Opposition — A. L. v. G. R. H.

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In The it he ,

LRCHAEL 00248, CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No. 229 -/202

A. L., PETITIONER,

v.

G. R. H., RESPONDENT

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF INDIANA

DAVID V. MILLER

GROVE, MILLER & LANTZ

908 Old National Bank Bldg.

Evansville, IN 47708

Telephone: (812) 423-4433

or 464-3915

COUNSEL FOR RESPONDENT

ia

Unigraphic, Inc., 1401 N. Fares Ave., Evansville, Ind. 47711, Phone 424-3680

INDEX

TABLES OF CASES, AND OTHER AUTHORITIES .... ii

Rea ea en en ctescceccccescccce |

awakes ens serecscocccscccs l

QUESTIONS PRESENTED ...... 2... cccccccccccees l

STATEMENT OF THE CASE ..............--eeeeee 2

SUMMARY OF ARGUMENT OF RESPONDENT ...... 3

ARGUMENT

I. THE RIGHT .0 PROCREATE IS A BASIC

HUMAN RIGHT, ENTITLED TO THE

GREATEST PROTECTION THE CONSTITU-

TION CAN PROVIDE AND IS NOT SUBJECT

TO INVASION BY A PARENT OR THE

GOVERNMENT IN THE ABSENCE OF

ABSOLUTE NECESSITY ................. 4

Il. PETITIONER’S RELIANCE UPON HER

CONSTITUTIONAL RIGHT AS A PARENT

IGNORES THE CONSTITUTIONAL RIGHTS

AND BEST INTERESTS OF HER MINOR

CHILD, WHICH ARE ALSO SUBJECT TO

PROTECTION BY THECOURTS ......... 14

Ill. THE PARENT’S CONSENT IN THIS CASE

IS INSUFFICIENT AND THE RIGHT OF THE

SON TO MAKE THE DECISION IN

QUESTION SHOULD BE RESPECTED ..... 17

aL. Sans wea screccccess OD

‘

TABLE OF CASES AND OTHER AUTHORITIES

CASES

Page

Bach v. Long Island Jewish Hosp. (1966) 49 Misc.

PP FF 4 > Pb BIT TT eee 19

Buck v. Bell (1927) 274 U.S. 200,71 L.Ed 1000 ...... 11

Davis vy. Beason (1890) 133 U.S. 333 .... 2... eee eee 15

Eisenstadt v. Baird (1972) 405 U.S. 438, 31 L. Ed. 2d

BOP cctcuncccwcvecdssbacesnasecuaueuaees 11

Foster v. Harrison (1957) N. 68674 Eq., Mass. Sup.

PURGE. cncncocsesccndccunsenncuausnss 20, 21

Frazier v. Levi (1969) Tex., 440 S.W. 2d 393 ...... 11,18

Griswold v. Connecticut (1965S) 381 U.S. 479 .......... 6

iter v. GRADE = TE GR Be oc cc cccccdectscess 15

Holmes v. Powers (1969) Ky., 439 S.W.2d 579 ....... 18

Horacek v. Exon (D.C. Neb., 1973) CV-72-L-299 ...... 17

Huskev v. Harrison (1957) No. 68666 Eq., Mass. Sup.

DREGE 06 skies cuceenasvesceesbaevesesiecal 20

In re Clark (1962), Ohio, 185 N.E. 2d 128 ........... 16

Rote Ga eT LS bch becandecsedceciweer 15

In re Seiferth (1955) 309 N.Y. 80,127 N.E. 2d 820 .... 19

In re Simpson (1962) Ohio 180, N.E. 2d 206. ...... 18,19

ill

TABLE OF CASES AND OTHER AUTHORITIES CONT.

CASES

Page

In re Winship( _) 397 U.S. 358 ................... 16

Masden v. Harrison (1957) No. 68651 Eq., Mass. Sup.

PEE Gb de dnbeln seeks Vike honed ecsedeheks 20

Meyer v. Nebraska (1923) 262 U.S.390 .............. 6

Olmstead v. U.S. (1928) 277 U.S. 438, 72 L. Ed. 944,

SUEY Saviuenson6 ede baceicocdesonbui 9

People ex. rel. Wallace v. Labrenz (1952) 411 Ill. 618,

IU, Wl ee Ce 15

Powell v. Alabama (1932) 287 U.S. 45,77 L. Ed.

I rare ae ee hi ak 9

Prince v. Massachusetts (1944) 321 U.S. 158 ...... 14,15

Roe v. Wade (1973) 410 U.S. 113 ............... 16,17

Reynolds v. U.S. (1878) 98 U.S.145 ............... 15

Skinner v. Oklahoma (1942) 316 U.S. 535, 86 L. Ed.,

DT nititvuibieuehuetie ced teeececdeus 4,5,11

Snyder v. Massachusetts (1934) 291 U.S. 97, 78 L. Ed.

I i 9

State v. Bailey (1901) 157 Ind. 324,61 N.E.730 ...... 15

Strunk v. Strunk (1969) Ky., 445 S$.W.2d 145 .. 18, 20, 2)

Sturges & B. Mfg. Co. v. Beauchamp (1913) 231

CY ee eR Ge eee ees re 15

iv

TABLE OF CASES AND OTHER AUTHORITIES CONT.

