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In re Grady: The Mentally Retarded Individual's Right to Choose Sterilization

Published online by Cambridge University Press:  24 February 2021

Denise Lachance
Denise Lachance*
Affiliation:
Boston University School of Law, American Journal of Law & Medicine
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Abstract

In the case of In re Grady, the New Jersey Superior Court addressed important issues concerning the propriety of a court's exercise of parens patriae jurisdiction to ratify parents’ substituted consent to the sterilization of their mentally retarded child. This Note discusses the genesis of the fundamental right to choose sterilization, its application to mentally retarded individuals, and the adequacy of the procedural framework enunciated in Grady to assure that substituted consent by the parents is exercised solely in the mentally retarded individual's “best interests.” This Note concludes that, while the Grady court properly exercised its parens patriae jurisdiction, the procedural framework enunciated is inadequate. The Note proposes a model that would implement the procedural elements the Note determines are essential to a “best interests” inquiry. The proposal requires: (1) that the individual be adjudicated incompetent; (2) that a guardian ad litem be appointed and required to argue that sterilization is not in the incompetent's “best interests”; and (3) that the court determine, as a question of fact, whether the parents’ exercise of substituted consent is in the incompetent's “best interests.” The Note also suggests criteria which can be used in making the “best interests” determination, and recommends that “clear and convincing” evidence be required to support the “best interests” standard.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 6 , Issue 4 , Winter 1981 , pp. 559 - 590
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1981

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References

1 170 N.J. Super. 98, 405 A.2d 851 (1979).

2 Substituted consent by third parties is a mandatory prerequisite to the administration of medical treatment when an individual is incompetent to provide informed consent. Substituted consent becomes the vehicle necessary to preserve the incompetent individual's constitutional right of privacy and common law right of informed consent. See notes 36-38 infra and accompanying text.

3 In re Grady, 170 N.J. Super. 98, 125-26, 405 A.2d 851, 865 (1979).

4 For purposes of this Note, the term “mentally incompetent” is defined as anyone deemed legally incompetent because of mental retardation, whether or not that individual is institutionalized.

5 The “best interests” substantive legal standard is used in substituted consent cases to assure that the decision being made by the parents is not deleterious in any respect to their child. See Custody of a Minor, 1979 Mass. Adv. Sh. 2124, 2143, 393 N.E.2d 836, 845 (1979) (“[f]aced with the facts that metabolic therapy was not only medically ineffective but was poisoning the child, the judge inescapably concluded that the treatment … was contrary to the best interests of the child.“). See also Note, Of Love and Laetrile: Medical Decision Making in a Child's Best Interests, 5 AM. J. L. & MED. 271, 289-91 (1979).

6 “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST, amend. XIV § 1.

7 See Roe v. Wade, 410 U.S. 113 (1973); Whalen v. Roe, 429 U.S. 589 (1977). See also, L. TRIBE, AMERICAN CONSTITUTIONAL LAW 889-96 (1978).

8 See note 7 supra.

9 See Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965).

10 See Roe v. Wade, 410 U.S. 113, 155-56 (1971). See also L. TRIBE, supra note 7, at 925-26.

11 See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976); Roe v. Wade, 410 U.S. 113 (1973); Skinner v. Oklahoma, 316 U.S. 535 (1942).

12 “Skinner applied the standard of close scrutiny to a state law permitting forced sterilization of ‘habitual criminals.’ Implicit in the Court's opinion is the recognition that the right of procreation is among the rights of personal privacy protected under the constitution.” San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 34 n. 76 (1973). See also Gerety, , Redefining Privacy, 12 HARV. CIV. RTS.—CIV. LIB. L. REV. 233, 268-81 (1977)Google Scholar; Karst, , Forward: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 31-32 (1977)CrossRefGoogle Scholar. Karst notes that in a series of cases spanning nearly two decades, the Supreme Court has developed the constitutional principle that individual choice regarding fundamental rights, primarily in matters of family privacy, must be free of governmental interference absent a compelling state interest. See note 9 supra.

13 Griswold v. Connecticut, 381 U.S. 479 (1965).

14 Eisenstadt v. Baird, 405 U.S. 438 (1972).

15 Carey v. Population Serv. Int'l, 431 U.S. 678 (1977).

16 Eisenstadt v. Baird, 405 U.S. at 453.

17 The right to “bear or beget a child” language has become synonymous with the right of procreative choice. See, Carey v. Population Serv. Int'l, 431 U.S. 678 (1977); Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972).

