*1 et al. v. MONTGOMERY M. WENTZEL NANCY HOSPITAL, INC. GENERAL et al. Term, 74, September 1981.]
[No. July 1982. Decided *2 1982; August fíled denied Motion for reconsideration September 1982.
The cause argued J., was before and Murphy, Smith, C. Digges, Eldridge, Cole, and JJ. Rodowsky, Davidson
Thomas L. for Beight appellants. Cramer, M. Michael Benjamin with whom A. brief, child, on Klopman for appellee, the minor and Miller, Miller & Jr., were Truhe, with whom V. Joseph brief, Montgomery Chartered, appellee on the Canby, Inc. Hospital, General of the Court. opinion J., Smith C. delivered
Murphy, in part. dissent and JJ., part in concur Digges, J., page at opinion filed an J., dissents. Smith, Davidson, in infra, dissenting part. Digges, concurring part part infra, concurring J., opinion page filed an at opin- Davidson, J., dissenting filed a dissenting part. page ion at 718.infra. trial court of whether a question presents
This case peti- grant guardian’s empowered general jurisdiction through per- minor tion to sterilize hysterectomy. of a subtotal formance
I Sonya Star litigation, of this subject who is the The child I.Q. with an 13-year-old Flanary, severely retarded is a (the years), 1 2 age mental of to of a equivalent 25 to 30 about Sonya neurological problems. pronounced and with blind months, she was age a normal child. At was born accident, suffering brain severely injured in an automobile paralysis, an initial damage. After physical and other but her mental greatly improved condition Sonya’s physical cope Unable to with the seriously retarded. development was with her her to live event, Sonya’s mother took Wentzel, years old. Nancy who is now grandmother, aunt, sisters, Sonya’s Sheppard, Gail Sonya, her two shortly after Mrs. Wentzel since living have been with Gail Wentzel and began when Mrs. accident. This case care, Sonya’s principal together provide Sheppard, who Sonya, upon hysterectomy performance of a sought in her cycle and result her menstrual which would terminate Hos- Montgomery General The medical staff sterilization. without a court operation perform the pital refused to Mrs. Consequently, authorizing procedure. order in the Circuit Sheppard petition filed a Wentzel Ms. County, Court for Montgomery seeking appointment as Sonya’s guardians authority with to consent to the proposed surgical procedure. The petition Sonya recited that "is cur- rently in (hysterectomy) need of additional medical care that the petitioners medical staff and an request Order of Court approving procedure said medical therapeutic for reasons.” Maryland R76,
Pursuant Rule appointed attorney represent Sonya evidentiary and conducted an hearing. The evidence Sonya regularly disclosed that school, special attended a although missing many sessions Sonya because of illness. It was established that had reached puberty experiencing and was pain connected with menstruation. It Sonya was shown that could not care for her needs, most basic hygienic sanitary that she would not wear napkins and was irritable and disoriented during the menstruation process. There was evidence showing guardianship petition was motivated a sincere desire to Sonya free pain of the and other consequences suffered her during menstruation and genuine because of concern Sonya easy subject rape was an for and resulting preg- nancy. Sonya’s mother testified in support guard- ianship petition, stating Sonya’s sterilization was best interest.
The petitioners produced testimony of a child psychiatrist who, although he had Sonya only never treated and had seen twice, said that a hysterectomy subtotal would be in Sonya’s best interest. psychiatrist say, was unable to however, procedure necessary Sonya’s that such a physical cross-examination, or mental health. On the wit- *4 Sonya ness admitted that any would not be in medical if danger operation the were not performed, and he also agreed that pain some and irritation connected with the cycle that no psychiatrist agreed menstrual is normal. The Sonya life if were to threatening consequences would occur Sonya perfectly capable have and that was offspring further that there having baby. a normal The evidence disclosed Sonya’s mental condi- expectation was no reasonable that tion would improve. (1974, Cum. Maryland Code argued
It that was Article and Trusts § 13-708 the Estates Supp.), and guardianship petition empowered grant the court Sec- operation. to consent to the guardians to authorize 13-708, provides: as pertinent, tion insofar
"(a) per- a may guardian to a grant The court necessary to for the powers provide only those son person. disabled need of the demonstrated (a) "(b) section, of this Subject to subsection may duties, which the court and rights, powers include, not limited to: but are order (1) that a and duties right's, powers, The same minor unemancipated to an respect has with parent .; child ..
(2) ....
(3) care, comfort, for and duty The to provide social, recreational, maintenance, including and, if for requirements, appropriate, friendship training person; and education of the disabled
(4) ....
(5) ....
(6) appointed, If the estate has been guardian custody and duty to control care .; person,. . disabled
(7) ....
(8) necessary or power give consent care, professional for medical or other approval service, counsel, treatment, the court except that that any procedure authorize medical must risk to life.” involves substantial J.) judge (Bell, The trial from that found the evidence Sonya totally capacity oper- was to consent to the lacking ation; herself, baby”; "Sonya cannot care let alone already "Sonya’s menstruation further burdens sincerity family.” over-burdened The court noted the inter- family’s Sonya’s belief that best operation est, recognized possibility Sonya it also could *5 if pregnant sexually
become The court abused. observed that psychiatrist testify the did not the operation that was neces- sary Sonya’s for medical health or that refusal to authorize it would a hardship cause such mental as would the justify surgery therapeutic for reasons. The court that concluded § 13-708 of the Estates and Trusts Article "could not hysterectomy interpreted provide to in a case as such Sonya’s.” hysterectomy It noted "the alternative to the threatening.” is not life The court said: "In statutory the absence such authority and lines, guide this Court find that it cannot has the grant authority sought.” to the relief The the as appointed petitioners co-guardians the person property Sonya permission and but denied consent to hysterectomy. guardians appealed the The to the Appeals. Court of Special granted prior We certiorari to deci- sion appellate the intermediate court to consider profound issues raised the case.
