NCJ Number
65008
Journal
Albany Law Review Volume: 43 Issue: 2 Dated: (WINTER 1979) Pages: 322-338
Date Published
1979
Length
17 pages
Annotation
THE PROBLEM OF OBTAINING LEGAL AUTHORIZATION FOR MEDICALLY DESIRABLE STERILIZATION OF MENTALLY INCOMPETENT FEMALES IS EXAMINED. COMMON LAW AUTHORIZATIONS USED BY COURTS ARE EVALUATED AND PROPOSED LEGISLATION OUTLINED.
Abstract
CURRENTLY, MENTALLY DEFICIENT FEMALES MAY BE DENIED THEIR RIGHT TO DECIDE WHETHER TO BEAR A CHILD BECAUSE THEY ARE INCAPABLE OF CONSCIOUS CHOICE. SEVERAL STATES MAINTAIN COMPULSORY STERILIZATION STATUTES PERMITTING STERILIZATION OF INCOMPETENTS WITHOUT THEIR CONSENT. THE PURPOSE OF SUCH STATUTES USUALLY IS TO PREVENT THE PURPORTED FURTHER SPREAD OF INCOMPETENCE; THE MENTAL INCOMPETENT MAY BE STERILIZED EVEN THOUGH IT IS NOT WITHIN HER BEST INTERESTS. THIS HAS RAISED CONSTITUTIONAL ISSUES (BUCK V. BELL; SKINNER V. OKLAHOMA). IN THE ABSENCE OF THIS LEGISLATION, COURTS HAVE USED THREE METHODS TO PROVIDE JURISDICTION FOR STERILIZATION AUTHORIZATION; SUBSTITUTED JUDGMENT, WHEREBY OTHER PARTIES, USUALLY THE WOMAN'S PARENTS, GIVE CONSENT; PARENS PATRIE, THE COMMON LAW JURISDICTION TO SECURE THE WELFARE OF INCOMPETENTS; AND BROAD INTERPRETATIONS OF EXISTING STATUTES. THE INCONSISTENCY OF THE LAW ON SUCH COURT-ORDERED STERILIZATIONS HAS CAUSED DOCTORS AND HOSPITALS TO REFUSE TO PERFORM STERILIZATIONS ON INCOMPETENTS FOR FEAR OF CIVIL LIABILITY EVEN THOUGH THE PROCEDURE MIGHT BE MEDICALLY DESIRABLE. THESE FEMALES SHOULD NOT BE DENIED A STERILIZATION IN THEIR BEST INTEREST. INSTEAD, STATE LEGISLATURES SHOULD SAFEGUARD THIS RIGHT OF THE INCOMPETENT THROUGH A CAREFULLY FORMULATED GRANT OF JURISDICTION TO AUTHORIZE STERILIZATION. THE STATE'S INTEREST IN SUCH LEGISLATION SHOULD BE SOLELY TO PROTECT THE BEST INTERESTS OF THE INCOMPETENT FEMALE. FOOTNOTES ARE INCLUDED.