A. D., Application of

• Decision Date: 28 April 1977
• Citation: 90 Misc.2d 236,394 N.Y.S.2d 139
• Parties: Application of A. D., guardian of the person of D. D., also known as D. W., a mentally retarded person, For an Order Authorizing Her to Consent to a Surgical Operation upon the said Mentally Retarded Person. Surrogate's Court, Nassau County
• Court: New York Surrogate Court

Page 139

394 N.Y.S.2d 139

90 Misc.2d 236

Application of A. D., guardian of the person of D. D., also

known as D. W., a mentally retarded person, For an Order

Authorizing Her to Consent to a Surgical Operation upon the

said Mentally Retarded Person.

Surrogate's Court, Nassau County.

April 28, 1977.

Clurfeld, Ross & Krevitz, New York City, for petitioner.

Kathleen M. Kane, Garden City, guardian ad litem.

JOHN D. BENNETT, Surrogate.

This is an application by A. D., mother and guardian of the person of D. D., infant, for an order authorizing the sterilization of D. D. The petition, supported by a physician's letter, alleges that D. D. is 16 years old, but that she functions below a 5-year level as a result of severe mental retardation. It further alleges that she is attractive and well developed and that attempts have been made to seduce her. The petition concludes that D. D. would be entirely unable to care for a baby in the event she were to become pregnant. A guardian ad litem was appointed for D. D. and has submitted a report supporting the application. The court conducted its own inquiry regarding the procedure to be followed and a copy of the information supplied to the court is in the guardianship file. This data indicates that the procedure is permanent with no acceptable method for reversal.

The petition must be denied. No statute in New York authorizes this extraordinary procedure, and in the absence of legislative guidelines, determination of such a fundamental right may not be left to the courts on a case-by-case basis.

At one time New York had a law authorizing sterilization (Ch. 445 § 351 (1912) N.Y. Laws 925, McKinney (repealed 1918)). Because that law applied only to persons in institutions, it was held to be a violation of the equal protection clause (U.S.Const. Amend. XIV; Osborn v. Thomson, 103 Misc. 23, 169 N.Y.S. 638 (S.C. Albany Co.), affd., 185 App.Div. 902, 171 N.Y.S. 1094 (3rd Dept. 1918). It is significant that despite a United States Supreme Court decision eight years later holding a similar statute constitutional (Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1926), the New York Legislature never reenacted the repealed law. The position in New York is that sterilization "should be approached with extreme caution and permitted only when it clearly appears that (it) is indicated as a proper medical measure for the protection of the health of the individual" (1943 Opn. N.Y.Atty.Gen. 336).

Moreover, in more recent Supreme Court cases, the right to bear children has been held to be "fundamental" (Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)). Consequently, restrictions on that right must meet the stringent "compelling state interest" test rather than the " rational basis" test used in 1926 in Buck v. Bell, supra; and Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); state sterilization law violated equal protection clause).

Admittedly, certain state courts have, in the absence of a statute, invoked the doctrine of parens patriae to authorize the sterilization of incompetents (Matter of Sallmaier, 85 Misc.2d 295, 378 N.Y.S.2d 989 (S.C., Queens County, 1976) facts almost identical to the case at bar). Under the parens patriae concept, the individual's right to be free from undue interference by the state is balanced against his own best interests. (See In re Weberlist, 79 Misc.2d 753, 360 N.Y.S.2d 783 (S.C., N.Y.Co., 1974)).

The sounder view, however, is that in the absence of specific statutory authority, the courts lack jurisdiction to make this fundamental and irreversible decision (Frazier v. Levi, 440 S.W.2d 393 (Tex.Civ.App., 1969); see Holmes v. Powers, 439 S.W.2d 579 (Ct.App., Ky., 1...