*1 Guardianship In the Matter of Incompetent: Joan I. Eberhardy, Eberhardy Quintin Mary guardians, Eberhardy,
Appellants-Petitioners,†
v. the Hon. Dennis D. County, Circuit Court Wood Conway, presiding, Respondent.
Supreme Court Argued, January 5, No. 78-661. 1981. Decided June 1981.
(Also reported 881.) in 307 N.W.2d denied, costs, August Motion † for reconsideration without on 11, 1981. *2 court) (in petitioners For the there were briefs Oestreieher, Zappen, Zappen Meissner, Edward F. guardian litem, Dehn, ad Craig Hayden, and William J. & argument by Zappen and William with oral Edward F. Dehn, all of Marshfield. J. argued by respondent the cause was Donald For the *3 attorney general, on the Johns, with whom assistant P. (in appeals) Folletbe, were Bronson La brief court C. attorney general, at- George Sehwahn, and assistant B. general. torney ap-
HEFFERNAN, This is a review of a court of J. affirming peals decision1 an order the circuit court county guardians’ peti- for Wood which dismissed seeking approval for tion the court’s their consent to surgical daugh- severely sterilization of a retarded adult ter. question in this case is whether the circuit court jurisdiction duly appointed guard-
has to authorize the mentally give ians of an adult retarded female ward surgical procedures which will their consent result Guardianship Eberhardy, In the Matter 97 Wis.2d (Ct. 1980). App. N.W.2d 540 permanent sterilization of the ward when such sterili- contraceptive therapeutic purposes, zation is for and whether, jurisdiction, if appropriate the court has it is purpose. for to exercise it for this We conclude requested plenary that the action falls within the consti- jurisdiction court; tutional of the circuit but we also that, complexities conclude public because policy involved, opportunity considerations should be given legislature hearings appropriate to the to conduct factfinding and to undertake which could lead to the public policy legislative guidelines declaration of for plenary jurisdiction. the exercise of the court’s Accordingly, we affirm the decision of the court of appeals upheld judgment which the circuit court’s de- clining permit guardians give consent to the ward’s sterilization.
Quintín Mary Eberhardy, parents guard- ians, petitioned county the circuit court for Wood authority surgical to consent Joan, to the twenty-two-year-old their mentally daughter. retarded petition precipitated This Joan’s at attendance St. Coletta’s camp summer mentally conducted for re- persons tarded ages. of both sexes Following and of all return camp, from Joan missed peri- her menstrual Although ods for three months. clear, the record is not apparently there was some reason parents for her to be- lieve that Joan had sexual contact with camper. a male Her menses thereafter resumed, but nevertheless Eberhardys deeply were concerned over the harmful ef- possible fect that a pregnancy upon would have Joan’s *4 physical and mental health. Eberhardys counseling received from Dr. Thomas Rice of Clinic, the Marshfield and also from Dr. Louis Ptacek, pediatric J. neurologist a at the Clinic. Both of physicians these had known and many treated Joan for years. Dr. that, Ptacek recommended because of Joan’s low intel- disability of her developmental and because ligation by a tubal endowment, be sterilized she lectual that, was Joan because procedure. concluded Dr. Ptacek something go camp, should again intending to the becoming preg- her prevent possibility of done for care be unable to she would nant. He felt that being severely handi- a child the chances of and child orig- Nevertheless, Dr. Rice capped were considerable.2 (intra- placement an IUD inally considered fitting of appropriate, device) would be uterine given contemplated was a consent an IUD was Subsequently, Joan’s Mary Eberhardy procedure. for that prevent pregnancy her decision reconsidered mother ap- sought having an and instead Joan use IUD ligation. by tubal proval propriety of question submitted Dr. Rice of St. sterilizing ethics committee the medical Joan to gave ap- its Hospital. committee Joseph’s The ethics Eberhardys appointed 21,1978, were proval. June On July estate; person on guardians of Joan’s they petitioned the circuit court year, of the same sign to her steriliza- consent medical authorization tion. guard- appointed
Attorney Joan’s Dehn was William hearing upon Joan ad A notice of was served ian litem. personally. hearing, At record of Joan the medical physical introduced, which traced her mental and age development time of two weeks until the from hearing. just prior record to the far as the medical So mentally reveals, the first characterization of Joan as appears been when about six retarded to have she was predicted chances were four one out of Dr. Ptaeek born to Joan be retarded. The record does that a child would any however, otherwise, has disclose whether Joan’s retardation hereditary genetic or characteristics. *5 544
years appears old.3 The in record also that indicate early up, spoke, her she childhood sat and walked at age. normal An examination when she was fifteen indi- reading ability comparable cated that her was to the performance grader, of a second and she was able spell performance third-grade at the level of a second or pupil. objects correctly She able to count give any presented the names of Her numerals to her. markedly were, however, addition and subtraction skills Although respond questions below normal. she could short, sentences, in her well-articulated communications substantially skills were At considered to be subnormal. age neurological fifteen, evaluation charac- being terized her as of moderate mental retardation. perusal might A of the entire medical record lead to ability regressed conclusion that Joan’s mental be- psychological tween the time of this examination petition and the time the for sterilization was heard September doubt, of 1978. There is no from medical record, appropriate psycho- and careful medical and logical testing age consistently after the of six showed substantially her to be retarded. hearing
The evidence adduced at was consistent with that, although the medical record. Her father testified twenty-two Joan, years old, now was able to feed her- self, food, she was unable to cut her and she could not properly Although dress herself. she could bathe her- self, safely regulate temperature she could not by herself, her bath. If left she was unable to find her way Accordingly, home. she was never left alone. Eber- hardy physicians stated that he had consulted with they prevent favored sterilization to the trauma of possible, course, developmental may- It is abnormalities (and present diagnosed) record, have been earlier. The medical fairly describing however —otherwise extensive the medical provided care for various childhood maladies —does not so indicate. not care pregnancy, that Joan could He was satisfied *6 it would be Joan’s child, that and he concluded for a sixty- He said he was if sterilized. interest she were best sixty-two. said he did He wife was and that his five things if care of able to take not who would be know they there to attend to Joan. were not testimony and her husband’s mother confirmed
Joan’s ability, judgmental un- was had little that Joan stated moving traffic, incap- dangers and was of the aware any pain discom- explaining the nature able of problem in the this would be a fort, that and concluded pregnancy. of Joan’s event that, at time stated testified. He
Dr. Ptacek also moderately hearing, physically was well and Joan explained this mean that she severely retarded. He years age her to three and that mental of two had memory, decision, judgment, capabilities in the area of very slight. stated that Joan were He or communication proclivities person and a normal the same sexual had possibly pregnant if not under total and become could complete supervision all said that she was at times. He extremely happy person, friendly, and but an lovable extremely she low mental endowments that had such sexual advance. He stated that not be able to resist would nutritionally if would not be able to care for herself she pregnant, delivery labor and would be she became traumatic, physically psychologically that she and adequately. possibly care for a He felt could not child ligation interests. He would be Joan’s best tubal said improving possibility of Joan’s condition there was no likelihood, that, be further de- in all there would terioration.
Following hearing, that further the court directed Dr. psychiatric be made. physical examinations at report the statements made in his reiterated Ptacek hearing. reported psychiatrist A also Joan was retarded to the extent that she could understand implications behavior, easily of sexual that she could sexually exploited, pregnancy and that her would be tragic. psychiatric He found no counter-indication to ligation, encourage tubal and in fact would it. attorneys guardian-parents urged, on reports hearing, the basis of the and facts adduced at the clearly that the evidence showed and without contradic- tion that sterilization was the best interests Joan. guardian detailed, ad litem in a well-reasoned re- port argued authority the circuit court had the jurisdiction guardian-parents give authorize the proceedings. their consent to the sterilization He also argued right that the to bear children or not to was *7 right deprive fundamental civil and that to Joan of treat- being* necessary guaranteed ment to her well to others incompetent give because she was consent would raise question equal of the of denial the protection of the law. judge, however, The circuit for reasons that were explained, concluded that the benefit to Joan that would “questionable.” inure from sterilization was shows, As the testify, record Joan did not nor is anything there in the record to show that she was ever proposed asked or consulted surgical about proce- however, dures. The court found, that she would not understand the operation nature of the nor have the capacity to judge consent. The trial stated that: the court authority has the “[i]f to authorize the . . . Eberhardy, given sterilization Joan the facts stated proper subject . . . is a inability for sterilization. Her to care for herself testimony and the medical of her in- ability to care for a child are sufficient to convince the point.” court on that Although judge the trial failed terminology to use that sterilization would Joan’s interests,” “best such the tenor of his He, decision. however, denied the statutory any of petition total absence because authority He observed that to authorize sterilization. existed had ever only statute which sterilization persons con- authorized Wisconsin following only the admin- then fined to institutions Department Health and procedures istrative legislative Moreover, sanction this sole Social Services. also repealed in He 1977. had been for sterilization given guardian authority to a concluded that care, necessary appropriate or secure services person “to (sec. 880.38 protective placement the ward” on behalf of did not He (2), Stats.) authorize sterilization. did not only act, “jurisdiction” to the court lacked assert em- statutes. He found no authorization that he right, right is a basic phasized to bear children that the compelling reason. without a cannot be denied which any compel- forth did not set statutes He found au- ling policy that would public declaration reason accordingly, and, petition; act on the the court to thorize dismissed. guardians, Eberhardys Upon appeal dismissal, con- appeals the order affirmed au- cluding nor the constitution neither the statutes jurisdiction upon courts Wisconsin or conferred thorized incompetent a consent to the sterilization to authorize persons. impression of initial in this this case is one
Because *8 possible potential of its social state because granted legal petition consequences, the of we have guardian petition ad litem parents of the and the Joan’s appeals. of of to review the decision the court equate appeared trial court its lack of statu- tory jurisdiction, authority with and the court lack specifically proposed appeals found that sterili- beyond jurisdiction was of the circuit zation order Accordingly, court. it is that we essential consider that question first. taking evaluating arguments
After evidence and guardian litem, ad the trial court concluded that power was approve operation “without and that power is no there such ap- this court.” The court of affirming peals, in order, expressly the circuit court’s stated: legislature nless and until express “[U] confers
power on Wisconsin
courts
authorize the sterilization
incompetent persons
under
circumstances,
stated
jurisdiction
courts are without
to consider the same.”
This jurisdiction extremely broad. In State ex rel. Attorney Portage v. City General Co., Water 441, 447, 107 Wis. (1900), N.W. 697 this court said: scope general “The grant of this authority was said Gen. v. Putnam Sweet, v. 302, 2 Pin. Att’y and also in Cos., Railroad greater Wis. to include power than probably before, govern- ever in a free ment, delegated any tribunal, one powers united —the English kings bench, pleas, common exchequer,
549 chancery.” Kundert, also ex rel. Pierce v. See State 392, 394, 90 (1958). 4 N.W.2d 628 Wis.2d Roujet opinion, Justice D. in his Marshall monumental Harrigan 127, (1904), Gilchrist, v. 121 909 Wis. 99 N.W. said: standing looking .“. . we where we will and where
may, judicial power
present
prevent
and redress
wrongs.
tal
late
ture,
as
very
We take a view to the
horizon of our men-
perception
scope
capacity
to vio-
within the
of human
obligations
purely
other than those of a
moral na-
jurisdiction
courts, except
our
circuit
specially
legislative
by
power
restricted
statute within
by
exceptions
do so
the constitution itself —those
affecting
not, however,
occupy
and as well
the matter in hand —is found to
designed,
the whole field with instrumentalities
adapted
capable
as human wisdom has been
making them,
completeness
to execute its function to
chancery
....
How vast
that is
its
field can best be
by
appreciated
applying thereto the standard of measure-
distinguished
signifi-
ment which the
cant
men who have been
development
system
taught
of our
us
have
wrong
span
‘Equity
must be used to
it:
will not suffer a
go
remedy.’
without
. . .
foregoing
‘jurisdiction’
“In the
term
in its
used
general
broad,
sense,
judicial power.
A court
—that
may
jurisdiction
particular subject matter,
have
aof
but
by
judicial
ought
policy
settled
not to
it.
. . .
exercise
have,
“The circuit courts of this state
under the con-
stitution,
cised
jurisdiction
formerly
succeeded
all the
exer-
chancery
courts of law and
courts
as well
pp.227-31)
.
..
.”
The circuit courts of Wisconsin are constitutional
and,
special
may
courts
unlike
courts which
be created
from
legislature,
time to time
VII,
under art.
sec.
plenary jurisdiction.
are
They
courts
“do not de-
pend solely upon
powers.”
statute for their
Stevenson
County,
v. Milwaukee
14, 17,
140 Wis.
N.W.
*10
(1907).
