Legal aspects of involuntary sterilization

Transcription

1 Modern trends Edward E. Wallach, M.D., Associat~Editdr FERTILITY AND STERILITY Copyright The American Fertility Society Vol. 53, No.3, March 1990 Printed on acid-free paper in U.S.A. Legal aspects of involuntary sterilization Gerard S. Letterie, Maj., M.C., U.S.A. William F. Fox, Jr., J.D. Tripier Army Medical Center, Honolulu, Hawaii, and Catholic University of America, Washington, DC Over the past 10 years, there has been a marked increase in the number of voluntary sterilizations performed in the United States. From 1970 to 1978, approximately 4,000,000 women underwent voluntary sterilization. 1 ' 2 The estimated cumulative total of male and female sterilizations performed in the United States through the early 1980s is approximately 4,000, Concomitant with this increase, there has been a more precise definition of the legal rights of those individuals seeking sterilization and the legal responsibilities of those physicians performing them. Recent court decisions have delineated what expectations patients may have and what duties are incumbent on the operating physician. 4 This doctrine, normally referred to as "informed consent," defines the rights of a patient to be informed of a procedure, its risks, benefits, potential complications, and alternative methods of management in a manner intelligible to that patient. The doctrine itself grows out of the common law of assault and battery, in which any touching of another person that is not consented to is regarded as an event that can give rise to liability on the part of the person committing the battery. Most physicians are now aware that a failure to obtain informed consent can lead to a lawsuit against them. 5 Most commonly, these requirements for sterilization of an adult, mentally competent patient can be fulfilled through an interview and counseling session documented by a written memorandum and permit signed by both parties. A less frequently encountered and far more complex issue arises in managing a request for sterilization of a mentally incompetent individual; that is, one who cannot render an informed consent. Such requests are frequently brought forth by parents or, in the case of institutionalized individuals, by a ward master as a petition for contraception or less frequently as an expeditious means of managing menses. The American legal system now pays close attention to medical and surgical treatment of mental incompetents, recognizing that even mentally defective persons have certain rights under the constitution and laws of this country, including the right to procreate and bear children. Although these rights are not necessarily absolute (sterilization of mentally incompetent persons is carried out in virtually every state), the courts and state legislatures now require very close scrutiny of any request for sterilization. 6 Because of this close attention, physicians should be especially heedful of the basic legal requirements for sterilization of persons who are incapable of consenting on their own. This section discusses the history of involuntary sterilization in the United States by presenting a progression of important court decisions on the topic. It analyzes the use of what might be called substituted consent (by which a parent can consent to the surgery) and the legal doctrine of parens patriae (by which the state itself can dispense with the requirement of any consent to sterilize a mental incompetent). Because these issues are sources of potential liability for many physicians, this contribution is intended as a review of the literature. It is not to be regarded as a definitive source oflegal guidance in any particular case nor intended to present an algorithm for medicolegal decisionmaking of a complex legal issue. For specific cases, concerned physicians should participate in the decision to sterilize only in conjunction with the patient, the patient's family, institutional supervisors if the patient is institutionalized, and most importantly, with competent legal counsel. As a threshold matter, this paper restricts the following discussion to mentally incompetent pa- VoL 53, No.3, March 1990 Letterie and Fox Legal aspects of involuntary sterilization 391