CASES

Page

Wade v. Bethesda Hospital (S. D. Ohio), 337 F. Supp. 671

reh. den (S.D., Ohio) 356 F. Supp. 380 ... 11, 18, 19

Wisconsin v. Yoder (1972) 406 U.S. 205 .......... 15, 16

Wyatt v. Aderholt (M.D. Ala., 1974) Civil Action

Re ree eee 19, 20, 21, 22

Wyatt v. Stickney (M.D. Ala. 1971) 325 F. Supp.

Mts LGN aaa ee onde bhiaksekeadwaeds 17,18

Vv

OTHER AUTHORITIES

Page

Johnson, Social and Pyschological Effects of Vasec- -

tomy 121 Am. J. of Psychiatry 482 (1964) ...... 22

Mill, John Stuart, On Liberty ..................... 13

Rodgers et al., A Longitudinal Study of the Pyscho-

Social Effects of Vasectomy, 27 Jour. of Marriage

and Family 50 (1965) 22

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

NO.

A.L., PETITIONER,

v.

G.R.H., RESPONDENT

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF INDIANA

OPINION BELOW

The opinion of the Court of Appeals of Indiana is

reported at 325 N.E. 2d 501, and printed in Appendix A of

the Petition herein.

JURISDICTION

If this Court consents to the issuance of the Writ of

Certiorari herein opposed, the Respondent is in agreement

with the statements relating to jurisdiction set out by the

Petitioner.

QUESTIONS PRESENTED

The Respondent, Guardian Ad Litem for G. R. H.

believes the Statement of the Issues Presented for Review

to be much too narrow. The Guardian Ad Litem will.

therefore, address the following issues:

5

—

(1) Does the basic human right to retain the

physical ability to father a child find protec-

tion in our constitutional framework, and

under what circumstances, if any, may

government, by judicial or legislative edict,

allow invasion and destruction of that right?

(2) Does Petitioner’s parental prerogative to

raise her child in the way she desires take

precedence over the child’s right to retain

his ability to procreate?

(3) Should consent of the ward be required

prior to the proposed vasectomy and, if so,

should the proposed vasectomy be delayed

until the ward has reached his greatest

intellectual development?

(4) Do Scientific Data and the evidence justify

the order sought by the Petitioner?

STATEMENT OF THE CASE

The Respondent is substantially in agreement with the

“Statement of the Case” appearing in the Petition; Respon-

dent, however, points out the following additional evidence

not reviewed by the Petition:

The letter of Wallace K. Dyer, M.D. specifically states

that Dr. Dyer has not treated the defendant since April of

1966, and Dr Dyer “had no more contact with him until his

mother came in in August, 1972, wondering about the ad-

visability of a vasectomy on him because of his brain damage

following an automobile accident about five years ago.”

(Tr. p. 40) The nature of Dr. Dyer’s contact with the defen-

dant himself in August 1972, if any, is not specified.

In addition to that noted in the Petition for Certiorari,

the following evidence is sign‘ficant:

ANN LUTTRELL:

Since Gary has been in Special Education his grades

have improved, he is learning to read and he is learning his-

tory, arithmet*: and spelling (Tr. p. 42) Gary likes school,

modern clothe: rock and roll music and girls (Tr. pps.

43 & 44). I feel an obligation to protect Gary from things

I believe he doesn’t understand - I watch over him carefully

(Tr. p. 46) I let Gary go out on his own and give him a cer-

tain time to be back. When he is out, he knows what he is

doing. He is a good boy (Tr. pps. 48-49).

DR. SPIRO MITSOS:

Given the state which Gary has reached in his age and

physical development, his awareness of the opposite sex is

not in any way abnormal (Tr. p. 62).

MR. DURWOOD JOHNSON:

In the past two years Gary has shown improvement in

the kind of social judgment he has, his vocabulary is improv-

ed, and overall improvement in most of the pyschological

subtest areas was noted. (Tr. p. 65). Gary’s present level

is 7 points below the normal range. His I.Q. is presently 83.

We have a classification that usually goes by ten-point areas.

Present level would be dull. The retarded ranges are below

70, and from 70 to 80 is borderline. (Tr. p. 66) I feel

Gary is benefiting significatly from Special Education and he

has shown some significant academic achievement. (Tr.

p.66). .

SUMMARY OF ARGUMENT

The right to procreate is a basic human right which is

entitled to the greatest protection the Constitution can

provide. This right, clearly within the penumbra of rights

protected by the Ninth Amendment, is not subject to inva-

sion by a parent or by government in the absence of absolute

necessity.

Petitioner’s reliance upon her constitutional right as

a parent ignores the constitutional rights and best interests

of the ward of the guardian ad litem, which are also subject

to protection by the Courts.

Not only case law, but scientific data and the evidence

produced at trial confirm that the question of whether a

vasectomy should be performed upon the ward of the guard-

ian ad litem, Respondent herein, should await the time when

the young man in question may make that decision for him-

self.