Congress
relationship
Unlike the
between the
courts,
Congress may
and the federal
under which the
grant
jurisdiction
pleases,
withhold
in
Wiscon-
jurisdiction
power
sin the
of
the circuit court
by
legislature,
by
is conferred not
act of the
but
Beck,
660,
650,
Constitution itself. Jelke Co. v.
208 Wis.
(1932).
jurisdiction
242
gen-
N.W. 576
Circuit court
eral and extends to all matters civil and criminal. Mack
State,
287, 294,
v.
;
(1980)
93 Wis.2d
April language provides jurisdic- 1977. That tion of the circuit court shall extend to all matters “ [ejxcept within the provided by state as otherwise amendment, law.” granted Prior to that the limitation jurisdiction excepted constitution, “not in this and not prohibited by change, hereafter however, law.” This previously It pointed substantive. has been out that language only legislative allows for a reallocation jurisdiction from the circuit court to another court. permit It legislature does not to divest the consti- grant jurisdiction tutional from the unified court system; and system under the unified created 1977, original amendment jurisdiction is vested whol- ly in the circuit court.4 superintending Under powers supreme court, practical of the power exercise may be allocated to different branches of the circuit allocation, however, court. This juris- does not affect the any diction of legislative circuit courts. The allo- jurisdiction cation of under the constitution as it existed 4 Subject, course, appellate jurisdiction and the constitu authority supreme tional original jurisdic court to exercise VII, tion in certain Const., 3(2). Wis. cases. art. sec.
551 prior DeWitt, 1977 was discussed Hallows & Organization, Need Court Wis. Law Rev. 1954 legislative pointed 387 n. 54. It was out therein that the authority judicial power reallocate and to transfer —to abrogate it from one court to another —could not system’s powers. Rather, in State v. as was said Wimberly, 437, 441, (1972), 55 Wis.2d 360 N.W.2d Judd, (1868), quoting v. the lan Callanan Wis. guage designed: juris- legislature “. .. to enable the to distribute the equity, diction in both at law and in as between matters . .”
the circuit . . courts and the other courts the state *11 by jurisdiction the constitution Because the conferred upon plenary respect in 1977 circuit courts is to all chancery, jurisdiction, matters at law or in in the sense legislative dependent upon judicial power act, of is not of authorization.5 Circuit courts of the State Wisconsin jurisdiction to and rule have the constitutional consider petitions incompetents. on for sterilization of Washington recently a similar
The State of confronted Guardianship Hayes, problem, In the Matter the of of 228, (1980). The 93 Wash.2d P.2d 635 State of 608 Washington’s grants orig- constitution, Wisconsin’s, like jurisdiction inal to its trial courts all cases which jurisdiction by the the in some is not vested constitution legislative other court. for the There is no authorization Washington peti- trial courts of and rule on to entertain Nevertheless, incompetents. tions for the sterilization of Supreme Washington Court of held: 5 problem not arise in context Because the does condi case, certain under which not consider circumstances we do jurisdiction. precedent prior the exercise of must occur tions 491, 497, Dept., 182 N.W.2d v. 49 Wis.2d Lees ILHR See (1971), therein. and cases cited jurisdiction superior grant this broad “Under petition may upon from a entertain and act
court
incompetent
for
guardian
mentally
person
parent
statutory
procedure
No
such as sterilization.
a medical
authorization
required.
.
. .
Const,
Washington
art.
sec.
hold that
“We therefore
jurisdiction
gives
superior
state the
courts of this
request
au-
upon
an order
to entertain and act
thorizing
per-
mentally incompetent
of a
Hayes, swpra,
son.”
the United . . .” States legislature spe- apparent, therefore, It is that the has juris- cifically acknowledged grant subject matter diction to the the Constitution. Wisconsin courts courts, general referring jurisdictional to circuit statute recognizes 753.03, Stats., powers sec. the allocative granted legislature constitutionally juris- to distribute *12 state, acknowledges, courts diction various of the but general jurisdiction pre- “The circuit courts have the by for them the constitution . . .” That section scribed provides further that: determine, power circuit to hear “The courts have and respective circuits,
within actions and civil their all and criminal proceedings jurisdiction unless is exclusive given court; they powers, to some other all and have the according usages equity, to the of courts of law and necessary complete jurisdiction to the full and parties complete causes and the full and administra-
553 justice subject by ap- . . tion . review the court by peals supreme provided or the law.” legislature by apparent It thus this statute the given recognition express broad to the fact that has constitutional; jurisdiction is basis of circuit court the and, only because circuit trial court rec the court is the ognized by constitution, jurisdiction its is all-encom the passing, subject only supervisory appellate powers ap reserved constitution to court of peals supreme previously and the court. have de We legislative acknowledgment of scribed this as the statute jurisdiction broad constitutional the circuit court. Court, County Washington ex See State rel. Di Salvo v. 27, 37, (1977). Wis.2d N.W.2d 459 255 Supreme The recent United States Court case of Stump Sparkman, v. (1978), reh. den. 436 U.S. 349 (1978), question of dealt with the whether an U.S. damages judge Indiana was immune from under the Fed brought Rights eral Civil Act in a suit a retarded judge upon woman whose sterilization the had ordered petition plaintiff mother’s when the was a minor. The Supreme judge States United Court held that liability. immune from It did so on the basis of an In Stats., 753.03, diana statute similar sec. con which upon original jurisdic ferred the Indiana circuit court “in equity tion all cases law (p. at whatsoever.” 357) Sparkman replete
While record is with evidence of power by judge abuse Indiana court because given and, no notice fact, had been to the minor fraudulently undergo reveals she was induced to represented sterilization when it was to her that she was appendectomy, to have an Supreme Court’s decision clearly proposition stands for the state trial court jurisdiction statutory which vested with “in all cases *13 jurisdiction when equity” its in acts within law and at noteworthy, moreover, sterilization. It is orders the only although upheld Sparkman jurisdiction in was respect to the in statutory was to sterilization reference special persons under of institutionalized although circumstances, Supreme con- Court erroneously in order- acted the Indiana court cluded that require mini- ing in its failure to sterilization and process. of fairness and due mum standards recognized, appeals appropriately the court As courts, controlling be- Sparkman on is not Wisconsin immunity, judicial Sparkman was issue cause the traditionally judge’s authority policy reasons a where for broadly. Su- Also, the States United has been construed interpretation law does preme of another state’s Court’s respect interpreting its own law. this court bind reasoning Nevertheless, of the United States the essential grant jurisdic- statutory Supreme Court that a broad jurisdiction support ster- to consider tion is sufficient is, petitions persuasive. In there ilization Wisconsin more fundamental than the broad addition and even acknowledgment statutory jurisdiction, of circuit court grant express plenary jurisdiction the con- stitution. Supreme Sparkman Court in also considered
question statutory express whether the authorization persons the sterilization of certain was institutionalized legislative tantamount to a restriction a definition of grant jurisdiction the limits on the otherwise full con- ferred in the elsewhere Indiana statutes. It held it was not. posed
A similar issue in the instant case and arises existing statutory policy authorizing out of heretofore the sterilization some of the men- institutionalized tally originally retarded . The Wisconsin statute en- being ch. (after acted as the Laws of
555 46.12, Stats., by 328, renumbered to 19, sec. ch. sec. Laws 1919) part of statutory remained a of the Wisconsin law, largely unchanged, repealed 428, until ch. sec. 4, argument against of authority Laws 1977.6 As an the permit of the Wisconsin circuit court to a to the consent incompetent, urged sterilization of an it is that the Wis- passed consin statute public-policy 1913 constituted a types persons declaration that of certain or- could be that, dered sterilized repealed and when that statute was version, 46.12, 1975, provided In its final sec. Stats. in its entirety: ap- (1) department may of “46.12 Sterilization defectives. The point surgeon psychiatrist, recognized ability, and a of ex- as perts, (in conjunction superintendents who with the of the state county charge criminal, mentally and institutions who have mentally persons) ill and deficient shall examine and inmates patients physical of such to their institutions mental and condition. “(2) department may The experts to the and to the submit superintendent patients they the name of inmates or ex- desire amined, superintendent experts and the meet, and shall the take physical evidence into and examine the mental and condition patients report depart- the named inmates or to the and thereof ment. “(3) experts superintendent unanimously the If and find procreation oper- department may is inadvisable the an authorize prevention procreation. ation the for “(4) operation, department give Before such the least shall at days’ writing wife, parent 30 guardian notice in or to the husband or unknown, patient, known, of the inmate or if if person patient the with whom such last resided. inmate “(5) experts compensation per day The shall receive as $10 days expenses performance the consumed in the of their duties. “(6) upon the record the be The made examination shall filed department; semiannually operation, super- the the after patient where con- intendent institution such inmate or report department to the his fined shall condition. department report “(7) shall state in its the num- biennial operations performed this section the result ber of under operations.” upon interpretation placed proper public-policy declaration that repealer it was was that persons sterilized. were to be no question legislation history on it is irrele- conclusion that us sterilization leads posed The 1913 statute problem this case. vant to flurry of and social consequence of a academic came aas theory problems which upon activity founded epi- mentally ill, retarded, society had with the eliminated pauper could be leptic, criminal, and the *15 persons by of so characterized. sterilization the advocating eugenic reading such of A the literature upon re- it was founded the indicates sterilization inheritance, Mendelian theories of articulation surgical development coupled simple, tech- of with the Eliminating niques See, e.g., Ferster, for sterilization. L. J. Sterilization the Answer? 27 Ohio St. Unfit —Is informed, 591, During (1966). period, well 591-94 humane, progressive and social reformers advocated laudatory eugenic such it was sterilization in terms by many panacea a of trou- conceived to be most for society. by had in our bles that been created “misfits” appropriate place This is not an to evaluate correct- theories, properly equipped ness of those nor court a is a exper- viewpoint forum —either from the of scientific complete public-policy tise or awareness of considera- say, tions —to make such an evaluation. Suffice requiring eugenic initial enthusiasm laws steriliza- waned, many repealed. tion has and of them have been The Wisconsin law as in related enacted “to the criminality, prevention insanity, of feeble-mindedness epilepsy.”7 provision, and appeared as it in the stat- disturbing why For an excellent —and of how and —account eugenic Progressives, was embraced Wisconsin history 46.12, legislative of discussion enactment of sec. Progressive Stats., Vecoli, see Sterilization: A R. Measure? Magazine History, Spring p. 1960, Wisconsin 190. utes, grandiose the less title of of de- bore “Sterilization ap- 46.12, fectives.” Stats. 1975. The 1913 statute Sec. insane, criminal, epi- plied only feeble-minded, institution; leptic persons public who were confined to a though large and, even there were numbers of noninsti- categories persons who fitted into the which tutionalized subject sterilization, applicable the law were was not to them. noteworthy legislative also
It is that the authorization given (later State Board Control the De- partment Services), of Health and which was Social surgeon given appoint power to and an alienist to periodically persons. examine institutionalized Under the law, agreement by if there were unanimous the examin- ing physicians superintendent the inmate’s institution, the State Board Control could order an operation prevention procreation. for the
From the time its enactment 1913 to time of repeal virtually its the statute remained un- changed. However, epileptics from were deleted sweep of the statute chs. 457 and 534 of the Laws of eugenic 1955. The Wisconsin sterilization statute was enacted, questions one of the first but because of in re- *16 spect constitutionality compulsory the sterilization statutes, many legislatures state approval withheld their until the landmark Buck Bell, case of v. U.S. 200 274 (1927). opinion, In that Justice Holmes stated: “We have public seen more than once that welfare the may be sap often upon call the best citizens for their It lives. would strange upon if it already could not call those who strength the for sacrifices, State these lesser not felt to be concerned, such those in order to prevent being swamped our incompetence. with It is bet- world, ter for all the waiting if instead of to execute degenerate offspring crime, for or to let them starve for imbecility, their manifestly society prevent can who those are continuing unfit from prin- their vaccination kind. ciple that compulsory sustains broad
558
cutting
Fallopian
.
Three
enough
tubes.
. .
the
cover
207)8
enough.” (p.
generations of imbeciles are
passed
years
20
Buck v.
states
Bell,
ten
Within
represented
v.
eugenic
Buck
Bell
statutes.
sterilization
eugenic
high point
sterilization.
of enthusiasm for
the
eugenic
validity
Both the scientific
into
constitutionality
called
of such laws have been
years.
aspects
dis-
are.
question in
The scientific
recent
Eliminating
Ferster,
generally
cussed
Unfit —Is
602-04;
591,
Answer?
L. J.
Ohio St.
Sterilization
27
Retardation, 51
Bligh,
and Mental
A.B.A.