2 tients; that is, those patients, whether or not institutionalized, who under the law are incapable of giving informed consent. Although there is no clear line separating competent from incompetent persons, the concept of mental incompetence is well known in the law and generally prevents such a person from consenting to any meaningful legal act, such as signing a valid contract, executing a will, or consenting to a surgical procedure. The determination of whether any particular individual is mentally incompetent is always handled on a caseby-case basis in a hearing before a judge. A BRIEF HISTORICAL PERSPECTIVE The Eugenics Movement Interest in eugenic sterilization reached its peak in the latter part of the nineteenth century and the first few decades of the twentieth century in both Great Britain and the United States, following hard on the heels of Charles Darwin's publications on evolution. 7 In 1865, Sir Francis Galton, a British physician directly related to Darwin, extrapolated Darwin's theory of evolution to suggest that mental illness was hereditary and that mental incompetents posed a substantial hazard for society. 8 Galton's 1883 treatise, Inquiry Into Human Faculty, introduced the term "eugenics" to the British and American public, defining the concept as (1) encouraging the propagation of useful, productive members of society (positive eugenics) and (2) reducing the numbers of unfit persons in society (negative eugenics). 8 9 Currently, the term eugenics is almost exclusively limited to negative eugenics. Despite a lack of scientific support for Galton's theories, many well-intentioned persons on both sides of the Atlantic expressed concern over what they perceived to be a growing number of mentally unfit persons and began exploring ways to cope with the problem within the medical and legal communities. Medically, negative eugenics was a matter of sterilization. Legally, however, there was no existing authority for sterilization in any of the states. As a consequence, the eugenics movement began by seeking the enactment of statutes in several states authorizing sterilization of mental incompetents. The first two attempts, one in Michigan in 1887 and the second in Pennsylvania in 1895, were unsuccessful. 10 The state of Indiana enacted the first eugenic sterilization law in 1907, only to see that statute struck down as unconstitutional by the Indiana Supreme Court in Nonetheless, the success ofthe eugenics movement in Indiana provoked similar efforts throughout the country, and by 1937 approximately 32 states had some form of a eugenic sterilization statute on the books. 8 Sterilization in the Courts-Buck to Skinner The United States Supreme Court fueled the movement by determining in the famous 1927 case of Buck versus Bell that the Virginia involuntary sterilization statute was not unconstitutional. However, the facts of that case, the language used in the Court's opinion, and current public sentiment suggest strongly that the Court would not take the same view today. Its distinction lies in its support of eugenic sterilization, and its decision established that an exercise of the police power of the state could take precedence over an individual's right to procreate. Carrie Buck was a 17 -year-old black female who had been committed to a Virginia state mental institution in Shortly after her commitment, the institution's supervisors petitioned a Virginia court for permission to sterilize her, a petition that was resisted by Buck's lawyers through the Virginia courts and into the Supreme Court itself. Despite arguments on behalf of Buck that the statute was unconstitutional under both the Virginia and the United States Constitutions because it (1) violated her right to equal protection of the laws, (2) violated her right to due process, and (3) amounted to cruel and unusual punishment, the Virginia courts approved the sterilization order Buck took the case to the United States Supreme Court (which reviewed only Buck's equal protection and due process claims) only to be told by the Court that the sterilization order was valid under the federal Constitution. Writing the majority opinion only 10 days after oral argument was heard in Buck's case (an exceptionally short time period), Justice Oliver Wendall Holmes uttered the famous dictum (quoted, incidentally, by defense lawyers at Nuremberg in 1946 to justify aspects of the Holocaust): The principle that sustains compulsory vaccination is broad enough to cover cutting [Buck's] Fallopian tubes... It is better for all the world if instead of waiting to execute degenerative offspring for crime, or let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. Three generations of imbeciles are enough. 14 Today most readers of Buck versus Bell find 392 Letterie and Fox Legal aspects of involuntary sterilization Fertility and Sterility

3 Holmes' language appalling, but considering the social, legal, and intellectual climate of that time the decision itself is not surprising. The Court'~ opinion in Buck versus Bell is criticized by contemporary legal scholars more for its casual treatment of Buck's due process and equal protection arguments.15 Holmes devoted only two paragraphs to those issues, leaving the door open for severe criticism of the opinion by a later Supreme Court. The case had a palpable effect on state eugenic sterilization laws. State legislatures used the case as a basis for enacting sterilization statutes, and state courts referred to it as a basis for upholding those statutes when they reached the courts. In State versus Shaffer, a 1929 Kansas decision, and Smith