18 Roe v. Wade, 410 U.S. 113 (1973) (the right of personal privacy extends to a woman's decision to terminate her pregnancy, even without spousal consent).

19 The Supreme Court in Roe did not sanction an unqualified privacy right as it did for the right to obtain contraceptives. The Court indicated that safeguarding the health of the mother during the second trimester of pregnancy and the life of the fetus during the third trimester of pregnancy were compelling state interests. Therefore, the state was permitted to regulate abortions in the second trimester to safeguard the mother's health, and to prohibit abortions in the third trimester. The Supreme Court, however, held that the woman's right to choose abortion is absolute during the first trimester of pregnancy.

20 See Hathaway v. Worcester City Hosp., 475 F.2d 701 (1st Cir. 1973); Ruby v. Massey, 452 F. Supp. 361 (D. Conn. 1978); Voe v. Califano, 434 F. Supp. 1058 (D. Conn. 1977); North Carolina Ass'n for Retarded Citizens v. State of N.C., 420 F. Supp. 451 (M.D.N.C. 1976); Relf v. Weinberger, 372 F. Supp. 1196 (D.D.C. 1974); In re Tulley, 83 Cal. App. 3d 698, 146 Cal. Rptr. 266 (1978), cert, denied, 440 U.S. 967 (1979); In re M.K.R., 515 S.W.2d 467 (Mo. Sup. Ct. 1974); Ponter v. Ponter, 135 N.J. Super. 50, 342 A.2d 574 (1975); In re D.D., 90 Misc. 2d 236, 394 N.Y.S.2d 139 (Surr. Ct. 1977), affd on other grounds, 64 A.D.2d. 898, 408 N.Y.S.2d 104 (1978); In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976).

21 In Whalen v. Roe, 429 U.S. 589, 599 (1977), the Supreme Court explicitly indicated that decisions to obtain abortions or contraceptives are within the realm of protected privacy interests. See also Carey v. Population Serv. Int'l, 431 U.S. 678, 685 (1977), where the Supreme Court emphasized that “[t]he decision whether or not to beget or bear a child is at the very heart of … constitutionally protected choices.“

22 The court in Ponter v. Ponter, 135 N.J. Super, 50, 54, 342 A.2d 574, 577 (1975), held that there is a constitutional right to obtain a sterilization without spousal consent. The court emphasized that the distinctions between a woman's right to choose an abortion and a woman's right to choose a sterilization operation are “distinctions without differences.” The Ponter court further noted that, notwithstanding the fact that Skinner v. Oklahoma characterized procreation as a basic civil right, the courts have still considered a “woman's right not to procreate paramount.” See also Hathaway v. Worcester City Hosp., 475 F.2d 701 (1st Cir. 1973), where the court sustained an equal protection claim against a city hospital's absolute prohibition of consensual sterilizations. The court held that no compelling justification existed for permitting surgical procedures with similar risk factors and demand on hospital facilities while banning the sterilization procedure. The Hathaway court recognized that while Roe concerned a decision whether to terminate a particular pregnancy, “a decision to terminate the possibility of any future pregnancy would seem to embrace all of the factors deemed important … in finding a fundamental interest but in magnified form… .” Id. at 705.

23 Although the right to choose sterilization theoretically applies to both men and women, since both can be physically sterilized, there are different factors which must be considered in determining whether men also have a fundamental right to choose sterilization. Men do not bear the burden of childbearing or have the problem of monthly hygiene. Therefore, this Note addresses only the right of women to choose sterilization.

24 The Supreme Court was critically concerned that:

[m]aternity, or additional offspring, may force upon a woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.

Roe v. Wade, 410 U.S. 113, 153 (1973).

25 The incidence of this phenomenon is not rare. In Hathaway v. Worcester City Hosp., 475 F.2d 701 (1st Cir. 1973), the woman seeking the sterilization had survived 12 pregnancies resulting in 8 live births. She was afflicted with high blood pressure, an umbilical hernia, and a heavy, irregular menstrual flow. Other forms of contraception had proven either ineffective or dangerous and future pregnancy would be life-threatening. See also Voe v. Califano, 434 F. Supp. 1058 (D. Conn. 1977), which depicts the hardship of a 20-year-old woman who had two children, had undergone six abortions and one miscarriage, and could not use oral contraceptives or other forms of birth control.

