Moe, Matter of

• Decision Date: 16 March 1982
• Citation: 432 N.E.2d 712,385 Mass. 555
• Parties: In the Matter of Mary MOE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 712

432 N.E.2d 712

385 Mass. 555

In the Matter of Mary MOE.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Nov. 4, 1981.

Decided March 16, 1982.

Diane F. Paulson, Newton, for the ward.

John S. McCann, Westboro, for the guardian ad litem.

Nowell P. Francis, Baldwinville, for the guardian.

Marjorie Heins, Jinnane S. J. Elder & John Reinstein, Boston, for Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

David Engle, Darcy DuMont, Robert Weber, William Crane, Richard Howard, & Jonathan Brant, Boston, for Mental Health Legal Advisers Committee & another, amici curiae, submitted a brief.

Susan Slaff & Raymond P. Bilodeau, Springfield, for Developmental Disabilities Law Clinic of Western New England College School of Law, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Justice.

The Probate Court for Worcester County appointed Ann Moe the guardian of her mentally retarded daughter, Mary Moe, on July 28, 1978. On April 1, 1980, the guardian petitioned the court, seeking an order permitting an abdominal tubal ligation (sterilization) to be performed on her ward. The petition alleged that although the ward is of legal age, she "is a mentally retarded person, whose chronological age does not conform with her emotional, intellectual, or developmental age and, upon facts and circumstances in the knowledge of your petitioner, and in the knowledge of professionals in the Health Care Field, it would be in the best interest of the ward to have an abdominal tubal ligation."

On May 23, 1980, the probate judge appointed a guardian ad litem. The guardian ad litem filed an "objection to abdominal tubal ligation" on September 2, 1980, expressing his belief that, although sterilization would be in the ward's best interest, there was no apparent legal authority for the probate judge to authorize the requested procedure. The probate judge then appointed another attorney as counsel for the ward, while requesting the former attorney to remain as guardian ad litem.

On February 11, 1981, the ward's attorney filed a motion to dismiss the sterilization petition for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. Mass.R.Civ.P. 12(b)(1), (6), 365 Mass. 755 (1974). Among other grounds, the motion alleged that absent specific statutory authority, the probate judge could not order the sterilization of a mentally retarded person. The ward's attorney also moved that the probate judge reserve and report the questions of law raised by the motion to dismiss, before further proceedings ensued.

On March 16, 1981, the judge reported the matter, without decision, to the Appeals Court. G.L. c. 215, § 13. Two questions were reported: "1. Can the probate and family court, absent specific statutory authority, order sterilization of an adult mentally retarded female; and 2. If the response to question one is in the affirmative, what procedures and standards should be followed and applied?"

An application for direct appellate review was allowed by this court. We conclude that under certain specified conditions the Probate Court, as a court of general equity jurisdiction, does have the authority to entertain and act upon such a petition.

The facts as they appear in the record are as follows. ¹ The ward is a mentally retarded woman born on August 6, 1956. Her emotional, intellectual, and developmental age, however, does not conform to her chronological age, and she currently functions at the level of a four year old. In the view of professionals in the health care field it would be in the best interest of the ward to have an abdominal tubal ligation. Medical practitioners in the Commonwealth refuse to perform the abdominal tubal ligation procedure without a court order. ²

This case is yet another in an ever-increasing number of cases in recent years where we are requested to apply legal principles to issues involving fundamental personal liberties, requiring the process of "detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created." Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 759, 370 N.E.2d 417 (1977). See, e.g., In the Matter of Spring, --- Mass. ---, Mass.Adv.Sh. (1980) 1209, 405 N.E.2d 115; Custody of a Minor, --- Mass. ---, Mass.Adv.Sh. (1979) 2124, 383 N.E.2d 836. We proceed to answer the questions posed because we are mindful that this court "cannot escape the demands of judging or of making ... difficult appraisals." Haynes v. Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513 (1973). In this case the ward's presumed inability to give her knowing consent regarding a sterilization operation, ³ as a competent individual could, is said to require the aid of the court. ⁴ The guardian argues that the method to ensure that the ward's best interests are thoroughly protected is judicial intervention.

