S. C. E., Matter of

• Decision Date: 20 September 1977
• Citation: 378 A.2d 144
• Parties: In the Matter of S. C. E.
• Court: Court of Chancery of Delaware

Page 144

378 A.2d 144

In the Matter of S. C. E.

Court of Chancery of Delaware, New Castle County.

Submitted Aug. 24, 1977.

Decided Sept. 20, 1977.

Petition for appointment of guardian to consent to sterilization of a minor. Denied.

Robert K. Beste, Jr., of Biggs & Battaglia, Wilmington, for petitioners.

HARTNETT, Vice Chancellor.

A Petition for the Appointment of a Guardian for S.C.E. was presented to the Court.

The Petition recited that it was filed in order to obtain the Court's approval for an operation which would have the effect of sterilizing S.C.E. Testimony and the affidavits of two doctors clearly show that S.C.E., who is 13 years old, is severely mentally retarded. She has a mental age of approximately 5 years. She is so severely mentally retarded that she has the use of only one arm and must have help from her parents whenever she uses the toilet. It is highly unlikely that the condition of S.C.E. will ever materially improve. It is clear that but for the devotion of S.C.E.'s parents she would be institutionalized. The doctors who examined her recommended a surgical procedure involving an abdominal hysterectomy with preservation of the ovaries in order to save her the difficult task of providing for her monthly perineal care and to prevent her from ever becoming pregnant. She would be totally unable to care for an infant.

Petitioners, the parents of S.C.E., in urging the Court's approval for the sterilization procedure, have called the Court's attention to the fact that similar situations requesting approval for sterilization have been granted by the Court in the past. They also call attention to 12 Del.C. § 3901 ¹ which confers general jurisdiction on this Court to appoint guardians for minors and urge that the general authority vested in this Court by that statute grants this Court the power to order or approve the sterilization. Petitioners also cite In Re Markel, Del.Supr., 254 A.2d 236 (1969); In Re Conner, 43 Del.Ch. 310, 226 A.2d 126 (1967); and In Re duPont, 41 Del.Ch. 300, 194 A.2d 309 (1963). The cited cases, however, all relate to the appointment of a guardian over the property of the ward and hold that the Court of Chancery has no inherent power to appoint guardians for mentally ill or infirm persons in the absence of a statute.

I am convinced that the procedure prayed for would, under all the circumstances, be in the best interests of S.C.E. I am, however, faced with the holding of the U.S. Court of Appeals for the 7th Circuit in Sparkman v. McFarlin, 552 F.2d 172 (1977). In the Sparkman decision the Court held that the Indiana Superior Court had no jurisdiction to order the sterilization of a minor because Indiana had adopted a statute providing for the sterilization of institutionalized persons and setting forth the procedure to be followed in such cases. A similar statute exists in Delaware (Ch. 57, Title 16, Del.C.). The Court held that the Legislature of Indiana, by adopting a statutory procedure for sterilization of institutionalized persons, negated jurisdiction in cases not involving institutionalized persons.

I disagree with the reasoning of the Circuit Court because I believe a Legislature neither claims nor has such sophistication. If Sparkman is correct, we are faced with the unfortunate result whereby a...