Conservatorship of the Person of VALERIE N. MILDRED G., as Conservator, etc., et al., Petitioners and Appellants, v. VALERIE N., Objector and Respondent.
S.F. No. 24745
Supreme Court of California
Oct. 21, 1985.
40 Cal. 3d 143
Allen H. Fleishman and Fleishman & Jensen for Petitioners and Appellants.
Frank O. Bell, Jr., and Quin Denvir, State Public Defenders, under appointment by the Court of Appeal, Paul D. Fogel and Ezra Hendon, Deputy State Public Defenders, for Objector and Respondent.
Eric R. Gelber and Carolyn Schneider as Amici Curiae on behalf of Objector and Respondent.
OPINION
GRODIN, J.—Mildred and Eugene G., her mother and stepfather, are coconservators of the person of their adult developmentally disabled daughter
We are asked to determine whether
We shall conclude that the Legislature, in enacting
I.
Valerie was born on July 13, 1955, apparently a victim of Downs Syndrome as a result of which she is severely retarded. Her IQ is estimated to be 30. She is now 29 years old. She lives with her mother and stepfather. Although she has no comprehension of the nature of these proceedings, she has exрressed her wish to continue to have her parents care for her. Her parents’ long range plan for Valerie is that she will move to a residential home should they become mentally or physically unable to care for her. She has received therapy and training for behavior modification which was not successful in eliminating her aggressive sexual advances toward men. Her parents are attempting to prepare her for the time when they can no longer care for her, and to broaden her social activities as an aspect of this preparation. They have concluded that other methods of birth control are inadequate in Valerie‘s case.
On September 5, 1980, appellants filed their petition to be named conservators of Valerie‘s person in the Santa Clara County Superior Court pursuant to
On September 25, 1980, after review of a court investigator‘s report which stated that Valerie had no comprehension of the proceedings, could not complete an affidavit of voter registration, and gave no pertinent response when asked if she objected to being disqualified from voting, the probate court granted the petition insofar as it sought appointment of appellants as coconservators. The court continued the hearing on the request for additional powers, however, and appointed counsel to represent Valerie.5
On December 10, 1980, when the hearing resumed, appellants submitted a declaration by a physician who had treated Valerie from the time she was 10 years old. He stated that in his opinion a tubal ligation procedure was “advisable and medically appropriate in that a potential pregnancy would cause psychiatric harm to VALERIE.” A second declaration, this by a licensed marriage, family and child counselor having a masters degree in developmental psychology, was also submitted. This declarant had worked with Valerie on a weekly basis for a year during 1977-1978. She believed that a tubal ligation was “an appropriate means of guarding against pregnancy,” and had observed that Valerie acted “affectionately” toward adult men and made “inappropriate” sexual advances toward them. This dеclarant was of the opinion that because Valerie‘s parents had found it necessary to be overly restrictive in order to avoid a possible pregnancy which would have “severe psychologically damaging consequences” to Valerie, close monitoring had severely hampered Valerie‘s ability to form social relationships. She also believed that the level of Valerie‘s retardation meant that no alternative birth control methods were available that would ensure against pregnancy.
Valerie‘s mother testified that Valerie had not been sexually active, apart from masturbation, because she had been closely supervised. She was aggressive and affectionate toward boys. On the street she approached men, hugged and kissed them, climbed on them, and wanted to sit on their laps. Valerie had been given birth control pills in her early teens, but she rejected them and became ill. Her doctor then recommended the tubal ligation. Valerie was unable to apply other methods of birth control such as a diaphragm, and would not cooperate in a pelvic examination for an intrauterine device which the witness believed was unsafe in any event.
No evidence was offered to establish that Valerie is capable of conceiving, and other than the opinions of her mother and the family counselor no evidence was offered to establish that alternative less intrusive methods of birth control are unavailable.
The trial judge then denied the request for additional powers, explaining he believed both that sterilization was in order and that
The parties agree that
II.
Statutory Development
A. Involuntary Sterilization in California.
In 1909, California enacted this state‘s first statute permitting sterilization of developmentally disabled individuals. That authоrity extended only to
That law was repealed in 1913, and replaced with authority to “asexualize” committed mental patients and developmentally disabled persons prior to their release from state institutions, and developmentally disabled minor and adult patients in state hospitals.7 In 1917 section 1 of the statute was amended to make it applicable to developmentally disabled adults. It then provided that prior to discharge a person “who is afflicted with mental disease which may have been inherited and is likely to be transmitted to descendants, the various grades of feeble-mindedness, those suffering from perversion or marked departures from normal mentality or from disease of a syphilitic nature,” might be asexualized. (Stats. 1917, ch. 489, § 1, p. 571.) No hearing procedure was provided and no judicial approval was required under any of these statutes.
Twenty-two states enacted similar legislation and, as a “pioneer” in the field, California performed the greatest number of sterilization operations.
Codified as
significant procedural protections were added, the nomenclature of eligible patients was changed to substitute “mental deficiency” for “feeble-mindedness,” and subdivisions (c) and (d) were combined into a single category of persons exhibiting “marked departures from normal mentality.”10 After being renumbered as
B. Revision of the Guardianship-Conservatorship Law.
During the 40-year period during which involuntary sterilization was permissible significant advances occurred both in understanding of the causes of mental retardation, and in public awareness that many developmentally disabled persons lead self-sufficient, fulfilling lives, and become loving, competent, and caring marriage partners and parents.13 In 1978 the California Law Revision Commission submitted to the Legislature a draft of a new guardianship-conservatorship law which expressly denied the probate court jurisdiction to grant conservators the power to cause their wards and conservatees to be sterilized.14 Affording safeguards, rather than barring sterilization, was the basis for the proposal, however, and sterilization would have been available under this proposal if the conservatee were admitted to a state hospital. As proposed,
Before enacting the new Guardianship-Conservatorship Law recommended by the Law Revision Commission, however, the Legislature repealed
C. The Lanterman Developmental Disabilities Services Act.
In 1977, the Legislature, possibly concerned about the rising tide of criticism of compulsory sterilization,16 and by then fully aware of the importance of providing services to developmentally disabled persons to assist them in remaining in noninstitutional settings, enacted the Lanterman Developmental Disabilities Services Act (LDDSA). (
The LDDSA reflected a change in legislative attitude toward the mentally retarded, a change which found impetus in the recommendation of the Study
The centers were to make community services accessible, provide special services where necessary, and provide home services for the “mildly retarded [who] may be enabled to live at home if they receive occasional visits from a public health nurse or homemaker . . . .” (Id., at p. 53.)17
The report also recommended that residential facilities be provided for mentally retarded persons who could not live independently, but were not in need of the services of a state hospital which then was the only public institution for the mentally retarded in California. (Id., at pp. 70-71.) These facilities “would reflect a concern with these people as individuals and would make it possible for them to enter into community life insofar as they are able. It would also facilitate normal family and neighborly relationships, which are harder to achieve in a large institution.” (Id., at p. 74.) The study commission recommended further study of a proposal that sterilization be made available when necessary to achieve this purpose.