II guardians erroneously claim that the lower court denied the on petition ground that was not empowered, authorization, express statutory absent to order sterilization They therapeutic unless for reasons. maintain that under § court, 13-708 of Estates and Trusts Article the upon need,” showing of "demonstrated is authorized to approve sterilization of minor for nontherapeutic they guardians suggest duty reasons. The have a under the statute for plan preservation maintenance well-being the future of their ward. The evidence in this case, they argue, substantiates the existence of a demon- operation Sonya strated need mentally because is physically physical unable to care for her own needs due additionally severe state of mental It retardation. argued supports that the medical evidence the conclusion Sonya’s sterilization "will future preclude negative mentally, severity of physically given trauma both low levels Sonya’s functioning and her mental retardation possibility pregnancy.” and eliminate *6 (1980 Yol.) Repl. Code guardians contend that The Proceedings § Judicial Article 1-501 of the Courts and cases equity powers a circuit full in civil upon confers — of provisions are limited the powers which not § the Trusts Article. Sterilization 13-708 of Estates and interests, say, the Sonya’s guardians in would be best effectively with Sonya is to communicate because unable functions; own others; bodily to understand or handle her sexes, much needs of a difference less the know the between child; cycle the or and to menstrual potential understand Moreover, point they are pregnancy. guardians out that years old, Sonya’s presently respectively, 61 and 33 and own. In circum- life far exceeds their these expectancy stances, it is in the interests of it is contended that best care, both Sonya responsibility and those who assume for her future, in that Sonya and be sterilized. present acting parens maintain that under the guardians doctrine, exercised patriae equity traditionally have courts minors, and incompetent in the best powers their interests granted should their accordingly lower court have Sonya’s physical mental petition preserve in order child, well-being. emphasized Sonya It is that should have State, wards of if her both she and the child will become place family argued cannot care for It is that this will both. State, on has a com- financial burden therefore guardians’ petition interest pelling justifying granting Sonya’s authorizing giving of consent sterilization. Ill A jurisdictions hold that the absence number authorization, express legislative totally courts are devoid seeking subject jurisdiction petitions matter to consider See, v. e.g., minors. Hudson sterilization (Ala. 1979); of Tulley, Hudson, 310 Guardianship 373 So.2d denied, 698, (1978), 83 3d 266 App. Rptr. Cal. 146 Cal. cert. 967, (1979); 440 99 S. Ct. L. Ed. 2d Matter U.S. 59 783 692 (Del.
of S.C.E.,
1977);
Other cases hold that
jurisdiction,
trial courts of general
statute,
either
the exercise of inherent equity powers,
including application of the parens patriae doctrine, or the
*7
consent,
doctrine of substituted
subject
have
jurisdic-
matter
grant
tion to
petitions authorizing
incompe-
sterilization of
tent persons in appropriate cases.
cases,
Some of these
independent
statute,
of
impose strict procedural and sub-
stantive safeguards upon the determination
peti-
of such
(Alas.
tions. For
example,
C.D.M.,
Matter of
(4) determine that the individual is The trial court must whether to be incompetent to make decision legally incapacity perma- and that this all likelihood sterilized nent;
(5) reproduction The of and incompetent capable must offspring; to care for the unable
(6) only practicable must be the means Sterilization contraception;
(7) least proposed operation The must be the restrictive available; alternative
(8) must testi- possible, To the extent trial court hear concerning his or her mony from the desire, any, understanding proposed operation if for the finally, consequences, its (9) The court the motivation behind the must examine Id. at 612-13. petition. con- Supreme Washington reached similar Court Hayes, Guardianship Matter Wash.
clusions banc). (en (1980) It judgment reversed the 608 P.2d trial court which had declined authorize *8 severely of a retarded on the 16-year-old female sterilization case, In it subject jurisdiction. of lack of matter that ground guardianship that the relevant statute neither was shown at a procedures nor sterilization prohibited authorized request. petitioned The child’s mother had guardian’s daughter that her was sterilization because she believed she concerned sexually active and because was about effects control methods. The long-term of conventional birth 694 Hayes of
court in decried the refusal other courts to decide of due an type alleged jurisdiction, this case to lack of an terming holdings these judicial "abdication function.” Id. at 637. It held that required a statute was not to empower jurisdiction, the trial court to its exercise that power because was vested the court under the state’s however, constitution. The court unwilling, to sua sponte approve an order of sterilization absent compliance safeguards C.D.M., with most of the outlined in Matter of supra, to which it added requirement a be shown clear, convincing cogent, evidence that the current state of scientific and medical knowledge suggest does not either (a) procedure that a or reversible other less drastic contra- (b) ceptive available, shortly method will be or that science is on the of an threshold advance treatment of the individ- Furthermore, disability. ual’s Id. at 641. the court stated heavy presumption against sterilization will be even more difficult to overcome in the case of an incompetent minor, youth may whose "make it difficult to impossible prove by convincing clear and evidence that he or will she never capable making be judgment informed about caring sterilization or of for child.” Id. expressed The court only belief rare cases would sterilization in the best person. interests of the retarded Grady,
In
235,
the case of In Re
85 N.J.
426
467
A.2d
(1981),
19-year-old
Ann,
parents
mentally
Lee
with
Syndrome, sought
retarded woman
Down’s
order
authorizing
performance
ligation.
a tubal
Lee
taking
years
Ann had
pills
been
birth control
for four
her
but
parents
dependent
super-
wanted her
become less
on their
vision. The court
attempted
reconcile the conflict between
—rights
Lee Ann’s diverse
privacy
right
bodily integ-
rity
hand,
and to be free from sterilization on the
on
one
other,
sterilized,
471-73,
her "right”
citing
to be
id. at
479,
Connecticut,
1678,
Griswold v.
Ct.
381 U.S.
85 S.
L.
(1965);
Baird,
Ed. 2d
438,
Eisenstadt v.
405 U.S.
92 S.
1029,
(1972); Carey
Ct.
31 L.
2d
Population
Ed.
v.
Ser-
Int’l,
vices
431 U.S.
97 S. Ct.
695 (1976); Doe v. 2d 788 2831, L. Ed. 52, 49 96 S. Ct. U.S. (1973); 739, L. Ed. 2d 201 179, Ct. Bolton, 93 S. 410 U.S. 705, 2d 147 113, 35 L. Ed. Wade, 93 S. Ct. 410 U.S. Roe v. (1973). jurisdic decline to assume courts which Stating that sensitivity to the constitutional "adequate not reflect tion do Jersey court New person,” the of the rights "right” to be of Lee Ann’s in favor the conflict resolved parens the doctrines sterilized, its decision on premising Quinlan, 70 consent, citing In re and substituted patriae 922, denied, 97 S. Ct. 647, 429 U.S. 10, cert. 355 A.2d N.J. (court (1976) aof parents authorized 50 L. Ed. 2d extraordinary removal of to consent to 22-year-old comatose in Matter of C.D.M. As support apparatus). life artificial of factors to be con myriad a the court enumerated Hayes, was in the best sterilization determining whether sidered incompetent person. interest of the N., case, Penny 120 N.H. In re yet
In
another
judge had
the trial
(1980),
court held
A.2d 541
sterilization,
but
petition
jurisdiction to consider
safeguards
because sufficient
procedure
to order the
refused
girl
There,
14-year-old
of a
parents
had not been utilized.
retar-
Syndrome,
psychomoter
severe
Down’s
suffering from
order
sought a court
hearing
impaired
dation and
intelligence
had
authorizing
hysterectomy.
child
clothe, or feed
speak,
unable to
2-year-old,
of a
was
level
addition, Penny’s
In
herself,
toilet trained.
and was not
suffering
psycho-
from severe
doctors believed that she
began
if she
aggravated
which would be
logical problems
jurisdic-
court had
holding
probate
In
that the
menstruation.
sterilization,
New
Supreme Court of
tion to authorize the
guardian
prohibited
on a statute that
Hampshire relied
.. . unless the
. . . sterilization
giving "consent for
from
procedure
court.” Id.
probate
order of the
approved
is first
further
however,
the case for
court,
remanded
at 542. The
to those
similar
adoption
and the
of standards
proceedings
Grady, supra, stating:
outlined in In Re
a sterilization after
judge may permit
probate
"a
clear and
findings from
making specific written
evidence, that it is in the
convincing
best interests
ward,
rather than
incapacitated
parents’
*10
convenience,
or the
to do
public’s
so.” Id. at 543.
