foundation for the idea, sometimes found outside Germany, that the law is administered in a partial way as a punishment for political offenders.

    There are other possible enlargements - e.g. to include the children of two recessive parents, and the monozygotic twin of a person already ordered to be sterilized. This could be taken as an improvement in the justice of the law. The phenotypically healthy twin is at least as dangerous eugenically as the sick twin. Further it is possible that there may be a new clause allowing voluntary sterilization to those individuals who, according to current conceptions, would be regarded as certainly heterozygotic, e.g. the children of a schizophrenic. This is hardly probable. The possibility that the law, at this date, may be converted into a law for voluntary sterilization altogether may be disregarded. It does not lie in the national-socialist philosophy to consider the possibility of getting anything done by voluntary effort.

    Apart from possible changes in the law, there is a possibility of a new orientation in its application. The appeal cases show that the law is not absolutely hard and fast, but that its administrators tend to be governed by other considerations than merely the diagnosis and fertility of the person concerned. This is illustrated by the case of a musician in Frankfurt-am-Main, a man of unusual musical ability, who had an attack of mania or depression and was ordered to be sterilized. He appealed against the order, and the appeal was allowed on the grounds that unusual hereditary (here musical) talent compensated, as it were, for the manic-depressive taint. This seems to me to indicate an alteration of the official attitude, i.e. the estimation of the individual as a whole, and not merely as the bearer of one or other particular hereditary taint.

[1] Both in German psychiatry and in the sterilization law there is a sharp distinction between the psychopathic and the psychotic. Only the following conditions render their subjects liable to sterilization: inborn hereditary defect, schizophrenia, circular (manic-depressive) insanity, hereditary epilepsy, hereditary (Huntington's) chorea, hereditary blindness, hereditary deafness, severe hereditary physical abnormality, severe alcoholism. Under the term "imbecile" is understood in Germany a considerably wider range of mental defect than in England.