The Legislature undertook to implement the proposed reforms in a series of steps which culminated in the LDDSA. The California Mental Retardation Services Act of 1969 was enacted to restructure the provision of services to the mentally retarded which had been the responsibility of eight state agencies and numerous local programs. That act, former division 25 of the Health and Safety Code (commencing at former § 38000; Stats. 1969, ch. 1594, § 1, p. 3234) provided for regional centers to be operated by private, nonprofit community and local agencies to provide services to the mentally retarded and their families. It prohibited judicial commitment of persons who were not a danger to themselves or others to state hospitals on referral by a regional center, and authorized the regional centers to purchase out-of-hospital care for the mentally retarded.18
The final impetus for the LDDSA occurred in 1975 when federal legislation expanded the type of services to be afforded the developmentally disabled by states receiving federal funding for their programs. In that year Congress enacted the
When the LDDSA was enacted in 1977 sterilization continued to be available under
Under the LDDSA, regional centers contract with the Department of Developmental Services to seek out and assist developmentally disabled persons within the service area for which they are responsible.20 Among the services available to persons within a regional center‘s service area are “preventive services” needed by persons identified as being at risk of parenting a developmentally disabled infant. (
The Legislature has given high priority to the provisions of services necessary to enable children to remain in the home of their parents when this is a preferred objective in an IPP. (
The regional center is also authorized to purchase out-of-home care for developmentally disabled clients in licensed community care facilities, or assist in placement and follow-along services for those individuals who cannot remain in the home of a parent or relative. (
The legislative intent that developmentally disabled persons be assisted in achieving their maximum developmental potential is express in the findings set forth in
Nonetheless, neither the provision for preventive services nor any other provision of the LDDSA authorizes sterilization of nonconsenting persons even when necessary to achieve these goals, and the Legislature took no action to amend the LDDSA either in conjunction with the enactment of
III.
Constitutional Rights of the Developmentally Disabled
Our conclusion regarding the present legislative scheme requires that we confront appellants’ contention that the scheme is unconstitutional. Both appellants and counsel for Valerie pose the constitutional question in terms of the right of procreative choice. Appellants argue that
The right to marriage and procreation are now recognized as fundamental, constitutionally protected interests. (Loving v. Virginia (1967) 388 U.S. 1, 12; Skinner v. Oklahoma (1942) 316 U.S. 535, 541; Perez v. Sharp (1948) 32 Cal.2d 711, 714; People v. Pointer (1984) 151 Cal.App.3d 1128, 1139.) So too, is the right of a woman to choose not to bear children, and to implement that choice by use of contraceptive devices or medication, and, subject to reasonable restrictions, to terminate a pregnancy. These rights are aspects of the right of privacy which exists within the penumbra of the
Although the Supreme Court has not considered the precise question of the right to contraception in the context of an assertion that the right includes sterilization, that sterilization is encompassed within the right to privacy has been acknowledged in this state. (Jessin v. County of Shasta (1969) 274 Cal.App.2d 737, 748.) Since Jessin was decided this court has affirmed the constitutional stature of the right of women to exercise procreative choice “as they see fit.” (Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252, 263.)
In its enactment of
In Roe v. Wade, supra, 410 U.S. 113, the court concluded that an unmarried woman‘s fundamental right not to bear children could be found within the right to privacy, whether the privacy right arises out of the penumbra of the
The liberty interest which the court recognized as a substantive right protected against arbitrary deprivation by the due process clause of the
Although denominated “habilitation” in the context of the developmentally disabled, the right in issue, one which we have no doubt is
An incompetent developmentally disabled woman has no less interest in a satisfying or fulfilling life free from the burdens of an unwanted pregnancy than does her competent sister. Her interest in maximizing her opportunities for such a life through habilitation is recognized and given statutory protection by both the LDDSA and the DDA. If the state withholds from her the only safe and reliable method of contraception suitable to her condition, it necessarily limits her opportunity for habilitation and thereby her freedom to pursue a fulfilling life.25 Therefore, whether approached as an infringement of the right of privacy under the
The
[REDACTED] Respondent suggests that the interest of the state in safeguarding the right of an incompetent not to be sterilized justifies barring all nontherapeutic sterilization of conservatees who are unable personally to consent. We do not doubt that it is within the police power of the state to enact legislation designed to protect the liberties of its residents. The inquiry does not end there, however, since the means selected are not simply protective of a liberty interest, but restrict the exercise of other fundamental rights by or on behalf of the incompetent. The state has not asserted an interest in protecting the right of the incompetent to bear children. Neither the “involuntary imposition” of other forms of contraception, nor abortion, has been banned. A conservator is permitted to exercise his or her own judgment as to the best interests of the conservatee in these matters, excepting only the election of sterilization as a means of preventing conception.
The state interest therefore must be in precluding the option of sterilization because it is in most cases an irreversible procedure. Necessarily implicit in the interest asserted by the state is an assumption that the conservatee may at some future time elect to bear children. While the prohibition of sterilization may be a reasonable means by which to protect some conservatees’ right to procreative choice, here it sweeps too broadly for it extends to individuals who cannot make that choice and will not be able to do so in the future. The restriction prohibits sterilization when this means of contraception is necessary to the conservatee‘s ability to exercise other fundamental rights, without fulfilling the stated purpose of protecting the
Respondent argues that the ban is, nonetheless, necessary because past experience demonstrates that when the power to authorize sterilization of incompetents has been conferred on the judiciary it has been subject to abuse. Again, however, the rationale fails since less restrictive alternatives to total prohibition are available in statutory and procedural safeguards as yet untried in this state. Respondent offers no evidence of abuse in other jurisdictions in which the option has been made available.
The courts of several of our sister states share our view that sterilization may not be denied to incompetent women when necessary to their habilitation if that determination is made in proceedings which accord safeguards adequate to prevent the abuses feared by respondent. Among the first to do so was the Supreme Court of Washington which, faced with the same conflicting interests, reviewed the factors to be considered in a decision to permit sterilization and suggested procedural safeguards appropriate to avoid abuse. Those procedures have since been accepted by courts in other states in which the judiciary had jurisdiction to authorize sterilization.
In Matter of Guardianship of Hayes (1980) 93 Wn.2d 228 [608 P.2d 635, 640-641], the Washington court concluded: “[I]n the rare case sterilization may indeed be in the best interests of the retarded person. . . . However, the court must exercise care to protect the individual‘s right of privacy, and thereby not unnecessarily invade that right. Substantial medical evidence must be adduced, and the burden on the proponent of sterilization will be to show by clear, cogent and convincing evidence that such a procedure is in the best interest of the retarded person.