versus Command, a 1929 Michigan case, the courts invoked Buck for the proposition that the "common welfare" overrode any "natural right" on the part of mentally defective persons to procreate.16'17 In 1931, the Supreme Court of Idaho refused to question the priority of police power over an individual's right to procreate, stating: If there be any natural right for natively mental defectives to beget children, that right must give way to the police power of the state in protecting the common welfare.18 The law of involuntary sterilization remained relatively stable for approximately 15 years after the Buck decision. But in 1942, a Supreme Court with an entirely different membership heard Skinner versus Oklahoma and completely transformed the legal doctrines of involuntary sterilization. In this case, Skinner had been convicted three times for shoplifting and other similar offenses. Under the Oklahoma Habitual Criminal Sterilization Act (now repealed), anyone convicted three or more times for certain crimes such as larceny could be sterilized without consent. The Act was specific about which crimes, if convicted, would be the basis for sterilization and excluded other equally serious offenses. This differential treatment in Skinner's view violated his right to equal protection of the laws. The Supreme Court agreed with Skinner and held the Oklahoma statute unconstitutional. In the process, Justice Douglas wrote broad sweeping language on procreation and marriage as a constitutional right, which instantly weakened the legal validity of many involuntary sterilization statutes then on the books. Douglas stated, We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the human race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects... There is no redemption for the individual whom the law touches... He is forever deprived of a basic liberty. 19 This is exceptionally powerful language. The case has had effects far beyond involuntary sterilization. For example, it was used by the Supreme Court in 1965 as a basis for striking down a Virginia statute prohibiting interracial marriage. Although it did not expressly overrule Buck versus Bell it strongly suggested that the Buck rationale-th~t a state's power to protect the common welfare overrides an individual's right to procreate-was no longer tenable except in the most unusual circumstances. Although the eugenic movement persisted in various forms, the Skinner decision incited most of the current controversy over involuntary sterilization in the United States.20 CURRENTLEGALISSUESININVOLUNTARY STERILIZATION: SKINNER TO PRESENT Introduction The Skinner decision has been variously interpreted. Taken narrowly, all it says is that a state may not order sterilization for persons convicted of some crimes while not requiring it for persons convicted of other, equally serious crimes. However, viewed expansively, the decision emphasizes that individual rights must be observed for a court to approve sterilization in any event, including sterilization of mental incompetents. 21 Similar notes of caution and an emphasis on individual liberties have characterized recent court decisions further reinforcing the tenor of the Skinner deci~ sion It is against this background that the contemporary management of a request for involuntary sterilization must be decided. The opinions of legal scholars have been markedly divergent, highlighting the very controversial nature of involuntary sterilization. Such divergence is reflected in a variety of court decisions, legislative efforts, and statutory regulations. The steps necessary to obtain legal sanction and provide adequate insulation from liability depend on the presence or absence of statutory regulations. The purpose of the following discussion is to identify the disparate paths different courts and state legislatures have taken in deciding requests for in- Vol. 53, No.3, March 1990 Letterie and Fox Legal aspects of involuntary sterilization 393

4 voluntary sterilization. In the authors' opinion, a physician's potential liability may be considered under one of three categories: (1) potential physicians' liability when a state statute authorizes involuntary sterilization, (2) liability when a court orders sterilization without a statute at the request of either a state institution or the parent or guardian of a mentally incompetent person, and (3) potential liability when there is no state statute and when no court has ordered the sterilization. The first category applies when a state statute authorizes sterilization of a mental incompetent at the request of either the state or the incompetent's parents, and (1) when the statute provides for even-handed treatment of incompetents, and (2) provides sufficient procedural protections for the incompetent, a judge may, in the proper circumstances and after hearing, order the sterilization. The discussion below of the North Carolina experience