Skip to main content
January 21, 2019

Should people with mental illness have children?

The High Court in England, in a recent decision, made a landmark decision that allowed vasectomy to be conducted on a man with learning disabilities. In NHS Trust vs DE & Others [2013] EWHC 2562 (Fam), the court exercised its powers to decide what would be the best interest of a man with learning disabilities when it came to him having children.  

The court decided that it is in the best interest of the man to have a vasectomy, so that he does not have any more children. The court noted that with his disability, he did not have the capabilities to use other forms of contraception effectivelye.g. condoms, hence the need for him to undergo the procedure.

 In Kenya, the Mental Health Act provides the legal framework for such kind of orders to be made. Section 28 (1) provides that the court may, upon application made to it by petition concerning any matter connected with a person suffering from mental disorder or with his estate, make such order regarding such application as the court may think fit. This provision gives the courts jurisdiction to make any order, in respect to a person living with a mental disability, in his best interest.

 One of the issues that arise from the foregoing decision is the power and authority of the state or court to limit rights of individuals, so as to protect the rights of others. Article 24 of the Kenyan constitution provides for the instances when rights of individuals can be limited. Subsection (1) provides that  a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including:

(athe nature of the right or fundamental freedom;

(bthe importance of the purpose of the limitation;

(cthe nature and extent of the limitation;

(dthe need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

(ethe relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.


The above judgement depicts the power of the court to limit the enjoyment of certain rights for certain individuals. When deciding on whether to limit the right or not, the court must be guided by the best interest of the person. People living with disabilities have a right to be treated with dignity, as enshrined in Article 54 of the constitution. The court must ascertain whether the intended action violates this right or not.

 In determining if and when to limit rights as is in the above case, there must be a balance of all competing interests of all the people involved. In the above case the court had to balance between the right of the man to have children and be entitled to family, vis-a-vis the rights of the children that will be born. It is obvious that a child born to such a man will not enjoy proper parenting from the father.  

 Issues of privacy are also brought to the forefront in such kind of an action. The right to privacy is enshrined in the constitution, article 31, which provides that every person has the right to privacy, which includes the right not to have:

(atheir person, home or property searched;

(btheir possessions seized;

(cinformation relating to their family or private affairs unnecessarily required or revealed; or

(dthe privacy of their communications infringed.

Any court action seeking to make orders as in the above judgement will delve deep into the privacy of the individual. In the proceedings of the above case, the sex life of the man was brought out in court. The court must make safeguards to ensure privacy and strike a balance in making orders that do not unnecessarily interfere with the persons private life.

 The recommendations of the court to subject the man to vasectomy bring to the fore the health consequences of the procedure. Article 43 (1) (a) provides that every person has the right  to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.  

The court has to look at the health consequences of the proposed procedure and the lifetime effects the same will have on the person. This will be analysed vis-a-vis the best interest. The above decision illustrates the powers of the courts to limit certain rights within the framework of the best interest of a person, so as to guarantee the enjoyment of other rights.

Poll of the day