ARGUMENT

I

THE RIGHT TO PROCREATE IS A

BASIC HUMAN RIGHT, ENTITLED

TO THE GREATEST PROTECTION

THE CONSTITUTION CAN PROVIDE

AND IS NOT SUBJECT TO INVASION

IN THE ABSENCE OF ABSOLUTE NECESSITY

From the outset, and throughout the entire consideration

of this case by this Court, there should be no disagreement as

to this: The right of every citizen of this nation to procreate

or to retain to himself the physical power to procreate or

beget offspring is a human right, a natural right in the classic

sense and a most basic civil right in the constitutional sense.

It was in recognition of this overpowering and fundamental

principal that The Supreme Court of the United States open-

ed its opinion in Skinner v. Oklahoma 316 U.S. 535, 86 L.

Ed. 1655 (1942) as follows:

“This case touches a sensitive and important area

of human rights. Oklahoma deprives certain in-

dividuals of a right which is basic to the prepetua-

tion of a race - the right *o have offspring.” 316

U.S. at 536.

5

The Skinner case involved a challenge to a state statute

providing for sterilization of “habitual criminals.” The

statute in that case was struck down on procedural and equal

protection grounds, about which more must be said later, but

in the course of doing so, the Opinion of the Court again

takes cognizance of that inescapable point:

“We are dealing here with legislation which involves

one of the most basic civil rights of man. Marriage

and procreation are fundamental to the very exis-

tence and survival of the race. The power to steri-

lize, if exercised, may have subtle, far-reaching and

devastating effects. In evil or reckless hands, it can

cause races or types which are inimical to the domi-

nant group to wither and disappear. There is no

redemption for the individual whom the law (so)

touches. Any experiment which the state conducts

is to his irreparable injury. He is forever deprived of

a basic liberty.” 316 U.S. at 541.

The Preamble of the Constitution of the United States

sets out that one of the purposes of the document is to

“secure the Blessings of Liberty to ourselves and our Pos-

terity.”" What more fundamental personal right could exist

than the right to participate in the creation of the future

generations that comprise our posterity? There may, indeed,

be rights equally fui.damental to our concepts of personal

liberty, and entitled to the same degree of judicial protec-

tion from governmental intrusion, but this right in each of us

to bear or beget children is more inextricably interwoven in

our concepts of individual “life” and “liberty” than any

other.

Admittedly, it is not the State of Indiana in this case

which seeks by affirmative action of one of its own depart-

ments to cause the proposed sterilization of the Respondent

to be carried out. Nevertheless, it is clear from the testimony

of the Petitioner that she is unable to have the proposed

sterilization of the Respondent performed in the absence of

a declaratory judgment from a State Court t protect the

6

surgeon. (Transcript p. 38 1. 3-15) Issuance of such a de-

claratory judgment, that is, an affirmative form of State

Action, therefore, is a necessary condition precedent to the

execution of the proposed vasectomy in this case. From this

set of circumstances, inevitably, the burdensome constitu-

tional issue begging for attention in this case arises.

From the point of view of the Respondent, that issue

may be framed as follows:

Does the basic human right to retain the physical ability

to father a child find protection in our constitutional frame-

work, and under what circumstances, if any, may govern-

ment, by judicial or legislative edict, allow invasion and

destruction of that right?

Insofar as this case represents an attempt by a parent

to obtain the sanction of a state court to have her minor

child sterilized in the absence of medical necessity and in

the absence of eugenic abnormality in such child, this case

presents a novel and frightening threat to the right of every

child in this nation to retain his or her ability to beget or bear

offspring. And, given the cultural and traditional environ-

ment in which we all function on a daily basis, that is to say,

given American society as we know it, the ability to bear or

beget offspring is inextricably bound up with the right and

ability of each child to engage in the fullest kind of marital

and sexual relationships.

As was recognized long ago by the Supreme Court of the

United States:

“Without doubt, liberty denotes .. . the right to

marry, to establish a home and bring up children...

and generally to enjoy those privileges long recog-

nized at Common Law as essential to the orderly

pursuit of happiness by free men.’ Meyer v. Nebras-

ka 262 U. S. 390, 399 (1923).

It was not until relatively recent years, however, that judicial

analysis disclosed the depth and source of the constitutional

protection accorded these intertwined liberties. The issue

was first squarely dealt with in Griswold v. Connecticut

7

381 U.S. 479 (1965). The clear thrust of the main opinion

and the important concurring opinion of Mr. Justice Gold-

berg in Griswold, which involved the constitutionality of a

statute forbidding dissemination of information relating to

birth control, was that there is within the Bill of Rights a

penumbra of unenumerated basic human rights which protect

as inviolate every person’s privacy and self-being.

‘“* (The) specific guarantees in the Bill of Rights

have penumbras, formed by emanations from those

guarantees that help give them life and substance.

(citation omitted) Various guarantees create zones

of privacy. The right of association contained in the

penumbra of the First Amendment is one, as we

have seen. The Third Amendment in its prohibition

against the quartering of soldiers “in any house” in

time of peace without the consent of the owner is

another facet of that privacy. The Fourth Amend-

ment explicitly affirms the “right of the people to

be secure in their persons, houses, papers, and ef-

fects, against unreasonable searches and seizures.”

The Fifth Amendment in its Self-Incrimination

Clause enables the citizen to create a zone of privacy

which government may not force him to surrender

to his detriment. The Ninth Amendment provides:

“The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage

others retained by the people.”