“Among the factors to be considered are the age and educability of the individual. For example, a child in her early teens may be incapable at present of understanding the consequences of sexual activity, or exercising judgment in relations with the opposite sex, but may also have the potential to develop the required understanding and judgment through continued education and developmental programs.
“A related consideration is the potential of the individual as a parent. . . . [M]any retarded persons are capable of becoming good parents, and in only a fraction of cases is it likely that offspring would inherit a genetic form of mental retardation that would make parenting more difficult.
“. . . . . . . . . . . . . . . . . . . .
“The decision can only be made in a superior court proceeding in which (1) the incompetent individual is represented by a disinterested guardian ad litem, (2) the court has received independent advice based upon a comprehensive medical, psychological, and social evaluation of the individual, and (3) to the greatest extent possible, the court has elicited and taken into account the view of the incompetent individual.
“Within this framework, the judge must first find by clear, cogent and convincing evidence that the individual is (1) incapable of making his or her own decision about sterilization, and (2) unlikely to develop sufficiently to make an informed judgment about sterilization in the foreseeable future.
“Next, it must be proved by clear, cogent and convincing evidence that there is a need for contraception. The judge must find that the individual is (1) physically capable of procreation, and (2) likely to engage in sexual activity at the present or in the near future under circumstances likely to result in pregnancy, and must find in addition that (3) the nature and extent of the individual‘s disability, as determined by empirical evidence and not solely on the basis of standardized tests, renders him or her permanently incapable of caring for a child, even with reasonable assistance.
“Finally, there must be no alternative to sterilization. The judge must find by clear, cogent and convincing evidence (1) all less drastic contraceptive methods, including supervision, education and training, have been proved unworkable or inapplicable, and (2) the proposed method of sterilization entails the least invasion of the body of the individual. In addition, it must be shown by clear, cogent and convincing evidence that (3) the current state of scientific and medical knowledge does not suggest either (a) that a reversible sterilization procedure or other less drastic contraceptive method will shortly be available, or (b) that science is on the threshold of an advance in the treatment of the individual‘s disability.”
The Massachusetts Supreme Court, noting that denying the same right to procreative choice to persons whose disability makes them reliant on others as it extends to competent persons degrades the disabled, and therefore has construed that state‘s statute which prohibits sterilization except with the knowledgeable consent of the patient as permitting the consent to be given
The New Jersey Supreme Court, rejecting an argument that absent statutory authority the court may not approve sterilization of an incompetent, has expressly recognized that an incompetent has the same constitutional right of privacy to choose whether or not to be sterilized as does a competent person, and has concluded that the court has inherent power to permit the procedure to be performed. “We do not pretend that the choice of [the incompetent‘s] parents, her guardian ad litem, or a court is her own choice. But it is a genuine choice nevertheless—one designed to further the same interests she might pursue had she the ability to decide herself. We believe that having the choice made in her behalf produces a more just and compassionate result than leaving [her] with no way of exercising a constitutional right. Our Court should accept the responsibility of providing her with a choice to compensate for her inability to exercise personally an important constitutional right.” (In re Grady, supra, 426 A.2d at p. 481.) The Alaska Supreme Court reached a similar result, holding that as a court of general jurisdiction the Alaska Superior Court had the power as part of its parens patriae authority to entertain a petition by the guardian of an incompetent and to approve sterilization. (Matter of C.D.M., supra, 627 P.2d 607.)27
We do not suggest that the procedures adopted by these courts are the only or the best criteria and procedures adequate to simultaneously preserve the right of an incompetent person to bear children and to be free of intrusive medical and surgical procedures, while permitting the exercise by others of an incompetent‘s countervailing right not to bear children when the individual is incapable of personally exercising these rights. We note them by way of example as less drastic alternatives to section 2356, subdivision
True protection of procreative choice can be accomplished only if the state permits the court-supervised substituted judgment of the conservator to be exercised on behalf of a conservatee who is unable to personally exercise this right. Limiting the exercise of that judgment by denying the right to effective contraception through sterilization to this class of conservatees denies them a right held not only by conservatees who are competent to consent, but by all other women. Respondent has demonstrated neither a compelling state interest in restricting this right nor a basis on which to conclude that the prohibition contained in section 2356, subdivision (d), is necessary to achieve the identified purpose of furthering the incompetent‘s right not to be sterilized.
Our conclusion that section 2356, subdivision (d), is constitutionally overbroad, and may not be invoked to deny the probate court authority to grant a conservator the power to consent to sterilization in those cases in which no less intrusive method of contraception is available to a severely retarded conservatee, does not open the way to unrestricted approval of applications for additional powers. Pending action by the Legislature to establish criteria and procedural protections governing these applications the procedures governing approval of intrusive medical procedures set forth in
Even as to those intrusive medical procedures permitted after court authorization the Legislature has required a judicial determination that the condition of the conservatee “requires the recommended course of medical treatment.” (
Inasmuch as there was neither evidence of necessity for contraception, nor sufficient evidence that less intrusive means of contraception are not presently available to Valerie, the judgment is affirmed. The affirmance is, however, without prejudice to a renewed application for additional powers at such time as appellants have available adequate supporting evidence.
Mosk, J., Broussard, J., and Kaus, J.,* concurred.
REYNOSO, J.—I concur and dissent. I concur in the affirmance of the judgment. On this record Valerie should not be subjected to an operation.
*Retired Associate Justice of the Supremе Court sitting under assignment by the Chairperson of the Judicial Council.
LUCAS, J., Concurring and Dissenting.—I concur in the affirmance of the judgment, but I cannot join in the majority‘s analysis which leaves open the possibility of Valerie N.‘s sterilization, done in the name of her “habilitation.”
Our opinion in In re Hop (1981) 29 Cal.3d 82 [171 Cal.Rptr. 721, 623 P.2d 282], affords an illuminating backdrop for this case. There, we considered a scheme under which nonobjecting mentally retarded persons incompetent to request hospital placement could “voluntarily” be so placed at the request of a person other than a duly authorized conservator or guardian. No judicial determination of disability or need for such placement was required. In the course of disapproving that procedure, we noted a contradiction inherent in the scheme: “Hop is presumed sufficiently competent to understand the need for her to object to her placement when it has been initiated by a third party, her mother. At the same time she is presumed incompetent to a degree which would prevent her from requesting admission or, once confined, obtaining unilaterally and without review her own release.” (Id., at p. 90.)