(1981) (en
W., Colo., 637
A.
P.2d 366
Matter of
banc),
severely mentally
15-year-old
involved
retarded
(a
female
parents
petitioned
whose
had
the district court
general jurisdiction)
hysterectomy.
court of
to authorize a
parents
were concerned over the child’s fear and fright
process
possibility
menstrual
and also because of the
that she could
pregnant.
become
The evidence showed that
the child
physiologically
perfectly
normal and therefore
capable of
a child.
conceiving
physician
The child’s
hysterectomy
pregnancy
recommended a
to avoid
and to
cycle.
discontinue the
granted
menstrual
The trial court
petition on the
generally
basis of
Colorado statute
empowering parents to
medical
request
surgical
care for
reversed,
their
Supreme
child. The
Court of Colorado
con-
cluding "that
mentally
sterilization of a
retarded minor is a
special
case not
general parental
covered
consent
statute.”
"Inherent parens patriae jurisdiction over incompe-
may
involving
tents
extend to decisions
irrevocable
consequences
incompetent
individual.
Courts have accepted responsibility for deciding
whether to
kidney transplant
authorize a
from an
gravely
brother,
to his
ill
Strunk v.
Strunk,
1969);
(Ky. App.
In the merits discretion of guide adopted standards Colorado court C.D.M., in Matter of adopted to those judge similar the trial required the all Another standard Hayes, Grady, supra. convincing evidence that by clear and judge trial to find essential,” the court "medically as to which sterilization was said: *11 clearly if nec- medically essential
"A is sterilization the life experts, preserve of essary, opinion in the mentally of the or mental health physical or 'medically essential’ The term person. retarded from reasonably provides protection precise in the The term past. in this area prevalent abuses are to be as to whose interests also avoids confusion society, the welfare of or It is not the considered. guard- mind of or peace parents or of
convenience protect. standards are intended to ians that these the health protect the standards is to purpose The of that person, prevent retarded and to of the minor being rights from procreative fundamental person’s circumstances, of possibility In the abridged. some evidence that by if sufficient pregnancy, supported mental health of physical threaten the it would means of birth that no less intrusive person the effective, justify safe and could prove control would medically for sterilization as granting petition Id. at 375-76. essential.” in Matter of was taken problem
Another view of the 539, N.W.2d Eberhardy, 102 Wis.2d Guardianship of (1981). sterilization petition involved a for That case Joan, 22-year-old mentally of guardians/parents the was motivated Joan’s petition retarded woman. activity engaged had belief that sexual at a parents’ she mentally for retarded and because Joan’s camp summer the sterilization as "she would be physician recommended and the chances of a child being unable to care for a child severely considerable.” Id. at 883. Joan’s handicapped were sought rejected usage of I.U.D. and court parents jn the of ligation, reversing judgment of a tubal the approval peti- act on the jurisdiction circuit court no existed to tion, of Wisconsin held that the state Supreme the Court "jurisdiction courts in all matters constitution vested such After civil and criminal.” Id. at 885. an extensive account of experience repealed eugenic with a Wisconsin’s now statute, dangers the sterilization reviewed nonstatutory, judicial determination involved in a of pitfalls sterilization, i.e., the often petition the merits of sub- decision, irreversibility jective nature errors rights involved and judgment, conflicting parties necessary inability of to deal with the medical courts consideration, technology. these factors into Taking all court, although acknowledging jurisdiction circuit cases, they appro- not the courts in such concluded were public policy. delicate priate forum resolve such issues if did legislature not The court nevertheless stated guidelines and for sterilization of develop act to standards judicial not continue to exercise incompetents, would restraint. Id. at 899. subject, Mary In the Matter of
The most recent case on the Moe, 16, March 385 Mass. 432 N.E.2d decided *12 severely 1982, involved a to sterilize a retarded petition adult woman. The Judicial Court of Massachusetts Supreme — equity a general concluded that the trial court court of — equitable grant inherent jurisdiction possessed power sterilization, shown to in the best interest petition mentally holding, of the ward. In so incompetent said "that the court is to determine whether autho- [trial] guardian requested parents rize sterilization when competent.” would so choose if by finding incompetent necessity indicated that medical was but one Slip op. at 17. It in evaluating to be assessed whether relevant factor sterilization in the best interests of the disabled ward. necessity factor, the court indicated that medical As to this would by proof pregnancy would be demonstrated physical threaten the or mental health of the weight given being dependent with the this factor person, degree of the case and the of medical upon facts that, in necessity. The Massachusetts court concluded standards, judge applying the the trial must evi- reviewing "exercise the utmost care all the presented determining dence and in whether the if competent ward would consent to sterilization make such a decision. Id. at 885-886. judge must enter detailed written findings indicating persuasive those factors that determine persuaded outcome. We are that a conscientious judge, being mindful of adverse mental and social consequence which might follow the authorization or not of a operation, give sterilization will serious stages pro- heedful attention at all ceeding.”
Slip op. at 25-26.