* * *

The present case, then concerns a relationship

(marital sex) lying within the zone of privacy creat-

ed by several fundamental constitutional guarantees.

And it concerns a law which, in forbidding the use

of contraceptives. . . seeks to achieve its goals by

means having a maximum destructive impact upon

that relationship.”

P 9

“Rather, the Ninth Amendment shows a belief

on the Constitution’s authors that fundamental

rights exist that are not expressly enumerated in

‘We deal with a right of privacy older than the Bill

of Rights-older than our political parties, older than

our school system. Marriage is a coming together

for better or for worse, hopefully enduring, and inti- the first eight amendments and an intent that the

mate to the degree of being sacred. It is an associa- list of rights included there not be deemed ex-

tion that promotes a way of life, not causes; a har- haustive.”

mony in living, not political faiths; a bilateral

loyalty, not commerical or social projects. Yet it is

an association for as noble a purpose as any involved

in our prior decisions.” 381 U.S. 479 at 484, 485 “In determining which rights are fundamental,

and 486. judges are not left at large to decide cases in light

of their personal and private notions. Rather,

In his concurring opmion, Mr. Justice Goldberg stress- they must look to the ‘traditions and (collective)

ed the importance of the Ninth Amendment in the scheme of conscience of our people’ to determine whether

the Bill of Rights to protect the right of personal privacy of a principle is ‘so rooted (there)... as to be

such matters: ranked as fundamental.’ Snyder v. Massachusetts,

“The Ninth Amendment to the Constitution may

be regarded by some as a recent discovery and

may be forgotten by others, but since 1791

it has been a basic part of the Constitution which

we are sworn to uphold. To hold that a right so

basic and fundamental and so deep-rooted in our

society as the right of privacy in marriage may be

infringed because that right is not guaranteed

in so many words by the first eight amendments

to the Constitution is to ignore the Ninth Amend-

ment and to give it no effect whatsoever. More-

over, a judicial construction that this fundamental

right is not protected by the Constitution because

it is not mentioned in explicit terms by one of the

first eight amendments or elsewhere in the Con-

stitution would violate the Ninth Amendment,

which specifically states that * (t)he enumeration

in the Constitution, of certain rights, shall not be

construed to deny or disparage others retained by

the people.”’ (Emphasis added.)

** *

U.S. 97, 105, 78 L. Ed. 674, 677, 54 S. Ct. 330,

90 A.L.R. 575. The inquiry is whether a right

involved ‘is of such a character that it cannot be

denied without violating those “fundamental

principles of liberty and justice which lie at the

base of all civil and political institutions” ‘.. .”

Powell v. Alabama, 287 U.S. 45, 67, 77 L. ed.

158, 169, 53 S. Ct. 55, 84 A.L.R. 527.

“I agree fully with the Court that, applying

these tests, the right of privacy is a fundamental

personal right, emanating ‘from the totality of the

constitutional scheme under which we live.’ ”

Id., at 521, 6 L. ed. 2d at 1006. Mr. Justice

Brandies, assenting in Olmstead v. United States,

277 U.S. 438, 478, 72 L. ed. 944, 956, 48 S. Ct.

564, 66 A.L.R. 376, comprehensively sum-

marized the principles underlying the Constitu-

ticn’s guarantees of privacy:

‘The protection guaranteed by the (Fourth and

10

Fifth) Amendments is much broader in scope.

The makers of our Constitution undertook to

secure conditions favorable to the pursuit of hap-

piness. They recognized the significance of man’s

spiritual nature, of his feelings and of his intellect.

They knew that only a part of the pain, pleasure

and satisfaction of life are to be found in material

things. They sought to protect Americans in their

beliefs, their thoughts, their emotions and their

sensations. They conferred as against the Govern-

ment, the right to be let alone-the most compre-

hensive of rights and the right most valued by

civilized men.’ ”’

“The entire fabric of the Constitution and the

purposes that clearly underlie its specific guaran-

tees demonstrate that the rights of marital privacy

and to marry and raise a family are of similar

order and magnitude as the fundamental rights

specifically protected.”

***

“Although the Constitution does not speak in

so many words of the right of privacy in marriage,

I cannot believe that it offers these fundamental

rights no protection. The fact that no particular

provision of the Constitution explicitly forbids

_ the State from disrupting the traditional relation

of the family—a relation as old and as funda-

mental as our entire civilization-surely does not

show that the Government was meant to have the

power to do so. Rather, as the Ninth Amend-

ment expressly recognizes, there are fundamental

personal rights such as this one, which are pro-

tected from abridgement by the Government

though not specificall, mentioned in the Consti-

ll

tution.”” 381 U.S. 479 at 519-522 (Emphasis

supplied at last three paragraphs)

Since its holding in Griswold, this Court has struck

out even more broadly in its effort to protect the sanctity

of the individual in matters relating to procreation, whether

that individual be married or single.

“It is true that in Griswold the right of privacy

in question inhered in the marital relationship.