provides good guidance on this aspect of the problem. Under the second category, when there is no statute expressly authorizing sterilization, a physician must petition the courts for authorization. Such authorization should provide adequate protection to both patient and physician if the court order is validly executed. Although the procedure to obtain such an order may be time-consuming and seemingly formal, it is essential that adequate due process is recognized. The decision to perform a sterilization without adequate hearing and adherence to procedural due process has been questioned in prior cases When there is no sterilization statute, the problem becomes one of "substituted consent" and of the inherent powers of state courts and parents as discussed below. Under the third category, a physician would incur enormous legal risk and find very little legal protection if he/she performed a sterilization procedure on a mentally defective person with no court order whatsoever and merely on parental substituted consent. The procedural framework to be followed in any specific case, therefore, depends on the state and its statutes (if any) in which the proposed sterilization is to be performed. Pertinent cases under each of these three categories are described below. Validity and Use of State Statutes Authorizing Sterilization The best currently available information suggests that approximately 19 states now have sterilization statutes affecting mentally incompetent persons.* Even in the face of the Skinner decision, these statutes have generally been upheld if they contain enough procedural protection for the incompetent person. For the purposes of this article, it is impossible to review each of these statutes, but the North Carolina experience with involuntary sterilization is typical. The current North Carolina sterilization statute was enacted in 1973 after the state legislature decided to thoroughly revamp its sterilization procedures. Briefly stated, the statute authorizes sterilizations of mentally incompetent persons only after either the parent or an appropriate state official has petitioned the court for permission to sterilize and has received a final court order to that effect. The statute provides certain standards that govern the court's decision to allow sterilization, including (1) when sterilization is in "the best interest of the mental, moral, or physical improvement of the patient;" (2) when sterilization is "for the public good;" (3) when the patient is likely to procreate a child with "serious physical, mental, or nervous disease;" or ( 4) when the patient, because of his or her own disease or deficiency, "would be unable to care for a child or children." Although seemingly vague and arguably authorizing sterilization almost on a judge's whim, the statute provides measures for curing this ambiguity by setting up an elaborate procedure that must take place before the sterilization petition may be granted. First, the petition itself must be tightly drafted and must include the psychological or psychiatric tests supporting the patient's incompetence as well as an explanation as to why the sterilization is sought. If the patient has parents or next of kin, their views must be solicited (although an objection on their part is not necessarily an absolute bar to the procedure). If the patient has no relatives, the court must appoint a guardian ad litem who will represent interests of the patient, and who is required to make an independent investigation of the facts and circumstances surrounding the petition and submit that report to the court. Further, even though the patient may be mentally incompetent, the patient's consent or objection must be solicited, and the nature of the surgical procedure and the consequences of sterilization must be explained, as can best be accomplished, to the patient. * Alabama, Arkansas, Connecticut,. Delaware, Georgia, Idaho, Maine, Mississippi, North Carolina, North Dakota, Oklahoma, Oregon, South Carolina, Texas, Utah, Vermont, Virginia, Washington, Wisconsin. 394 Letterie and Fox Legal aspects of involuntary sterilization Fertility and Sterility

5 When the petition is received by the court, a copy of it must be served on the patient and a hearing convened by the presiding judge. The court may hear witnesses on both sides and, if necessary, the local district attorney is authorized to present the evidence on behalf of the person petitioning for the sterilization. Appeals from the judge's decision may be taken to the state's appellate courts, and although no specific form of surgical procedure is prescribed (the legislature leaves that up to the judgment of the surgeon), castration is expressly prohibited. Physicians are given considerable protection under the statute. First, no procedure may be carried out until the order is deemed a final order (i.e., until all appeals have been exhausted). Second, a physician is relieved