IV There Maryland is no statute courts explicitly authorizing to approve petitions any for the sterilization of Title person. 13 of the Estates and Trusts Article entitled "Protection of § Minors and Disabled Persons” that cir- provides 13-105 jurisdiction cuit courts guardianship per- have over "of the son of a protective proceedings minor and over for minors .. . land] for disabled persons.” originally As enacted ch. of the Acts of Title 13 person” defined "disabled (c) § 13-101 person adjudged by as "a other than a minor*’ court to be manage property unable to his because of various enumerated physical, mental and other disabilities. *13 (i) § A "minor” was defined 13-101
(Emphasis supplied.)1 age years. Chapter as a the of 18 11 of Acts person under the of 1974 also enacted of Title was Subtitle 7 which entitled Person”; "Guardian of the the new encompassed subtitle 13-702, §§ through 13-704. Section captioned 13-701 of appointment guardian "Court a minor” simply may a of the provided appoint guardian per "the unmarried minor.” Section 13-704 son of an entitled "Court guardian person person” of the of a disabled appointment may "superintend and direct the care provided the court person,” appoint guardian pass a therefor and a disabled person the to be sent to a hos "directing orders disabled with pital.” specificity powers Neither section delineated guardian. and duties extensively 768 of the Acts of
Title 13 was amended ch. Act Pro- Concerning entitled "An Adult which was person” of a The definition "disabled tective Services.” was adjudged by a court "to be person broadened to include protect needs to his provide daily unable to for his sufficient mental The 1977 safety” incapacity. health or because of amendatory into two provisions act divided Subtitle entitled, Minors,” parts, "Part I. which was first only through §§ applicable general to 13-701 13-703. § provision empowered the court to 13-702 that minor guardian of an unmarried appoint person Part II amendatory remained act. of Sub- unchanged entitled, Persons.” Included within this title 7 was "Disabled — 13-705, § which authorized new sections Part were person,” for a appointment guardian of a "disabled 13-708, rights, § guardian’s which enumerated the duties indicated, § authorizes earlier 13-708 powers. As necessary to only those grant guardians powers court to provide person” for the need” of the "disabled "demonstrated to, authority including, but not limited the same child; parent minor respect unemancipated has with care, comfort, training, maintenance of education and (c) person introduced, provided "disabled originally that a 1. As 13-101 ... be a may not minor.” give necessary ward; power consent and the disabled with the care or treatment professional medical or other *14 however, guardian the must seek that qualification, any procedure medical consenting to before approval to life. risk involves a substantial § 13-708 aforegoing it is evident does not the
From Thus, the of a minor. person of the guardianship apply of a section, permit guardian which of this provisions where a procedure a medical to consent to person” "disabled shown, applicable are not need” therefor is "demonstrated think, however, statutory the formulation case. We this declaratory is essentially parallels and §of 13-708 of circuit courts patriae powers over parens law common 13-702, expressly § enacting In minors. appoint circuit courts to authority of recognizing the minor, delineating without of a but guardian person of the duties, legislature intended and guardian’s powers equitable their inherent would exercise that circuit courts minors, pertaining to guardianship matters jurisdiction over consis thereto as would be respect with adopting standards incompetent ward’s best of the in furtherance with and tent which, imple Article § 1-501 of the Courts interests. See IV, § 20 of the Consti of Article provisions mentation of Maryland,2 that circuit courts specifies tution of courts equity and common-law highest "are the within jurisdiction exercising original of record and equity full common-law [with] the State . .. criminal in all civil and powers jurisdiction and íes], addi- and all the [their] cases within count! by Con- jurisdiction conferred powers tional law, by law except where stitution and exclu- limited or conferred jurisdiction has been tribunal.” sively upon another Maryland provides: Constitution
2. This section styled County of the State to be "A be held in each Court shall County, may held. The said in which be the Circuit Court for exercise, counties, respective in the have and Circuit Courts shall authority jurisdiction, original appellate, power, all exer- present of this State now have and which the Circuit Courts cise, may prescribed be law.” or which hereafter 702 jurisdiction of circuit patriae The courts in this parens ” pa triae, established. ’’parens well
State is
words
meaning
sovereign
country,”
power
"father of the
refer to
State’s
persons
other
under dis
guardianship
over minors and
Patriae,
(1978);
ability. See 67A C.J.S. Parens
at 159
Black’s
1979).
(5th
Dictionary
ed.
It is a fundamental
Law
1003
jurisdiction
equity
that the
of courts of
concept
common law
relief
so as to afford whatever
persons
plenary
over such
best interests.
may
necessary
protect
the individual’s
(1966);
§
2d
Equity
2d
39 Am. Jur.
See 27 Am. Jur.
9,
(1968);
§§
59 Am.
2d Parent and
Guardian and Ward
Jur.
(1971). Maryland
generally
§
cases are
in accord.
Child
(1967);
616,
Taylor
Taylor,
Md.
We parens their inherent courts, pursuance in acting cuit to con- subject jurisdiction matter authority, have patriae authorizing guardian order for an petition sider incompetent an minor. See sterilization of consent to the 435 U.S. 98 S. Ct. 55 L. Ed. Stump Sparkman, v. (1978). 2d 331
V In determining guardian whether a authorize a petition to in the consent to minor is sterilization of an interest, minor’s best it is essential that the circuit court by take into and be guided account the following minimal standards, adopt today which we safeguard order to rights secure the of the ward.
First, the appoint independent guardian court must ad behalf, litem to act on the opportu- disabled ward’s with full nity to meet with the present ward and to evidence and judicial cross-examine witnesses at a full hearing. See Maryland Second, Rule R78. indepen- court must receive medical, psychological by dent and social evaluations com- petent professionals may, advisable, if deemed appoint its own experts to assist the evaluation of the ward’s best Third, interests. personally the court should meet with the minor ward to obtain its impression own of the individual’s competency, affording the opportunity ward a full to express personal his or her views or desires with respect judi- to the cial proceedings Fourth, and the prospect sterilization. judge find,
trial evidence, must clear convincing the individual lacks competency to make a decision about and, further, sterilization incapacity that the likely is not change Fifth, in the foreseeable future. the court must be satisfied convincing clear and evidence that sterilization is in the best interests of the incompetent minor. This deter- mination factors, involves a number of including whether the incompetent minor is capable reproduction, the child’s age and circumstances at petition, the time of the the extent exposure child’s to sexual contact that could result pregnancy, feasibility utilizing contraceptive effective procedures sterilization, in lieu of availability of alterna- *16 tive and less procedures, intrusive sterilization pos- and the sibility that scientific may advances occur in the foreseeable future, which could result in improvement of the ward’s mental condition. In factors, court, addition to these the trial before authorizing sterilization as in being the best interests of the incompetent minor, by must find convincing clear and evidence that the requested operative procedure medically necessary to preserve the life or physical or mental health of the incompetent A.M., minor. See Matter of supra.
VI refusing case, In to authorize sterilization in this the trial judge concluded the from evidence that sterilization hysterectomy Sonya’s cycle to terminate menstrual and to not, prevent pregnancy her was within contemplation the formulation, § necessary 13-708’s need” "demonstrated to her preserve physical life or or mental health. While the any authority court noted the statutory guid- absence § 13-708, not, ance than in other that contained it did as we opinion, read its of subject jurisdic- find an absence matter petition; found, tion to the simply determine the merits of it case, in in the light justification evidence lack of for i.e., granting petition, the that no need” "demonstrated was established.' indicated, §
As we have 13-708 application has no guardianship of of an person incompetent the minor. Consequently, applying the trial court was in wrong case, provisions although of that section in this the ultimate purposes issue which considered was for all practical virtually determining identical to that involved in petition merits of a an incompetent to sterilize minor under whether, equitable i.e., common law in principles, view of presented, the evidence sterilization to be in was shown best interests minor. We think the trial judge properly Sonya concluded that lacked the mental Moreover, operation. we to herself consent capacity determining was correct judge think the trial hysterectomy failed to that sterilization evidence disclose necessary for her medi- being Sonya’s interest as best Sonya experi- Manifestly, fact that mental health. cal or cycle, which during menstrual pain and irritation ences difficulty in has and with which she she does not understand any authorizing provide does not in itself basis coping, Sonya could the mere fact that Nor does hysterectomy. child, for whom she pregnant give birth become oper- care, authorize provide justification to not could an incom- Indeed, the best interests of considering ation. society convenience or minor, or the petent the welfare
705 parents guardian plays of peace mind of the ward’s or no part. circumstances, Sonya’s present
Considering age evidence, any of much less and convincing absence clear evidence, necessity of medical any proce for the sterilization time, no would purpose by dure at this useful be served remanding proceedings the case to the trial court for further light today’s opinion.3 recognize, course,
We that declaration of the public pol- icy normally of this a legislative State function of the of government. Butler, branch Felder v. 292 Md. (1981). In
A.2d profound view and recurring involved, ofthe nature issue here importance and its obvious public, legislature may to the deem it appropriate at this time to declare the law of the State a enacting statute governing granting consent sterilization of mentally incompetent minors.
