STUDY OF JUDICIAL DECISIONS

OBJECTIVE CRITERIA FOR DEFINING CIVIL CAPACITY IN STERILIZATION DECISIONS IN WOMEN WITH INTELLECTUAL DISABILITIES

Abstract

This paper intends to answer the following research problem: are there objective criteria applied in judicial decisions authorizing compulsory sterilization in women with intellectual disabilities to define (in) capacity? Therefore, it is necessary to address the following themes: how the model of rational persuasion is adopted in the judicial decision-making process when it comes to sterilization, in the perspective of 2 highly publicized cases in 2017; explain and describe how the sample of decisions was collected in order to answer the problem. As methodology is concerned, it was adopted a qualitative-quantitative approach, using secondary data obtained from the verification of reports and grounds considered in judicial decisions that were examined from the perspective of the Decision Analysis Methodology (MAD). Judicial decisions studied were issued by State Courts of the 27 States of the Federation and Superior Courts that are available on the official website of each Court. It points out the absence of objective criteria that contribute to the construction of judgments, mainly due to the lack of regulation of the Family Planning Law. Only 3 decisions presented thorough justifications for identifying (in) capacity in women with intellectual disabilities, namely: report by an official expert to certify physical and mental condition; medical report, and social work assessment.