Yet the marital couple is not an independent en-

tity with a mind and heart of its own, but an

association of two individuals each with a sep- .

arate intellectual and emotional makeup. /f

the right of privacy means anything, it is the right

of the individual, married or single, to be free

from unwarranted governmental intrusion into

matters so fundamentally affecting a person as

the decision whether to bear or beget a child.”’

Eisenstadt v. Baird 405 U.S. 438 at 453 (1972

(Emphasis Supplied.)

Given the existence of this most basic of natural and

constitutional rights in each citizen of this land, we then

reach the larger question of whether there are any circim-

stances under which that right may be denied by govern-

mental action. Undeniably, there was time in the past

when the general feeling was that there were some circum-

stances under which involuntary sterilization by virtue of

a governmental decree could properly occur. See Buck v.

Bell 274 U.S. 200, 71 L. Ed. 1000 and Skinner v. Okla-

homa, supra. Social concepts, however, like constitutional

concepts, are not static. See: Skinner v. Oklahoma, supra;

Wade v. Bethesda Hospital, infra, Frazier v. Levi, infra. 7

This case presents a significant opportunity to allow

the reconsideration of the entire concept of involuntary

sterilization, particularly in the case of those person; viewed

by many members of our society as “burdens” because of

“mental retardation.”

12

One would like to believe that we are daily becoming

a more sensitive, charitable people involved with and caring

about the quality of life available to every person, young

or old, rich or poor, whose existence we touch. One would

like to think that we have developed enough, as a people, to

recognize that one does not lightly tamper with any change

or any product of nature, least of all the human body of a

non-consenting person in the absence of medical emergency.

One would like to think we have finally come to realize that

no government, no religion, no organization and no person

possesses that degree of wisdom which entitles it (or him)

to dictate the private life style of another, non-consenting

person.

. That is to say, we would have realized by now that to

invade and destroy the power of a non-consenting person to

choose whether he or she will bear or beget children, in the

absence of a medical necessity, is nothing short of assuming

the role of a human but all-wise and omniscient God. The

implications of that are frightening and have the ring of an

Orwellian 1984 society.

Suppose, for instance, that the Court here agrees

with the Petitioner, that a parent has the constitutional

right in the absence of medical necessity to make the deci-

sion for her child as to whether or not the child should be

sterilized. Where, then, does such a right stop? At age

eighteen? Age sixteen? Will it be different for males than

females? Would the intelligence level of the child make a

difference? What Intelligence Quotient must a child have in

order to save himself from such a decision by his parent?

What test shall we use to determine the Intelligence

Quotient? How about the Wechsler Adult Intelligence Scale?

Or perhaps the Stanford Binet Test should be used. Both

are currently popular 1.Q. tests. But what if a new test is

developed? Then what? And what does intelligence, as we

percieve it to be, have to do with the basic human right of

a person to procreate anyway? What is it that renders our

current concept of intelligence and the ability to accumulate

knowledge so holy and sacrosanct that we “normal people”

can feel free to take it upon ourselves to decide when some

13

other person would be better off sexually sterile?

The point is well-enough made. The right to pro-

create is natural or divine in its origin. depending upon one’s

religious bent. It is a right which is recognized as a consti-

tutionally protected area of individual privacy. To surgi-

cally deprive anyone of that right, permanently, without

his informed consent in the absence of medical necessity,

would shock the conscience and basic sense of fairness and

justice in us all unless the step must be taken to protect

the mass of society from unbearable danger. To accept Peti-

tioner’s position could establish every parent as a god in his

own household and the power thus given could be subject

to fantastic abuse.

The Petitioner here pleads for recognition of a consti-

tutional freedom in her, as a parent, to determine that it is

best for her son that he be sterilized. The transcript is void

of any proof of medical necessity. The Guardian Ad Litem is

reminded of a statement by John Stuart Mill in his treatise,

On Liberty:

“The only freedom that deserves the name is

that of pursuing our own good in our own way,

so long as we do not attempt to deprive others of

theirs, or impede their efforts to obtain it.”

At the end of the Petitioner’s argument she rains upon

the Court a number of rhetorical questions challenging the

supremacy of the freedom claimed by Respondent to deter-

mine for himself whether he should be sterilized. The ques-

tions are emotionally charged, but their charges are defused

by the record. The record here is void of evidence that any

of the terrible events forecast by those questions will occur,

and the same questions, each of them, could be asked with

respect to any normal growing fifteen year old boy. Does

Petitioner propose that this Court adopt a position which

would allow the parent of any child, under any circumstance,

to cause that child to be sterilized in the absence of medical

necessity? Quite obviously so. The logic of her position

14

leads no where else.

It is the position of the Guardian Ad Litem that no

man, and no man-made institution has the right or the power

to require any non-consenting citizen of this country, what-

ever his age, whatever society’s evaluation of his intellect, to

be surgically sterilized under any circumstance short of

either medical necessity or some inconceivable imminent

national peril that might be posed by one person’s ability to

bear or beget a child.

I.

PETITIONER’S RELIANCE UPON HER

CONSTITUTIONAL RIGHT AS A PARENT IGNORES THE

CONSTITUTIONAL RIGHTS AND BEST INTEREST OF

HER MINOR CHILD, WHICH ARE ALSO SUBJECT TO

PROTECTION BY THE COURTS

This case clearly presents the often-overlooked conflict

of interest between a minor child and his parent or guardian.