26 See Hathaway v. Worcester City Hosp., 475 F.2d 701 (1st Cir. 1973). See also Murphy, A Constitutional Right of Sterilization: Ponter v. Ponter, 7 CAP. U. L. REV. 117 (1977).

27 See Ruby v. Massey, 452 F. Supp. 361 (D. Conn. 1978) (as a contraceptive measure, the right to choose sterilization is entitled to the same constitutional protection afforded the decision to use alternative contraceptive devices or to procure an abortion); Voe v. Califano, 434 F. Supp. 1058 (D. Conn. 1977). See also Murphy, supra note 26.

28 Id.

29 In Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976), the Supreme Court invalidated a provision of a Missouri abortion statute prohibiting the use of the saline amniocentesis method of performing abortion and prescribing the prostaglandin method. The Court concluded that the saline amniocentesis method was widely used and accepted, while the prostaglandin method was relatively unavailable. The proscription of amniocentesis was, in effect, “designed to inhibit … the vast majority of abortions after the first twelve weeks.” Id. at 79. The Court recognized that to assure the woman's right of privacy, her decision, made in conjunction with her physician, regarding which medically sanctioned technique to employ in performing the abortion must be accorded the same immunity from state interference as the decision to have the abortion itself.

30 Despite its permanence, voluntary sterilization has been selected by individuals as a reliable and safe contraceptive technique. Lombard, Vasectomy, 10 SUFFOLK U. L. REV. 25 (1975). See also Gray, , Compulsory Sterilization in a Free Society: Choices and Dilemmas, 41 U. ON. L. REV. 529, 533 (1972)Google Scholar. Gray notes that voluntary sterilization on a widespread scale is a comparatively recent development and is chosen principally as a highly reliable contraceptive method.

31 The state's interest is magnified in the sterilization context because of its permanence and irreversibility. The state has a strong interest in ensuring that a woman's decision to be sterilized is informed and voluntary. The court in Ruby v. Massey, 452 F. Supp. 361 (D. Conn. 1978), stressed that “[w]hile a decision to be sterilized, because of its irreversible effects, may be subjected to some requirements in order to insure that the decision is voluntary, the decision voluntarily made is entitled to the same constitutional protection as a decision to have an abortion.” Id. at 366, citing Relf v. Weinberger, 372 F. Supp. 1196, 1202-03 (D.D.C. 1974). Relf upheld the Department of Health, Education and Welfare moratorium on federal funding for sterilizations of mentally retarded individuals.

32 The U.S. Constitution grants its protection to all persons equally. The fourteenth amendment provides: “[n]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST, amend. XIV § I. See O'Connor v. Donaldson, 422 U.S. 563 (1975), where the Supreme Court held that, under the fourteenth amendment, only the right to treatment justified the deprivation of liberty of institutionalized individuals who were not dangerous and who could care for themselves or be cared for by willing and able family members. Although O'Connor dealt with the confinement of mentally ill persons, it has been cited as support for cases dealing with the constitutional right to habilitation for the mentally retarded. See Halderman v. Penhurst State School & Hosp., 446 F. Supp. 1295, 1314-16 (E.D. Pa. 1977) (institutionalized mentally retarded individuals have a constitutional right to minimally adequate habilitation). See also, North Carolina Ass'n for Retarded Citizens v. State of N.C., 420 F. Supp. 451 (M.D.N.C. 1976); Wyatt v. Stickney, 344 F. Supp. 781 (M.D. Ala. 1972), aff'd in part, rev'd in part and remanded in part sub nom., Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).

33 See notes 11-31 supra and accompanying text.

34 See Ruby v. Massey, 452 F. Supp. 361 (D. Conn. 1978); North Carolina Ass'n for Retarded Citizens v. State of N.C., 420 F. Supp. 451 (M.D.N.C. 1976); Relf v. Weinberger, 372 F. Supp. 1196 (D.D.C. 1974); In re Tulley, 83 Cal. App. 3d 698, 146 Cal. Rptr. 266 (1978), cert, denied, 440 U.S. 967 (1979); In re D.D., 90 Misc. 2d 236, 394 N.Y.S.2d 139 (Surr. Ct. 1977), aff'd on other grounds, 64 A.D.2d 898. 408 N.Y.S.2d 104 (1978); In re Sterilization of Moore, 289 N.C. 95, 221 S.E.2d 307 (1976).