of both civil and criminal liability (except for his or her own negligence in performing the surgery) if he or she performs the sterilization under terms and conditions of the court's order. The North Carolina statute has been challenged in both state and federal court and has been upheld in the face of arguments that it violates a patient's rights of equal protection and both substantive and procedural due process. In the state case, In re Moore, the North Carolina Supreme Court determined that the authority of a state to perform involuntary sterilizations has been upheld in Buck versus Bell, so long as the statute treats people fairly and equally and so long as there are some procedural protections for the patient.27 In Moore, the court found that the statute treated persons equally and fairly and contained far more procedural protections than those demanded by the Supreme Court in either Buck or Skinner, including an elaborate petition, an oral hearing, and the opportunity for direct and crossexamination. Moreover, the standards for ordering the sterilization were not unconstitutionally vague. Terms such as "mental illness" and "mental disease" are used in their ordinary meanings, and the patient has sufficient procedural safeguards "to prevent misuse of this potentially dangerous procedure." Filling in the only gap it found in the statute, the court directed that the proof necessary to support the petition be "clear, strong, and convincing." This level of proof is just a few degrees below "beyond a reasonable doubt," the standard of proof applied in criminal cases. It is just one more instance of a court's recognizing the interests ofthe patient while refusing to forbid the state from petitioning for involuntary sterilization. In 1976, the North Carolina Association for Retarded Children brought suit in federal court challenging the constitutionality of the North Carolina sterilization statute as applied to mentally retarded persons. 28 In this case, the court again upheld the statute but included some language in its decision that further narrowed the application of the statute. In the case of sterilization of mentally retarded persons, the procedure may be performed only on "mentally retarded persons [1] who are sexually active, and [2] unwilling or incapable of controlling procreation by other contraceptive means, and [3] who are found to be likely to procreate a defective child or who would be unable... to care for a child" Thus the federal court in North Carolina, much like the state's supreme court, was very heedful of the interests of the patient while totally unwilling to prohibit involuntary sterilization altogether. In applying this language, the North Carolina Supreme Court recently denied a petition for the sterilization of a mentally retarded female. Citing the patient's close supervision and alternatives less drastic than sterilization, the court held that the County Department of Social Services must convincingly demonstrate that the patient was likely to engage in sexual activity without contraception.29 Note that the North Carolina statute permits a parent to either consent or object to the procedure, but does not permit the parent's wishes to be controlling irrespective of whether the parent favors or opposes the sterilization. The court must make an independent decision on the petition considering all viewpoints, not just the parents'. In the next section, we consider whether the parents have an inherent power to demand sterilization in states that have no express sterilization statute. However, a note of caution is warranted. The presence of a statute does not guarantee approval for a sterilization but merely provides a framework for making an application. Individual state courts may find specific statutes wanting and deny a request, or the statute may be challenged. In 1983, the Georgia courts denied a request for involuntary sterilization, finding the statutory requirements inadequate. In Oregon, a court's approval of involuntary sterilization request was challenged on the basis that the statute neglected due process and equal protection Power of a Court to Order Sterilization Without a Statute Courts in states without express sterilization statutes have been extremely reluctant to conclude that anything in a court's inherent common law Vol. 53, No.3, March 1990 Letterie and Fox Legal aspects of involuntary sterilization 395

