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Sterilization of the mentally retarded: a decision for the courts.


 This article argues that the courts should decide on the cases of sterilization of the mentally retarded. The cases of Lee Ann Grady and Karen Quinlan are compared in order to show how this conclusion has been reached. The court must appoint a guardian ad litem to represent the interests of the ward, and should receive independent medical and psychological evaluations by qualified professionals. The trial judge must personally meet with the individual before concluding that the person lacks capacity to make a decision about sterilization and that the incapacity is unlikely to change. This incapacity must be proven by clear and convincing evidence. Finally, the court must be persuaded, also by clear and convincing evidence, that the sterilization is in the person's best interests. In making this determination, the court must consider the: 1) possibility of pregnancy, 2) possibility of physical and mental harm from pregnancy and from sterilization, 3) likelihood of sexual activity, 4) inability of the person to understand contraception, 5) feasibility of a less drastic means of contraception, 6) possibility of postponing sterilization, 7) ability of the person to care for a child, or the possibility of marriage at a future date with ability of the couple to care for the child, 8) evidence of relvant medical advances, and 9) demonstration that the proponents of sterilization are seeking it in good faith for the primary concern of the person and not their own or the public's convenience. The court finds a new substantive right--the right to sterilization--and seeks to protect incompetents from its arbitrary use by demanding strict due process protections. This is far superior to a blanket prohibition of sterilization, and much more protective of individual rights than permitting families to make this decision on their own.
