Guardianship of Eberhardy, Matter of

• Decision Date: 30 June 1981
• Docket Number: No. 78-661,78-661
• Citation: 307 N.W.2d 881,102 Wis.2d 539
• Parties: In the Matter of the GUARDIANSHIP OF Joan I. EBERHARDY, Incompetent. Quintin EBERHARDY and Mary Eberhardy, Guardians, Appellants-Petitioners, v. CIRCUIT COURT FOR WOOD COUNTY, the Hon. Dennis D. Conway, Presiding, Respondent.
• Court: Wisconsin Supreme Court

Page 881

307 N.W.2d 881

102 Wis.2d 539

In the Matter of the GUARDIANSHIP OF Joan I. EBERHARDY, Incompetent.

Quintin EBERHARDY and Mary Eberhardy, Guardians, Appellants-Petitioners, v. CIRCUIT COURT FOR WOOD COUNTY, the Hon. Dennis D. Conway, Presiding, Respondent.

No. 78-661.

Supreme Court of Wisconsin.

Argued Jan. 5, 1981.

Decided June 30, 1981.

Edward F. Zappen, William J. Dehn, guardian ad litem, argued, Marshfield, for appellants-petitioners; Zappen, Meissner, Oestreicher, Craig & Hayden, Marshfield, on brief.

Donald P. Johns, Asst. Atty. Gen. (argued), for respondent; with whom on the brief were Bronson C. La Follette, Atty. Gen., and George B. Schwahn, Asst. Atty. Gen.

HEFFERNAN, Justice.

This is a review of a court of appeals decision ¹ affirming an order of the circuit court for Wood county which dismissed the guardians' petition seeking the court's approval for their consent to the surgical sterilization of a severely retarded adult daughter.

The question in this case is whether the circuit court has jurisdiction to authorize the duly appointed guardians of an adult mentally retarded female ward to give their consent to surgical procedures which will result in the permanent sterilization of the ward when such sterilization is for contraceptive and therapeutic purposes, and whether, if the court has jurisdiction, it is appropriate for the court to exercise it for this purpose. We conclude that the requested action falls within the plenary constitutional jurisdiction of the circuit court; but we also conclude that, because of the complexities of the public policy considerations involved, opportunity should be given to the legislature to conduct appropriate hearings and to undertake factfinding which could lead to the declaration of public policy and legislative guidelines for the exercise of the court's plenary jurisdiction.

Accordingly, we affirm the decision of the court of appeals which upheld the circuit court's judgment declining to permit the guardians to give consent to the ward's sterilization.

Quintin and Mary Eberhardy, as parents and guardians, petitioned the circuit court for Wood county for authority to consent to the surgical sterilization of Joan, their twenty-two-year-old mentally retarded daughter. This petition was precipitated by Joan's attendance at St. Coletta's summer camp conducted for mentally retarded persons of both sexes and of all ages. Following return from this camp, Joan missed her menstrual periods for three months. Although the record is not clear, apparently there was some reason for her parents to believe that Joan had sexual contact with a male camper. Her menses thereafter resumed, but nevertheless the Eberhardys were deeply concerned over the harmful effect that a possible pregnancy would have upon Joan's physical and mental health.

The Eberhardys received counseling from Dr. Thomas Rice of the Marshfield Clinic, and also from Dr. Louis J. Ptacek, a pediatric neurologist at the Clinic. Both of these physicians had known and treated Joan for many years. Dr. Ptacek recommended that, because of Joan's developmental disability and because of her low intellectual endowment, she be sterilized by a tubal ligation procedure. Dr. Ptacek concluded that, because Joan was again intending to go to the camp, something should be done to prevent the possibility of her becoming pregnant. He felt that she would be unable to care for a child and the chances of a child being severely handicapped were considerable. ² Nevertheless, Dr. Rice originally considered that the placement of an IUD (interuterine device) would be appropriate, and the fitting of an IUD was contemplated and a consent was given by Mary Eberhardy for that procedure. Subsequently, Joan's mother reconsidered her decision to prevent pregnancy by having Joan use an IUD and instead sought court approval of sterilization by tubal ligation.

Dr. Rice submitted the question of the propriety of sterilizing Joan to the medical ethics committee of St. Joseph's Hospital. The ethics committee gave its approval. On June 21, 1978, the Eberhardys were appointed guardians of Joan's person and estate; and on July 27 of the same year, they petitioned the circuit court for authorization to sign a medical consent to her sterilization.