The analytical fallacy we explored in Hop is echoed and expanded upon in the present case. The majority acknowledges that the incompetent is, by definition, unable to make a choice. Nonetheless, it concludes that “she has a constitutional right to have these decisions made for her, in this case by her parents as conservators, in order to protect her interests in living the fullest and most rewarding life of which she is capable.” (Ante, at p. 160.) However, while she has a constitutional right to have a “substituted choice” made on her behalf to effectuate her constitutional rights to be free of her procreative capabilities in order to advance her right to habilitation, the former “right” is severely circumscribed by the assertion that there is no intention to “open the way to unrestricted approval of applications for additional powers” to enable sterilizations to take place. (Ante, at p. 168.) The sweeping terminology utilized to discern constitutional imperatives permitting sterilization suddenly narrows when the significant past abuses in this area are recalled. To that end the majority proposes adoption of аn “adapted” version of
As the majority mentions, and the Chief Justice‘s dissent emphasizes, the history of sterilization of mentally incompetent persons is not one of which we should be proud. My colleagues refer to the “prevalent attitude, reflective of the limited knowledge of the nature of developmental disabilities then available.” (Ante, at p. 152, fn. 8.) Many of those responsible for eugenic sterilizations acted in accord with those “prevalent” views and out of high personal and societal motives. Nonetheless, the extremes to which eugenics could be misapplied were more than amply demonstrated during World War II.
I find fundamentally problematic my colleagues’ conclusion that there is a constitutional right to “substituted consent” in this context. The statutory scheme providing for habilitation concededly does not itself permit sterilization of persons such as Valerie. The majority nonetheless has transmuted the process of habilitation set forth in the applicable laws into a constitutional “right” which encompasses the “right” to be sterilized if one‘s conservator so elects. I worry whether the “rights” which we are “protecting” are in fact more likely to become those of the incompetent‘s caretaker.
In In re Hop, supra, we expressly considered the argument that we should afford deference to those like Ms. Hop‘s mother who acted in the best interests of their charges. We responded: “In justifying disparate treatment of the developmentally disabled, we are unable to substitute for constitutional safeguards the admitted good intent both of the state and of those treating the developmentally disabled . . . .” (29 Cal.3d at p. 93.) Here, that “good intent” is used as a basis for concluding that an incompetent has a constitutional right to sterilization which outweighs her rights to be free of intrusive medical procedures and to retain her procreative capacity.
It is especially interesting to take a closer look at the record which has produced the majority‘s exegesis on constitutional rights. Petitioner presented in support of the application for sterilization the briefest of written declarations by Valerie‘s pediatrician and a counselor specializing in working with developmentally disabled clients. Valerie‘s pediatrician, after observing that Valerie was mentally retarded apparently as a result of Down‘s syndrome, stated in relevant part: “4. I am aware of the family‘s desire to have a tubal ligation performed on VALERIE. This operation will permanently sterilize but not unisex [sic] the conservatee. [¶] 5. In my opinion this procedure is аdvisable and medically appropriate in that a potential pregnancy would cause psychiatric harm to VALERIE.” That is the sum and substance of the doctor‘s evidence. Significant in this offering are his men
The next declaration was by a licensed counselor holding a master‘s degree in developmental psychology. The counselor specializes in “behavior management with developmentally disabled clients” and has acted as a vendor providing services to clients connected with regional centers set up to serve the developmentally disabled. She had worked with Valerie weekly for approximately one year ending about two years before the court hearing. The counselor declared that “From my numerous contacts with VALERIE as well as her family, I am of the opinion that a tubal ligation is an appropriate means of guarding against pregnancy.” Specifically she had observed “VALERIE act affectionately” towards men and had worked with Valerie‘s family “on VALERIE‘s problem concerning her inappropriate sexual attention to adult males.” No specifics regarding the conduct involved are provided.
After reciting these factors, the counselor states “Because of the parents’ fear of a pregnancy which might result from VALERIE‘s inappropriate sexual advances, they have felt compelled to overly restrict her social activities. This close monitoring has severely hampered her from being able to form social relationships appropriate to her developmental level.” The focus is on the parents’ fears and the conclusion they have “overly restricted” Valerie‘s activities. No actual description of the supervision afforded Valerie or any alternatives available is given. Nor is there mention of whether there might be ways to modify the parents’ conduct if indeed they are “overly restrictive.”
The declaration then concludes “It is my professional opinion that if VALERIE were to become pregnant, the pregnancy itself would have severe psychologically damaging consequences to VALERIE.” Moreover, “[b]ecause of VALERIE‘S severe mental retardаtion there appears to be in my judgement [sic] no alternative birth control measures available to her which would guarantee that she would not become pregnant.” As in the pediatrician‘s report, there is no specific basis given for the conclusion that Valerie would be psychologically harmed by pregnancy. If the harm is the same as that which would occur to any similarly disabled person, then the specter of wholesale sterilization of such persons looms more concrete. Indeed, there is absolutely nothing in the medical evidence presented that significantly differentiates Valerie‘s medical and psychological condition from that of any other severely developmentally disabled woman in similar circumstances.
As to training, behavior modification had been tried: “Shaking hands, you know, not being so aggressive.” Valerie remained “aggressive.” When Valerie was in her early teens, two kinds of birth control pills were tried, but she “rejected [them] and became ill.” Therefore, according to Valerie‘s mother, the pediatrician recommended tubal ligation to avoid potential psychological and medical problems. Valerie had not cooperated in attempts to have a pelvic examination. Finally, when asked why sterilization of Valerie was sought, her mother stated “Because I do not wish her to become pregnant, but I would still like her to be able to broaden her social activities.”
The above constitutes the relevant medical and psychological information presented to the court. After hearing argument, the trial judge stated that “I think, sterilization, from what I‘ve heard, I think it is desirable and should be ordered.” He concluded that “on the basis of what I‘ve heard so far, I would rule sterilization is in order except for the lack of jurisdiction.” (See Guardianship of Tulley (1978) 83 Cal.App.3d 698 [146 Cal.Rptr. 266];
The point of my recitation of the facts adduced at the hearing and the trial judge‘s response is not to cast aspersions on the sincere beliefs and good intentions of those concerned with Valerie‘s welfare. Rather, it is to demonstrate that on this skimpy and, I believe, totally inadequate record the trial court, but for clear restraints, would have ordered sterilization. Moreover, on this record the majority of this court has seen fit to posit a denial of constitutional rights. Consider the situation of other incompetents who might be deemed incapable of making decisions regarding sterilization, such as the mentally ill or juveniles. It is clear to me that any appellate court would consider the inadequacies of this record woefully apparent and find it an insufficient basis for concluding that sterilization should be authorized. The difference when we consider the case of the developmentally disabled arises in large part, I submit, because of societal attitudes, as well as the admittedly significant problems which may be involved in their care. The difficulty, however, is that those responsible for the decision may be more willing, for the sake of convenience and relying upon the benevolence of those making the request, to allow such surgery. However, generalized “good intentions” simply are not enough to support the constitutional framework erected by the majority.
