A. W., Matter of

• Decision Date: 30 November 1981
• Docket Number: No. 80,80
• Parties: In the Matter of A. W., Incapacitated Person-Appellant, Upon the Petition of T. M. W. and E. W., Petitioners-Appellees. SA 175.
• Court: Colorado Supreme Court

Page 366

637 P.2d 366

In the Matter of A. W., Incapacitated Person-Appellant Upon the Petition of T. M. W. and E. W., Petitioners-Appellees.

No. 80 SA 175.

Supreme Court of Colorado, En Banc.

Nov. 30, 1981.

James J. Zak, Denver, for Incapacitated person-appellant.

Mary Ewing, Branney, Hillyard, Ewing & Barnes, Englewood, R. Craig Ewing, Denver, for petitioners-appellees.

Bruce C. Bernstein, Denver, for amicus curiae Legal Center for Handicapped Citizens.

DUBOFSKY, Justice.

The guardian ad litem appointed to represent A.W., a mentally retarded minor, appeals the decision of the district court for Adams county granting the petition of the parents of A.W. to allow a sterilization to be performed on their daughter. The court stayed its order authorizing sterilization pending this appeal. We reverse the order of the district court and remand the case for further proceedings in accord with the standards for sterilization of minors set forth in this opinion.

The issue before us is whether and under what circumstances a court may order sterilization of a mentally retarded person under the age of eighteen upon petition by that person's parents. We conclude that the provisions of the Colorado Revised Statutes concerning sterilization of mentally retarded persons do not address the issue of sterilization of a minor, that it is within the district court's inherent authority to consider a petition for sterilization of a minor and that, in the absence of legislative pronouncement, it is proper and necessary for this court to promulgate standards for determining the circumstances under which such a procedure may be performed.

A.W. is a physically healthy female born February 25, 1966. The district court characterized her as "severely retarded," apparently as the result of oxygen deprivation during birth, although no evidence was adduced at the trial court hearing about the extent of A.W.'s mental disability. A.W.'s mother testified that A.W. attends a special school for children whose I.Q.'s are below 50. A.W. dresses herself, feeds herself, bathes herself, brushes her teeth and combs her hair. A specialist in obstetrics and gynecology familiar with A.W. testified that A.W. was a normal 12-year-old physiologically and is capable of conceiving a child.

A.W.'s mother testified that, despite repeated explanations, A.W. did not understand her physical maturation, including menstruation, nor was she capable of understanding the relationship between intercourse and conception. At the time of the hearing, A.W.'s parents were not aware of A.W.'s having engaged in sexual activity, but they were concerned about the possibility of her becoming pregnant in the future. Her mother testified that she believed A.W.'s school situation, which included overnight trips, afforded some opportunity for sexual activity. At the time of the hearing, no attempt at any methods of birth control had been made. In addition to the possibility of pregnancy, a paramount concern of A.W.'s parents was her inability to cope adequately with her monthly periods, which caused A.W. "a considerable degree of fright, fear and a general feeling of unrest." For these reasons, the obstetrician-gynecologist recommended a hysterectomy to avoid pregnancy and to discontinue the menstrual cycle. A.W.'s parents agreed with the recommendation, and petitioned the court for authorization to have a hysterectomy performed on A.W.

After the hearing, at which A.W.'s parents and the obstetrician-gynecologist were the only witnesses, the trial court authorized A.W.'s sterilization by hysterectomy on the basis of the parents' consent under 13-22-103(3), C.R.S.1973 (1980 Supp.), which provides:

"Any parent ... may request and consent to the furnishing of hospital, medical, dental, emergency health, and surgical care to his child or ward...." ¹

Because we conclude that sterilization of a mentally retarded minor is a special case not covered by the general parental consent statute and that the trial court must base its decision on a number of specific factors which the court did not consider originally, we reverse the order of the court.

I.

At the outset, we review the constitutional and historical background of sterilization of the mentally retarded. Unproven and now-discredited theories of eugenics ² were the basis for compulsory sterilization statutes adopted in many states in the early part of this century. ³ In Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed.2d 1000 (1972), the United States Supreme Court upheld a Virginia statute authorizing sterilization of institutionalized mental patients. The Court accepted the state's claimed eugenic interest in the face of due process and equal protection challenges, proclaiming that preventing another generation of "imbeciles" was sufficient reason for sterilizing a mentally impaired woman.