Judgment affirmed, with costs. J., Smith, concurring in part and dissenting part. fully
I agree Judge Murphy with much of what Chief has said in his opinion majority. disagree excellent for the I with result, the final I however. believe this record is sufficient for
a of equity, you will, court a court if grant of conscience prayed. the relief things
There are a number of which should be borne in all, mind in this case. First of the trial here judge sitting equity. Miller, 1,§ as chancellor in E. Equity As Procedure (1980 (2) (a) Vol.), Maryland Repl. provides § 3. Art. Code 43. capacity a minor has the if, as same to consent to medical treatment an adult "Itjhe alia, concerning inter minor seeks treatment or advice venereal disease, pregnancy amounting contraception not to sterilization." minor, alone, (Emphasis supplied.) consenting prevents acting This section from sterilization; not, however, preempt power of the the does court, acting parens jurisdiction, authorizing patriae within its from guardian person of an minor to consent to sterilization shown, evidence, convincing procedure where it is is in clear and that such best interest of the ward. it, chancery England has (1897), "The puts at 1 *18 prototype Maryland as the that of always been considered harsh rules England in to avoid the Equity originated ....” jurist distinguished Maryland and law. A of the common in century, Phelps, last comments C. teacher (1894), recognizes . . new "Equity . Equity Juridical basis, situations, upon dogmatic new not adjustments for to the address themselves upon principles but which admit of intelligence, and therefore conscience and Similarly, Am. development.” progressive rational and states, (1966), "It has been said Equity § 2d at 518 Jur. chancery salutary jurispru- principles of the most that one no rules. that, strictly it has immutable speaking, is dence trail, its own paves blazes its own pathway, It its own lights short, the is, appeal it to conscience of the in highway; (1965), 1,§ at 780 Equity find in 30 C.J.S. court.” Then we . .” conscience .. equity "a court of is a court of that Secondly, the majority opinion we need to remember as states, that know this young we woman cannot exercise right beget "the and some call fundamental to bear what any so degree understanding. children” with This is irreversible; injury psychiatrist her is the because brain IQ "[t]wenty-five to testimony estimated that her is his IQ comparable and this thirty,” given said she would be two, "of of one one and age to an individual around year not to two.” know full well that a two old would half We Thus, copulation. logic understand the act of indicates any. not be the result pregnant if she becomes will be part, consequence decision on her but will conscious illegitimate of some act.
Thirdly, it was difficulties connected with menstruation, arising pregnancy, problems not the from request the aunt in her for apparently which have motivated testimony upon is she in her operation. This what dwelt (The grandmother aunt were on direct examination. hearing day guardianship. On the petitioners record states: grandmother hospitalized.) "Q Now, living in the home the last three — years I you would assume had the observation Sonya opportunity observe before the menstrual after; cycle began began, during and when it you to, prior can characterize her attitude for us during cycle? and after the menstrual Well, before, Sonya
"A as I ill stated a lot but during that time it confusion for her. She caused appeared disoriented and uncomfortable.
"Sonya cannot her communicate where family discomforts are and the has to more or less wrong determine what’s with her when she seems ill or uncomfortable. "We hurting have determine what is her. It head, could be yet we might would think it *19 — have been her stomach that is She hurting. can’t I suppose pain she doesn’t know where comes from. uncomfortable, She feels but she cannot communi- cate the pain coming where is from.” expect One would not more from a person Sonya’s mental age. only The time on direct examination the aunt that pregnancy single was even question mentioned was this answer:
"Q youDo think Sonya could for a if care child she were to conceive and have a child?
"A Not at all.” Fourthly, psychiatrist abundantly made it clear that principal reason this proposed "subtotal hysterectomy” was not the fear of pregnancy.1 Aside from explained hysterectomy:
1. He of a nature subtotal you standpoint Could characterize from a medical how this "Q hysterectomy would benefit the child? Well, hysterectomy hysterectomy "A a subtotal would be a removed, be, which her uterus would be will not her ovaries would not she thereby be castrated. regularly. "She would have ovarian function. would She ovulate menses, She problems would not have and she would not have the youngsters have, age cramps, that premenstrual her or women would menstrual tension, difficulties of that kind does not because she n.l, no reference other to quoted have that which we psychia- examination of the made on direct pregnancy theory Rather, pregnancy was the matter of trist. developed counsel on court-appointed Sonya’s on reflects direct examina- record cross-examination. tion: of medical cer-
"Q degree reasonable Within a whether or not this tainty, you opinion have an do in the child’s best interest? would be hysterectomy it would be. "A I believe reason, sir? any it for "Q you support Can Well, you which Sonya period, has her "A when observed, strictly the I not it is know have must rely we have on the history, psychiatry around, description history who are of those — she her .... When has she I have wants to come downstairs. She she doesn’t period, day, togo and she can’t stay in much of the bed school. gets cross. She hollers whimpers,
"She she her napkin. She doesn’t wear Mrs. Wentzel. quote bathroom, and she takes up go to the may get She off, quite understand what and doesn’t napkin all it’s about. really us cannot tell about that she pain
"She has anytime. always It’s been parents tell her about has not or ill that she problem when she’s febrific *20 going difficulty is has this kind understand what on and comprehend It would seem that she would be does not happier all this. having without all of that. you gave you again, this repeat, the label that Could once "Q operation? hysterectomy. It "A would a subtotal hysterectomy? Subtotal "Q ' "A Yes. you give your opinion what us effect a subtotal Would "Q capability to children? hysterectomy have on bear would period.” "A be able to bear children She would not been able to indicate having difficulty where she’s except through questioning careful and a woman’s intuition to understand.
"In view of the fact that she’s unable to communi- cate these matters it makes it difficult for those who are caring for her to always understand what is happening because she capacity does not have the to speak her mind something wrong, when is and in view ofthe fact give that she is not able to an indica- tion when be, she is ill as to what the might matter and in view ofthe fact that she has such a great deal of discomfort periods with her it would seem to me reasonable to recommend this from point a medical of view.
"The emotional stirs inside of her and she doesn’t it, understand to me that is sufficient reason to recommend this.”
The record on cross-examination states:
"Q Isn’t it the truth that the principal reason why the family desires the hysterectomy is because they feel Sonya Star Flanary is incapable of caring child; for a isn’t that correct? No,
"A sir. That’s not correct.
"Q You didn’t tell me that?
"A No. —
"Q Doctor
"A There a problem there.
"Q Well, let’s hear the problem. The Court would like to know. Well,
"A you I, seem to have the problem, not about that.
"Q fact, Doctor, Isn’t it a reality that the situation and the tragedy of the situation is that Sonya is in daily a situation going to school and so forth that she could have pregnancy; an unwanted isn’t that correct? *21 no pregnant,
"A true. She could become That’s parents that. There is no doubt that doubt about say I did not about possibility. concerned are reason, okay. I said it’s principal that was the Naturally. All right. Of course. multidetermined. told me you had a child and "Q Sonya And if you from can capable what perfectly that she was child? having a child and normal understand of "A correct. That’s traumatically
"Q disability is Because her induced; obviously cannot take had child she if she of that child at all? care
"A correct. That’s be,
"Q and the decision would Then the burden one, have the child this would to abort or if to family, Wentzel/Flanary burden on the an added would not?