In fact, Respondent’s mother contends that she has the right

to rear and control her child in any manner she sees fit and

also has a natural and constitutional right to have her son

sterilized with or without his consent. She contends that

this operation is required to fulfill her duty to provide

medical care for her minor child and to prevent him from

engaging in tortious or criminal conduct.

One might question the Petitioner’s motives in seeking

this operation but nothing would be gained here by doing so.

It is, however, highly noteworthy that Petitioner relies

heavily upon her alleged constitutional right to see to the

well-being of her son by accomplishing the requested sterili-

zation and, at the same time, chooses to ignore the clear

recognition by this nation’s courts that the rights of minors

are guaranteed constitutional protection as well.

The leading case in recognizing the distinction between

the rights of the child and the rights of the parent is Prince v.

Massachusetts, (1944) 321 U.S. 158, in which the U. S.

Supreme Court noted:

15

“Parents may be free to become martyrs them-

selves. But it does not follow that they are free in

identical circumstances, to make martyrs of their

children before they have reached the age of full

and legal discretion when they can make that

choice for themselves.”

Petitioner claims that her control ever her minor son

is unbounded since she is following her conscience. Long

ago, this Court demonstrated that the family was not beyond

regulation in the public interest, as against a claim of religious

liberty. Reynolds v. United States (1878), 98 US. 145,

Davis v. Beason (1890), 133 U.S. 333, Prince v. Massachus-

etts, supra. Nor.was the parent’s control held to be unbrid-

led in other areas. See also People Ex. Rel. Wallace v.

Labrenz (1952), 411 Il. 618, 104 N.E. 2d 769 in which

the court stated “Concededly, freedom of religion and the

right of parents to the care and training of their children are

to be accorded the highest possible respect in our basic

scheme...” (Citations omitted). But “. . . neither rights of

religion or rights of parenthood are beyond limitation . . .”

(Citations omitted).

Other restrictions under the parens patriae theory

were upheld in the areas of compulsory attendance State v.

Bailey (1901) 157 Ind. 324, 61 N.E. 730, and prohibitions of

child labor Sturges & B. Mfg. Co. v. Beauchamp, (1913), 321

U.S. 320. So also, in Wisconsin v. Yoder, (1972) 406 U.S.

205, an opinion dissenting in part based on the consideration

that the views of the children as to their practice of religion

and education should have been considered as well as those

of their parents, stated:

“These children are ‘persons’ within the meaning

of the Bill of Rights. We have so held, over and

over again. In Haley v. Ohio, 332 U.S. 596,we

extended the protection of the Fourteenth

Amendment in a state trial of a 15 year old

boy. In /n Re Gault, 387, U.S. 1, 13 we held

that ‘neither the Fourteenth Amendment nor the

16

Bill of Rights is for adults alone.’ In Jn Re Win-

ship, 397 U.S. 358, we held that a 12 year old

boy, when charged with an act which would be

a crime if committed by an adult, was entitled to

procedural safeguards contained in the Sixth

Amendment.” Wisconsin v. Yoder, (1972)

406 U.S. 205, 243.

A recent case in the State of Ohio dispelled the mis-

taken notion that the child is a mere chattel belonging to the

parent. The Court stated it thus:

“No longer can parents virtually exercise the

power of life or death over their children.” /n Re

Clark, (Ohio Ct. C.P. 1962), 185 N.E. 2d 128,

131.

Petitioner also relies on the right of privacy as a

grounds for subjecting her son to a vasectomy. In the recent

abortion decision, Roe v. Wade, (1973) 410 U.S. 113, Mr.

Justice Blackmun considered the problem of state interfer-

ence with the right of privacy. The Court r-cognized that the

right of privacy was not unbounded, several times making

reference to the state’s legitimate interest in the health and

protection of human life. The dilema for the state in Roe vy.

Wade was that it was unable to cite a case which held that a

fetus is a person under the Fourteenth Amendment. Mr.

Justice Blackmun acknowledged at p. 156 that if the person-

hood of a fetus could have been established the mother’s

case would have collapsed for the fetus would then have

been entitled to all the protections that the Federal Constitu-

tion affords to “persons.’’ The Court concluded that at some

point the interests of the state attach, allowing the state to

make some regulations as to the woman’s control of her

own body, and the unborn person within it:

“Although the results are divided, most of these

courts have agreed that the right of privacy, how-

ever based, is broad enough to cover the abortion

17

decision; that the right, nonetheless is not ab-

solute and is subject to some limitations, and at

some point the state interests as to the protection

of health, medical standards, and prenatal life

become dominant. We agree with this approach.”

Roe vy. Wade (1973), 410 U.S. 113, 155.

Thus, it is easy to see that while the courts respect

the wishes of the parents in most matters concerning the

family, the parents’ desires are not free from limitations,

and those limitations are defined in terms of the constitu-

tional rights of the children whose lives they seek to con-

trol.

Ill.