While Buck v. Bell has never been explicitly overruled, see L. Tribe, American Constitutional Law 923 (1978), the Court in Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), overturned an Oklahoma statute providing for sterilization of thrice-convicted felons and established procreation as a fundamental right. The shift in judicial thinking paralleled an advance in prevailing scientific theories about retardation. See Bligh, Sterilization and Mental Retardation, 51 A.B.A. Journal 1059 (1965); Ferster, Eliminating the Unfit-Is Sterilization the Answer?, 27 Ohio St.L.J. 591, 602-04 (1966); Note, Eugenic Sterilization-A Scientific Analysis, 46 Denver L.J. 631 (1969). Today, compulsory sterilization of incompetents based on eugenic theories can no longer be justified as a valid exercise of governmental authority, see In re Grady, 85 N.J. 235, 246, 426 A.2d 467, 472 (1981), and while the Supreme Court has not considered the constitutionality of involuntary sterilization laws since Skinner, commentators generally have concluded that compulsory sterilization laws, no matter what their rationale, are unconstitutional in the absence of evidence that compulsory sterilization is the only remedy available to further a compelling governmental interest. See L. Tribe, supra ; Burgdorf & Burgdorf, The Wicked Witch Is Almost Dead: Buck v. Bell and the Sterilization of Handicapped Persons, 50 Temp.L.Q. 995 (1977); Murdock, Sterilization of the Retarded: A Problem or a Solution?, 62 Calif.L.Rev. 917, 921-22 (1974); Ferster, supra, at 596; Note, Developments in the Law: The Constitution and the Family, 93 Harv.L.Rev. 1159, 1296-1308 (1980); Comment, Eugenic Sterilization Statutes: A Constitutional Re-evaluation, 14 J.Fam.L. 280 (1975).

Concluding that compulsory sterilization would be an unconstitutional infringement of the fundamental right to procreate does not, however, settle the issue before this court, for the right to bear or beget children implies a more general right to reproductive autonomy which must include under certain circumstances the opportunity to prevent procreation through a variety of means including non-compulsory sterilization. Such a conclusion follows directly from recent United States Supreme Court decisions involving contraception and abortion. In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the Court found a "penumbral" substantive right of privacy in marriage which barred the intrusion of the state into decisions involving contraception. In Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), the Court extended the Griswold rationale to unmarried persons, stating:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child.

Id. at 453, 92 S.Ct. at 1038. See also, Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). The cases invalidating restrictions on abortion absent a compelling state interest also have as their basis the constitutional right of individual control over procreative decisions. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Reading these cases in conjunction with Skinner leads to the conclusion that an individual has the fundamental right not only to bear children, but to decide not to be the source of another life as well. See Tribe, supra, at 923; Note, Developments in the Law: The Constitution and the Family, supra. This right includes the freedom to make one's choice permanent by voluntarily undergoing sterilization. In re Grady, supra, 426 A.2d at 473. See Matter of Guardianship of Eberhardy, 102 Wis.2d 539, 307 N.W.2d 881 (1981).

The complementary rights of procreation and sterilization imply as well the right to choose between the alternatives. The procreative alternatives available to competent adults must also extend where possible to individuals who are not mentally competent to make the choice for themselves. The inability competently to choose should not result in the loss of a person's constitutional interests. In re Grady, supra, 426 A.2d at 474. The attribution of constitutional freedoms to those not capable of making choices rationally, while logically troublesome, nevertheless is important not only to the incompetent individuals themselves, but to society at large in allocating decisionmaking powers of individuals in a manner consistent with constitutional principles. See Garvey, Freedom and Choice in Constitutional Law, 94 Harv.L.Rev. 1756 (1981).

Because the decision to be sterilized is a permanent one ⁴ it should be delayed whenever possible to see if the person becomes competent to make a decision in the future. However, the severely limited ability of some mentally retarded persons to understand the nature and...