Our purpose here is to consider whether
In conclusion, I cannot join with the majority in finding that the Legislature‘s аction amounted to an unconstitutional intrusion into the rights of Valerie N. or any similarly situated incompetent person. The Legislature may well have found a compelling state interest in limiting the power of even the best-intentioned persons. The state of the record here, although found by the majority insufficient to support sterilization under the new standards enunciated, nonetheless serves only to heighten my concern that sterilization of persons such as Valerie will become pro forma commonplace occurrences even under the standards proposed. With that I cannot agree.
BIRD, C. J.—I respectfully dissent.
Today‘s holding will permit the state, through the legal fiction of substituted consent, to deprive many women permanently of the right to conceive and bear children. The majority run roughshod over this fundamental constitutional right in a misguided attempt to guarantee a right of procreative
The majority opinion opens the door to abusive sterilization practices which will serve the convenience of conservators, parents, and service providers rather than incompetent conservatees. The ugly history of sterilization abuse against developmentally disabled persons in the name of seemingly enlightened social policies counsels a different choice.
Fortunately, the Legislature has already made that choice. The state has a compelling interest in protecting the fundamental right of its citizens to bear children. The prohibition on sterilization of incompetent conservatees in
I.
The history of involuntary sterilization of incompetent, developmentally disabled individuals over the past 80 years is a history of wholesale violations of constitutional rights carried out with the approval of the highest judicial tribunals. (See, e.g., Buck v. Bell (1927) 274 U.S. 200 [71 L.Ed. 1000, 47 S.Ct. 584].) In the first half of this century, approximately 60,000 people were subjected to compulsory sterilization in the United States. A disproportionate number of these operations was carried out in California—nearly 20,000 between 1900 and 1960. (See State Council on Developmental Disabilities, Cal. Developmental Disabilities State Plan, 1984-1986, pp. 58-59 [hereafter State Plan].)2
This phenomenon was fueled by a widely held but incorrect belief that virtually all developmental disabilities werе inherited and could be eliminated by preventing those affected from reproducing.3 (Price & Burt, Sterilization, State Action, and the Concept of Consent (1975) 1 L. & Psychol
It is now recognized that many forms of mental retardation have no hereditary component, while in others heredity is but one of several contributing factors. (Matter of Guardianship of Hayes (1980) 93 Wn.2d 228 [608 P.2d 635, 640]; Brakel & Rock, The Mentally Disabled and the Law (rev. ed. 1971) p. 211 [hereafter Brakel & Rock]; Robitscher, Eugenic Sterilization (1973) pp. 113-116; Friedman, The Rights of Mentally Retarded Persons (1976) pp. 115-117.) Eighty to ninety percent of mentally disabled children are born to normal parents. (Murdock, Sterilization of the Retarded: A Problem or a Solution? (1974) 62 Cal.L.Rev. 917, 926 [hereafter Problem or Solution].)
The majority scarcely acknowledge this shameful history. Instead, they quote at length and largely without comment from the statutes and decisions which made such abuses possible. When they do comment, it is to explain sympathetically that the legal justifications advanced during that period were merely expressions of “[t]he prevalent attitude, reflective of the limited knowledge of the nature of developmental disabilities then available. . . .” (Maj. opn., ante, at p. 152, fn. 8.) The extensive literature recording the scope of the abuses and the constitutional infirmities of the statutes and decisions which permitted them is cavalierly ignored.4
Most importantly, the majority fail to note that abuses continue to occur. For example, the North Carolina Court of Appeals recently permitted the involuntary sterilization of a 23-year-old woman on the grounds that she was mildly retarded and “had exhibited emotional immaturity, the absence of a sense of responsibility, a lack of patience with children, and continuous nightly adventures with boyfriends followed by daily sleep and bedrest. Such conduct and personality traits in addition to mental retardation,” the court said, “clearly show that respondent failed to meet any acceptable standard of fitness to care for a child by providing a reasonable domestic
Of course, compulsory sterilization, initiated by the state, is not the issue in this case. As the majority note, California no longer has a compulsory sterilization statute. (See former
As Professors Price and Burt have argued, the trend away from compulsory sterilization and toward sterilization on the basis of substituted consent obscures the fact that the issue remains one of state action threatening the fundamental right of procreation. “Forms of state control and intervention change and become so sophisticated, appealing, subtle, and delicate that modern governmental action seems to be less and less restricted by an ordinary application of constitutional protections. For example, when government intervention primarily took the form of institutionalization, particularly compulsory institutionalization, certain ideals of due process which had developed in the criminal law system could be brought to bear . . . to increase the protection of the individual from arbitrary state action . . . .
”
That prediction has been borne out in the intervening years. Courts in a number of jurisdictions without compulsory sterilization statutes or where such statutes had been repealed or were inapplicable under the circumstances of a particular case have permitted third persons to consent to sterilization of incompetent, developmentally disabled women. (See Matter of Guardianship of Hayes, supra, 608 P.2d at pp. 638-641; Matter of C. D. M. (Alaska 1981) 627 P.2d 607, 610; Matter of A. W., supra, 637 P.2d at pp. 370-375; Matter of Moe (1982) 385 Mass. 555 [432 N.E.2d 712, 719-720]; In re Grady (1981) 85 N.J. 235 [426 A.2d 467, 480-481]; Ruby v. Massey (D. Conn. 1978) 452 F.Supp. 361, 368-369.)
Like the majority here, these courts have turned to the substituted consent device after concluding that the right to be sterilized is an aspect of a constitutional right of procreative choice enjoyed equally by all persons, whether or not they are developmentally disabled. The justifications that have been advanced for applying both the underlying constitutional theory of procreative choice and the doctrine of substituted consent to individuals who never were and never will be capable of choice cannot withstand critical scrutiny. Because the majority‘s use of the procreative choice theory presents the more fundamental problem, it will be addressed first. A detailed critique of the majority‘s use of the substituted consent doctrine will follow.
II.