THE PARENT’S CONSENT IN THIS CASE IS

INSUFFICIENT AND THE RIGHT OF THE SON TO MAKE

THE DECISION IN QUESTION SHOULD BE RESPECTED

The acknowledgment by the courts that the parents

are not always the best guardians of the interest of the child

became apparent in Horacek v. Exon, (D.C. Nebr., 1973)

C V-72-L-299, when the court appointed guardians ad litem

for the plaintiff residents of a state institution. There was

a great deal of concern that the natural guardians would not

pursue as vigorously’as possible a suit seeking habilitation,

treatment and better conditions for institutionalized persons

if faced with the threat that “voluntarily” admitted children

would be returned to their homes where parents would be

unable to care for them.

A conflict of interest problem similar to the decision

as to whether or not to sterilize a child is the decision

whether or not to institutionalize him. The amici brief in

Wyatt v. Stickney, (M.D. Ala. 1971), 325 F. Supp. 781

stated the nature of the problem:

“The parent may be motivated to ask for such

institutionalization for a variety of reascas other

-

18

than the best interests of the child himself; i.e.,

the interests of the other children in the family,

mental and physical frustration, economic stress,

hostility toward the child stemming from the

added pressures of caring for him, and perceived

stigma of mental retardation. The retarded

child’s best interests may well lie in living with

his family and in the community, but theirs may

not lie in keeping him.” Briefs for American

Psychological Association, American Ortho-

psychiatric Association, American Civil Liberties

Union, and American Association on Mental

Deficiency as Amicus Curiae, Wyatt v. Stickney,

325 F. Supp. 781 (M.D. Ala. 1971.

Several different courts have considered the problem

of the conflict of interest between the parent and child re-

garding a sterilization operation which was not medically

necessary.

Frazier v. Levi, (Tex. Ct. App. 1969), 440 S.W. 2d

393, involved a 34 year old mentally incompetent woman

who was sexually promiscuous. She was incapable of giving

her consent or to oppose the sterilization her mother desired.

The Court found that the mother could not consent to the

sterilization nor could it find any other statutory or constitu-

tional authority to order the operation. See also Holmes vy.

Powers, (Ky. Ct. App. 1968) 439 S.W. 2d 579 in which the

court prohibited the county welfare department from steri-

lizing a mentally incompetent woman since the patient lack-

ed capacity to consent. The court also found that it lacked

the power to grant a declaratory judgment in absence of

statutory or common law authority. See also Strunk vy.

Strunk, (Ky. Ct. App. 1969), 445 S.W. 2d 145 and Wade v.

Bethesda, (S.D. Ohio 1973), 356 F. Supp. 380. In all of

these cases it was determined that the courts were without

jurisdiction to order a person to submit to sterilization if

consent of the patient were lacking. The only case which

the Petitioner can cite which is contra to this line of cases

is Jn Re Simpson, (Ohio > Ct. 1962), 180 N.E. 2d 20.

19

The effect of Jn Re Simpson has been severely limited

by the result in Wade v. Bethesda, supra, both-cases involv-

ing sterilization orders by the same probate court judge.

In Wyatt v. Aderholt, (M.D. Ala. 1974) Civil Action

No. 3195-N (B) on January 8, 1974, Judge Johnson enjoined

the involuntary sterilization of residents of Alabama’s Part-

low State Hospital and set specific standards for reviewing a

recommendation for sterilization including the requirements

‘that no resident could be sterilized without his or her volun-

tary and informed consent. Significantly, Judge Johnson

ordered that no resident who had not reached the chronologi-

cal age of 21 years should be sterilized except in cases of

medical necessity as deteremined in accordance with other

procedures detailed in the Court’s order.

In a case which did not involve sterilization, the court

in In Re Seiferth (N.Y. Ct. App. 1955), 309 N.Y. 80, 127

N.E. 2d 820, determined that an operation to correct a

severe harelip and cleft palate of a child entering adolescense

be postponed until the youth was able to decide for himself.

It seems that the boy’s father believed the defect would -

heal by the forces of nature. Such belief was transmitted

to his son. While the court ordered social workers to under-

take efforts to correct the boy’s mistaken belief, it refused

to order an operation which was recognized as necessary until

the boy consented and was phychologically ready to undergo

surgery and subsequent speech therapy. See also Bach vy.

Long Island Jewish Hospital (1966), 49 Misc. 2d 207, 267

N.Y. S. 2d 289 in which the court held that a minor had

the power to consent to non-emergency surgery for her own

benefit since it involved the minor’s personal rights, not a

property right which she could alter only through the inter-

vention of a guardian or the court as “‘parens patriae.”

On the specific subject of the adequacy of parental

consent in safeguarding the rights of retarded minors faced

with sterilization, Dr. Philip Roos, Executive Director of

the National Association for Retarded Citizens testified:

“I would object to that as the sole criterion for

many reasons, not the least of which is that

20

parents are often motivated by their own anxie-

ties, their own unresolved conflicts. and there is

a tendency to overprotectiveness. Parents are

often motivated by the very strong anxiety of

pregnancy in their retarded child.

I would say that parental approval as such is

totally inadequate as a justification for steriliza-

tion.”” Deposition of Philip Roos, Ph. D., p. 32,

Wyatt v. Aderholt (M.D. Ala. 1973) Civ. Action

No. 3195-N (B).