There is no specific Massachusetts statute granting a guardian the power to authorize a sterilization operation on behalf of his or her ward. General Laws c. 201, § 6A, as amended through St.1978, c. 478, § 95, provides that "(t)he guardian of a mentally retarded person shall act to protect the welfare of such person and may utilize the services of agencies and individuals to provide necessary and desirable social and protective services of different types appropriate to such person including, but not limited to, counseling services, advocacy services, legal services, and other aid as he deems to be in the interest of such person."

Although G.L. c. 201, § 12, confers the "care and custody" of a ward upon a duly appointed guardian, G.L. c. 112, § 12W, requires the knowledgeable consent of the individual to be sterilized. In addition, our prior cases have established that prior judicial approval is required before a guardian may consent to administering or withholding of proposed extraordinary medical treatment. E.g., Guardianship of Roe, --- Mass. ---, Mass.Adv.Sh. (1981) 981, 421 N.E.2d 40; In the Matter of Spring, supra; Superintendent of Belchertown State School v. Saikewicz, supra. Since sterilization is an extraordinary and highly intrusive form of medical treatment that irreversibly extinguishes the ward's fundamental right of procreative choice, we conclude that a guardian must obtain a proper judicial order for the procedure before he or she can validly consent to it. Guardians and parents, therefore, absent statutory or judicial authorization, cannot consent to the sterilization of a ward in their care or custody.

We are well aware of the sordid history of compulsory eugenic sterilization laws in the United States. See In the Matter of Grady, 85 N.J. 235, 245-247, 426 N.E.2d 467 (1981). In a constitutional attack on the substance of a State sterilization statute, the United States Supreme Court accepted the basic premises of the eugenic theory that persons with certain diseases or anti-social characteristics (1) tend to procreate more often; (2) have offspring who inherit the parental defect; and (3) do not view sterilization as detrimental. See Buck v. Bell, 274 U.S. 200, 207, 47 S.Ct. 584, 585, 71 L.Ed. 1000 (1927); Ferster, Eliminating the Unfit-Is Sterilization the Answer?, 27 Ohio St. L.J. 591, 602 (1966). Thus, it was thought that sterilization of the unfit would promote the general health and welfare of our society. Id. All the underlying premises of eugenic sterilization, however, have been vigorously criticized and, for the most part, have proven false. See In the Matter of A. W., 637 P.2d 366, 368 (Colo.1981); Ferster, supra at 602-604; Kindregan, Sixty Years of Compulsory Eugenic Sterilization: "Three Generations of Imbeciles" and the Constitution of the United States, 43 Chi.-Kent L.Rev. 123, 134-140 (1966). See also, Skinner v. Oklahoma, 316 U.S. 535, 546, 62 S.Ct. 1110, 1115, 86 L.Ed. 1655 (1942) (Jackson, J., concurring) (because present state of scientific knowledge uncertain, eugenic sterilization presents grave constitutional questions). Two recent cases show, however, that sterilization procedures may still be abused, see Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Downs v. Sawtelle, 574 F.2d 1 (1st Cir.), cert. denied, 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 256 (1978).

Massachusetts has never had compulsory sterilization laws. General Laws c. 112, § 12W, forbids sterilization of any person absent their knowledgeable consent. Nothing we say today condones or approves compulsory sterilization for any purpose. Indeed, we question the continuing validity of the Buck decision, at least as a matter of State law. The right to procreate is "fundamental to the very existence and survival of the race." Skinner, supra at 541, 62 S.Ct. at 1113. An individual is forever deprived of this basic liberty through unwanted sterilization. Id. The State has no recognizable interest in compelling the sterilization of its citizens. See, e.g., In the Matter of A. W., supra at 368 ("compulsory sterilization of incompetents based on eugenic theories can no longer be justified as a valid exercise of governmental authority"). But see Sterilization of Moore, 289 N.C. 95, 221 S.E.2d 307 (1976); Cook v. State, 9 Or.App. 224, 495 P.2d 768 (1972).

No compulsory sterilization or sterilization based on discredited eugenic theories is involved here, however. The issues presented seem to us to involve whether an incompetent person is to be given the same rights as those vested in a competent person, and, if so, how and by what means. We turn to consider the questions reported:

1. Power of the Probate Court. Many courts have concluded that, without legislative authorization, a judge lacks the power to order sterilization of an incompetent at the behest of a parent or guardian. Hudson v. Hudson, 373 So.2d 310 (Ala.1979). Guardianship of Kemp,...