6 powers is sufficient to give the court authority to order sterilization In 1974, a Missouri appellate court in Interest of R stated plainly that a juvenile court had no inherent power to order sterilization of a retarded girl. 34 In California in 1974, the appellate court reviewed a case in which sterilization of an adult, mentally retarded woman was sought by her legally appointed guardian. 35 California had had an early eugenic sterilization law on the books, but the California legislature had repealed it years before. The court held that it would be absurd to conclude that in repealing the eugenic statute, the legislature had implicitly conferred on the state's probate courts the power to order sterilization. Moreover, no courts had inherent power in California to do so. Even those few states that have permitted courtordered sterilization have gone about it very carefully. In Wyatt versus Alderhold, a federal district court had earlier declared the state sterilization statute unconstitutional.36 However, it became clear to the court that some ofthe state institutions with custody over mentally retarded persons were continuing to perform sterilizations absent the statute. Rather than prohibiting the practice altogether, the federal court simply dictated an enormous number of procedures that would have to be followed before any sterilization, including an elaborate hearing with the counsel; witnesses; cross-examination and review by an independent panel consisting of at least one physician, one attorney, at least two women, at least two minority group members, and at least one member who was a resident of the institution. Finally, the sterilization would have to be approved by state court after review of this entire record. In a New York case in 1976, a court approved an application for sterilization of a mentally retarded 23-year-old woman with an intelligence quotient of 62 who had a functional age of about 6 years.37 In this instance, the woman had no knowledge of the difference between the sexes or of the nature of procreation among many other deficiencies. Her rights had been protected by the appointment of a guardian ad litem, and the petition had been accompanied by compelling expert testimony as well as testimony from the woman's parents. What has emerged in the case law is an emphasis on procedural due process and protection against any potential violation of individual rights. In 1978, in Stump versus Sparkman, the Supreme Court of the United States reviewed an Indiana case in which a state judge had ordered the sterilization of a woman who was 15 at the time of the petition and who was diagnosed as "somewhat retarded."26 The approval was granted in affidavit form only and without adequate hearing. The woman eventually improved, married, and discovered that she was incapable of bearing children. She sued the operating physician, the hospital in which the operation took place, her mother (who had petitioned for the sterilization), her mother's attorney (who had filed the petition), and the state judge who granted the petition. On review by the Supreme Court, the Court held only that a judge is completely immune from lawsuits stemming from his judicial acts, even if those acts are unauthorized and violate someone's constitutional rights. The Court said nothing about the liability ofthe operating physician or any of the other defendants in the case and left to lower courts to decide if the claims against defendants other than the judge should also be discussed. The Stump decision emphasizes the need to obtain a validly executed court order recognizing individual liberties of the patient and taking measures to protect these rights. The law, however, may recognize the good intentions of parties involved in circumstances when a court order is invalidly executed. The scope of tort liability may limit a physician's responsibilities and confer a degree of immunity under these circumstances. In attempting to achieve a validly executed court order and provide such adequate safeguards for all involved parties, both the New Jersey and Alaska courts have utilized the parens patriae doctrine in the absence of statutory authorization to order the sterilization of mental incompetents These two decisions provide an alternate method of counseling for the problem of involuntary sterilization. Briefly stated, parens patriae is the common law jurisdiction inherent in the state over persons within its limits who, for whatever reason, do not have use of their mental faculties.40 Its purpose is to protect and secure the welfare of the incompetent. It has found application in current legal matters in which, in the absence of an individual's ability to decide for himself, the court could substitute its decision. The doctrine of parens patriae permits a court to order medical procedures in the absence of consent ofthe patient. 41 In re Weberlist, the court determined that it could exercise the power of parens patriae in which an individual could not make a decision to accept or refuse treatment that was in her best interests.42 The New Jersey and Alaska courts applied the doctrine of parens patriae in deciding in favor of sterilization, which after evaluating all available evi- 396 Letterie and Fox Legal aspects of involuntary sterilization Fertility and Sterility

