Grady, Matter of

• Decision Date: 18 February 1981
• Citation: 85 N.J. 235,426 A.2d 467
• Parties: In the Matter of Lee Ann GRADY.
• Court: New Jersey Supreme Court

Page 235

85 N.J. 235

426 A.2d 467

In the Matter of Lee Ann GRADY.

Supreme Court of New Jersey.

Argued Sept. 8, 1980.

Decided Feb. 18, 1981.

Herbert D. Hinkle, Deputy Public Advocate, for appellant Public Advocate (Stanley C. Van Ness, Public Advocate, attorney; Herbert D. Hinkle and Nancy J. Geltman, Asst. Deputy Public Advocates, on the brief).

Andrea M. Silkowitz, Deputy Atty. Gen., for respondent Atty. Gen. (John J. Degnan, Atty. Gen., attorney; Michael R. Cole, Asst. Atty. Gen., of counsel).

Richard Kahn, Morristown, guardian ad litem, for respondent Lee Ann Grady (Richard Kahn, attorney; Richard Kahn and John T. Byrnes, Jr., Morristown, on the briefs).

William T. Cooper, Somerville, for respondents Edward and Luanne Grady.

Cynthia M. Jacob, Somerville, submitted a brief on behalf of amicus curiae Mental Health Law Project (Norris, McLaughlin & Marcus, Somerville, attorneys; Michael S. Lottman, a member of the Alabama bar and Judith E. Cohn, a member of the District of Columbia bar, Washington, D. C., on the brief).

The opinion of the Court was delivered by

PASHMAN, J.

As once before in In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976), we again examine a disturbing paradox: how we can preserve the personal freedom of one incapable of exercising it by allowing others to make a profoundly personal decision on her behalf. In Quinlan this Court held that a comatose person kept alive by extraordinary means shall have a guardian appointed who would decide whether to discontinue those means. The question now before us is closely related: under what conditions should a court appoint a guardian who may authorize the sterilization of a woman who is severely mentally impaired.

I Facts

Lee Ann Grady is a 19-year-old mentally impaired woman seriously afflicted with Down's syndrome. ¹ Within a few days of her birth, Lee Ann's parents decided not to place her in an institution but to care for her at home. Since that time they have provided her with love and emotional support, as well as the physical necessities of life. Together with her parents, Lee Ann lives with a younger brother and sister who also treat her affectionately.

Her formal education has consisted of special programs within the public schools. Over the years she has been tested by school personnel, who have recommended that she continue to participate in the special classes. Although unable to read words, she does recognize the letters of the alphabet. She has moderate success in writing her name. She has some ability to count low numbers, but it is not clear whether she counts by rote or with awareness of the function of numbers. In her conversation she often fails to form complete sentences.

At home Lee Ann's activities include playing simple games, watching television, and taking short walks. She is capable of performing tasks such as folding laundry and dusting. She can dress herself, but she cannot select clothes appropriate for the season or matching in color. She is able to bathe herself but needs help regulating the temperature of the water. She can open and warm a can of soup but has difficulty in controlling the heat of the stove burner. Her physical limitations have kept her from learning to ride a bicycle, to catch a ball or to jump rope. But she goes bowling occasionally, and she likes to swim.

Because Lee Ann does not suffer from some of the physical ailments associated with Down's syndrome, her life expectancy is about normal. Her physical maturation has not deviated significantly from that of other adolescents. While some of her external features identify her as a person born with Down's syndrome, her parents and others see her as an attractive young woman. Her mood is often jovial and friendly.

Although in a physical sense her sexual development has kept pace with that of others her age, Lee Ann's severe mental impairment has prevented the emotional and social development of sexuality. She has no significant understanding of sexual relationships or marriage. If she became pregnant, she would neither understand her condition nor be able to make decisions about it. Her lack of awareness could lead to severe health problems. It is uncontradicted that she would not be able to care for a baby alone. Indeed, she will probably need lifetime supervision to care for her own needs.

Recognizing her sexual growth, the Gradys have provided birth control pills for Lee Ann during the past four years. Although there is no evidence that Lee Ann has engaged in sexual activity or has any interest in doing so, her parents believe that contraception is an appropriate precaution to exercise under the circumstances of their daughter's life.