Sterilization
Eugenic
(1965);
Note,
Sterilization—
1059
Journal
(1969). And
Analysis,
631
46 Denver L. J.
Scientific
1942,
v.
viewpoint,
from a
Skinner
constitutional
Oklahoma,
(1942),
Su-
559 however, irrelevant, because statement, This tarded.9 proposed purpose ster- of the no assertion the there was child. It the birth of a defective was to avoid ilization sought only interests of accommodate the best urged. herself, were and no societal benefits Joan meaning only public-policy ascribed to can be eugenic passed in repeal of sterilization law 1913 All that can be con- is immaterial to Joan’s situation. legislature repeal dis- became cluded from its efficacy eugenic with either the steriliza- enchanted persons concerned tion of institutionalized or became constitutionality mandatory with due-process procedures of the without and the consent person to be sterilized.10 9 hearing dis The medical record introduced at the does etiology disability. It characterizes Joan’s close of Joan’s retardation, variously life, in terms such at different times in her generalized dysfunction “non-specific,” of un “due to cerebral etiology,” compatible moderately severe certain with “diffuse encephalopathy,” etc. 10 proposed An have limited amendment in 1967 would “hereditary subjects potential defici- mental institutionalized mentally ill, (emphasis supplied), deleting ents” the criminal and procedural safeguards. died other The bill would have added 873, (1967). origin. in committee in house of No. A. its See longer being By 1964, appears no used the statute was Department Fiscal Note Health and Social Services. See 784), (1971). began (A.B. Repeal efforts were 1969 S.B. (A.B. 898, repeated (S.B. 761), ch. in 1977 in 1971 and succeeded 4, 1977). 428, sec. Laws of Stats., 46.12, performed under sec. For a review of sterilizations Odegard, Operation 1913 to see Sterilization Statutes from 15). Outlined, May (p. For Public Welfare Wisconsin Ferster, operation law, Elimi- See other commentaries on Richmond, nating Unfit, supra, 633; Appendix C at Steriliza- (1934); Wisconsin, Criminology tion in 25 J. Crim. L. & Law, Operation Beier, Minn. Sterilization Wisconsin p. Q., May 1920, Bd. of Control 7. *18 grant legislation was, moreover, power
The 1913 agency, the Board of Control. a state administrative to limit, expand, purport to or It did not either re~allocate jurisdiction. repeal common law a circuit court’s jurisdiction It with- the statute left court untouched. agency previous- power the drew from an administrative ly conferred. mandatory eugenic repeal sterilization law of the jurisdiction public policy or the
is irrelevant court’s nonmandatory therapeutic contraceptive respect or incompe- procedures sterilization of uninstitutionalized legislative persons. conclude, therefore, tent the We history of law the 1913 sterilization neither sanctions precludes posed nor sterilization under circumstances in this case.11 history Attorney General,
Our shows that in for- during eugenic opinions mal life sterilization 11 Although history the 1913 we have concluded that legislation rejected case, problem to the other irrelevant in this legislative (1935), proposals 682, A. merit brief comment. Bill No. alia,, would, spouse, parent, amended, inter have authorized a legal personal guardian person or of a who “in such mental condition that he not of the treatment” can understand the effect petition county legislation court for sterilization. The provided approve that the court if certain “shall” the sterilization ap bill, conditions were met. Under the sterilization was to propriate subject conceive; enough if such a were old had either an inheritable disease form of or “an incurable feeble-mindedness pregnancy probably or such that or will cause her death defect permanent injury” (emphasis supplied); serious illness or performed safety could be sub with ject. 376, (1935) 437, (1937). See also A. A somewhat Nos. S. rejected. (1939) (as bill, amended), similar A. No. also was legislature’s rejection or While not much into the we should read bill, particularly legislation non-action on a where the contains explain provisions demise, at the bill’s it is other which could also legisla rejections proposed significant that there have been least eugenic major legislation but tion where a concern being. incompetent’s for the well concern law, frequently question ruled on the of whether volun- tary therapeutic contraceptive and consented-to ster- performed violating ilizations could be without the laws mayhem. Originally Attorney of criminal General performed ruled that sterilizations on noninstitutional- incompetent persons ized under the au- administrative thority superintendent of' the Wisconsin State Hospital Atty. would Op. violate the criminal laws. 17 *19 (1928). attorney general Gen. 524 handed down a similarly ruling Op. Atty. restrictive in 21 1932 Gen. (1932), stating competent 940 purported that a adult’s contraceptive might consent to sterilization not immunize performing physician liability. from criminal How- ever, years later, attorney general, six in a formal opinion, voluntary vasectomy a concluded that com- a petent person vasectomy noninstitutionalized when such necessary preserve was health would not constitute mayhem. Atty. Op. criminal (1938), 27 Gen. 416 and in 1968, Op. Atty. 191, attorney general 57 Gen. contraceptive concluded that a performed by physician voluntary a at a request and rational of a patient mayhem did any not constitute other crime.
Thus, by it had 1968, Attorney been determined therapeutic General that neither contraceptive nor ster- voluntarily ilizations when implicated any consented to aspect of They personal criminal law. were decision- al choices.
Although this court has never had occasion to rule on subjects decided Attorney General, posi- tion of that office is consistent with that of the United Supreme States recognition Court its of the funda- right mental decisional of a procreate citizen to or not. Skinner v. Oklahoma, supra, struck down an Oklahoma equal-protection statute on grounds, because it authorized the sterilization of some criminals but other crimi- nals. Douglas, speaking Justice for the court in that case, said, “Marriage procreation are fundamental very existence and survival race.” U.S.
at 541.
Later,
Connecticut,
in Griswold v.
of the warranted married or free single, from un- governmental intrusion into matters fun- so damentally affecting person as the decision whether to beget (p. 453) bear or a child.” Carey Population In v. Services International, 431 U.S. (1977), again Brennan, invoking right Justice personal unjustified privacy governmental without in- terference, stated: *20 “The beget decision or not whether to or bear a child very is at the of heart this cluster of constitutionally pro- regulations
tected choices. . . . imposing a burden on it may justified only by compelling state interests, and narrowly must be drawn express only to those interests.” (pp. 685-86) emerges What from these cases is consistent with the opinions of the Attorney Wisconsin General —that ster- implicates protected ilization a personal procreative de- cisional choice.
While the United Supreme States Court has never specifically addressed sterilization except equal-pro- tection terms, of rationale the cases referred to and right conclusion that procreate to prevent or to
563 personal procreation protected, deci- is fundamental a clearly appears sional to be to the case choice relevant Starting ruling explicit of before us.12 with the Attorney that no General the State Wisconsin law of violated and the State is criminal Wisconsin assumption Supreme implicit of the United States sought by competent person Court that sterilization a therapeutic contraceptive purpose probably with- or a right protected the ambit of a constitutional when the give voluntary subject consent, can a and informed question posed is whether court a has constitutional duty guardian incompetent authorize of an con- incompetent sent when sterili- zation therapeutic contraceptive purpose for a is in competent per- the best If interests ward. right sterilization, right son has the can be with- incompetent? held from an Jersey recently Supreme very
The New
Court
an-
question.
235,
swered
Grady,
“no” to that
In re
N.J.
85
(1981).
reaching
conclusion,
A.2d
In
Jersey Supreme
New
requested
Court considered the
nineteen-year-old mentally-impaired
sterilization of a
seriously
Syndrome.
woman
afflicted with
Down’s
Jersey
strikingly
facts considered
the New
are
presented
similar to those
in the Wisconsin circuit court
regard
Jersey
to Joan. The New
court stated:
Grady
right
“Lee Ann
same
has the
constitutional
anyone
privacy as
else
choose whether or not to un-
dergo
ability
Unfortunately,
she lacks the
sterilization.
pretend
to make that choice for herself. We do not
guardian
parents,
litem,
the choice of her
her
ad
or a
12 Discussing
protection
the constitutional
afforded to steriliza
Grady,
competent persons,
see In re
tion decisions of
85 N.J.
therein; Develop
(1981),
564
genuine
court is her own choice. But it is a
choice never-
designed
theless —one
to further
the same interests she
might pursue
ability
had she the
to decide herself.” 426
A.2d at 480.
jurisprudential
background upon
which the New
Jersey
Grady
substantially
court decided
different
present
Although
than that
in which we view the
case.
Jersey
through
analysis
the New
court went
a careful
determine whether
Grady
the sterilization of Lee Ann
interests,
inwas
her best
substantially
its decision was
upon
based
10,
the case of In re Quinlan, 70 N.J.
A.
2d
(1976),
cert. den.
years
U.S.
decided five
Quinlan,
In
Jersey
earlier.
the New
authorized
parents
substituted consent
of a
twen-
comatose
ty-two-year-old woman to discontinue use of extraor-
dinary
support apparatus.
Grady,
artificial
life
In
re-
ferring
Quinlan,
Jersey
the New
court said:
equitable powers
although
“We exercised our
there
we
probably
believed that our decision would
lead to the
patient.
natural death of the
Our decision took into con-
public
sideration the
our
interests
and the belief of
society
supreme
in the
value of life. We were well
exercising powers directly
aware of the risks of
affect-
ing
opportunity
of another human to live or die. But
ultimately we
patient’s
decided that
constitutional
right
serving
privacy outweighed
public
pre-
interest
presented
her
compelling
life and
case for
judicial
compelling
intervention. Similar
considerations
present
exist in the
case
the sterilization
[for
of Lee Ann
Grady].”
565 respect to this kind.13 We do not fault the in cases of Jersey court either its on either New for of decisions grounds. opinions jurisprudential or Both humanitarian carefully rationally justifiable. and reasoned are are discussing But find it too when the we somewhat facile necessarily right by privacy, of refers which definition genuine involved, person the to is a to find that there 13 parties the of the courts below to case and referred Guardianship Pescinski, In re Wis.2d 226 N.W.2d of appears (1975). particular, have appeals, read The court of in to supporting a circuit Peseinski Wisconsin as its conclusion that judicial power sueh court is authorize a sterilization without proposed the in as one this case. schizophrenic Pescinski, guardian In the of an institutionalized county transplant petitioned of a the for authorization the court kidney kidneys whose con been removed and to a sister whose had family deteriorating. available members dition was No other were procedure from for the was obtained as donors. No “real” consent guardian any donor, incompetent prospective nor his the from any “absolutely interests no . . that ad litem. There was evidence . transplant.” This court the Id. at 7. will be served ward ward, power that, no ruled absent real consent the there that, operation. county approve It stated court the in authority county statutory given au court to “There is no surgical procedure kidney transplant any a on thorize a other person,” living expressly adopt the substituted declined paragraph judgment 7-8. The last Id. at doctrine Wisconsin. advantage emphasized importance taking opinion of not of that, ain incompetents' “real” of absent consent stated shown, county has been where no benefit to situation ward authority approve operation. (and court) no have juris- discussion, supra, plenary on the constitutional As our Peseinski, indicates, despite courts Wisconsin circuit diction of ruling language, of read as a want of broad should not be some its repre- case, jurisdiction. Rather, present Peseinski like of particular circum- judicial restraint under sents the exercise lack consent included Those circumstances stances. ward, showing litem, an to the guardian of benefit ad no be guidance. read legislative should Peseinski absence may, and, jurisdiction, we insofar as ruling of a want conclusion. disavow personally
choice when choice cannot exercisable. Grady decision, It is indeed true there was but Grady pursuant it was not the decision of Lee Ann right privacy. her believe it We somewhat inconsis- Jersey single equate tent New for the court to breath “providing “the made in choice her behalf” and her with *23 a choice.” 426 at 481. A.2d Jersey
The fault we find in New is the ratio case concluding, correctly believe, decidendi first that we right choice, personal sterilization is a but then equating by a decision with the made others choice of person clearly personal to be It not a sterilized. is legal legerdemain choice, no amount of can make it That, however, so. does not mean we conclude in that, Grady presented presented either the circumstances in involving in Eberhardy, this case Joan there cannot be thought procedure by some well out which the decision implemented. to sterilize can be made and question We conclude that the is not choice because it sophistry such, to refer to it ques- as but rather the tion is others, whether there is a method which act- ing person’s in behalf best interests and in the interests, they may be, state, such can of the exercise Any govemmentally decision. (or sanctioned or- dered) procedure person incapable sterilize who is giving consent must is, be denominated for what it is, that the state’s intrusion into the determination of person whether or not a who makes choice no shall be procreate. allowed to public policy of the state is inevitably involved. If that, this court were to conclude case, under Eberhardy the facts of this Joan should be sterilized, deciding we would be more than the best in- particular terests person of a particular in a situation. deciding We would be appropriate it and not con- trary public policy to order per- the sterilization of a son when a court decides is in the best interests of person to do so. specific purpose This case was taken on review for the determining whether the courts of had Wisconsin jurisdiction incompetents sterilizations of authorize give who could not their But consent. our conclusion jurisdiction dispositive the circuit court has is not jurisdiction of whether that should be exercised in the unguided judge. discretion As Marshall Justice Harrigan 227-28, Gilchrist, supra, in said v. atWis. may jurisdiction particular subject “A court have of a ought matter, judicial policy but settled exer- cise it.” law, only guideline present
Under the state problem ap- to circuit courts this available faced with pears person to be the “best interests” of the to be This is a sterilized. test that has been used for a num- years jurisdiction ber elsewhere custody place- determination of the of children and their placement ment —in some circumstances a controlled See, e.g., environment. sec. Stats. No one who 48.01(2), *24 expressed complete has dealt with this standard has sat- objective test, isfaction with it.14 It is not an and not workability intended to be. The substantial of the upon factfinding test rests the informed and the wise by engendered long exercise of discretion by trial courts experience with Importantly, however, the standard. most determinations made in the best interests of a child or incompetent person of an irreversible; are not although wrong may damaging decision indeed, opportunity there is an for a empiri- certain amount of cism in the correction of errors of discretion. Errors of judgment by or revisions of decisions courts and social can, part workers least, at be rectified when new facts thoughts or prevail. And, second alleged of course, er- exercising rors of discretion in the “best interest” stan- subject appellate dard are review. Sterilization as it 14 Goldstein, Solnit, Beyond Freud & the Best Interests (1978). Child
568 by however, is, medical science sub- now understood stantially report A recent irreversible. stated: “Though possible (surgically it is now to ‘reverse’ re- many continuity in) store as as of vasectomies 70% ligations, pregnancy whether full-term will tubal % routinely result from such restorations remains to be words, undergoing persons In other documented. these procedures regard being permanent should them as expect reversibility.” should not E. G. T. Johnson S. Goldfinger, The Harvard Medical Health Letter School (1981). Boole188
A similar conclusion is R. reached Shane and C. Fertility Control, Biologic Powerstein and Behavioral Aspects (1980).
