# In Re Grady

> Supreme Court of New Jersey · February 18, 1981 · 85 N.J. 235

URL: https://www.frixlaw.com/law-library/cases/9711519

## Case

- **Full name:** In the Matter of Lee Ann Grady
- **Court:** Supreme Court of New Jersey
- **Decided:** February 18, 1981
- **Citations:** 85 N.J. 235; 426 A.2d 467; 1981 N.J. LEXIS 2590
- **Precedential status:** Published
- **Opinion:** Concurrence by Handler
- **Judges:** Handler, Pashman
- **Cited by:** 84 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9711519

## How later opinions describe it (automated extraction)

- recognizing that decisions in Griswold and Eisenstadt ended “any doubt about a personal right to prevent conception,” and holding that “an individual’s constitutional right of privacy includes the right to undergo sterilization voluntarily”
- holding “right to be sterilized comes within privacy rights protected from undue governmental influence by our State Consti tution”
- noting that lawmakers have been “too quick to accept unproven scientific theories of eugenics” including that “criminality . . . and various other defects were hereditary”
- holding that proponent of sterilization has burden to prove by clear and convincing evidence that person to be sterilized lacks capacity to consent or withhold consent
- holding that "the right to be sterilized comes within the privacy rights protected from undue governmental interference by our State Constitution"

## Opinion text

HANDLER, J.,
concurring.
I agree with much of the majority opinion, most specifically with the standards established to guide trial courts in these cases. In certain important respects, however, I fear that the articulation of these standards is somewhat misdirected and potentially misleading. I therefore feel constrained to write separately.
It is my view that the standards enumerated in the majority opinion establish and include the requirement that necessity be shown before any sterilization of an incompetent person can be judicially authorized. The majority’s under statement of this reality is both perplexing and unfortunate. Ante at 262. It is true that the factors set down by the Court are more expansive and detailed than those emphasized by the Public Advocate and the Attorney General, ante at 262, 265-266. Both have urged that necessity for sterilization surgery must be demonstrated and have focused upon the need to show a likelihood of sexual activity and pregnancy, as well as an absence of other feasible, less drastic alternative means for avoiding pregnancy. Nevertheless, the thrust of the position of these two government public representatives has not been totally repudiated by the Court simply because the test today adopted is multifaceted. We now hold that included within the broad standard that must *274 be met in determining the best interests of the incompetent are the important elements of (1) likelihood of sexual activity and (2) the feasibility and medical advisability of less drastic means of contraception. Ante at 265-266. Hence, these criteria of necessity have been incorporated in this Court’s standard as an integral, albeit nonexclusive, part of the calculus of concerns relevant to the awesome determination made in cases of this sort.
The factors that have been added to those espoused by the Public Advocate and Attorney General have not been promulgated to dilute or weaken the requirements for judicially authorized sterilization. On the contrary, they serve to stiffen judicial responsibility by mandating a thorough, far-reaching and conscientious consideration of all elements that are relevant in the consideration of an incompetent’s best interests.
I am not sure why the majority has shied from the terminology of necessity. Perhaps, at least in the special context of this case, it reflects an understandable, but exaggerated, emphasis upon privacy rights. What is really involved in this case, however, is not so much the incompetent’s right of personal choice — nature has already deprived her of that — but rather what is in her best interests. I do not believe therefore that we are called upon to act as Lee Ann Grady’s surrogate in exercising her rights of personal choice. Cf. In re Quinlan, 70 N.J. 10 , cert. den. 429 U.S. 922 , 97 S.Ct. 319 , 50 L.Ed.2d 289 (1976). Rather, we are confronted with a different task — to identify, define and preserve her best interests in order to enhance her opportunities for lifetime happiness. N.J.Const. (1947), Art. I, par. 1 (individual has natural and inalienable right to pursue and obtain happiness). Necessity, as a legal condition to the exercise of privacy rights, may indeed be an intolerable obstacle with respect to persons entitled to individual autonomy and fully capable of personal choice. However, with respect to one incapable of choice, necessity must remain an extremely important, if not an indispensable predicate, for the judicial determination of *275 best interests and the interposition of irreversible judicial choice in such a profoundly personal area as sterilization.
As I have mentioned, I do not believe that the majority has eliminated the doctrine of necessity since its elements are included in its overall standard. Hence, its lack of prominence should not be deemed significant. Trial courts should be aware that the Court’s standards are stringent, the lack of a necessity label notwithstanding.
Additionally, I deem it prudent to emphasize the important principles embraced in the Developmentally Disabled Rights Act, N.J.S.A. 30:6D-1 et seq., and the act commonly known as the “Bill of Rights for the Mentally Retarded,” N.J.S.A. 30:4-23 et seq. I agree with the majority that these acts do not directly govern the rights of the noninstitutionalized incompetent person in this case. But surely the broad objectives of this signal legislation must be shared by this Court.
Fittingly, the judicial determination reached in this case is in tandem with current legislative efforts on behalf of the handicapped and is consonant with the legitimate concern expressed by the Legislature in these areas. The confluence of judicial and legislative thinking flows from a common headwater, namely, the Constitution, N.J.Const. (1947), Art. I, par. 1. These enactments are a positive affirmation of a deep governmental and public solicitude for the well-being of handicapped persons. See Levine v. Dept. of Inst. & Agencies, 84 N.J. 234, 249 (1980). They evince a strong public policy that is assiduous in the protection of the rights of the mentally handicapped — a philosophy which imbues the Court’s opinion. I believe this symmetry between branches of government in so sensitive a matter as the individual well-being of helpless persons in a high desideratum. This Court would be remiss in failing to be responsive to the legislative view in these matters for “legislative policy ... is itself a source of law, a new generative impulse transmitted to the legal system.” Van Beeck v. Sabine Towing Co., 300 U.S. 342, 351 , 57 S.Ct. 452, 456 , 81 L.Ed. 685, 690 (1937) (Cardozo, J.). *276 It is therefore of some significance that both of these statutes explicitly establish a necessity standard in sterilization cases. N.J.S.A. 30:6D-5(a)(4); N.J.S.A. 30:4-24.2(d)(2). This further indicates that a necessity requirement is implicit in the Court’s holding.
Finally, I note that although the Court has concluded that the evidence must meet a clear and convincing standard in the aggregate before an order of sterilization may be justified, I envision that the failure to marshall evidence as to some of the elements of the Court’s test could conceivably result in a denial of an application for sterilization, regardless of the overwhelming weight of evidence available to satisfy other components of the test. 1 The Court has recognized that the judicial discovery of the best interests of an incompetent in terms of whether his or her sterilization should be authorized is complex and manifold. Clearly it requires substantial proofs with respect to all facets of the applicable standard.
With these clarifications and observations, I concur in the result and the essentials of the majority opinion.
„ For vacation and remandment — Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK — 7.
For affirmance — None.
Thus, for example, the inquiry into the best interests of an incompetent must explore the extent to which the surgery, hospitalization and recuperation entailed in a sterilization operation would be traumatic and detrimental to the incompetent or carry the risk of mortality. This factor is not emphasized by the majority and the record is sparse in this regard. Yet, I believe it is an important element in any best interests inquiry and a failure to deal with it could strongly militate against the soundness of an ultimate conclusion that sterilization would be in the best interests of the individual, other evidence notwithstanding.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9711519. Public record. Not legal advice.