The medico-legal debates over organ transplants in

minors gives further support for requirement of the minor’s

consent. Three unreported Massachusetts Supreme Judicial

Court cases also give a good indication that the expanding

trend in the law regarding surgical operations on minors is

to obtain their voluntary, informed consent to such a proced-

ure. See Masden yv. Harrison, No. 68651 Eq., Mass. Sup.

Jud. Ct., June 12, 1957, Huskey v. Harrison, No. 68666 Ea.,

Mass. Sup. Jud. Ct., No. 20, 1957. See also Strunk v. Strunk,

supra, in which the Kentucky court faced with a similar

decision refused to permit a transplant since the donor was

incompetent to consent.

Although these Massachusetts cases involved kidney

transplantations between twins, the issues closely parallel

those in the case before this court. It was recognized that

the healthy twin would suffer adverse psychological effects

if the twin with kidney disease were to die. However, the

critical question for the court in each case was whether

the physician and the hospital were justified in proceeding

merely on the basis of the parents’ request or consent. In

each case, the court emphasized that the healthy twin under-

stood the nature of the operation and the risks involved and

had consented thereto. Justice Cutter, writing the decision

in Foster v. Harrison, supra, was very specific in his findings

on this point:

“Carl (the healthy twin) testified before me. He

_ oO oe ae eee

21

is a boy of fourteen with good understanding and

intelligence. He is fully informed of and under-

stands the nature of the operation and its possible

risks and consequences. He has talked with a

donor of a kidney in a similar operation. The

mother of the boys has also been informed of

the possible consequences and understands them.

She consents to the operation. Carl and his

mother desire that the operation take place and

Carl’s consent to it is the result of his own deci-

sion, free from pressure or coercion, made with

admirable courage, generosity, and appreciation

of the factors involved.” Foster v. Harrison, No.

« 68674 Eq., Mass. Sup. Jud. Ct., No: 20, 1957 at

2-3.

Why did the court in the three Massachusetts cases and

Strunk v. Strunk, supra, place such emphasis on determining

if the minor had made a voluntary, informed consent? The

basic reason is that this type of operation differs from the

usual medical treatment to which a parent can assent. The

difference is that the kidney transplants were not for the

benefit of the healthy child who, in addition, would be

subject to all the risks involved with surgery and the threat to

his own life should his remaining kidney become diseased.

The parallel between the transplantation cases and the

sterilization procedure exists on this point also.- The pro-

posed sterilization of the Respondent herein is not for his

benefit, as has already been admitted and asserted by the

Petitioner. ‘

In fact, there is ample expert testimony from previous

involuntary sterilization suits and in professional publications

that involuntary sterilization is fraught with dangers to

the psychological well-being and emotional development of

the person who is sterlized without his or her consent. Dr.

Philip Roos, Executive Director of the National Association

for Retarded Citizens, testified in Wyatt v. Aderholt, (M.D.

Ala. 1973) Civ. Action No. 3195-N (B), a case challenging

involuntary sterilizations being performed in Alabama

79

-“—-

institutions. In response to a question as to the impact that

involuntary sterilization had upon the individual, he stated:

“| think the impact of involuntary sterilization of

retarded people can be highly destructive, there is

no question about it. Human beings value their

reproductive capacity very highly. As a matter

of fact, | think even for retarded persons there is

a symbolism of immortality in begetting children.

And one’s self concept no doubt is closely at-

tuned to this capacity.

To deprive the individual against his will of this

capacity can seriously cripple his self-concept.

I would say that this is true for people of normal

intelligence and I would say it is equally true for

many retarded people.” Deposition of Philip

Roos, Ph. D. p. 21, Wyatt v. Aderholt, (M.D.

Ala. 1973), Civ. Action No: 3195-N (B).

See Johnson, Social and Psychological Effects of Vasectomy,

121 Am. Journal of Psychiatry, 482 (1964); Rodgers, Ziegler,

Altrocchi and Levy, A Longitudinal Study of the Psycho-

Social Effects of Vasectomy, 27 Journal of Marriage and

Family, 59 (1965). ,

Thus, it is easily seen that the proper course for the

court to follow in this case, is to uphold the lower court’s

refusal to issue the requested declaratory judgment, especial-

ly since expert testimony by psychologists, Spiro Mitsos,

Ph. D., and Durwood Johnson, indicates that Gary is capable

of understanding the nature of the operation which his

mother proposes to have performed. (Tr. 56 and 67-68).

The Guardian Ad Litem does not ask this court to decide

that sterilization is never an acceptable procedure but only

that it protect Respondent’s right to make this decision. the

physical results of which are irreversible and the conse-

quences of which will affect him for the rest of his life.

In summary, the Guardian Ad Litem contends that

23

Petitoner is not the proper person to consent to this opera-

tion. The Respondent must be afforded an opportunity to

decide for himself whether or not to undergo an operation

which may not be in his best interest and could be psy-

chologically damaging to him.

CONCLUSION

By reason of all of the foregoing arguments, the Res-

pondent respectfully prays that this Court deny the request-

ed Writ of Certiorari.

Respectfully submitted,

W aonst | Mile

David V. Miller

Guardian Ad Litem

Old National Bank Building

Evansville, Indiana 47708

Telephone: (812) 464-3915