Thus,
ligation
Eberhardy
any
the tubal
of Joan
pursuant
other woman
to an order in the exercise of
judicial discretion must be considered irreversible. The
judicial process could
correcting
no
afford
method for
an error in the
vague,
exercise of this discretion. The
although frequently useful,
analysis ap-
“best interest”
pears
inadequate
to be
unless there is an authoritative
declaration,
public
guide
policy to
the exercise of that
discretionary
irreversible
act.15
reasons,
For similar
880.38(2), Stats.,
we
not
do
construe sec.
providing
guidance.
provides that,
sufficient
That section
“A
guardian
person
necessary care,
of the
shall endeavor
to secure
appropriate
protective placement
services or
on behalf of the
legislative history
ward.” A brief review of
this section
shows
part
legislation
enacted as
establishing protective
services
incompetent persons.
31,
284,
certain disabled and
ch.
See
sec.
sec,
1973,
393,
Laws of
amended
ch.
of 1975. We need
Laws
scope
terms,
meaning
and do not decide
“neces
sary
“services,”
case,
care” and
for such unelaborated terms
clearly inadequate
are
procedural
to serve as substantive or
safe
guards
many
inquiries
sensitive
which
have to be
would
*25
could,
made
propriety,
judicially
before a sterilization
with
be
au
Cf.,
Grady,
thorized.
In re
235,
(1981);
85 N.J.
Court at precedential least until their effects by are felt public, noticed, are little even those potentially Although who are concerned. the case of Joan Eberhardy gamut ran the pro- of three levels of court ceedings, groups none of the represent numerous incompetent persons interests of appeared retarded or or Although filed amicus briefs to assist the court. the rec- guardian ord was well court, bandied trial and the litem, attorney guardians ad gave cogent for the why reasons sterilization allowed, should be no one played the why “devil’s advocate” to inform the court might improper respect be to Joan Eber- hardy and, particularly, respect persons to retarded generally, respect or at least in some who fall within that class.
This case appro- demonstrates a court is not an priate making policy forum for in such a sensitive area. Moreover, irrespective of how may well tried a case —and we consider the instant pre- one to have been well carefully sented and considered —there are inherent lim- posture itations in any the factual case which make extrapolation judicially policy made to an entire area of such a sensitive risky nature as this indeed. The legislature able, by is far hearing better process, range consider a possible broad factual situations.16 It can persons give marshal informed in-depth an study problem to the entire and can secure the advice of note, example, We present litigation that nowhere in the any is there reference to might the considerations which be involved contraceptive therapeutic or incompe sterilization of male persons. tent posture The limited factual of this case dictates this scope inquiry. narrowed imply We no conclusion as to whether incompetent sterilization of a male would involve the same public policy, different considerations rights, individual incompetent “best interests” assessment as for person. a female only We note that wider vision than that available to us in the necessary context of this case questions. would be to address such sociology, psychiatry, psychology, experts in the field of explore law, in the field medicine, well as general public adoption of a ramifications give imprimatur specific courts policy which will *27 circumstances. in well defined sterilization to order Sherrer, v. 334 U.S. in Sherrer Frankfurter Justice opinion), (dissenting (1948) said: 343, 365 paths dis- equipped pursue the for are not “Courts covering bounds the through confined within policy. A court is wise shape record, particular it even and cannot of a fragments problem are seen Only of a social record. litigation. in- Had we of a windows the narrow acquired understanding problem in of a social nate or adequate disposal entirety, at our we would not have its to so tan- The answer achieved constructive solution. means for gled judi- . . . problem a ... to be ...” cial resources question is not before
As before, stated power. Rather, prudential power use of it is the one of Although Benjamin judicial restraint. —the exercise of judicial a activist believed was considered and Cardozo necessary to important to blaze trails where courts rights, protect human nevertheless he said: free, wholly judge, when he is still not “The even pleasure. a He is not free. Hé is not knight-errant, innovate at roaming pursuit will in at of his own ideal beauty goodness. inspiration of from consecrated or of He is to draw his yield principles. spas- not to He is vague unregulated sentiment, modic benevolence. by tradition, He is to exercise methodized ordinated to ‘the informed discretion disciplined by system, analogy, sub- necessity primordial of order enough in all conscience is the field of social life.’ Wide discretion that remains.” ology. Cardozo, The Method Soci- Judge Legislator, as a The Nature of the Process, p. 141. Judicial essay, said, speaking same he Elsewhere judges: though “They power, right, have the not the to travel beyond statutes], the walls of interstices [of judicial by precedent bounds set to innovation cus-
tom.” Id. at 129. Having prudence said that counsels caution in the ex- unquestioned jurisdiction ercise of in this troublesome question area, court, remains whether a which has obligations under constitution which mandates the right personal procreate to free choice of whether to requires equal protection, not and properly which can jurisdiction. decline exercise its We believe it can and should. dealing special persons We are with a class of —the
severely mentally cannot, retarded who on an informed voluntary give basis, their consent to an irreversible procedure. irrevocability And the itself places it in a different classification from usual situa- tions Supreme where the United States Court has con- *28 procreate sidered the choice to or not. The choices thus by far Supreme considered Court not are irreversi- they ble, only affecting involve present a. decision a They preclude choice. do not a different choice at a later time. question Sterilization is, does. The there- fore, one of process both substantive due of classi- fication. Supreme United recognized States that, Court has
although many areas minors have the same constitu- rights tional as adults, they because spe- are a class of cial concern state, to the the uninhibited exercise of those rights may hedged about with restrictions re- public flect policy protecting persons of a distinct class. example, For Supreme United States Court in Baird, Bellotti v. 443 U.S. (1979), recognized 622 the decisional choice of abortion which previ- it had ously recognized for (and adults had held that, as to
573 by flatly proscribed an minors, not be the choice could veto, third-party Planned Parenthood state or absolute (1976)) Danforth, v. Missouri U.S. Central appropriate action be circumscribed nonetheless could showing maturity special or “best inter requiring a par important without make an decision such ests” requirement involvement, could be such a ental by legislative has also made imposed It been action. may constitutionally require physi that a state clear dependent, notify, an possible, unemancipated, if cian to parents consenting to minor’s before and non-mature Matheson, - U.S. -, L. perform an H. v. abortion. (1981). a law 2d 101 S. Ct. 67 L. Such Ed. among interests, “important” serves, one state other “protecting adolescents.” minors, mentally appear to retarded, would like subject special protections of within class fall doubtless, all) Many (though of the men- state. tally free competent to exercise a retarded are not generally mandate would choice. While the Constitution juris adults, sui is an a free choice for a free choice empty option who it. More- for those cannot exercise over, speak for the no means certain who should purport retarded, and those best interests of the who may conflicting may have which well skew the interests best who nor- decisions even the intentioned. Those mally guard- speak incompetent parents, would for the — may actuality speak, ians, or even social workers — consciously unconsciously, in their interests: own worry, convenience, Diminished a wish to be relieved responsibility for close or frustration at supervision, inability problem. their to deal with a most difficult *29 very indeed, may be, These considerations in inter- necessarily incompetent, but ests are so. See of Meisel, “Exceptions” to the Consent Doc- Informed Striking Competing trine: a Balance in Between Values 574 473, Decisionmaking,
Medical Rev. 1979 Wis. L. 478-81. considered, incompetents
It is clear then that must be purpose sterilization, for the of a distinct class to whom special interest the state owes concern. The state’s affording protection great them indeed.17 Because special irreversibility, and it interest the factor of necessary application that re standards of statewide public policy flective as to both individual and societal adopted. considering be In interests cases sterilization leeway development there is little of common law judicial upon procedure in standards based the usual crementally eventually developing appropri what is approach ate as a statewide standard. an would no Such doubt be even more violative the interests of incom petents guidelines than to set for discretion based on only Indeed, expressed existing public policy on question treatment, suggests does reveal differential discourages persons. incompetent the state the sterilization of Wisconsin, voluntary government, like the federal funds steriliza competent family planning provisions tions of adults under the (medical assistance) program. of the Medicaid 4 Wis. Adm. Code HSS, 101.03(170) 51); 107.06(2) (p. 25); 104.01(7) (p. ch. secs. (zk) (p.229); 107.21(1) (c)4, 286-89). However, (b)3g, (pp. (2) government, these rules —like those of the secs. federal 42 C.F.R. (1979) expressly coverage 441.250-441.259 exclude state financial — persons (as persons incompetent for sterilization of well as of age persons). under institutionalized Wis. Adm. Code 101.03(168), (169) 25); 105.36(1) (d) 170); (p. (p. ch. HHS secs. 107.06(2) (zk) (p. 229); 107.21(3) 289). recognize (p. We legislative policy judgment this is an administrative rather than a one, indeed, may reality policy “compelled” it Department of Health undertaken the State and Social Services policy funding. comply with federal order to ensure federal Nonetheless, clearly concern, the state’s as a rather connotes questions public complex policy, matter of over the of consent and may possible arise in connection with the abuse which incompetent persons. *30 out, which, pointed would be judicial as we have fiat appreciate opportunity an on too narrow based consequences of sterili implications of the broad social zation. appropriate in the instant case.
Restraint is even amply the undesirable the record demonstrates While pregnancy, consequence consequences of is Joan’s inevitability of the conse- contingent, not certain. acting judicially ap- quences in this case does not of not degree might ques- force a choice if the proach the invoking power order treat- one state were tion problem it. for who would die without ment one probability, pregnancy while is at the most a Joan’s irre- sterilization constitutes an state action authorize irrevocably certainty. permanently It versible would procreative capability. If deprive we view Joan of her favorably sought, ap- the record most to the relief it Joan, not, parent that, for sterilization would all probability, constitute a burden in fact. But as a matter greater of law in a situation such as a burden this, judicial decision to act than a decision to inflicted present. would from a withhold action We recoil generalized rule of law that it is in the best interests any mentally incompetent to be sterilized. Because we speak state, precedentially for of this the entire a decision likely court to authorize consent to sterilization is to be generalized taken as an enunciation of a It is rule: with- judge in the discretion of the trial to order sterilization finding if there is a that it is in the best interests incompetent. Alternatively, guidelines we could establish substantially that are so restrictive as to eliminate the right of cases, appro- sterilization in most even where priate, guidelines generalized that would be so they adequately would not reflect social and medical knowledge, and would reflect considered and well public policy. reject defined We these alternatives. accordingly inappropri- We conclude would be permit Eberhardy ate to either the sterilization of Joan *31 by legislature where there has been no determination public of policy defining the state’s -what is in Joan’s (and others’) interests, attempt best or to at set forth length guidelines when we that a know court is preferred government general branch of to enunciate public policy. rules of initially This task should be legislature’s. recognized frequently
We may ju- have that we have risdiction to doing act but nevertheless refrain from so. v, Recently, Stroh, 295, in Slawek 62 215 N.W.2d Wis.2d (1974), 9 we that, concluded as a of result our common , law authority, probably constitutional we could rec- ognize wrongful birth, deciding the tort of we in but said recognize to not the tort: would vast have social “[It] ramifications and the of creation such a type public cause of action is the
policy decision
by
should
be made
people
of this
legislative
state or
representatives.”
their elected
(pp.