35 This Note is concerned with severely retarded individuals who are incapable of exercising their independent right of choice. Mentally retarded individuals who are capable of exercising their rights are competent to consent to sterilization, and thus, a framework for safely exercising substituted consent is not necessary. See notes 36-38 infra and accompanying text.

36 A physician must obtain informed consent from an individual before performing any medical procedures. This common law concept of informed consent circumscribes a physician's discretion in making unilateral medical decisions for his or her patients since failure to obtain informed consent can subject the physician to medical malpractice liability. The doctrine mandates the disclosure by the physician of both the risks and benefits of the proposed treatment and any alternative forms of treatment available. See Karp v. Cooley, 493 F.2d 408 (5th Cir. 1974) (the patient's right of informed consent is premised on the right of self-determination—the right to decide what to do with one's own body—and places a correlative duty on the physician to disclose the repercussions of any course of treatment); Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) (the right of informed consent encompasses the opportunity to evaluate the risks inherent in the medical procedure, the alternate methods of treatment, including no treatment, and the probability of success of each alternative); Lane v. Candura, 1978 Mass. App. Adv. Sh. 588, 376 N.E.2d 1232 (1978) (the right of informed consent subsumes the right to refuse treatment absent incompetency or third party considerations).

37 Sterilization is a medical procedure; therefore, its exercise is subject to the common law doctrine which requires informed consent to be given for a medical procedure. One legal consequence of severe mental retardation, however, is incompetency to provide informed consent, since the person giving informed consent must make a voluntary choice and be capable of understanding the implications of such consent. Severely, mentally retarded individuals can neither understand the procedure nor make a voluntary choice. See Relf v. Weinberger, 372 F. Supp. 1196 (D.D.C. 1974), where the court held that minors and mentally retarded individuals do not have the capacity to give informed consent to sterilization. See also Ruby v. Massey, 452 F. Supp. 361 (D. Conn. 1978), where the court noted “that the demand for an ‘informed’ decision from each of the [mentally retarded] children is an impossible one to meet… .” Id. at 367.

38 The need for third party consent to effectuate an incompetent's constitutional rights has arisen in other contexts. In In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert, denied sub nom. Garger v. N.J., 429 U.S. 922 (1976), the father of a 21-year-old woman who was rendered incompetent to consent as a result of severe medical disability petitioned the court to allow him to authorize the discontinuance of extraordinary life-sustaining measures for his daughter. The court held that the mentally incompetent woman's right to terminate life-support mechanisms was a “valuable incident of her right to privacy … [and] should not be discarded solely on the basis that her condition prevents her conscious exercise of the choice.” 70 N.J. at 41, 355 A.2d at 664. The court, therefore, subject to the approval of the physician and the Hospital Ethics Committee, allowed the parents to give their consent to withhold treatment. See also Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977) (the court provided its consent in order to preserve the institutionalized mentally retarded individual's constitutionally protected right to choose treatment); Glantz, Annas & Katz, , Scientific Research with Children: Legal Incapacity and Proxy Consent, 11 FAM. L. Q. 284 (1977)Google Scholar.

39 See notes 70-74 infra and accompanying text.

40 See In re Hofbauer, 65 A.D.2d 108, 111, 411 N.Y.S.2d 416, 418 (1978), where the court noted that “[t]he primary right, duty and privilege to select the type of medical care to be given and the physician to administer it belongs to the parents.” See also Prince v. Massachusetts, 321 U.S. 158 (1944) (Supreme Court raised the sanctity of the parent-child relationship to constitutional dimension); Levy, , The Rights of Parents, 1976 B.Y.L. REV. 693 (1976)Google Scholar.

41 When the medical decision made by the parents could result in harm to the child, parents are held not to have an unqualified right to provide consent. The Massachusetts Supreme Judicial Court, in Custody of a Minor, 1979 Mass. Adv. Sh. 2124, 2139- 40, 393 N.E.2d 836, 843 (1979), held that “parental rights … do not clothe parents with life and death authority over their children.” The court further noted that “the parental right to control a child's nurture is not grounded in any absolute property right [that] can be enforced to the detriment of the child, but rather is akin to a trust, subject to a correlative duty to care for and protect the child … .” See also Note, Of Love and Laetrile: Medical Decision Making In a Child's Best Interests, 5 AM. J. L. & MED. 271 (1979) (state intervention should be allowed when the parental decision to administer unorthodox treatment would result in irreversible harm to the already life-threatening condition of the child). The limitations on parental consent to medical treatment for a minor child should be applicable to parental consent to sterilization of a mentally retarded individual, since both minors and mentally retarded individuals are legally incompetent to exercise independent choice.