"A correct. That’s Wentzel/Flanary
"Q family, Wentzel And the being the Flanary being grandmother mother, fact, they this are very concerned about is not, about the unwanted child? possi- me
"A about They voiced concerns are when bility, I think the reasons obvious right. girl attractive even see that she is rather an you her side of her though has limitations with left she family is not so hemiparesis, the concern of Mrs. time later on when present much at the but to care for her because longer Wentzel is no able subject I think that’s another age and so forth. — to be con- I don’t care concerning guardianship cerned, peo- other being when treated but she that’s a people care of other ple taken principal one. It is not question. reasonable — "Q think that You I one. principal "A I know that there is don’t *22 theirs, think that is a concern of they but also wish to see her free of a lot of discomfort pain.
"Q But the freedom from discomfort and pain does not make this surgical procedure medically necessary, does it?
"A Not in itself. Well,
"Q is there anything threatening life about her having a child? No,
"A there is not a life threatening issue there.
"Q just It medically becomes more convenient to have the hysterectomy; correct, subtotal is that Doctor?
"A It is convenient in the sense that she would not have the discomfort and the emotional turmoil thereby surrounding it and other aspects of this are quite obvious in terms of her hygienic care and so on.
"Q Am I correct in characterizing this subtotal hysterectomy as an operation convenience? Rather than operation necessity? Well,
"A it’s a matter of what one means that.
"Q Well, then let’s break necessity. down Necessity means something you without, cannot do isn’t that true?
"A That’s true. If we take it in the strictest word, sense of the that’s true.
"Q Is necessitous this an operation respect? "A No.
"Q Then it is then operation more an correct, convenience, I Doctor? am "A In that "medical yes. sense” Can we take into consideration right? emotions. Is that all We say couldn’t necessary. this is going She’s not go have
crazy emotionally if she doesn’t view point from an emotional but hysterectomy, average other women with compare can’t we things can understand and who intelligence and talk.” speak can and walk who a child training toilet hardly expect to achieve One could young of this age the mental he or she reaches the time expected that she cannot It thus becomes obvious woman. bodily functions asso- the difficulties to understand ciated with menstruation. Jersey of New said Supreme of what the Court
Much
(1981),
235,
"There we held that
life-sustaining
of artificial
right to discontinue use
returning
to
prognosis
when the
apparatus
holding grew
life is dim. Our
cognitive
sapient
or
circumstances,
that,
under some
out of a belief
personal
body
right
individual’s
to control her own
general
and
in
life overrides the state’s
interest
life. A
preserving
decision to
sterilized is also a
part
right
personal
an individual’s
to control her
own
body
life. The state’s
interest
procreation
greater
cannot be
than its
interest
life. If one
to
preserving
forgo
can decide
artificial
life-preservation
life,
and thereby sacrifice
then one
certainly
reproductive
can
decide
forgo
to
capacity
thereby
ability
relinquish
procreate.
to
Therefore,
right
to be sterilized is
included
rights
the privacy
protected by the federal Constitu-
tion.”
The New discussed choice,” of meaningful stating:
"Having recognized both a right to be exist, right sterilized and a to procreate we face problem, in Quinlan, as Lee Ann not Grady is competent exercise either of her constitutional rights. simply What is at stake not right is contraception obtain or attempt procreation. in both
Implicit these complementary liberties right meaningful to make a choice between them. Yet because of impair- her severe mental ment, ability Lee Ann does not have to make a procreation, sterilization and choice between sterilization other between methods of *24 — a she contraception presum- choice which would ably make in her 'best had she interests’ such abil- ity. inability But her should not result in the forfeit of this or of pro- constitutional interest the effective her If tection of 'best interests.’ the decision whether not to 'a procreate is valuable incident privacy, be, her believe right as we it to then it solely should be not discarded on the basis that her prevents condition her conscious exercise of Quinlan, supra, preserve choice.’ 41. To at that right meaningful and the benefits that a decision life, may necessary be to assert bring
would to it on her behalf. must an appropriate
"... believe that [W]e determination whether consent make the final an incom- given should be on behalf of sterilization It be the court’s judgment, individual. must petent decision, good faith that just parents’ and not incompetent’s for the consent.” 85 N.J. substitutes at 250-51. court further said: con- following thus far leads to the
"Our decision
procreation,
The right
among
clusions.
to choose
contraception
methods of
sterilization and other
all individuals. Our
privacy right
important
right.
incompe-
Where an
preserve
courts must
that
that
capacity
the mental
to make
person
tent
lacks
choice,
should ensure the exercise of
a court
in manner that
incompetent
on
right
behalf
at 252.
his or her best interests.” Id.
reflects
patriae jurisdiction of
parens
"[t]he
It
inherent
found
enough to
Jersey] Chancery
broad
New
Division is
[the
whether consent
sterilization
encompass the decision
who lacks
person
a court on behalf
given
should
for himself.” Id. at
capacity
give
or withhold consent
Jersey Supreme
Court
259. The rules laid down
New
permitted are
a sterilization should be
to determine whether
majority opinion.
in the
quite similar to those
authority
surgical
of a court to sanction the
On the issue of
Mary
see
in the Matter of
contemplated,
here
also
procedure
(1982).
After
Moe,
finding
715 In W., constitutional interests. the Matter of [637 A. [(Colo. 1981)]. 366,] speak
P.2d
To
solely in terms
ward,
of the 'best interests’
of the State’s
interest, is to obscure the fundamental issue: Is the
impose
State to
a solution on
incompetent
an
based
criteria,
on external
or is it to
protect
seek to
implement
the individual’s personal rights and
integrity?
reject
We
possibility.
former
Each
difficulties,
approach has its own
but the use of the
doctrine of substituted judgment promotes best the
individual,
interests of the
no matter how difficult
may
the task involved
be. We admit that
in this
case we are unable to draw upon prior stated
preferences the individual may
expressed.
have
An
expression of
intent
while
person
however,
competent,
is not essential. In the Matter
629,
of Spring,
115,
[380 Mass.
405 N.E.2d
(1980)].
may
'While it
thus
necessary
rely
to a
greater degree
objective
on
criteria
..
. the effort to
bring
judgment
the substituted
step
into
with the
values and desires of the affected individual must
not,
not,
and need
[Superintendent
be abandoned.’
Saikewicz,
Belchertown State School v.]
[373 Mass.
(1977)].