317-18)
Even
respect
in
to a modification of the rules of com
parative negligence, this
exercising
court refrained from
its
authority
clear common law
give
in
leg
order to
opportunity
islature an
problem..
consider the
Reiter
Dyken,
v.
95
461,
Wis.2d
(1980) ;
The social and authorizing ramifications of judicial approval of incompetents sterilization of would appear considerably to be more “vast” and sensitive than recognition of a new tort. supreme
Some state
promulgated
courts have
stan-
dards to be used
trial courts
considering
petitions
for the
incompetents.
sterilization of
In
Grady,
re
85
Guardianship
(1981) ;
235,
Matter
N.J.
Although this state courts of permit its requires diction, that we refuse prudence in this exercise case. expressed in Justice point dissent was well Supreme Washington Guardian- Court
Stafford state authorized ship Hayes, supra, a case which *32 sterilization of performance of courts to consent to incompetents. He said: requires however, neither power, of such “Possession necessarily supports wisdom
that it be exercised nor under all circumstances. of its exercise permanent and with the “In case we are concerned this right. personal Those of a fundamental irreversible loss right of ‘social do so the name who seek to invade this well-being’ ‘personal . . . . need’, good’ and even ‘social only deep-seated my however, view, In there are not sociological, legal issues, medical, fun- personal and but a power, public policy involved. What damental issue of society regard; personal then, what in this should have rights society; protected to what extent should be from they protected; manner? should and what having clearly judi- “It me that declared the seems to ciary’s articulation of act, power dictates we should defer wisdom legisla- complex public policy this to the deferral, ture. done with a clear declaration Such judicial power, power. is not an abdication of that Rath- er, recognition power it is a the declared can be rationally coupled with a choice exercise conscious not to it.” inappropriate Because we conclude pres- it under the ent circumstances for circuit courts to exercise their them, jurisdiction, pursuant supervisory direct we to our authority, ordering to refrain from the sterilization of incompetents give or of others who are unable to an in- voluntary formed and procedure. consent to the direct, however, Because sowe it should not be con- abrogates cluded authority this court its own jurisdiction subject on act this at a future if it time apparent legislature becomes is unable un- willing procedures, to act. Unlike sterilization our deci- sions are appropriate reversible. In an appro- case anat time, priate court, if necessary, it becomes could permit original jurisdiction the invocation of its for the further problem. consideration resolution of this Al- though judicial system adapted is not well examining evaluating task social and medical viewpoint public facts from the policy, occasionally it necessary becomes powerless to do It is so. in that By respect. remand factfinding, by referee for process taking judicial important notice of facts of a legislative nature, exercise its own discre- (or tion referral to a trial court such which exercise, could then be appellate scrutinized on prob- review), posed lem in this case could be addressed. preferred forum, however, is the legislature, and public is there policy that the issues which arise in a
case of this nature should be determined.
holdWe that the circuit courts of the State Wiscon- sin have statutory jurisdiction constitutional and to con- petitions seeking sider and decide court authorization for guardian give consent to the sterilization of an incompetent ward; pursuant but to our supervisory au- thority jurisdiction we direct such shall not be exercised by appropri- policy set do so is forth until state’s legislation of this court. ate or until further order By affirmed. the Court. —Decision COFFEY, (concurring). opinion An attack on an J. as ma- comprehensive as well-written that of the Nevertheless, jority lightly I be undertaken. should not disagree compelled with separately am I write because power as courts under several assertions to the circuit circuit dismissed the Wisconsin constitution. The court ground authority petition in this that case on the incompetent approve of an order or the sterilization granted by could not exercised unless statute. appeals, opinion, affirmed. court of a well-reasoned majority jurisdictional states that view of being appeals, circuit founded court the court of solely statutory authorization, upon “is too narrow comport precedents does not court.” with the of this majority Supra,*p.' opinion I 548. it believe is the of the comport precedents. which not does with our disagree holding majority I with jurisdiction circuit court to order sterilization legislature an incompetent need not be conferred I do because it exists under Wisconsin constitution. question grants jurisdiction not constitution jurisdiction cases the circuit civil equity the time the courts at law or in at exercised However, lawof adopted. the courts constitution was legal relation- equity power over all did exercise Adoption N.W.2d Tschudy, ships. In 267 Wis. (1954), the court stated: very great an- “Although practice adoption is a England law of tiquity, was not in the common known only by of stat- virtue in the States and it exists United proceedings stat- Wisconsin, adoption are In ... utes. utory. Id. at 281. omitted].” [Citations *34 580 Grbic, 201, (1919), re
In In 170 174 546 the Wis. N.W. following Barker v. quoted from statement (1871): Dayton, 28 367Wis. general principle “It is an undoubted the law courts, country, either of law divorce or this equity, possess powers except no such as are conferred by statute; any that, justify proceeding in or to act divorce, pertains
a case of ground whether it be such as itself, process, pleadings or cause of to the action practice it, enforcing judg- or ment or or to the mode decree, authority therefor must be found in the statute, elsewhere, and cannot be looked for or otherwise Id. asserted or at exercised.” 379. years ago, court, Guardianship Seven in In re Pescinski, (1975), 180 Wis.2d N.W.2d held personal surgical that a decision consent to the re- transplantation kidney moval and of a could not be made incompetent for an under the doctrine of substituted judgment legislative without authorization. Pescinski clearly power established that a court has no inherent personal make incompetent. decision for an jurisdiction depends upon legis- to do so an act findings lature judge. and not the of an individual majority may decision disavows Pescinski insofar as it ruling jurisdiction. be read as a of want of This amounts overruling case, jurisdiction because want of ground of decision. Judicial requires restraint we judicial observe the limitations of power, and defer legislature, as to those matters which not were subjects the traditional of suits at equity. law or in If not, endorsing do government we we are by judicial fiat, law. I goes What have thus far power said to the act, circuit court to jurisdiction which is a form of over subject suit, matter of particularly only when the sought relief granted which is could on the facts *35 ordering petition approval the asserted in the is of a or surgical body living procedure person. a In on the of jurisdiction subject matter dis addition to the of the question 801.04(1), Stats., in there is the cussed sec. jurisdiction, the of the of exercise court’s either personal jurisdiction jurisdiction quasi in rem in or or jurisdictional requirements rem. These are treated grounds exercising 801.04(2) (3). sec. personal jurisdiction Only are in sec. 801.05. two stated (2) of subsections the need be examined. Sub. statute jurisdiction where there are allows the exercise of stat grounds specifically for the exercise utes which confer personal jurisdiction defendant. No over the such of (1) permits exercise of statute exists this case. Sub. “against the personal jurisdiction But a defendant.” against any proceeding theory not case at bar is a the caption of the was no named defendant. The one. There quasi proceeding in rem the case makes clear Guardianship of states, the of the “In Matter because I, 801,04(3), pro Incompetent.” Sec. Eberhardy, Joan vides as follows: subject having jurisdiction “A court of state quasi judgment in rem may rem matter render a or thing upon pursuant upon property a or or other status may affect 801.07, judgment in such action s. persons thing status, all property or in the interests pursuant com- to s. 801.12 a summons as served plaint with requires.” object case or notice of of action thing status, property upon or which a
What is may Apparently the judgment be in this case? rendered living willing body person majority say that the of a category. I am not. in that falls holding power to court has the circuit While incompetent without an order authorize majority that such consent, also holds person’s approval prior exercised without power be should agree point of this court. I with the second whole- heartedly.
Compulsory sterilization involves termination of the constitutionally right protected fundamental to bear children. right right privacy anything, “If it is the means single, individual, unwar free of married or governmental so funda ranted intrusion into matters affecting person
mentally bear or 438, 453 as the whether decision beget Baird, v. 405 U.S. a child.” Eisenstadt (1972). body integrity funda- physicial human is a protect right. The courts exist mental constitutional *36 rights by other intrusion the such from unwarranted facilitate, or authorize government, of not to branches direct intrusion. such government power to order the of
I conclude that person, alleged mentally if deficient of an sterilization power. initial exists, power is an administrative such legislature. How- grant to it is the decision whether legislative power the is administrative and ever, because relating public perceived interest as character, in the exercising may delegated ex- by to or it, it not be those by explaining an In what constitutes ercised a court. delegation judiciary, has this court said to the invalid in case: an annexation ‘ought is is or or to be’ is ‘desirable’ ‘advisable’ “What question of question policy, of not a fact. What a fact ‘necessary’ not a ‘in the interest’ is or what is best of judiciary by an exercise is and its determination legislative tions political considera power involves when each not be an why there should and reasons should general rule which This is the universal annexation. sharply legislative differentiating line between draws the validity of judicial power which the power legis judiciary by the delegation to the of functions
the lature City Beloit, Wis.2d In re is determined.” of (1968). 644, 155 N.W.2d legislature There is no claim in this case that the has delegated power judiciary. to order sterilization to the fact, legislature In a has determined as matter of policy power is the state not to be used compel legislature repealed sterilization. In 1977, the 46.12, repealed sec. Stats. The statute allowed De- partment of Health and Social to authorize Services criminal, mentally mentally ill or deficient county upon finding inmates of state institutions, psychiatrist surgeon, superintendent of a and the “procreation inadvisable,” the institution that after is “physical examination into the and mental” condition the inmates. young subject
If woman this case had been pur- repealed statute, she could have been sterilized repealed suant to administrative Even the statute decree. grant power judge Apply- did to a to take this action. ing sterilization, the Beloit rule I would hold involving procreation by person “advisable,” whether legal purely moral and than ethical rather and factual considerations, legislative police an exercise of the power judicial power. rather than the compelling
There is no interest state be served conferring power on a court to authorize the steriliza- argument incompetent person. tion of an advanced support compulsory sterilization laws at the turn century prevent- state had an was that the interest *37 mentally eugenics ing This birth of retarded children. the hereditary. argument that mental retardation is assumes many mentally have the retarded know that of We now They hereditary cultural, roots. rather than social and populations higher with inade- present in at rates are prenatal quate care. nutrition among first to the countries were The Scandinavian thought that the eugenic laws. Some enact socially progressive and provided laws of these enactment legislation. responsible retrospect It to is ironic realize pioneered concept that the same societies which the prerogative state insisted on the welfare the con- trolling the the bodies their members so as to limit upon potential generosity. their It is a claims short and logical' preventing step from the to birth misfits permitting eugenieaily superior persons, only birth of the Thus, it Germany, determined the state. in Nazi marriages required was that all children of “mixed” Together systematic with the murder ’sterilized. Jews, policy only race” this insured that the “master survive. would young argued in the is retarded woman
It that capacity to make a decision bar not have the case at does children, just does have as to whether bear as she However, capacity to sterilization. consent consciously, pregnant is seldom made decision become frequently setting. Pregnancy most in a cold and clinical suggested has that an No one results from act love. incapable young of love. woman suggests that doctors at The record this case willing operation perform are not Marshfield Clinic notwithstanding approval, they judicial unless receive hospital’s approved com- has ethics been legal Thus, from lia- the doctors want insulation mittee. judgment turn to be in bility their out error. should concern, professional are their own of the doctors ethics colleagues. However, agree I would of their authority holding without that it was with the trial court from of a statute to insulate doctors absence by giving approval steriliza- legal any, for the if liability, emergency appears from the No medical procedure. tion only a bare fact, pregnancy In facts of this case. any judge benefit stated possibility. trial sympa- may questionable. Some young woman they for what who concerned parents are with thize
585 think although is the welfare daughter, of their I find nothing in this record to substantiate their concern. good However their intentions, they are not entitled stamp seek the carry rubber of a order to out their wishes. appeals carefully
The court of the same considered arguments which have been advanced this court. It opinion determined in a well-written and well-reasoned specific in the statutory authority, absence power courts have no inherent to make the fundamental incompetent and irreversible decision to sterilize an person. pointed grant power any The court out that judiciary to the have to would be exercised a standard- vacuum, or would have to be created with less standards legislative guidance. agree I out the benefit power deprive being of funda awesome a human right beget may mental a child not be inferred bear general statutory juris grants from constitutional or Rather, by statutory au diction. it must conferred be legal thority, providing guidelines adequate safe guards representatives of the the elected determined people after necessary, to be full consideration rights general constitutional of the individual and the authority granted only society. welfare of Such should medical, thorough moral, after a consideration legal, implica ethical, psychological as well as only proper tions and its aftereffects. of sterilization legislature. grant authority is the forum for such Broughton Zimmerman, v. 261 Wis. ex rel. In State classic (1952), stated the Justice Currie 52 903 N.W.2d Fergus quoting powers, from separation of definition of (1926) 510, 514, 152 : Marks, NE Ill v. law department legislative determines what “The department or ad- executes be, the executive shall department construes judicial law, and the ministers applies law.” *39 concur, express great with the fol- reservation I I
As lowing as an invitation to further sterilization dicta litigation: ab- court . . not this it should be concluded jurisdiction this rogates subject authority to act on its own that the apparent if it at a future time becomes legislature unwilling steriliza- to Unlike unable or act. ap- In an procedures, reversible. tion our decisions are court, time, if it propriate appropriate at an this case its permit of the invocation could necessary, becomes original jurisdiction the further for consideration system Although judicial problem. this resolution of examining and evaluat- adapted is not the task of well to ing viewpoint public social from and medical facts necessary It is policy, not for to do so. occasionally becomes By respect. a referee powerless remand to in that taking factfinding, judicial notice process nature, by the legislative important of a facts court (or to a trial referral of its own exercise discretion on exercise, such which then be scrutinized for appellate review), could problem posed this case could be addressed. legislature, however, preferred forum, “The arise public policy which issues and it is there that in a nature determined. case of this should be of Wis- courts of the State hold that circuit “We statutory jurisdiction consin have constitutional and consider for incompetent ward; thority seeking authorization petitions court and decide of an guardian give the sterilization consent to supervisory au- pursuant to our but exercised jurisdiction be direct shall not such .we by appropriate policy forth so is set until the state’s do Supra, legislation this court.” or until order of further
at 578-579. following exception lan- particular, In I to the take guage : State Wis- courts of the hold that the circuit “We jurisdiction statutory have constitutional
consin seeking authorization petitions and deeide consider for of an give guardian consent to the incompetent ward; ... or until order further court." (emphasis supplied) Ibid.