Attorney William Dehn was appointed Joan's guardian ad litem. A notice of hearing was served upon Joan personally. At the hearing, the medical record of Joan was introduced, which traced her mental and physical development from the age of two weeks until the time just prior to the hearing. So far as the medical record reveals, the first characterization of Joan as mentally retarded appears to have been when she was about six years old. ³ The record also appears to indicate that in her early childhood she sat up, spoke, and walked at a normal age. An examination when she was fifteen indicated that her reading ability was comparable to the performance of a second grader, and she was able to spell at the performance level of a second or third-grade pupil. She was able to count objects correctly and to give the names of any numerals presented to her. Her addition and subtraction skills were, however, markedly below normal. Although she could respond to questions in short, well-articulated sentences, her communications skills were considered to be substantially subnormal. At the age of fifteen, the neurological evaluation characterized her as being of moderate mental retardation.

A perusal of the entire medical record might lead to the conclusion that Joan's mental ability regressed between the time of this psychological examination in 1971 and the time the petition for sterilization was heard in September of 1978. There is no doubt, from the medical record, that appropriate and careful medical and psychological testing after the age of six consistently showed her to be substantially retarded.

The evidence adduced at hearing was consistent with the medical record. Her father testified that, although Joan, now twenty-two years old, was able to feed herself, she was unable to cut her food, and she could not properly dress herself. Although she could bathe herself, she could not safely regulate the temperature of her bath. If left by herself, she was unable to find her way home. Accordingly, she was never left alone. Eberhardy stated that he had consulted with physicians and that they favored sterilization to prevent the trauma of a pregnancy. He was satisfied that Joan could not care for a child, and he concluded that it would be in Joan's best interest if she were sterilized. He said he was sixty-five and that his wife was sixty-two. He said he did not know who would be able to take care of things if they were not there to attend to Joan.

Joan's mother confirmed her husband's testimony and stated that Joan had little judgmental ability, was unaware of the dangers of moving traffic, and was incapable of explaining the nature of any pain or discomfort, and concluded that this would be a problem in the event of Joan's pregnancy.

Dr. Ptacek also testified. He stated that, at the time of the hearing, Joan was physically well and moderately severely retarded. He explained this to mean that she had a mental age of two to three years and that her capabilities in the area of judgment, decision, memory, or communication were very slight. He stated that Joan had the same sexual proclivities as a normal person and possibly could become pregnant if not under total and complete supervision at all times. He said that she was an extremely lovable and happy person, was friendly, but had such extremely low mental endowments that she would not be able to resist sexual advances. He stated that she would not be able to care for herself nutritionally if she became pregnant, that labor and delivery would be physically and psychologically traumatic, and that she could not possibly care for a child adequately. He felt tubal ligation would be in Joan's best interests. He said there was no possibility of Joan's condition improving and that, in all likelihood, there would be further deterioration.

Following the hearing, the court directed that further physical and psychiatric examinations be made. Dr. Ptacek in his report reiterated the statements made at the hearing. A psychiatrist also reported that Joan was retarded to the extent that she could not understand the implications of sexual behavior, that she could easily be sexually exploited, and that her pregnancy would be tragic. He found no psychiatric counter-indication to tubal ligation, and in fact would encourage it.

The attorneys for the guardian-parents urged, on the basis of the reports and facts adduced at the hearing, that the evidence showed clearly and without contradiction that sterilization was in the best interests of Joan.

The guardian ad litem in a detailed, well-reasoned report argued that the circuit court had the authority and the jurisdiction to authorize the guardian-parents to give their consent to the sterilization proceedings. He also argued that the right to bear children or not to was a fundamental civil right and that to deprive Joan of treatment necessary to her well being guaranteed to others because she was incompetent to give consent would raise a question of the denial of the equal protection of the law.

The circuit judge, however, for reasons that were not explained, concluded that the benefit to Joan that would inure from sterilization was "questionable."

As the record shows, Joan did not testify, nor is there anything in the record to show that she was ever asked or consulted about the proposed surgical procedures. The court found, however, that she would not understand the nature of the operation nor have the capacity to consent. The trial judge stated that:

"(I)f the court has the authority to authorize the sterilization ... Joan Eberhardy, given the facts stated ... is a proper subject for sterilization. Her...