That the “right to have offspring” is a fundamental right was first recognized in Skinner v. Oklahoma (1942) 316 U.S. 535, 536 [86 L.Ed. 1655, 1657, 62 S.Ct. 1110]. That case involved Oklahoma‘s Habitual Criminal
None of the opinions in Skinner characterized the right to procreate as a right of choice or privacy.7 Rather, the majority referred to the right to bear and beget children as “a basic liberty” and as “one of the basic civil rights of man.” (Id., at p. 541 [86 L.Ed. at p. 1660].) In a concurring opinion, Justice Jackson observed that involuntary sterilization implicated “the dignity and personality and natural powers of a minority. . . .” (Id., at p. 546 [86 L.Ed. at p. 1663].) In another concurring opinion, Chief Justice Stone spoke of involuntary sterilization as an invasion of the personal liberty of the individual. (Id., at p. 544 [86 L.Ed. at p. 1662].)8
The terms employed by the Skinner opinions suggest that the interests implicated by sterilization are more primal than the retention of control over decisions in important areas of personal life. As one commentator has observed, “the great conceptual background for due process privacy law [is] bodily autonomy . . . . At present only the most powerless members of society appear to need to rely on the Constitution for such a basic right. The courts have . . . recognized individual liberty in things of the body as a touchstone.” (Note, Due Process Privacy and the Path of Progress (1979) U. Ill. L. F. 469, 515 [hereafter Due Process Privacy]; id., at pp. 504-505; see Union Pacific R. Co. v. Botsford (1891) 141 U.S. 250, 251-252 [35 L.Ed. 734, 737, 11 S.Ct. 1000] [common law right of personal injury plaintiff to be free of compulsory physical examination], cited in Roe v. Wade (1973) 410 U.S. 113, 152 [35 L.Ed.2d 147, 176, 93 S.Ct. 705]; Schmerber v. California (1966) 384 U.S. 757, 778-779 [16 L.Ed.2d 908, 924, 86 S.Ct. 1826] (dis. opn. of Douglas, J.); Breithaupt v. Abram (1957) 352 U.S. 432, 441-442 [1 L.Ed.2d 448, 454, 77 S.Ct. 408] (dis. opn. of Warren, C. J.); id., at pp. 443-444 [1 L.Ed.2d at p. 455] (dis. opn. of Douglas, J.).)
Our own courts have recognized that the right to procreate has roots that go deeper than and do not depend upon a capacity for rational choice. “[T]he preservation of one‘s bodily reproductive functions is a fundamental right, and the termination thereof constitutes a serious invasion of the sanctity of the person.” (Guardianship of Tulley (1978) 83 Cal.App.3d 698, 705 [146 Cal.Rptr. 266], italics added.)
By contrast, sterilization, abortion, and contraception all necessarily involve the exercise of choice. Hence, restrictions or prohibitions on such choices implicate not only the fundamental right to procreate recognized in Skinner but also the right to choose not to procreate. The courts have invoked the constitutional right of privacy to strike down statutes which prohibit or unduly restrict access to contraceptive devices and information, abortion, and voluntary sterilization. The individual‘s right to make her own decision in this highly personal area was stressed. In Eisenstadt v. Baird, supra, 405 U.S. 438, a contraception case, the United States Supreme Court recast the right of privacy first recognized in Skinner as “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (Id., at p. 453 [31 L.Ed.2d at p. 362], italics added and omitted.)
Other decisions have sounded the same theme. (See Roe v. Wade, supra, 410 U.S. at p. 153 [35 L.Ed.2d at p. 177] [the right of privacy is “broad enough to encompass a woman‘s decision whether or not to terminate her pregnancy“]; Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 263 [172 Cal.Rptr. 866, 625 P.2d 779, 20 A.L.R.4th 1118]; People v. Belous (1969) 71 Cal.2d 954, 963 [80 Cal.Rptr. 354, 458 P.2d 194]; Jessin v. County of Shasta (1969) 274 Cal.App.2d 737, 748 [79 Cal.Rptr. 359, 35 A.L.R.3d 1433] [privacy right to seek sterilization].) Even Justice Douglas, the author of the majority opinion in Skinner, later referred to the existence of a body of fundamental privacy rights safeguarding “freedom of choice in the basic decisions of one‘s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.” (Doe v. Bolton (1973) 410 U.S. 179, 211 [35 L.Ed.2d 201, 187, 93 S.Ct. 1410] (conc. opn. of Douglas, J.), italics added.)
With regard to individuals competent to make such decisions, the recognition of a comprehensive right of procreative choice, linking the right to
The choice model creates a false impression of equivalence between the “decision” to procreate and the “decision” to be sterilized. On closer examination, it is apparent that only the right to be sterilized is necessarily premised on a capacity for rational, informed choice and decision. Sterilization, like abortion and the use of contraceptives, requires a conscious decision by someone aware of the significance of pregnancy and childbearing. Sterilization and abortion in particular, as medical procedures, clearly take place only as the result of choices made by individuals aware of the consequences of their actions. By contrast, procreation is a natural function which can and often does occur without the exercise of a rational or knowing choice. This is true for both competent and incompetent individuals.
Thus, a constitutional theory which treats the right to prevent procreation as an aspect of a larger right of procreative choice is sensible, since the actions necessary to exercise the right require conscious choice and decision. On the other hand, the right to procreate is more than a byproduct of a right of choice. Its roots go deeper; they are constitutional in the physical sense, implicating the individual‘s rights to physical integrity and to retention of the biological capabilities with which he or she was born into this world. Hence, even in the case of a mentally competent individual, it is somewhat illogical to treat the right to procreate solely as a matter of control over basic personal decisions. In the case of a permanently incompetent individual, such logic has no place whatsoever. (See Matter of Storar (1981) 438 N.Y.S.2d 266 [420 N.E.2d 64, 71-73] [fundamental right to life paramount to right to decline medical treatment where terminally ill patient has never been competent to understand or make a reasoned decision about medical treatment].)
In their discussion of appellants’ equal protection challenge, the majority disregard these differences between the right to procreate and the right to prevent procreation. By adopting the procreative choice model, they assume that, regardless of whether the woman is competent or incompetent, the sterilization decision requires the same choice between equally weighted competing interests. The majority conclude in essence that the state‘s interest in protecting a severely disabled woman‘s right to procreate is not sufficiently compelling to justify the denial of her right to be sterilized. This reasoning cannot withstand scrutiny.
Unlike the right to bear children, the right to be sterilized is a function of the capacity for rational choice, a capacity the incompetent, develop
In the case of an incompetent, severely disabled woman, the conditions upon which to premise a constitutional right to be sterilized are essentially nonexistent. By contrast, her right to procreate, which is not rooted in or dependent upon a capacity for informed decision, is undiminished. Indeed, it requires even greater protection due to her legally dependent status and limited capacity to defend her own rights. In this context, the state‘s interest in prohibiting sterilization is a compelling one.
The majority also find a constitutional right to sterilization in Valerie‘s due process liberty interest in minimizing restrictions on her social interactions. (See maj. opn., ante, at pp. 161-163.) That conclusion is flawed by the absence of any showing that the restrictions are truly necessary and by the majority‘s failure to balance the deprivation of liberty resulting from such restrictions against the irreversible loss of her fundamental right to procreate if she is sterilized.
The majority concede the inadequacy of the evidence as to the nature and effects of the restrictions placed on Valerie‘s activities in the attempt to prevent her becoming pregnant. However, relying on descriptions in other cases, they readily assume that unacceptable restrictions are “necessarily placed upon sexually mature mentally retarded women in the effort to prevent pregnancy . . . .” (Maj. opn., ante, at p. 163, fn. 25.)