Quoting my Wangen from dissent in Co., v. Ford Motor 97 Wis.2d (1980) N.W.2d 437 : “As Smith, Chesterfield' president the former American Bar Association, Day said Law his address: “ ‘. . being courts today are problems . asked to solve they for which institutionally are not equipped, of at least equipped as well government as other areas [such legislature]. as the “ ‘. . . As far judicial as possible, forums should doing reserved only that which cannot be done else- *40 where. “ ‘The public perceives jack- American the courts as a of-all trades available to furnish the answer to whatever may trouble prosecuted peace them. a war Shall be or life, made? begin? What is or when does death Shall integration racial busing be achieved . . . of children to far away prisons schools? How shall mental in- and operated? stitutions plants be power Shall nuclear be built, so, and if fly where? Shall Concorde to thése shores? really Is affirmative action inverse discrimina- tion? Shall the snail circuit darter survive? [Should question public policy determine a of for the citi- zens of Id. at 323-24. Wisconsin?]” expansion
Under judicial power the radical of an- already nounced will majority, our overburdened judicial system face, prospect next of a new flood n public policy litigation dealing of with issues of who Today, breakthrough to receive the ? benefit of a medical expanding the ever field is almost of medical research covering capacity taxed to the of its fiscal limits highly professional services costs of the and technical heart, eye, areas cancer research and involved such as hospitals kidney transplants. and liver Will courts order who expand all their so as to accommodate facilities new treatment or want the benefits of need and/or ad- surgical ordered to procedures, and will doctors perform minister them? Will the courts take and/or upon persons themselves to choose those will who receive programs the benefit the various medical research organ And, transplants, refuse others ? in the area of will only organs, the courts decide not who will receive but judges also will on basis who donate? decide Will productive will be the most their belief as who society of our in the or other factors members future will political influence be such as finances social faced if we not be basis for decision? Will courts logical question process with of reason follow the in- why society control over the should not assume him or her to its own ideas and subordinate dividual opening the good race? We are what is for the human ending problems without series of door to a never rational, moral or ethical solution. dissenting re- opinion in this case author of the
cently v. Princess expounded philosophy State Smith’s N.W.2d 807 Milwaukee, 96 Wis.2d Cinema of infringe legislative pre- (1980), on refused rogative enacting public policy, implement statutes stating: “ legisla- public . problems policy . . are ‘The job ture,’ ‘recognizing further, that our one enacting] redrafting *41 interpreting not [or statutes Id.
them.’” at 661-62. to de- I on this court
Further, incumbent believe is authority of express responsibilities the lineate making guardians to a court ad recommendations litem guardian the the for it from record seems evident supporting position the ad litem was more interested in- and the doctor parents for their convenience of the adult. poor, unfortunate, retarded than volved rather thorough record reveals examination A pregnancy of this unfortunate parental of a future fears responsibility adult, lack of young due her and/or necessity supervision, thoroughly constant were never aired testimony before the court. For there no presented from her adult, natural brother and sister as hospital regarding strong reflected in the records their feelings parents’ as to their oversolicitous attitudes for (retarded their sister adult) Joan’s needs: “They grossly brother and feel over- she is [the sister] protected. feeling It parents is their if were able begin program whereby self-help would learn Joan skills, fact, partially independent. In she would become they institution for seriously placing in an would like Joan consider year goal perhaps one with this in mind in order that to return the commun- she would be able ity independent and be time.” more than she is at this
One of the who recommended the sterilization doctors disregarded procedure summary adult, in a fashion natural brother’s sister’s recommendation follows: my opinion parents job “In excellent have done an raising really severely is disabled child what being today .simply style. talked about a matter of One parents in a some- prefers set raise their children way always what can different than another set. One however, quibble point. main, In the finer I about honestly vigorous program do feel that a more de- making signed appreciably Eberhardys independent at Joan all more would at style than which
more successful raised have Joan.” recommending Another doctor wrote: the sterilization impossible, supervised “It all her to be at mo- possibility ments of her life and the that she become could pregnant is real. you know, mentally possess “As persons well retarded passions sexual drives and most same as do human beings, however, they personal moral lack the re- knowledge consequences sponsibilities and the sexual intercourse.”
Quoting from another doctor consulted: camp for about a month each “She attends summer year persons camp at this have and on several occasions opposite approached sex and it is members of the been might parents] become that Joan well the fear of [the give pregnant. If committee would me the ethics ... get approval could in and I medical proper fully this situation Judge-’s approval, legal hope- counsel and in proceed procedure the near with we could again. goes . camp . .” she since future agreed guardian ad litem that the is clear record desirability of parents to the doctors as with the possible upon fear procedure based the sterilization judg- activity in due to Joan’s lack of the future sexual supervision presented no ment and lack of continual concerning testimony opposing views of regarding their and sister in 1971 Joan’s adult brother overprotected. being grossly not cross- He sister did any medical refer- scientific or examine doctor as “mentally persons opinion that retarded for his ence passions possess as do most the same sexual drive speak- opinion beings,” “statistically nor human his ing, capable reproducing probably Joan-is most I note the latter fact because the record estab- herself.” undergone thorough young lady lishes that the had not gynecological or in the immediate obstetrical examination any Further, past.1 or recent the record devoid any testimony participated type direct that Joan ever proof activity, no medical of sexual and there was substantiating confirming the mother’s fears records might pregnant.” did the that “Joan well become Neither very guardian his ad litem doctor as to cross-examine the only obstetrical and reveals that Joan underwent an record May purpose gynecological of de for the “evaluation” termining a suitable for an IUD. whether she was candidate *43 opinion and firm that no definite the retarded adult had potential developing cognitive adaptive for the skills required bearing. questions for No were successful child concerning empirical reproduc- asked data of the low questions mentally persons. No tive retarded rates morbidity mortality rates about the were asked guardian litem, ad associated with sterilization. report further, question develop in nor the did. self-sufficiency developed hospital has record “Joan hygiene personal respect as in to other basic skills vocabulary to make feeding . and sufficient . . has questions respond to known and can her basic needs The most obvious short, well-articulated sentences.” guardian litem ad deficiency presented the case opin- bring that the medical the fact out his failure is ranged mental “moderate from condition ions as to Joan’s retardation.” severe mental “moderate retardation” change explanation for this supplied.) The (Emphasis de- faculties were may mental opinion be that Joan’s independent overprotection and lack of teriorating from However, may not be training self-help skills. point out that I for reasons only explanation. It is these responsibili- necessity to delineate for this court this. In guardian such as ad in a matter litem ties of guardian presents problems to the my view, this record adversary in a true responsibilities to ward his litem’s ad meaningful any cross- devoid system. The record is pedi- parent-guardians or of either examination physician. atric difficult is a most decision my this
It belief alone as courts made never be should one and to the constituent judgment central value involves a in mak- ought involved to be society. allWe our fabric litigant, aas participate we whether ing decision citizen, American an attorney, or as physician judge, age In when an representatives. voting elective declaring indivi- are for the first time retarded courts equal in our worth other individuals duals to be with mandating constitution, equal society edu- under our training opportunities, it seems anomalous cational and being justice equal threatened. This is a decision grappling subject society matter which our will be on a years with for to come. question judgment physician’s
I in this case based presented on record for review and wonder if the court *44 attempt quality for is to substitute the of life ethic an sanctity be the of life ethic in what should medicine. case, important In this it is most to examine the ration- management alization involved in in this medical decision implications of this recent de- order understand significance velopment in medical ethics and its for the profession society easy as a whole. The is rationale quality to understand in relation to the new ethic life eloquently propounded by engineers so the social Century. questions presented: Twentieth Two are Should group only of doctors whose basis for fundamental this surgical according medical, procedure and irreversible guardian’s request upon this record based a fear young may this adult in the have retarded future statutory sexual contact with a man in the absence of guidelines authority their allowed substitute judgment society complete for and assume over control the individual and her subordinate to their own ideas of good well-being? any what is for her Does court ever power living body have direct person over the of a in the showing of a absence person life of the inis jeopardy requiring medical I attention ? think not. foregoing reasons,
For the I would affirm the decision appeals modification, of the court of without but concur in majority opinion. the result of the (dissenting). majority I DAY, J. dissent: The wrong refusing permit the circuit court to authorize though Eberhardy, even it ad- sterilization of Joan power to do so. circuit court has the mits the ago judge, years with the clothed thousand Two sensing the authority justice, power do but (“willing as the people” to content political winds to the it), hands and puts washed his said ancient word justice ye not in resulted people: to it.” act “See His my majority court, in Today, of this injustice. but Eberhardy. It justice from Joan opinion, withholds “representatives legislature, to the turns Washing its “you says to it.” effect, see people,” and justice to the turning over the demand hands denigrates court, role, and its legislature demeans mockery powers. itsof makes a legislature majority be unaware cannot today's political nothing In about this matter. do will legislators sponsor few, would atmosphere, any, if state legislature legislation. support gamut of necessity, the whole would, deal with have to legislate It could not done. could be when sterilization *45 legislation be will not young woman alone. Such this unfortunate to for this court tell forthcoming, and legislature is to parents to the state to turn woman’s hope. justice without without leave them Eberhardy refusing permit to Joan denied Justice is way only practical1 operation that is the have an physician possible pregnancy that her prevent a her from “tragic.” would said be by her described at this “child-woman” look
Let’s individual,” whose “this most unfortunate doctor as majority protect. “right procreate” wishes 1 footnote See infra. hearing
At the time of the she was the trial court twenty-two years capacity a but old had the mental two-year old child. plate.
She can’t cut her food on the puts She often on out. clothes inside any way can’t taken distance She find her home if from the house. danger traffic.
She is unaware of the from “although majority opinion says, bathe could she herself, safely regulate temperature she could not 544). p. (Supra, bath.” But worse than her it’s bath. cannot draw her that. Her father testified: “She scalding in ice water. She step She would water cold doesn’t know difference.” during menstruation.