42 Case law has emphasized that sterilization is not ordinary medical treatment since it results in the irrevocable deprivation of a fundamental right. The court in A.L. v. G.R.H., 163 Ind. App. 636, 637, 325 N.E.2d 501, 502 (1975), characterized the limitation on the parents’ right to provide substituted consent as “the common law does not invest parents with such power over their children even though they sincerely believe the child's adulthood would benefit therefrom.” See also Sparkman v. McFarlin, 552 F.2d 172 (7th Cir. 1977), rev'd sub norm. Stump v. Sparkman, 435 U.S. 349 (1978), rehearing denied, 436 U.S. 951 (1978). Sparkman v. McFarlin held a judge liable in damages for granting a mother's request to have her “allegedly” mentally retarded daughter sterilized.

43 See note 20 supra and accompanying text.

44 See Ruby v. Massey, 452 F. Supp. 361 (D. Conn. 1978), which summarized the problem of who may provide substituted consent to the sterilization of the mentally retarded individual:

In [the] long line of cases which undeviatingly hold that the Constitution protects the freedom of even an immature teenager to decide for herself whether to bear or beget a child, no case has considered the question of who may make the sterilization decision for the child who is mentally incapable of deciding for herself. The fact that in this case the parents seek to have the children's rights exercised in favor of sterilization, rather than against it, does not affect the character of the right. They may neither veto nor give valid consent.

Id. at 366.

45 See In re D.D., 90 Misc. 2d 236, 237, 394 N.Y.S.2d 139, 140 (Surr. Ct. 1977), where the court noted that under the parens patriae concept, the individual's right to be free from undue interference by the state is balanced against his own best interests, (citing In re Weberlist, 79 Misc. 2d 753, 360 N.Y.S.2d 783 (Sup. Ct. 1974)). See also Hafen, , Children's Liberation and the New Egalitarianism: Some Reservations About Abandoning Youth to Their “Rights,” 1976 B.Y.U.L. REV. 604, 650 (1976)Google Scholar.

46 id.

47 Eugenic sterilization is sterilization which has as its purpose the propagation of superior genetic endowments. Theoretically, the diminution of inferior qualities necessitated the collective sterilization of detective persons. See O'Hara, & Sanks, , Eugenic Sterilization, 45 GEO. L. J. 20 (1956)Google Scholar, For a more extensive discussion of eugenic sterilization, see THE MENTALLY DISABLED ANP THE LAW (S. Brakel & R. Rock eds., rev. ed. 1971) [hereinafter Bracket & Rock]; Kindregan, , Sixty Years of Compulsory Eugenic Sterilization: ‘Three Generations of Imbeciles’ and the Constitution of the United States, 43 CHI.-KENT L. REV. 123 (1966)Google Scholar; Vukowich, The Dawning of the Brave New World—Legal, Ethical and Social Issues of Eugenics, 1971 U. I I I . L. FORUM 189.

48 Defects proposed to be eliminated through compulsory sterilization included mental retardation, insanity, criminal tendencies, epilepsy, blindness, deafness, physical deformities, delinquency and pauperism. See Kindregan, supra note 47, at 123.

49 A majority of the states adopted compulsory eugenic sterilization legislation, including: Alabama, Arizona, California, Connecticut, Delaware, Georgia, Idaho, Indiana, Iowa, Kansas, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Hampshire, North Carolina, North Dakota, New Jersey, New York, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, Washington, West Virginia and Wisconsin. See Brackel & Rock, supra note 47, at 208. Many states still have compulsory sterilization statutes or have passed new legislation with varying procedural standards that must be satisfied before a'mentally retarded individual can be sterilized. See Ferster, Eliminating the Unfit—Is Sterilization the Answer?, 27 OHIO ST. L. J. 591 (1966); Neuwirth, Heisler & Goldrich, , Capacity, Competence, Consent: Voluntary Sterilization of the Mentally Retarded, 6 COLUM. HUMAN RIGHTS L. REV. 447 (1974-75)Google Scholar; Note, Procreation and the Population Problem, 55 N.C.L. REV. 1165 (1977); Note, Rights of Mentally Ill-Involuntary Sterilization, Analysis of Recent Statutes, 78 W. VA. L. REV. 131 (1975).

