The Private Law Writing Prize is awarded to the best student paper(s) on a topic in private law. The annual competition is open to current U of T Law JD students and is awarded at the end of the academic year.
This year's prize is awarded to 1L student Ivy Xu for her paper "A Principled Approach to Battery in Forced Sterilization Cases".
Abstract: Many Indigenous women have experienced forced sterilization, a procedure that removes one’s capacity to reproduce without their consent. This paper explores the possibility of using the tort of battery to seek redress for these victims. Battery does not require proof of harm, but the difficulty lies in justifying an adequate level of damages, which calls for an inquiry into the nature of bodily integrity in the context of reproductive autonomy. Jurisprudence has been inconsistent as to what interest is at stake in a sterilization procedure and whether the ability to bear children is by default desirable. A narrow view of bodily integrity would treat sterilization as a one-time interference with the physical body. This view trivializes the Indigenous women’s identity and relational losses; and given stereotypes of Indigenous mothers, it fails to reflect the paternalistic and eugenic motivations behind targeted sterilization. I borrow Drucilla Cornell’s conception of the body as a process of self-imagination to formulate a broader view: bodily integrity includes the projection of one’s future parenthood or the lack thereof; and the body is a site for the idiosyncratic construction of one’s identity and communal membership. Under this view, the wrong in forced sterilization lies in the targeting of Indigenous identities and in the instrumentalization of the women’s bodies for the perpetrators’ own purposes. My proposed view thereby reconciles the collective cultural loss that Indigenous communities suffered with private law’s traditional focus on the individual. It is also consistent with jurisprudence on other types of medical batteries. Applying this view to forced sterilization cases, courts should not over-scrutinize the lack of tangible loss but instead account for the intersectional nature of the victims’ experience.
Read about the inaugural Private Law Writing Prize awardees
