Court Developed Guidelines
Protection of the Mentally Incompetent
Sterilization Decisions

(from Non-Voluntary Sterilization in the Interest of the Patient by Margaret Monahan Hogan)

As a consequence of the abuse of sterilization, stringent laws are in place in the United States to protect vulnerable populations from its inappropriate use. Among those vulnerable populations are mentally retarded persons. Many of the present state laws cast the state as the protector, Parens Patriae, of the individual against all other interests. These laws were fashioned in order to protect the right of a person to make reproductive decisions and to protect the best interests of the incompetent in regard to reproductive decision-making. The state laws have substantive as well as procedural demands. The substantive criteria adopted by the various states to guide decision-making yield four kinds of legal rules.{1} These criteria have resulted in standards that range from outright prohibition to discretionary best interest standard and that have been characterized as mandatory, discretionary best interest, substituted judgment, and strict prohibition. The description of the criteria is as follows: Under the mandatory criteria type of rule a court can authorize sterilization only if several specific findings are clearly made. This rule places a significant burden on the petitioner, limits judicial discretion, and makes it difficult to establish the desirability of sterilization. The "discretionary best interest standard" is a more flexible rule; instead of requiring specific findings, it directs judges to consider and weigh designated criteria in determining whether sterilization is in the competent person's best interest. A few states have adopted the "substituted judgment" approach first proposed by the New Jersey Supreme Court in In re Grady. Grady directs the court to consider the Hayes criteria and any other relevant factors in order to make the decision that the disabled person would make for herself if she were competent. Finally, a few jurisdictions simply prohibit the sterilization of anyone found by the court to be incompetent to give informed consent to the medical procedure.{2}

These procedural and substantive standards that have been established by many state courts include the following:

  1. Those advocating sterilization bear the heavy burden of proving by clear and convincing evidence that sterilization is in the best interests of the incompetent.
  2. The incompetent must be afforded a full judicial hearing at which medical testimony is presented and the incompetent, through a guardian appointed for the litigation, is allowed to present proof and cross-examine witnesses.
  3. The judge must be assured that a comprehensive medical, psychological, and social evaluation is made of the incompetent.
  4. The judge must determine that the individual is legally incompetent to make the decision whether to be sterilized, and that this incapacity is in all likelihood permanent.
  5. The incompetent must be capable of reproduction, and unable to care for offspring.
  6. Sterilization must be the only practicable means of contraception.
  7. The proposed operation must be the least restrictive alternative available.
  8. To the extent possible, the judge must hear testimony from the incompetent concerning his or her understanding or desire, if any, for the proposed operation and its consequences.
  9. The judge must examine the motivation for the request for sterilization.{3}

While these laws and the court procedures protect against the abuse of sterilization, they pose formidable barriers in those instances where sterilization might serve the best interest of an individual. The laws are correct in their presumption that sterilization is a prima facie wrong, that is, it is a mutilating procedure and it limits procreation rights. However, the requirements to overcome the presumption are excessively burdensome for the individual, the family, and the state. Most states, in pressing these requirements, cast the family, who have heretofore exercised a caring relationship for incapacitated person, into an adversarial role. It is within this atmosphere that the moral question, the non-voluntary sterilization of the mentally incompetent, not for eugenic reasons, but in the best interest of the mentally incompetent, arises.

Other influences complicate the resolution of this question. The contemporary cultural matrix is one that was given shape by Civil Rights movement of the Sixties. The influence of that powerful Civil Rights movement extended from the originating issue of racism to touch so many other issues including the lives of the mentally impaired. Among the civil rights sought for the mentally impaired were the right to the least restrictive environment, the reaffirmation of the right to bodily integrity, and the right to procreate. It is within this atmosphere that the Courts and the families of the mentally retarded wrestle with the question of non-voluntary sterilization for the good of the patient. The specific question is: How, in a less than perfect world which embraces the ideal of least restrictive environment and the maximization of autonomy for all including the mentally impaired, how is it possible to protect the vulnerable members of the human community from harm?

{1} Elizabeth Scott, "Current Sterilization Law: A Paternalism Model," DUKE LAW REVIEW VOL. 806, 1986, pp. 806-825.

{2} Ibid.

{3} Judith Areen, "Limiting Procreation," MEDICAL ETHICS, edited by Robert M. Veatch, 1997, p. 116-117.