728,]
[,
751
"The Court is faced with may object exper- as an for simply serve ward concern with the threat of Organized imentation. can be dated back experimentation human (See, e.g. Code of 1946. Nuremberg so-called Experimentation of Aspects on Ethical Symposium seq. et Subjects, with Human 98 Daedalus Freund, [1969]; Exper- Problems in Human Ethical [1967]; imentation, Engl.J.Med. 273 New 687 Children, Beecher, Experimentation Curran & [1969]; Subjects in Lasagna, Special 10 J.A.M.A. 77 [1969]; Daedalus, Experimentation, Human Beings, on Note, Experimentation Human [1967]; Regulations Stan.L.Rev. 99 Rules Health, and Welfare Dept, U.S. Education July Subjects, effective Protection of Human 1974). may experimentation 'Human It well that: gained part science since has been medical There are ago. centuries the title of "science” some medical insist all physicians still who (Curran and experimental.’ treatment is still Law, [Sec- Medicine and Science Shapiro, Forensic 887) Edition, but the critical factor p. 1970] ond Eugene potential for this case its beneficial (brackets in at 787 Weberlist.” 360 N.Y.S.2d original).
The court concluded: case, must what its ward
"In this the Court decide choose, he in a if were to make a position would Certainly, pick he would judgment. sound in life than participation for a fuller rather chance fully as a more endowed rejection potential his being. The does not know what human Court — its ward holds in store for unfortunate future will be But the the treatment successful. whether promise to the of us is entitled most humble 'Life, Liberty Declaration of Independence the respondent oweWe pursuit Happiness’. accordingly, the Court opportunity autho- rizes the proposed medical intervention.” 360 N.Y.S.2d at 787. Sonya’s for one instant what my colleagues doubt
Do choice would be under the circumstances here if she "were in position I judgment”? make a sound am certain she give testimony would her assent. From the of the aunt and psychiatrist forth, which we have set one can see how Sonya *27 completely cope unable to with menstruation. Fur- thermore, thing lady it would be a terrible young for this become pregnant. Imagine person what it would be like for a with a age comparable mental to that of a one and half to a year two old child to be She would pregnant. not have the mentality to taking place, just understand that which was as she does not understand relative to menstruation and her hygienic care. The of process undoubtedly childbirth would be terrifying one for her. equity conscience of an
This case cries out to the court for woman, young mother, aunt, relief. This her and her grandmother suffering are all aas result of the accidental injuries upon girl years inflicted the a number of ago. They entitled, are all as the New York court it in In put re Weberlist, "to promise the of the Declaration of Indepen- ” 'Life, Liberty dence for pursuit Happiness.’ and the of Most parents. members this Court are Each of us cer- tainly has some conception may expected of what from a child of the age young lady. mental of this No questions one injury, the brain the injury, irreversible nature of the and age the mental agree the court’s ward. All as to the accu- racy Indeed, majority this statement. says, "We think the trial judge properly Sonya concluded that lacked the capacity mental operation.” to herself consent to the Therefore, I am of testimony the view that the here of the aunt and the psychiatrist problems relative to con- by make out a case
cerning menstruation clear and in convincing young lady’s evidence that it is this best inter- surgical procedures psychiatrist ests that which Although problems which performed. advocates be becoming pregnant strong would be with her are associated authorizing procedure, reasons for these compelling merely granting are additional reasons for problems requested relief.
I and direct that a decree be entered would reverse hysterectomy. the subtotal authorizing J., dissenting part. in Digges, concurring part I fully expressed concur in the of the Court as its views However, prior to opinion Judge Murphy. written Chief today’s sparsity pre- decision there existed this State a and trial courts with guidance litigants cedence and very important litigation. regard subject to the of this would, justice, I in the interest of not affirm the Accordingly, (with the trial court addi- judgment but remand the case to testimony for evaluation of the evi- being permitted) tional light the chancellor rendered in dence a new decision Maryland filed. Rule 871. opinion being now Davidson, J., dissenting: majority subject
I
that circuit courts "have
agree with the
petition
matter
to consider a
for an order
*28
jurisdiction
of an
authorizing
guardian
a
to consent to the sterilization
agree
majority
I
with the
incompetent minor.” further
in determining
petition
whether such a
is in the best interests
minor,
circuit court
ofthe
it is essential that the
incompetent
by certain minimal stan-
guided
take into account and be
However,
dards.
I
of the
agree
aspects
do not
with certain
adopted by majority relating
standard
the
to the determina-
tion
in
minor
incompetent
of what is
the best interests of the
because
factors that
that standard does not include some
view,
my
should be considered
a trial court. In
the trial
by the
only
court must not
consider the factors articulated
719
1)
the
whether
consider:
additionally must also
majority, but
understanding of the
lacks
presently
minor
incompetent
preg-
including menstruation
process,
reproduction
in the
understanding
to lack
continue
nancy, and will
2)
presently
minor is
incompetent
future;
the
whether
to
to be unable
will continue
child and
care for a
unable to
3)
incompetent minor’s
future;
the
and whether
in the
do so
resulting from
damage
trauma or
psychological
risk of
damage
trauma or
the risk of such
outweighs
pregnancy
procedure.
a sterilization
resulting from
"by
to find
by requiring the trial court
important,
More
requested oper-
the
convincing evidence
clear and
medically necessary
preserve
to
the life
procedure is
ative
minor,” the
incompetent
health of the
or mental
physical
improper emphasis upon the
majority
undue
places
majority makes
necessity.
doing,
In so
the
medical
factor of
determining
controlling in
necessity
the factor of medical
to
to consent
guardian
to
petition
whether a
authorize
interests
minor is in the best
incompetent
of an
sterilization
below, I
reasons set forth
minor. For the
incompetent
of the
rather would
controlling,
as
but
would not treat this factor
many
to be considered
factors
regard it as one
best interests
sterilization is
determining whether
minor.
right to
view,
has a constitutional
my
In
an individual
As
voluntary sterilization.
including
right
to
privacy
535, 541,
Oklahoma,
1942,
U.S.
v.
long ago as
Skinner
(1942),
Court
1110, 1113
Supreme
United States
S.Ct.
criminal.”
not
a "habitual
held that
state could
sterilize
In
right.
Thus,
as a fundamental
recognized procreation
485-86,
Connecticut,
479,
85 S.Ct.
381 U.S.
Griswold v.
could not
(1965),
held that the state
that Court
contraceptives.
right to use
person’s
with a married
interfere
constitutionally pro
Thus,
Court established
Supreme
right
personal
to make
including right
privacy
tected
In
contraception.
relating
procreation
decisions
(1972),
Baird,
92 S.Ct.
v.
405 U.S.
Eisenstadt
contraceptives
to use
right
Supreme Court extended
There, the Court said:
persons.
unmarried
*29
right
privacy
"If the
anything,
means
it is the
individual,
right single,
married or
to be free
from unwarranted governmental
intrusion into
fundamentally affecting
matters so
a person as the
whether
to bear
beget
decision
or
a child.”
Eisenstadt,
453,
"The decision whether or not to or bear a very child is at heart of this cluster constitutionally protected choices. particular significance
"Of to the decision of this case, right privacy to connection with deci- affecting procreation sions extends to minors as 685, 693, Carey, well as to adults.” 431 U.S. at S.Ct. at 2020.
Thus, Supreme Court established that minors as well as constitutionally protected right adults have a privacy to right includes both the fundamental to procreate established in Skinner right prevent and the fundamental conception recognized Eisenstadt, and, therefore, in Griswold and constitutionally protected there is a right to individual procreation control over decisions. Wade, 113, 162-65,
In Roe v.