7 dence, decided it was clearly in the best interests of the patient. The courts determined a new substantive right-the right to sterilization-and sought to protect incompetents from its arbitrary use by demanding strict due process. The New Jersey decision involved a noninstitutionalized, 19-year-old female afflicted with Down's Syndrome. The parents of this patient petitioned the Supreme Court of New Jersey for authorization for sterilization. The court maintained that the substituted consent of the parents was insufficient. However, it held that the court, under the parens patriae doctrine, could substitute consent and order the sterilization. The New Jersey court maintained that the judicially substituted consent of court was sufficient.... It must be in the court's judgment and not just the parent's good faith decision that substitutes for the incompetent's consent. 38 In the Grady decision, the New Jersey Supreme Court approached the problem of sterilization as a right to which the incompetent should have full access, if desired and indicated. As well as the right to procreate, the patient should have a right to sterilization, that is, the right not to procreate. The court did not label the sterilization as compulsory but one to which she had a right, and the court acted to exercise this right. The decision was not without legal criticism, however, as it failed to require an adversary hearing. 43 Again in 1981, the Supreme Court of Alaska was presented with a similar request. 39 The circumstances also involved a patient who was afflicted with Down's Syndrome. In the Matter of CDM, the Alaska Court approved the sterilization under the parens patriae doctrine. It reasoned that under this doctrine, it could adjudicate the individual's constitutional rights and consider the sterilization of the mentally incompetent individual. Parental Consent Without a Sterilization Statute and the Role of Substituted Consent It is clear that courts regard sterilization as a particularly drastic measure, and some courts that have addressed the issue of whether sterilization may be ordered in the absence of a state statute and merely on the request (or the substituted consent) of the parents have denied the petition. For example, in AL versus GRH, an Indiana appellate court refused to order sterilization of a 15 year-old boy with an intelligence quotient of 83 who was becoming sexually active merely because the boy's mother asked for the procedure and asserted that she thought it would be in his best interests. Although he had a borderline IQ, there was additional testimony at the hearing that he was enrolled in a helpful special education program, that his IQ had been only 63 2 years earlier, and that the prognosis was that eventually he would be able to work and earn a living either in the general marketplace or in some sheltered employment setting. The court stated simply, "We believe the common law does not invest parents with such power over their children even though they sincerely believe the child's adulthood would benefit therefrom." 44 In Ruby versus Massey, the distinction between substituted consent for sterilization and substituted consent to other medical services was made. The court stated,... The right to bear or beget a child is a salient right which has been set apart from parental control. This reluctance to extend substituted consent to sterilization arises from a perceived conflict of interest. 45 Traditionally, substituted consent may be given by a concerned third party, usually parents, and may be applied to emergent or life-threatening circumstances in which an informed consent cannot be obtained either due to the legal status o'r medical condition of the patient. It is the nonemergent circumstances of a sterilization procedure that disallows any application of a substituted consent for such a procedure, however. Under the third category, considering the expressed and implied attitude of the courts regarding substituted consent and any sterilization procedure, a physician would incur tremendous liability and lack any judicial insulation were a sterilization to be performed with mere substituted consent and without formal legal authorization. In the authors' opinion, substituted consent without court review and strict adherence to procedure has no role in the management of involuntary sterilization. SUMMARY The foregoing discussion was intended as a review of the pertinent literature of involuntary sterilization. It is by no means all-inclusive (the number of cases precludes an exhaustive compendium) but does include those cases that, in the authors' opinion, are most representative of the contemporary attitude of the courts. The discussion has been confined primarily to the legal aspects of involun- Vol. 53, No.3, March 1990 Letterie and Fox Legal aspects of involuntary sterilization 397