In this case, the restrictions on Valerie‘s activities have been imposed by her parents rather than by the state. Nonetheless, it is essential to require a showing that the state has a compelling interest in preventing Valerie from becoming pregnant and that the restrictions are no broader than necessary to protect that interest. (See Roe v. Wade, supra, 410 U.S. at p. 155 [35 L.Ed.2d at p. 178].) Only then may the right to “personal growth and development” be weighed against the right of procreation. This, the majority has not attempted to do.
If such an analysis were attempted, it would become clear that any unavoidable adverse impact of the sterilization ban on a developmentally disabled, incompetent conservatee‘s liberty interests is insufficient to justify the permanent deprivation of her right to procreate. This conclusion flows inexorably from a comparison of the intrusions on the two rights. Sterilization results in a complete and irreversible deprivation of the right to pro
The majority‘s failure to engage in a meaningful weighing of these interests is indicative of a basic problem with their analysis. In their effort to protect Valerie‘s rights of liberty and procreative “choice,” they fail to seriously acknowledge her right to procreate. The majority make several unsupported assumptions which suggest that they recognize Valerie‘s right to procreate for purposes of conceptual symmetry only. They do not regard it as a real right, entitled to meaningful protection.
For example, the majority assert without citation to any authority that Valerie‘s conservators may legally compel her to undergo an abortion or to surrender custody over any child she might bear. (Maj. opn., ante, at pp. 160-161; but see id., at p. 150 & fn. 6; The Concept of Consent, op. cit. supra, at pp. 72-74.) Indeed, having incorrectly cast Valerie‘s fundamental right to procreate as a right of procreative choice, the majority summarily conclude that she will never have the right to bear children because she will never be competent. “That right has been taken from her both by nature which has rendered her incapable of making a voluntary choice, and by the state through the powers already conferred upon the conservator.” (Maj. opn., ante, at p. 165.)
I strongly disagree. As explained above, the roots of the fundamental right to procreate go deeper. A woman should not be stripped of that right by conditioning its recognition on her capacity to make informed choices.
In sum, the majority‘s constitutional analysis fails to give proper weight to the fundamental right to procreate. It also fails to acknowledge that the right to procreate has independent roots which, in contrast to the right to sterilization, are not linked to a capacity for decision and choice. Finally, the majority fail to weigh the impact of the irreversible deprivation of the right to procreate against the partial impairment of liberty which they cite to strike down
The majority‘s use of the substituted consent doctrine to permit sterilization of an incompetent individual underscores and exacerbates the problems inherent in applying the constitutional “choice” model which forms the core of their analysis. Like the theory of procreative choice, substituted consent derives its legitimacy from the premise that the affected individual once possessed a capacity to make informed choices or will be able to do so at some point in the future. Even so, the doctrine requires a court to engage in a questionable legal fiction. This departure from reality reaches its zenith when the third party deciding on a matter as vital as whether to undergo sterilization purports to stand in the shoes of a severely retarded adult who has since birth been incapable of making such choices.
In many situations, the law prohibits actions affecting an individual‘s rights without his or her informed consent. Courts developed the doctrine of substituted consent so that third persons could make decisions on behalf of incompetents in these situations. (E.g., Annot., Power of Court or Guardian to Make Noncharitable Gifts or Allowances Out of Funds of Incompetent Ward (1969) 24 A.L.R.3d 863; see generally Superintendent of Belchertown v. Saikewicz (1977) 373 Mass. 728 [370 N.E.2d 417, 431].)
The substituted consent doctrine is often invoked to permit surgery on incompetent conservatees, since a surgical operation performed without consent is a battery. (See
Substituted consent is problematic even in cases where the affected individual once possessed the capacity to make informed decisions. In the well-known Karen Quinlan case, a 22-year-old woman who had fallen into a permanent coma was living in a “non-cognitive, vegetative” state. (Matter of Quinlan (1976) 70 N.J. 10 [355 A.2d 647, 664, 79 A.L.R.3d 205].) The New Jersey Supreme Court invoked the substituted consent doctrine to permit a parent and guardian, with the concurrence of other family members, attending physicians, and a medical ethics committee, to consent to the removal of life-support equipment. (Id., at p. 671.)
The court held that the constitutional privacy right of the comatose woman included the right to decline physically invasive and seemingly pointless
Several constitutional scholars, while sympathizing with the plight of the Quinlan family, have questioned the court‘s constitutional analysis as well as its application of the substituted consent doctrine. Professor Tribe has observed that “[g]iven the supposedly vegetative state that alone justified the court‘s holding, attributing ‘rights’ to Karen at all was problematic; more realistically at stake were the desire of her anguished parents to be rid of thеir torment and the interest of society in freeing medical decision makers from blind adherence to a practice of keeping vegetating persons ‘alive’ simply out of a fear of prosecution. But to give those interests constitutional status even where the state interposes an objection in the interest of the child‘s life seems most troubling.” (Tribe, American Constitutional Law, op. cit. supra, at pp. 936-937, fn. omitted.)
Focusing more specifically on the use of the substituted consent doctrine, Professor Kamisar has challenged the court‘s willingness to guess at what Karen Quinlan would want if she could decide for herself. “What the court is really saying, I believe, is that if Karen‘s constitutional right of privacy includes a right to elect to die and she presently lacks the capacity to choose and we cannot discern from her previous statements how she as a particular individual would have chosen, we may surmise that she would have chosen to die because we presume that the great majority of those in her situation would so chose. . . . If, in the absence of hard evidence about a patient‘s wishes when actually put in a Quinlan-type situation, a court is to indulge in presumptions, one would think that it would presume just the opposite of what it did in Quinlan.” (Kamisar, A Life Not (or No Longer) Worth Living: Are We Deciding the Issue Without Facing It? (Nov. 10, 1977) Mitchell
If the substituted consent doctrine poses difficult problems in a case where the affected individual was once competent, those problems magnify tenfold in the case of an individual whose incompetency is lifelong. Yet, the majority rely on just such cases to support their application of the doctrine. (Maj. opn., ante, at pp. 166-167; Matter of Moe, supra, 432 N.E.2d 712; In re Grady, supra, 426 A.2d 467.)
In Grady, the New Jersey Supreme Court relied on the substituted consent analysis of Quinlan to hold that the parents of a developmentally disabled, noninstitutionalized, 18-year-old woman could consent on her behalf to a sterilization operation. (Grady, supra, 426 A.2d at pp. 480-481.) Whatever merit there may have been in authorizing the exercise of substituted consent in Quinlan, its use in Grady was logically unsupportable. Indeed, Grady exemplifies the way in which substituted consent fosters the ascendancy of legal fiction over reality.