410 U.S.
93 S.Ct.
731-32
(1973),
Supreme
Court held that
the state could not
interfere with an
right
during
adult’s
to abortion
the first
Thus,
trimester
pregnancy.
Supreme
estab
Court
lished
the constitutionally protected right
privacy
right
personal
includes the
to make
relating
decisions
procreation even
conception.
after
*30
right to
extended the
Court
Supreme
Subsequently, the
411,
398,
101
Matheson,
U.S.
450
H.L. v.
minors.
to
abortion
622, 651,
Baird, 443 U.S.
(1981);
v.
1164, 1172
Bellotti
S.Ct.
(1979);
Parenthood
Central
3035,
Planned
3052
99 S.Ct.
2831,
74,
2843
52,
Danforth,
96 S.Ct.
428 U.S.
v.
Missouri
v.
(1976).
Missouri
of Central
Parenthood
In Planned
(1976),
Supreme
the
52,
Danforth,
Thus, Court established Supreme right to make had the physician, with in consultation herself, and that concerning decisions procreation by the state or subject to veto was not minor’s determination any party. third other without recent cases demonstrates
A review of the rights deviation, protected has Supreme Court before and themselves both and minors to decide for adults recognize I children. whether to bear conception after scope of the yet the full has not defined Supreme Court there whether yet and has not determined right privacy Yet, in constitutionally right to sterilization. protected is a view, Supreme Court’s underlying the my the rationale inevitably cases and abortion procreation, contraception, minors have adults and to the conclusion that leads children but only decide to bear right not fundamental children, decision make that bear and to also to decide not to Courts undergoing sterilization. permanent by voluntarily 722 jurisdictions Hathaway Worcester, other agree. E.g., v. (1st 701, 475 1973); F.2d Ruby 705 Cir. v. Massey, 452 (D. 361, 366,
F.Supp. 1978); 368 Califano, Conn. Peck v. 454 (C.D.Utah 484, 486-87 F.Supp. 1977); W.,Colo., re A. P.2d In 366, 712, (1981); Moe, 555, In re 432 N.E.2d 385 Mass. 467, (1982); Grady, 719-20 (1981). In re 426 A.2d N.J. Manifestly, procreation alternatives available com- petent minors adults and should also extend to individuals mentally who are not make competent to the choice them- inability selves. The of incompetent individuals to choose should not in the pro- result loss of their constitutionally rights. agree tected I with courts in those states have *31 determined that a trial court should substitute its judgment for incompetent that of the preserve minor in order to the and, therefore, fundamental of the rights incompetent minor to accord protection maximum to the incompetent minor’s best interests.
The underlying rationale the doctrine of judg- substituted ment recently expressed by Supreme the Judicial Court Moe, in In Massachusetts re Mass. 432 N.E.2d (1982). There, the Court said:
"In the utilizing doctrine of substituted judgment, integrity this court seeks to maintain the person by incompetent the giving individual a may forum in his rights which or her be exercised. The court 'the dons mental mantle of the incompe- nearly tent’ and possible substitutes itself as as the the making process. individual decision In doctrine the utilizing the court does not decide what necessarily is but best decision rather what decision be made incompetent person would if he or competent. she were To speak solely in terms interests’ of the of the 'best ward, or interest, of the State’s is to obscure the fundamental issue: impose Is the State to solution on an criteria, incompetent based on or is external implement protect it to the individual’s seek reject rights integrity? We the former personal difficulties, Each has its own possibility. approach judgment of substituted but the use the doctrine individual, no best interests of the promotes In may be.” how difficult the task involved matter (citations Mass., omit- Moe, N.E.2d at 720 re added). ted) (emphasis
Thus, judgment, under the doctrine substituted sterilization, whether authorize trial determining objective criteria of solely not be concerned with court must minor, incompetent but what is in the best interests emphasis upon the decision that place primary rather must minor if she were incompetent would be made he or competent. Only by doing incompetent can the minor’s so and, rights fully protected personal fundamental be therefore, fully incompetent minor’s best interests preserved. difficulty majority’s in the establishment of inherent necessity” determining
"medical factor in controlling as a whether sterilization is that trial to authorize primary emphasis objective on a compelled place single irrespective incompetent that the standard decision my view, if competent. minor make he or she were In would treating necessity controlling medical as a factor results in degree of interference with an unacceptable *32 right concerning minor’s to make sterilization decisions prevent an controlling might because such a factor well indi- be if from competent vidual who would wish to sterilized being sterilized.
A not constitutionally protected right to decide minor’s in by bear a is to be the minor consultation with child made physician subject by any her and is veto the state or not Danforth, third 428 U.S. 96 at 2843. A party. at S.Ct. minor, competent physician, may in her consultation with procreative necessity. elect a not a medical choice is under minor incompetent Such a is to an choice unavailable major- by the necessity the established standard of medical 724
ity court, substituting judg- because not even the trial its incompetent minor, ment for can authorize a necessity. sterilization that is not a medical Under the stan- by majority, dard established the to be decision sterilized be the by incompetent cannot made minor in con- physician sultation with her also by- cannot be made for her court in trial consultation with her but physician, rather solely by physician is made for her on the basis of medi- necessity. essence, In necessity cal under medical stan- dard, physician veto is accorded absolute over the decision to be All of the other sterilized. factors considered the trial court are irrelevant. view, my
In medical majority’s necessity standard sub stantially protection interferes incompetent with the of an fundamental rights, minor’s thus the best interests of incompetent fully not protected. minor are Of the six states that have established factors to be considered in determining whether to authorize the sterilization of an minor, one, Colorado, only has determined that W.,Colo., necessity controlling medical is a factor. In re A. jurisdictions explicitly rejected P.2d at 375. Courts two have regarded that necessity controlling the notion as a factor. In Mass, 10; re Moe, n.10, 432N.E.2d at In Grady, at 722n. re n.9, & 263 at N.J. at 263 426 A.2d 481 & 481-82 n.9. I persuaded rights am that the of an incompetent minor to concerning procreation effectively make a free choice most is protected necessity if medical regarded sterilization is as but one factor to be what determining considered Accordingly, best interests of the incompetent minor. to this I respectfully extent dissent. if I
Finally, even were that the to assume standards estab- majority lished appropriate, agree were I would not majority’s with the affirmance in majority this case. holds that the trial erred in applying "demon- Maryland strated need” contained in formulation Code (1974, § Cum. Supp.) 13-708 of the Estates and Trusts Article, for the appropriate first time establishes stan- *33 when to determining in by trial courts employed dards minor. of an authorize the sterilization remand this case Nevertheless, not to majority chooses allowing the parties purpose for the to the trial court enunci- newly required present additional evidence allowing the trial purpose standards and for the ated findings. requisite making apply those standards circumstances, action majority’s Under these remanding does not reversing and affirming rather than Thus, if I my agreed even with with sense fairness. comport I would reverse and respects, majority all other in order to advance proceedings remand for further I Accordingly, respectfully Md. 871. purposes justice. Rule dissent.