8 tary sterilization. We have omitted any substantial discussion of the moral and ethical aspects of this complex topic but acknowledge the intimate role these issues may play in any decision to undertake involuntary sterilization. As outlined, the presence or absence of statutory guidelines mandates in part the legal channels to be pursued. In the presence of statutes for involuntary sterilization, strict adherence to the specified requirements provides the optimal means of protecting the legal interests of all involved parties. In the absence of statutory guidelines, extreme caution must be exercised. In these circumstances, a validly executed court order observing procedural due process should provide optimal protection of patient and physician interests. The decisions of New Jersey and Alaska courts represent one potential method of securing a consent by use of the parens patriae doctrine. Recent notable efforts at a state level to dispense with lengthy hearings and implement committee review have been encouraging and await further trials to determine their ultimate role in authorizing sterilization of mental incompetents.46 Given the current legal climate and available avenues, parental substituted consent without adequate hearing and due process should not be considered a fulfillment of legal responsibilities. REFERENCES 1. Center for Disease Control: Surgical sterilization surveillance: Tubal Sterilization, , July Center for Disease Control: Surgical sterilization surveillance: Tubal Sterilization, , March Cumulative Totals of Estimated Voluntary Sterilization, Association for Voluntary Sterilization, Inc., New York, NY, 1982, p 2 4. Vaccarino J: Consent, informed consent and the consent form. N Engl J Med 298:8, Ludlam J: Informed Consent. Chicago, American Hospital Association, Allan R: The retarded citizen: victim of mental and legal deficiency. Maryland Law Forum 2:4, Baldwin J: History of the eugenic movement. Nebraska SMJ, August, 459, Robinson F, Robinson S: Eugenic sterilization: medico-legal and sociological aspects. J Natl Med Assoc 71:6, Kanner L: History of the care and study of the mentally retarded. Springfield, Charles C Thomas, Kevies DJ: In the name of eugenics genetics and the uses of human heredity. New York, Knopf, Indiana Acts, 215, Buck v. Bell143 Va. 310, 313, 130, Sec. 516, 517, Virginia Sterilization Act, VA. Acts , Buck v. Bell274, U.S. 200, U.S. Supreme Court, Burgdorf R, Burgdorf M: The wicked witch is almost dead: Buck v. Bell and the sterilization of handicapped persons. Temple Law Qtly 50:995, State v. Shaffer 270 p 604, Smith v. Command 204 NW 140, 145, Lindman L: Mentally disabled and the law. American Bar Assoc. Chicago, IL, University of Chicago Press, Skinner v. Oklahoma. 36, U.S. 535 U.S. Supreme Court, Comer D: Eugenic sterilization. Baylor Law Rev 27:170, Ferster M: Eugenic sterilization. Ohio State Law J 27:170, In the Matter of S.C.E. 378 A. 2d 144 Delaware, Relf v. Weinberger 372 F. Supp. 1196, D.C.C Neuwirth G, Heisler P, Goldrich K: Capacity, competence, consent: Voluntary sterilization of the mentally retarded. Columbia Human Rights Law Rev 8:447, Sparkman v. McFarlin Cir. No. F , N.D. Ind. 1976, 552 F. 2d. 172, 7th Cir Stump et al v. Sparkman Cert. No US In RE Sterilization of Moore, 289, NC, 95,221, SE 2d North Carolina Association for Retarded Children us North Carolina (DC NC) 420 F. Supp In the Matter of Truesdall, 329 SE 2d, 630 NC Supreme Court, May 7, Judy Diane Motes v. Hall County Department of Family and Legal Services. No (GA) Sept 7, Cook v. State, 9 Or, App 224, 226, p 2d. 768, 700, Holmes v. Powers, 439 S.W. 2d, 579, Ky. Ct. App., Frazier v. Levi, 440 S.W. 2d 393, Tex. Civ. App., In the Interest of R, Mo, 515 SW 2d, 467, Guardianship of Kemp, 43 Cal, App, 3d, 758, 118, Cal Rptr, 64, 74, A LR, 3d, 1202, Wyatt v. Aderhaldt, 368 F Suppl. 1382, ND, ALA, In re Sallmaier, 85 Mise, 2d, 295,378, NY S, 2d, 989, In re Grady, 85 NJ 235,426 A. 2d. 467, MatterofC.D.M., 627 P. 2d607, Alaska, Berstein A: Approving the sterilization of minors. J Am Hosp Assoc 49:70, West N: Parens patriae: judicial authority to order the sterilization of mental incompetents. J Legal Med 2:4, In re Weberlist 79 Mise 2d, 753, 360 NYS 2d 783, Sup Ct, LaChance D: In re Grady: The mentally retarded individual's right to choose sterilization. Am J Law Med 6:4, AI v. GRH, 325, NE 2d 501, Ind App, Ruby v. Massey, 452 F. Supp. 361, D. Comm., Sundram CJ: Informed consent for major medical treatment of mentally disabled people: a new approach. New Engl J Med 318:1368, 1988 Received January 13, Reprint requests: Gerard S. Letterie, M.D., Department of Obstetrics and Gynecology, Reproductive Endocrinology Service, Tripier Army Medical Center, Honolulu, Hawaii William F. Fox, Jr., J.D., is Professor of Law, Catholic University of America, Washington, DC. The opinions and assertions contained herein are the private views of the authors and are not to be construed as official or as reflecting the views of the Department of the Army or the Department of Defense. 398 Letterie and Fox Legal aspects of involuntary sterilization Fertility and Sterility