B.2(b). Right to Bodily Autonomy

Every Person controls their own body. Every Person has the Right to make personal decisions about their medical care, physical appearance, and self-identification. They are protected from abuse and can make reproductive choices.

If we are serious about every person being equal, then there is no escape from the idea that every person is the sole person who can make decisions about their own body. If you claim I am equal, and you can say that I have to pierce my ear, but I can’t make the same pronouncement about you, then we aren’t really equal. That being the case, it is common sense that the only person who can make decisions about your body is you. The only person who can make decisions about my body is me.

Those decisions include what medicines I will or won’t take, how I can look, and how I understand myself and my body. No one can abuse me, and only I can decide whether I want children and what I can do about that.

State‑Intervention Standard. The government may intervene in personal decisions only when a Person is experiencing a mental crisis or other intellectual condition that renders them unable to make rational, self-directed choices. The mere fact that a decision is risky or may result in self-harm is not sufficient grounds for intervention, so long as the Person is capable of informed and rational judgment. Acts of protest, including hunger strikes or similar conduct, are expressions of autonomy and may not be interfered with. A Person’s decision to enter hospice care or make other permanent decisions about the course of their life shall be respected, provided they possess the capacity for rational self-determination.

Sometimes, there is a need to interfere with this autonomy. The only legitimate reasons are when someone is incapable of making informed decisions on their own behalf. Minors are one group of that sort, and they get discussed further down, but those who are mentally or emotionally incapable of rational and informed decisions are the other. The question becomes, when is it okay for the state to intervene? This sub-clause lays it out. The state may only intervene when the person involved is unable to make rational, self-directed choices.

Throughout this Charter, I avoid the “state-interest” test. I’ll do the same here. The government exists to secure rights. It can have no interests of its own. So, in whose interests can the state act in this case? We’ve already said that the only party with a legitimate interest is the person whose body is involved. So, the state can only act on the person’s behalf. Parents, children, friends, neighbors, employers, and so on are irrelevant. This is important because those who care about us might claim we aren’t capable of responsible decision-making if we decide to take a risk, but choosing risk doesn’t automatically mean irrationality. Furthermore, choosing to forego a long illness, or choosing to make an act of protest by hunger strike, or choosing to enter hospice care are not evidence of mental incapacity on their own, no matter how much our circle of people loves us.

These can be brutal, difficult decisions. They might even be rash ones, like refusing to take reasonable precautions during a pandemic. Onlookers may think these decisions are foolish, but as long as the person making them is capable of rational decisions, they are not evidence of mental incapacity. So, those decisions are protected. This subclause affirms our rights to make even risky or detrimental decisions.

Religious or Cultural Practices. When religious or cultural practices involve body modifications performed on others who are incapable of giving or withholding consent, such practices are only permissible when they do not cause permanent loss of physical function, capacity, or lasting trauma. Practices that permanently impair or remove bodily capacity, sexual pleasure, or autonomy are prohibited. This Charter distinguishes between cultural expression and irreversible harm.

I had to wrestle with this provision for a long time. Many parents circumcise their infant sons. This practice is generally well-accepted, and some even claim that it offers health benefits. On the other hand, what about the so-called “female circumcision,” which is also known as female genital mutilation (FGM)? It’s a practice explicitly aimed at preventing females from experiencing pleasure from sexual activity? How can one be okay, but not the other?

The line that I was able to draw is capacity. What does that mean? It means that, if a body modification (for example, piercing your infant’s ears, which is very common in the United States) causes no impairment to the organ or body structure’s function, it should be okay. That is, as long as it also does nothing to impair the person’s autonomy in the future.

So, according to that standard, circumcising a male infant seems fine – the primary functions are still intact, and there is nothing about the procedure that affects his autonomy in the future. There is still some debate on whether some functional sensation is lost. However, he still can use the affected body part, and he can still exercise his autonomy later in life to experience sexual pleasure.

On the other hand, FGM denies a female pleasure in the future. The structure is permanently impaired. What’s more, it has denied her a degree of sexual autonomy in the future, as well. She can never engage in sexual pleasure, even if she wants to. So, in that case, FGM would not be acceptable.