50 274 U.S. 20Q (1927).

51 In this case, the Supreme Court affirmed the sterilization order of an 18 year old imbecile, Carrie Buck, who was confined to a state institution. The Court upheld the challenged Virginia statute, which permitted the sterilization of inmates of mental institutions afflicted with hereditary forms of mental deficiencies. The Court upheld the statute's classification of institutionalized mental defectives as constitutionally permissible under both equal protection and due process analyses. Under an equal protection analysis, the classification was held to be rationally related to the legitimate state interest in alleviating the financial burden of institutional detention at public expense of another generation of retarded individuals. Under the due process analysis, the Court cited the validity of compulsory vaccination as persuasive support for the reasonableness of the state's interest. “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” 274 U.S. at 207.

52 In Mr. Justice Holmes’ view, those who “sap the strength of the state … continue their kind.” 274 U.S. at 208.

53 This purpose, in Mr. Justice Holmes’ words, was “to prevent our being swamped with incompetence.” 274 U.S. at 208.

54 Mr. Justice Holmes expressed this belief when he opined that the foreclosure of procreative capacity is “often not felt to be a sacrifice by those concerned.” 274 U.S. at 208.

A rationale for compulsory sterilization not mentioned by the Court focuses on fitness for parenthood. By definition, mental retardation encompasses a broad spectrum of varying capacity. The standard definition of mental retardation, as promulgated by The American Association of Mental Deficiency, is “significantly subaverage intellectual functioning existing concurrently with deficits in adaptive behavior, and manifested during the developmental period.” See Memorandum of Law by the Office of Advocacy for the Developmentally Disabled 11, (citing Manual on Terminology and Classification in Mental Retardation 11 (1973)). The definition of fitness for parenthood also is lacking in specificity. See Note, supra note 41, at 281 n. 48. Thus, there is no precise standard by which to judge whether retarded persons are fit for parenthood. Furthermore, empirical studies suggest that mentally retarded individuals possess qualities, such as warmth and affection, which are important for childrearing. Roos, Psychological Impact of Sterilization on the Individual, LAW & PSYCH. REV. 45,47 (Spring 1975).

55 See Note, Eugenic Sterilization—A Scientific Analysis, 46 DENVER L. J. 631, 642 (1969), which questions the validity of the assumption that heredity is the pivotal cause of mental retardation.

56 The presumption that heredity is the sole cause of mental retardation has proven to be fallacious. Although purely genetically-based retardation exists, eighty-nine percent of retarded offspring are born to normal parents. See Brackel & Rock, supra note 47, at 213; Murdock, Sterilization of the Retarded: A Problem or a Solution?, 62 CAL. L. REV. 917,924 (1974).

57 See Murdock, supra note 56, at 926. Where the mental retardation results from the presence of a dominant gene, however, the risk of retardation is fifty percent. Id.

58 Fecundity means pronounced fertility. STEDMAN's MEDICAL DICTIONARY 514 (4th ed. 1976). ,

59 Report of the Committee of the American Neurological Association for the Investigation of Eugenic Sterilization (1936), summarized in Myerson, , Certain Medical and Legal Phases of Eugenic Sterilization, 52 YALE L. J. 618, 628-31 (1943)CrossRefGoogle Scholar.

60 The presence of psychological repercussions cannot be discounted merely because the procedure is being performed on mentally retarded individuals. See David, Smith & Friedman, , Family Planning Services for Persons Handicapped by Mental Retardation, 66 AM. J. PUBLIC HEALTH 1053, 1055 (1976)CrossRefGoogle Scholar. See also Roos, supra note 54, at 51. Roos notes that mentally retarded individuals have highly individualistic attitudes towards sterilization.

61 See notes 11-31 supra and accompaning text.

62 See notes 47-60 supra and accompanying text.

63 See Burghdorf & Burghdorf, The Wicked Witch Is Almost Dead: Buck v. Bell and the Sterilization of Handicapped Persons, 50 TEMP. L. Q. 995, 1022 (1975) (discussion of cases holding that courts lack jurisdiction to hear sterilization petitions absent statutory authorization).