In Quinlan, the court stressed the strong bonds of “familial love” that had existed between Karen and her family when she still possessed normal mental capacities. (See Quinlan, supra, 355 A.2d at p. 657.) It was pre
In Grady, however, as in this case, there was no basis for a similar assumption. Like Valerie, the daughter in Grady had never been capable of articulating choices. There was not the slightest bit of evidence regarding the ability of the parents to determine that their daughters would choose to be sterilized. Hence, “a decision by the parents [was] mere speculation, rather than an ascertainment of the incompetent‘s preferences based on prior observations and conversations, as in Quinlan.” (Right to Choose, op. cit. supra, at p. 584; see Note (1981) 12 Seton Hall L.Rev. 96, 110-111.)
Courts in several jurisdictions have recognized the absurdity of applying the substituted consent doctrine to individuals whose incompetence is the result of severe, lifelong developmental disability. In Matter of Storar, supra, 420 N.E.2d 64, the New York Court of Appeals held that blood transfusions could not be withheld from a severely retarded man suffering from a terminal illness. (Id., at p. 73.)
The court acknowledged the right of a competent patient to refuse medical treatment. It also recognized that a third person might be permitted to make the decision for an incompetent patient under certain circumstances. However, the court emphasized that unlike Karen Quinlan, “John Storar was never competent at any time in his life. He was always totally incapable of understanding or making a reasoned decision about medical treatment. Thus it is unrealistic to attempt to determine whether he would want to continue potentially life prolonging treatment if he were competent. As one of the experts testified . . . , that would be similar to asking whether ‘if it snowed all summer would it then be winter?‘” (Id., at pp. 72-73.) As a result, the court concluded that Storar‘s right to life took precedence over the right to refuse treatment which he would have had if he were competent. A judgment denying permission to continue the transfusions was reversed. (See ibid.)
Courts faced with requests to authorize sterilization have recognized the same problem. In Matter of Guardianship of Eberhardy (1981) 102 Wis.2d 239 [307 N.W.2d 881], the Wisconsin Supreme Court criticized the Grady court‘s attempt to equate “a decision made by others with the choice of the person to be sterilized. It clearly is not a personal choice, and no amount of legal legerdemain can make it so.” (Id., at p. 893.) In In the Matter of Terwilliger (1982) 304 Pa.Super. 553 [450 A.2d 1376], the court reached a similar conclusion, noting that “if the trial court . . . determines that [the conservatee] lacks the ability to make [the] choice for herself, we do not
Commentators have expressed stronger reservations. Professors Price and Burt have attacked the use of substituted consent in the sterilization context as “nothing short of an extended conceit on the proposition of voluntаriness. It is a fiction which authorizes the state to intervene because a party other than the subject provides the green light, Often that third party is the parent of the subject individual, but the doctrine is equally applicable when the third party is . . . a guardian ad litem[] or a conservator. By characterizing the transaction as ‘consensual’ rather than ‘compulsory,’ third-party consent allows the truly involuntary to be declared voluntary, thus bypassing constitutional, ethical, and moral questions, and avoiding the violation of taboos. Third-party consent is a miraculous creation of the law—adroit, flexible, and useful in covering the unseemly reality of conflict with the patina of cooperation.” (The Concept of Consent, op. cit. supra, at p. 58, fns. omitted.)
Other writers have stressed the inability of the third person to know the wishes of the incompetent individual. “While substituted parental consent may be legally and morally appropriate in circumstances with less potentially harmful results, parental consent in [the] non-therapeutic sterilization context is less legitimate, for it may not be easily presumed that [a developmentally disabled] child, upon reaching majority, would choose sexual sterilization for him/herself.” (Shedding Myth-Conceptions, op. cit. supra, at p. 635, fn. omitted.)
Still others have stressed the likelihood that the third party decisionmaker, the court and the incompetent person will have conflicting interests. “Judicial refusal to recognize substituted consent as a proper alternative to an incompetent‘s consent to sterilization is indicative of its inadequacies. A part of this reluctance may be due to a belief that a parent‘s interests in the sterilization may not be consistent with the incompetent‘s best interests. For example, a parent seeking sterilization for the incompetent may be motivated by such concerns as illegitimate mentally deficient offspring, and the care and financial support of such offspring. These concerns, although considerable, do not reflect the personal welfare and interests of the incompetent in improving her condition through sterilization. In addition, substituted judgment leaves great discretion in the judiciary and could lead to inconsistent application.” (Note, Addressing the Consent Issue Involved in the Ster
IV.
Notwithstanding all of the foregoing problems, courts in other jurisdictions have concluded that incompetent, developmentally disabled persons have a constitutional right to be sterilized, a right which can be vindicated only by giving to others the power to make this awesome decision.
For the reasons stated earlier in this opinion, the procreative choice model and the substituted consent device are ill-suited to the situation confronting this court. As a result, the sister state decisions which rely on this approach fail to provide adequate protection for the incompetent, developmentally disabled person‘s fundamental right to procreate. (See Hayes, supra, 608 P.2d at pp. 640-641; Grady, supra, 426 A.2d at pp. 481-483; In re Penny N. (1980) 120 N.H. 269 [414 A.2d 541, 543]; Matter of A. W., supra, 637 P.2d at pp. 375-376; Matter of C. D. M., supra, 627 P.2d at pp. 612-613.)
The majority patch together a test which combines the standards and procedural requirements set forth in one of these decisions—Hayes—with those of
Even the most cursory examination of
The Hayes standards remedy some of the more glaring deficiencies in
At least one of the other Hayes requirements conflicts with the theory of the majority opinion. The majority rest much of their constitutional analysis on Valerie‘s liberty interest in minimizing restrictions on her social interactions. Yet Hayes permits a trial court to authorize the sterilization of an incompetent, developmentally disabled woman only if it finds “by clear, cogent and convincing evidence” that “all less drastic contraceptive methods, including supervision . . . have been proved unworkable or inapplicable.” (Hayes, supra, 608 P.2d at p. 641, italics added.) The majority do not explain how this requirement, which they purport to adopt, can be squared with their theory that Valerie has a liberty interest in being sterilized in order to be free of parental supervision.
In sum, the majority compound the errors of their constitutional analysis with the adoption of an unsatisfactory patchwork of contradictory standards. I cannot subscribe to this careless exercise in judicial legislation, particularly where such a fundamental right is at stake.
V.
Respondent has demonstrated a compelling state interest in protecting an incompetent, developmentally disabled conservatee‘s fundamental right to procreate. Contrary to the majority‘s effort to merge this right into a general right of procreative choice, the right to procreate has an independent foundation. For a permanently incompetent individual who is incapable of mak
The adverse impact of a sterilization ban on a developmentally disabled conservatee‘s liberty is also insufficient to justify jeopardizing her right to procreate. Sterilization results in a complete and irreversible deprivation of the right to procreate, while restrictions on an individual‘s activities resulting from a ban on sterilization constitute at most a partial deprivation of that individual‘s liberty.
The ban on sterilization of incompetent conservatees in