As Lee Ann has approached the age of 20 when she will leave her special class in the public school system the Gradys have given more thought to her future. The parents fear they will predecease their daughter and she will be unable to live independently. Thus they have sought to attain for her a life less dependent on her family. The Gradys wish to place Lee Ann in a sheltered work group and eventually in a group home for retarded adults. But the parents see dependable and continuous contraception as a prerequisite to any such change in their daughter's environment. With the advice of their doctor, they sought to have Lee Ann sterilized at Morristown Memorial Hospital. The hospital refused to permit the operation.

II The Opinion Below

The Gradys requested such authorization from the Superior Court, Chancery Division. They sought appointment of a special guardian with authority to consent on Lee Ann's behalf to a conventional sterilization procedure known as a tubal ligation. The hospital responded that it could not legally permit the operation without judicially authorized consent for Lee Ann. Soon after the complaint was filed, Judge Polow, the trial judge, appointed a guardian ad litem to represent Lee Ann's interests in the judicial proceedings. He also permitted the intervention of the Public Advocate and the Attorney General to represent the interests of the public and the State.

The court received several medical and educational reports about Lee Ann's condition and abilities. There was also testimony from Mr. Grady and several experts called by various parties and the court itself. Judge Polow met briefly with Lee Ann in counsel's office to get a first-hand impression of her condition. Lee Ann was not otherwise present at the judicial proceedings. Her only participation was in interviews for the medical and psychological examinations which were the bases of the expert evaluations.

None of the parties contended that the court should not authorize sterilization under any circumstances. The contested issues involved the standards the court should apply before deciding to authorize sterilization and whether Lee Ann's situation met those standards. After considering all the evidence, Judge Polow rendered judgment allowing the parents to exercise substituted consent for Lee Ann to be sterilized.

In a thoughtful opinion, 170 N.J.Super. 98, 405 A.2d 851 (Ch.Div.1979), Judge Polow began by reviewing the constitutional objections raised against compulsory eugenic sterilization. He then recognized the relationship between the right to consent to sterilization and the constitutional right of privacy found in the contraception and abortion cases. The trial judge thus perceived a conflict between two fundamental rights: the right to be free from involuntary sterilization and the right to obtain sterilization.

He proceeded to consider two New Jersey statutes, N.J.S.A. 30:4-24.2(d)(2) and 30:6D-5(a)(4), which protect the rights of mentally retarded persons. Concluding that the statutes were inapplicable here, Judge Polow instead found power to authorize substituted consent for sterilization in the inherent parens patriae jurisdiction of the Chancery Court. As to the exercise of that power, the judge set a five-part standard:

(B)efore this court may exercise its inherent power to grant this application the following conditions must exist:

1. That the subject is incapable of understanding the nature of the sexual function, reproduction or sterilization and cannot comprehend the nature of these proceedings, hence is incompetent;

2. That such incompetency is in all likelihood permanent;

3. That the incompetent is presumably not infertile and not incapable of procreation;

4. That all procedural safeguards have been satisfied, including appointment of a guardian ad litem to act as counsel for the incompetent during court proceedings, with full opportunity to present proofs and cross-examine witnesses;

5. That the applicants have demonstrated their genuine good faith and that their primary concern is for the best interests of the incompetent rather than their own or the public's convenience.

(170 N.J.Super. at 125-26, 405 A.2d 851. (footnote omitted))

Finding that these conditions had been met, he granted the parents' application.

The Public Advocate and the Attorney General appealed, while both the parents and the guardian ad litem sought an affirmance. Before argument, we granted the guardian ad litem 's motion for direct certification. 84 N.J. 389, 420 A.2d 317 (1980).

Although we agree with much of the trial court opinion, the standard we establish today for judicial authorization of sterilization differs from that applied by the trial court. Therefore, we vacate the judgment of the Superior Court, Chancery Division, and remand for application of the new standard to the facts of this case.

III The Right to Obtain Sterilization

We are well aware that the decision before us is awesome. Sterilization may be said to destroy an important part of a person's social and biological identity the ability to reproduce. It affects not only the health and welfare of the individual but the well-being of all society. Any legal discussion of sterilization...