She cannot take care of herself sexually “. the same sexual mature . has She . beings,” according doctor. passions to her as most human pregnant “if she were He further stated she could become times.” at all complete surveillance not under and total capacity to resist mental moral sense or She lacks the exploitation by others. sexual or communicate to understand She would be unable during pregnancy or de- pain physical symptoms and noncomprehend- totally livery baffled and and would be ing happening to her. as what was “It potential pregnancy:
Her her father described something like something for her for terrible would happen.” that to “tragic” pregnancy as potential
Her doctor described for her. recognizes Eber- opinion that Joan majority
Even the during the hardy’s had deteriorated mental condition 544). p. de- (Supra, But period to 1978. at was asked Dr. Louis Ptacek2 arrested. J. cline is not very impressive credentials. my opinion, Ptacek, has Dr. neurologist. pediatric and is in Pediatrics He board certified
595 hearing by judge “any trial if possibil- there was ity improvement grows of condition her as she older ?” replied: Ptacek years Dr. I all, “None at over believe there would some be deterioration.” Dr. Ptacek firm was ligation in his recommendation that tubal was in Joan Eberhardy’s best interest. parents sought help
Her of the Wisconsin system get ligation prevent for a tubal authorization tragedy. this doctors, including requested psychiatrist,
Three a it. guardian requested Her ad litem it. ethics committee Joseph’s Hospital approved of it.3 St. given that,
The trial “. . court said stated . facts proper subject . . . is a for sterilization.” [she] said, Appeals “. . . is un- the evidence Court disputed inter- will her best serve [sterilization] Eberhardy, Guardianship 97 In Matter ests.” 1980). (Ct 654, App 664, Wis.2d N.W.2d pathetic, majority of But a this court finds has helpless, individual” vulnerable, “most unfortunate further, pregnant! under “right" And a to become judicial court, whole superintending powers of this grind will refuse exercise machinery will to a halt and mentally seen thousands trial that he At testified has he .the Colony and people. was director at Southern retarded He medical years had Grove, Training Wisconsin, five at for School Union said, patients. “For at 1,800 responsibility He for some retarded diag- responsibility twenty-four years I have had least treating who are retarded.” of individuals nosis Raymond M.D., E. May 1978, Rice, wrote On Thomas J. Hospital, Joseph’s chairman, Burrill, M.D., St. committee ethics Eberhardy. Among other ligation recommending for Joan tubal however, protection, things, “I other he considered' methods said: value, and anything I.U.D., would I doubt that from the aside her case.” I use this hesitate “Joan Eber- Rice: May 23, 1978, to Dr. wrote Dr. Burrill On steriliza- ethics committee hardy approved the medical was tion.” J, committee the ethics testified Ptacek Dr. Louis including psychiatrist, physicians up of “. . several . made *47 guarantee power “right” in
its order to this to her. The spite court will do so of the fact that those nearest and her, parents, and dearest to her her doctors and her guardian operation. ad litem, all want her to have the majority language Carey
The from v. cites Population International, Services 431 U.S. (1977), beget “The decision child whether or to or bear a very pro- at constitutionally is heart of this cluster (Emphasis added.)
tected choices . .”. opinion says: The majority this court then “. right . . procreate prevent procrea- that the to or to protected, tion personal is fundamental decisional appears clearly choice us.” to be relevant to the case before (Supra, pp. 562-563.) important Carey But the quotation words are Eberhardy’s “decision” and “choices.” When is Joan “personal by decisional choice” to be exercised her? The answer is never. recognizes majority
The is an area of deci- there protected by sional process choice the due clause of the right protection 14th Amendment. This embraces personal procreation, and in- decisions matters of right procreate to cludes the of the individual to decide right prevent pregnancy. prevent or to to to decide by pregnancy contraceptives clearly use of established by Supreme Court. the decisions of the United States sterilization, right prevent pregnancy by as the majority personal concedes, “implicates protected also procreative 562.) (Supra, p im- decisional choice.” This “right portant procreate” and distinction between the “right Because to decide” is central to case. Joan, right cannot to decide this issue be exercised people hospital and from the I believe from the administration Diocese of La Crosse.” majority may concludes that it not be exercised others majority recognize for her. What fails to its permit guardians parents, physi- refusal Joan’s simply cians to make this decision for her decides question against way for hér in another her best By refusing interests. trial authorize a con- effectively operation, sent to the made a court has *48 personal fundamental for Joan-—she will choice remain susceptible “tragic” a pregnancy. to Because she lacks capacity sense, the mental or moral cannot even Joan choose to abstain from sexual conduct. goes length analyze majority opinion great
The Jersey Supreme New in the case of the Court’s decision (1981), Grady, 235, In re 467 where 85 N.J. A.2d opinion, a in a fact situation that court well-reasoned of here, a the similar one authorized sterilization Jersey mentally young New court The retarded woman. right any other incompetent had the same held that an recognized that person The court to choose sterilization. guardian or a by parents, ad made litem the “choice” incompetént’s “. . . really but said: the was not court designed to . . one genuine a . it is choice nevertheless might pursue had she she further the same interests supra, 426 A.2d Grady, ability re In to decide herself.” at 481. says: majority of this court Jersey is the ratio case we find in the New “The fault believe, correctly concluding, we decidendi of first choice, then personal but right sterilization is a. of the choice with others equating a decision made personal clearly a is not It person to be sterilized. it make legerdemain can legal choice, no amount added.) p. 566.) (Emphasis (Supra, so.” legerdemain” can “legal amount of add that no
I would correctly acted Jersey court escape that the New fact here and denied granting very relief asked is “substituted decidendi the ratio Whether this court. interest,” import- consent” or “best the result what is ant. person incompetent
If a who was or unconscious due to injury emergency appendectomy, anyone needed an does operation doubt that authorize the ? would What needing operation is the difference to the one which ratio majority decidendi was used? The In re cites Guardianship Pescinski, 67 Wis.2d 226 N.W.2d (1975), argument against support of its rationale Jersey majority of the New In Pescinski court. rejected concept judg- this court of “substituted ment.”4 majority lays then us view the issue: before its “Any governmentally (or ordered) proce- sanctioned person incapable giving dure to sterilize a con- who is is, is, sent must be denominated for what state’s intrusion into the determination whether or not person pro- who no makes choice shall be allowed (Supra, p. 566.) create.” (Emphasis added.) dealing
It does sound ominous! But we are with Joan really helpless person. Eberhardy, a The “intrusion” *49 by parents loved, for, her who watched over have cared by and worried about her all her life. It is her doctors harm who have treated her and are concerned about pregnancy by guardian a ad litem will her cause her. It is obviously responsi- who has a keen of his role sense guardian incompetent In that consented to a case the of the kidney sister, transplant incompetent’s to save.the life thirty-nine years age The woman with minor children. six sister, by 4, case The was decided this court on March 1975. Jeske, January According 5, death Elaine to her died on 1977. certificate, “intracerebral the “immediate cause” of death was hemorrhage.” contributing not re to death but Under “conditions [kidney] Death lated to cause” was listed “3rd state renal disease.” February 14, 1977, #77200078, File No. dated Local Certificate Records, Department of on file with the of Vital Wisconsin Section Health and Social Services. bility. short, by position In it is in the to know those best thus, what is her “state” act- best interest. Viewed ing through court, plays an is far from “intruder” but pcurens patriae the noble its role of for one who needs seriously help. majority I doubt that even believes Eberhardy procreate.” Joan should be “allowed (Supra, p. logical 566.) that Carried to its conclusion say watching her, “protecting” position that would over Merely interfering her, “right procreate.” with is her stating absurdity. it its shows majority opinion permitted the
The
that
if it
states
setting prece-
Eberhardy
sterilization
it
be
of Joan
would
contrary
public
appropriate
dent “that
it
and not
is
policy
person
when a court
order
sterilization
person to
it
do so.”
decides
is in the best interests
(Slip Opinion,
566.)
question
The
p.
And
should.
so
opera-
really
“ordering,”
permitting, an
here
not
but
Eberhardy
clearly
is in
interest of Joan
tion
the best
have
closely
the case
as all those most
with
associated
de-
repeatedly
persistently
court has
This
declared.
against
many
public policy.
not
clared
times what
or is
“precedent” is
Why
majority’s
The
concern for
here?
“precedent”
be estab-
over-apprehensive.
that would
narrow indeed.
be
lished on the facts
case would
particular
always
judged
on
Future
will as
be
cases
prevent
guidelines to
they
appropriate
facts as
arise and
could
abuse
be set
this Court.5
recognizes
trial court
majority opinion
authority
permit
steriliza-
does have the inherent
Sparkman,
light
Stump
Eberhardy.
v.
tion of Joan
In
reasonably
(1976),
could
no
conclusion
The explains result, this that this required court would be to write “on a clean slate.” (Supra, 577.) p. The “clean from the want slate” results precedent posed. question That state on the grants operating other courts, state with similar plenary judicial issue, power, seems have reached majority an insufficient to a resolution “start” Cardozo, problem. writings of The court draws from the but do not overlooks his further observations that: “We pick and our rules of from the treés” law full-blossomed “duty judge’s in accordance with a to declare the law duty justice phase reason to de- and is seen to be his Na- Cardozo, clare it accordance with custom.” (New Process, pp. ture at 103 and 107. Judicial Of Haven, 1945). course, this search Sometimes of difficult, again law but to resort Cardozo: is judge really is this, to me “What matters duty, power innova- his under within the limits of tion, tween the morals, law and be- to maintain a relation between jurisprudence of reason precepts of those legislation, judicial good . . . This is conscience. legislates Nevertheless, judge peril. at his judi- legislation gives duty necessity such
601 highest honor, cial office its no brave and honest judge duty peril. shirks the or fears the may say judges “You there no that that is assurance wisely interpret day will the mores of their more truly disposed deny this, than other I am men. not view, my quite point but in rather that it point. is is beside the The power interpretation lodged this must be lodged somewhere, and the has custom the constitution judges. they it in as the If are fulfill their function lodged judges, The Natwre hardly it could elsewhere.” Process, supra, pp. The at 133-136. Judicial Of duty, persuaded I I it court’s Because am that is this grant petition. I do not majority, would Unlike writing. Rather, I believe our task one of statute see is to authorize our task under facts this case Eberhardy’s county peti- grant circuit court Wood seeking tion sterilization of retarded child-woman. legislature issues which deals with broad Unlike the is It cases. policy,6 courts deal with individual social evolves. common law of cases that the from the resolution opinion goes on majority detail The into considerable history 1913 sterili- origin, and demise of Wisconsin’s majority repealed The zation statute 1977. posed problems it is “irrelevant to the concludes needed, agree. any proof, I if But adds this case.” protect legislature action will take Eberhardys of this state. Joan clear. ripe are for decision. facts This case permit authority it to exercise and should court has Eberhardy’s in- clearly best operation in Joan that is an terest. grave that the sterilization expresses concern
The court says: per- would “It is “irreversible”7 procedure comprehensive revision instance, As, it deals with when .for adoption proceedings. laws of divorce Rice, M.D., dated Thomas J. letter from includes The record “Pomeroy tech- proposes use of the 1979, he which May
manently deprive irrevocably procreative Joan of her capability.” (Swpra,, p. 575). But in Joan Eber- hardy’s hope operation case one would per- would be imagine hardly wanting manent. One can to reverse the procedure pregnant! so she could become *52 says majority given
The that “scant consideration was possibilities contraception by to the of of short means (Supra, p. 569.) sterilization.” The fact is her rejected medical advisor did consider them and them.8 majority says, The possibility then “The that new some method, improved perhaps suitable use retarded for persons might shortly (Supra, become available.” p. 569.) (Emphasis added.) that with has to do What my nothing. opinion, the case before us? In Under the logic any- majority, of the no should allowed to do one be thing “right possibly that could with “interfere” the incapable person question bear children” when making the choice herself. among: seriously majority “. Then that .'. tells us may mentally good par- persons . . some be retarded . testimony (Supra, 569.) p ents.” But the medical Eberhardy possibly care for here that Joan could not true, child, majority’s a observation, so the if would have no relevance here. Eberhardy’s recognizes majority opinion that Joan brought “physical
parents mental this action for the why well-being 558.) (Supra, p. Then Joan.” says majority that “no turn our backs on her? The urged.” society But benefited benefits were isn’t societal physical well-being least of the the mental and when go great among protected? We us are fostered lengths rights most protect to defend child- this unfortunate despicable criminal. Shouldn’t equally in solicitude ? our woman share percent seventy sixty ligation, ñique” a tubal which has reversal. successful chance of 3. See footnote
60S majority laments lack of what it calls “devil’s argue “why might advocate” at the trial improper.” 570.) (Supra, p. But has role long ably played by majority opinion. most been in its Shakespeare Scripture If, as tells us: “The can cite devil purpose,”9 for his it is law obvious mere man-made readily likewise available. authority nonaction, majority As for its a Wis- has precedent, may jurisdiction consin “A of a have particular judicial subject policy matter, but settled ought grand- quote not to from exercise it.” The is Gilchrist, daddy Harrigan long opinions, v. Wis. (1904). pages, 127, 227-228, Gil- 99 N.W. At 334 verbosity in judicial christ holds the all-time record legalisms. gold Had It Wisconsin. is veritable mine 234-235, majority have pages mushed on would gem: found proposition suggested it is support insisted “To last books, precedents there to be are found no *53 in any exactly this, True, novel suit the suit is like . . . giving character, alleged rise circumstances but are the so all circum- ... In all and under
thereto. situations equity of will stances, principles old, new or the whether justice legal point way are infirm. the remedies where bar. guide, a but never Precedents will be constant legal af- exists, remedies Where a forded new condition all, inadequate at to all situ- are none are afforded adapt never-failing equity to itself capacity of extending prin- case, equal old will to the ations be found ones, for necessary, adopting new ciples, if not Harrigan v. Gil- very purpose. is old doctrine.” 234-235. That christ, supra, at 121 Wis. decided exercise that the court Gilchrist The result novelty despite proper jurisdiction was unprecedented action. a sense opinion not without majority
But the sterilizations, are reversi- our decisions “Unlike humor. I, 98. Venice,” line Act scene “The Merchant Of ble,” quips. leg- Then comes the that if admonition “permit islature can act, does the invoca- this original jurisdiction tion of its for further considera- problem” appro- tion and resolution of this . . . “in an priate 578.) appropriate (Supra, p case at an time.” “appropriate
What more case” could it want? Where age the mental unfortunate instead of two ? is one “appropriate present What more time” will ever itself? adage has a The old cases bad law” “Hard make corollary law so de- cases.” And makes hard —“Bad Eberhardys help of this cision will make for the Joan adversely years impossible It also state to come. will uphold very power it claims to affect the of the exercise legisla- power in the —the of the court act absence tive mandate. Eberhardys, if
Perhaps people position get help permit, their will be able circumstances enlightened their attitude toward states where a more prevails. plight Wisconsin, power
Maybe those with someday, even basin. justice will not for the wash to do ask I would reverse. (dissenting). In address- CALLOW, J.
