noting “ [sterilization touches upon the individual’s right of privacy and the fundamental right to procreate” and establishing requirements that must be met before a court can order the sterilization of an intellectually disabled person, including representation by a guardian ad litem and medical, social, and psychological evaluations of the individual
How later courts described this case
- noting “ [sterilization touches upon the individual’s right of privacy and the fundamental right to procreate” and establishing requirements that must be met before a court can order the sterilization of an intellectually disabled person, including representation by a guardian ad litem and medical, social, and psychological evaluations of the individual
- finding that proponent of sterilization must show by "clear, cogent and convincing evidence" that procedure is in "retarded person's best interest"
- requiring independent guardian ad litem before superior court may grant a petition for sterilization based on the "fundamental right to procreate"
- “[LJikely to engage in sexual activity at the present or in the near future under circumstances likely to result in pregnancy . . . [A]ll less drastic contraceptive methods, including supervision, education and training, have been proved unworkable or inapplicable.”
Written by the judges who cited it.
The opinion
Stafford, J.
(concurring specially in part in the majority and dissenting in part) — I have studied the majority and dissenting opinions with care. Both express great concern for basic personal rights and the possible impact of social policy upon those rights. Yet, in resolving those complicated, and often conflicting, issues in terms of constitutional jurisdiction, the majority and dissent are in fundamental opposition. The majority declares that constitutional jurisdiction over the person and subject matter clearly gives the judiciary power to determine the ultimate conflict. The dissent asserts with equal fervor that no jurisdiction exists, constitutional or otherwise, to resolve an issue of public policy which strikes so near the underpinnings of the right of privacy. My view of the appropriate resolution lies between the two competing theories, although it is more closely allied with the majority.
I agree with the majority that the judiciary has constitutional jurisdiction over both the subject matter and the persons involved. Having jurisdiction the courts possess inherent power to define the limits of the conflict between personal rights and the asserted needs of society and thus the power to resolve the instant dispute. The majority has proceeded into this thicket with caution. While declaring the power of the judiciary to act, it has imposed upon those who stress the social need for sterilization a strong burden of proof as a condition precedent to any implementation of the claimed need. By so doing, the majority has recognized the necessity of protecting the fundamental personal rights involved.
Nevertheless, despite the cautious approach employed, I am compelled to depart from the majority. I acknowledge existence of the judicial power to act. Possession of such power, however, neither requires that it be exercised nor *241 necessarily supports the wisdom of its exercise under all circumstances.
In this case we are concerned with the permanent and irreversible loss of a fundamental personal right. Those who seek to invade this right do so in the name of "social need", "social good" and even "personal well-being". Society, doubtless well intentioned, desires to "do what is best" for the person here involved. In my view, however, there are not only deep-seated medical, sociological, personal and legal issues, but a fundamental issue of public policy involved. What power, then, should society have in this regard; what personal rights should be protected from society; to what extent should they be protected; and in what manner?
It seems to me that having clearly declared the judiciary's power to act, wisdom dictates we should defer articulation of this complex public policy to the legislature. Such deferral, done with a clear declaration of judicial power, is not an abdication of that power. Rather, it is a recognition that the declared power can be rationally coupled with a conscious choice not to exercise it.
There will be sufficient time, after a legislative declaration of public policy, for this court to determine whether the declaration and implementation of that policy has been accomplished in a constitutional manner. There will be a sufficient opportunity, for example, for us to review and properly decide the most basic question of all — whether compulsory sterilization of mentally retarded persons should or should not be permitted and if so under what limitations, if any. We have not faced this most basic issue and have been unable to do so because of the limited nature of the briefs and limited facts in this case. By deferring the exercise of our power and permitting the legislature to declare the public policy, we will be able to meet these problems in a more acceptable and knowledgeable manner.
Since, contrary to my views, the judiciary plans to exercise its power to act in cases of this nature, it should do so *242 only under strict protective standards. Most of the standards enunciated by the majority fulfill this objective.
Without question those who seek intervention of the judiciary on "behalf" of an alleged mentally incompetent person usually will do so with the best of intentions. If the judiciary is willing to furnish the means of resolving such a critical issue, it should not on the one hand make the forum available and on the other hand make the burden of proof so impossible of accomplishment that the forum cannot be used. Unfortunately, the final standard proposed by the majority does just that.
The moving party is required to prove by clear, cogent and convincing evidence that " (3) the current state of scientific and medical knowledge does not suggest (a) that a reversible sterilization procedure or other less drastic contraceptive method will shortly be available, or (b) that science is on the threshold of an advance in the treatment of the individual's disability.” First, the standard requires the moving party to prove a negative. Second, it involves the judiciary in a questionable contest at three levels: (a) whether the movant has done sufficient research to establish that no medical breakthrough is possible in the foreseeable future; (b) whether a medical procedure possible in the next few years will become an actuality; and (c) whether the alleged mentally incompetent person will be able to take advantage of the nebulous scientific advance for physical or emotional reasons.
It is too much to ask the moving party, the alleged mentally incompetent person or the judiciary to litigate such nebulous eventualities of science.
Hicks, J., concurs with Stafford, J.