WILLIAM G. respond to a ing of whether the court should the matter legal guardians of parents and petition to authorize the sur- to her incompetent, consent Eberhardy, an Joan majority opinion “conclude sterilization, gical [s] sophistry to it is question because is not choice that the question whether rather such, to it but refer as acting others, in behalf by which a method there is interests, such in the interests person’s best the decision.” state, can exercise they may be, of the *54 govern- any majority 566.) denominates (Supra, p. The as “the state’s procedure to sterilize mentally sanctioned per- anot or whether the determination into intrusion son who no procreate.” makes choice shall be allowed to (Supra, p. 566.) majority correctly found this generally granted matter constitutionally within the plenary jurisdiction system, of this state’s unified court problems perceives complex but because of what it as public majority policy, the to defer concludes it better is legislature pro- appropriate to the more forum to the majority problem. vide the answer to the the Because jurisdiction permit declines to the trial court to exercise thereby respond Eberhardys’ I petition, dis- to the sent. colleague, my Day,
I his believe Justice- correct unlikely. legislative action dissent this issue is on Apart legislators may any have to address- from aversion ing question, practical a controversial there is added legislative problem thou- press business. presented legislature tax its problems to the sands ability respond multiple problems thoughtfully problem society. expect I no that this have reason to expeditiously meaningful will receive consideration enough legislative question produce a answer to the Eberhardy prepared am presented I by the Joan case. taken, it would legislative if action were assume even Eberhardy. deny sought on of Joan not behalf relief for guidelines Rather, and standards it would establish deny grant rendering a decision to the court use requested steriliza- petition for sanction of court majority its conclusion agree tion. I do with fact-finding capa- greater legislature has that because the court, able to establish it is than this better bilities trihl guidelines within which and standards discretion. must exercise its that, opinion reading majority from It evident subject proper that this matter had concluded warrant- articulating factors determination, judicial presented question is ing whenever consideration *55 input. not It does need vast scientific and medical is applying given require in a case which will factors fact-finding expert testimony apparatus. and a I am con- able, provided with fident that this court is the assistance having by thoughtful also con- work of other courts problem, which sidered the to articulate standards incompetent But an can be made. decision sterilize legislature neither nor will make decision we case, recognize yeoman’s particular we must that the and alongside laying will standards task be the evidence reaching the final conclusion. majority’s deference that the This leads me believe recognition upon legislature any not to the is based proce- body’s superior capabilities deal with much I it is aspect Instead, believe dural of this matter. is very most vital issue first and more fundamental: be when, should how, a decision whom such abstract, ever it should whether, in the made, but question renders nothing which I this made. see about resolution, judicial legislative than more amenable affirma- answer policy, this court should as a matter of present tively may under the be circumstances there in- knowledge in the best it is in which state of medical surgically incompetent sterilized. to be of an terests of United a number majority, reference to after the na- decisions, Supreme concludes States Court any procreate or not decision to ture of individual’s constitutionally pro- procreate, fundamental as a choice, “clearly case to the is relevant tected decisional 563.) agree. (Supra, p. The diffi- I before us.” culty judicial protects this developing a rationale which right time intensely private personal but at the same right to whose fact that the individual accommodates be) (and protected will continue to choose must be supreme making incapable choice for herself. The Jersey Grady, Re 85 N.J. state New In prob recognizing A.2d 467, (1981), 474-75 lem, stated: *56 “Implicit is the complementary both liberties these right because meaningful Yet to a choice them. make between impairment, of Ann does her severe mental Lee ability
not have the to make a choice between and procreation, or and meth- between sterilization other presum- contraception ods of ably would choice which she —a ability. But make her she such ‘best interests’ had inability her this con- not result in the forfeit of should protection of her stitutional interest 6r of the effective pro- to ‘best create we If- whether or not interests.’ the decision right as privacy, ‘a valuable her is incident of solely be, it believe to' it not be discarded then should prevents on her conscious the basis that her condition Quinlan, supra, A.2d at exercise of choice.’ preserve right a mean- that 647. To that and the benefits ingful bring may neces- life, it be her decision would to sary to assert it on her behalf.” may right by which a choose
What mechanism exists choosing ? incapable of be on who is asserted behalf of one proper Jersey with court concluded that New guidelines a court. made decision could be choice majority Grady substituted criticizes the court’s “ inconsistent rationale, stating it somewhat e believe [w] single ‘the Jersey equate in a breath New court a with ‘providing her made in her behalf’ choice ” 566.) (Supra, I am troubled p. choice.’ to the criticism, disservice a superficial I believe “legerde- Jersey is no reasoning There New court. Ann reality Lee recognizing stark main” in there Nor is choice herself. make the Grady not could upon a de- court, a trial any legerdemain permitting interests, to make analysis in her best what is tailed Grady the substance This is on behalf. her decision say this substituted legerdemain Is it decision. judgment by provides the trial her with a choice? court if Jersey seriously Even the New contended choice, the court’s choice was Lee Ann’s that contention might at worst be considered But it is obvious naive. reading opinion Grady from the entire that the court rec- ognized being exactly majority the result as as the claims it is: “the state’s intrusion into the determination person whether or not a who makes no choice shall procreate.” p. 566.) allowed {Supra, what So judgment? is to be said about the doctrine substituted It legerdemain, majority pejoratively de- legal give designed scribes It ais fiction Lee Ann it. Grady very precious protected of that benefit right dignity to choose to accord as a human her being making presumably make the choice “she would A.2d, ability.” in her at ‘best interests’ had she such this, long Perhaps assumption. too, But as 474. is naive *57 in- as we must that even one with notion the wrestle capable choosing right choice, a that of has notion a to only theoretical, realm, we practical, exists in the not the ethereality equivalent to must use a ratio decidendi of deal with it. and, dealing
But with real controversies as age twenty-two years who case, a child-woman of this obliga- permit problem, is with a we cannot our faced real easily resolve because we cannot tions to be so excused appears conundrum. philosophical an what to be insoluble justi- analysis, unimportant whether it is In the final really that choice is that the is fication for state intrusion merely incompetent a substituted exercised of the choice, choice, competent entity, as the state’s or that the and, incompetent interests of is made in the best constitutionally protected such, as best vindicates her made. be rights. important that the choice is What is in Mat- Grady case, well as as in the That was the result P.2d Guardianship Hayes, 608 Wash.2d ter 93
609 (en Penny 1980), N., and In Re banc A.2d (N.H. 1980). I it believe the result should be here.
Returning question for to the ultimate a moment —that being whether, abstract, in the of an in- competent significant should be ever authorized —it is that, Day, pointed me as out Justice answer question unequivocal (the an practical with “no” effect majority decision) personal of the make a itself to only incompetent. on does it choice behalf of Not incompetent person’s question of resolve choice procreate procreate equally or not to a different but manner, deciding in favor of is, substitute the state any procedural procreation, safe- but it does without so guards any incompetent person’s consideration Eberhardy wonder, I become interests. best should Joan legislative pregnant waiting action, if a court while is in jurisdiction it can to determine whether exercise its carry term ? child to her best interests to standpoint sense concern- From common sheer sterilization, to fashion ing far better the matter particular remedy permit will reasoned results according indi- interests cases needs and nonremedy incompetent person than the involved vidual today That Joan by judicial default: this court endorses incompetent similarly Eberhardy, any situated other regardless of person, surgically cannot sterilized trial For a is in her interests. whether that decision best ma- is, procedure clearly court to authorize de- very personal jority into a describes, intrusion state if failure cision, I do intrusion offensive but not find *58 tragic, produces harmful, intrude a even result. may in- Having point that there to this concluded interests in the best surgical sterilization is stances where Grady, conclude, as in incompetent person, I further of an a power such Penny to authorize N., that the Hayes, with particular reside procedure case should in a trial placed exclusively courts of this state. It cannot be legal parents guardians with the or because interests parents guardians may always of the be consistent with incompetent. the interests of the The trial courts of this state are seasoned decision makers accustomed to applying the “best interests” in standard other circum- affecting rights stances of those who cannot decide Moreover, for themselves. a trial definition, court is a fact-finding entity, through disposal, and it has at its processes, experts, curiae, independent adversarial amici guardians litem, gen- capacity ad a considerable to bearing given upon any Finally, erate evidence case. subject appel- of the trial court is decision review aggrieved party stay courts. An could of a late seek a appeal. sterilization order and majority’s Despite the with the “best dissatisfaction standard, suitably is flexible and interests” I believe it applied this to trial and should be courts familiar general rule, Therefore, situation. as a a trial court surgical should to authorize the an be able finds, by incompetent person only if it clear and convinc- ing procedure evidence, a interests that such the best any incompetent proceeding person. In the incom- represented by guardian petent litem, must be ad encouraged indepen- trial court should be obtain dent, every expert deci- case, assistance. And such a by finding incompetent preceded sion must be person capacity a decision in re- lacks the to make gard acquire likely capacity in the and is not future. foreseeable making whether sterilization
In the determination incompetent, should the court interests the best thought relevant, among any to be consider, other factors factors, drawn from following I have which Ha/yes Grady cases: person incompetent capability of the
(1) physical procreate. *59 (2) person engage The likelihood that the will in sex- activity. ual .
(3) Any physical, psychological, or trauma emotional likely experience preg- the individual is as a result of nancy.
(4) Any physical, psychological, trauma or emotional likely experience the individual as a result the procedure. sterilization
(5) age present educability projected and The the individual.
(6) feasibility, availability, advisability oth- The or contraception. er means
(7) ability a The to care for rear individual’s child. bearing
(8) any factors Insofar as evidence on these procedure, proponents of the sterilization comes from appear to be proponents the extent which the are or acting public’s general- in their own or interests incompetent. opposed to the best interests space in so short That factors can be listed these to made sign be that decision itself should be lightly trial court all without due deliberation. heavy presumption recognize is a that there should every case, against the above-listed against presumption. This weighed that should be factors against proce- be resolved means that doubts should must be dure; gaps evidence or insufficiencies appropriateness of presumed upon the cast doubt considering these court, procedure. Only after if the trial presumption light relevant factors and other convincing evi- against procedure, clear finds person’s best incompetent is in the that sterilization dence procedure. interests, may the court authorize resolu- this expresses fear majority opinion precedent establish case would this the issue in tion of if in acceptable any person be would that sterilization Certainly person sterilized. interests of the best case could not proposition stand any for the *60 person subject to court sterilization; authorized only applicable would persons to those who incom- are petent to exercise the choice in their own for behalf and whom the court finds that sterilization is in their best making interests. But other than initial, albeit awe- somely weighty, legal determination that sterilization floodgates alternative, open it need not for steriliza- en necessarily spectre tions masse or raise the of self- appointed good public advocates of for or self-serving parents guardians clamoring even of court probably unnecessary, orders. While it is I would recognize caution the trial court to that the decision ais profound is, most one which in all irreversible. likelihood, In sum, majority I think it is most unfortunate that the legislature has chosen to defer to the on this matter. agree policy IWhile the case involves a fundamental question, strangers people these are not to this court. right apply of this state have the for the courts protection rights life, liberty, of their inherent human pursuit happiness applica- and the and to have their adjudicated. rights tions for relief of those least able protect rights themselves are most need judicial Eberhardy judicial attention. Joan have should determination on this critical issue can have a which profound ability happy healthy effect on her to live a life. guidelines the trial
With the establishment assist making decision, policy I would reach the court avoids, question majority reverse the decision of appeals, to the trial court for and remand case with those discretion accordance the exercise its guidelines.