64 See In re Tulley, 83 Cal. App. 3d 698, 146 Cal. Rptr. 266 (1978), cert, denied, 440 U.S. 967 (1979); Sparkman v. McFarlin, 552 F.2d 172 (7th Cir. 1977), rev'd sub nom. Stump v. Sparkman, 435 U.S. 349 (1978), rehearing denied, 436 U.S. 951 (1978); Wade v. Bethesda Hosp., 337 F. Supp. 671 (S.D. Ohio 1971), rehearing denied, 356 F. Supp. 380 (S.D. Ohio 1973); In re Kemp, 43 Cal. App. 3d 758, 118 Cal. Rptr. 64 (1974); In re S.C.E., 378 A.2d 144 (Del. Ch. 1977); A.L. v. G.R.H., 163 Ind. App. 636, 325 N.E.2d 501 (1975), cert, denied, 425 U.S. 936 (1976); Holmes v. Powers, 439 S.W.2d 579 (Ky. 1969); In re M.K.R., 515 S.W.2d 467 (Mo. Sup. Ct. 1974); In re D.D., 90 Misc. 2d 236, 394 N.Y.S.2d 139 (Surr. Ct. 1977), aff'd on other grounds, 64 A.D.2d 898, 408 N.Y.S.2d 104 (1978); Frazier v. Levi, 440 S.W.2d 393 (Tex. Civ. App. 1969). Although these cases suggest that a majority of the jurisdictions addressing the issue have not invoked their parens patriae jurisdiction, many of these decisions can be distinguished. The opinions establish precedent only for courts of limited jurisdiction; they do not provide authority for the legal principle that the common law doctrine of parens patriae does not confer jurisdiction on courts of general jurisdiction to order the sterilization of mentally retarded individuals. See, e.g., In re Kemp, 43 Cal. App. 3d 758, 118 Cal. Rptr. 64 (1974) (probate code did not establish jurisdiction for the probate court to order the sterilization of an adult incompetent); In re M.K.R., 515 S.W.2d 467 (Mo. Sup. Ct. 1974) (juvenile court did not have jurisdiction to grant sterilization petitions); Frazier v. Levi, 440 S.W.2d 393 (Tex. Civ. App. 1969) (probate court may not exercise equitable powers to approve sterilization petition). Jn addition, compare In re D.D., 90 Misc. 2d 236, 408 N.Y.S.2d 104 (1978) (appellate court upheld the Surrogate Court's denial of a sterilization petition because of the limited breadth of the Surrogate Court's jurisdiction) with In re Sallmaier, 95 Misc. 2d 295, 378 N.Y.S.2d 989 (1976) (Superior Court of Queens County granted the sterilization of a 22-year-old severely retarded woman). These two cases support the limited jurisdiction principle; courts of limited jurisdiction cannot resort to equitable powers found in the common law doctrine of parens patriae to supply a jurisdictional basis to order the sterilization of mentally retarded individuals.

65 In re Tulley, 83 Cal. App. 3d 698, 146 Cal. Rptr. 266 (1978), cert, denied, 440 U.S. 967 (1979).

66 This foreclosure may not be absolute. For example, courts have acknowledged that in situations where the mentally retarded individual is incapable of monthly menstrual hygiene and potentially unable to provide maternal care, a sterilization may be medically necessary and clearly in the mentally retarded individual's best interests. Two cases disclaimed parens patriae jurisdiction and denied the parents’ petition to have their mentally retarded child sterilized even while acknowledging that the sterilization would be in the child's “best interests.” In re Tulley, 83 Cal. App. 3d 698, 146 Cal. Rptr. 266 (1978), cert, denied, 440 U.S. 967 (1979); In re S.C.E., 378 A.2d 144, 144-45 (Del. Ch. 1977).

67 See In re D.D., 90 Misc. 2d 236, 394 N.Y.S.2d 139 (Surr. Ct. 1977), aff'd on other grounds, 64 A.D.2d 898, 408 N.Y.S.2d 104 (1978); Frazier v. Levi, 440 S.W.2d 393 (Tex. Civ. App. 1969).

68 in re Tulley, 83 Cal. App. 3d 698, 146 Cal. Rptr. 266 (1978), cert, denied, 440 U.S. 967 (1979). Access to sterilization through institutionalization, however, is a near “absolute bar.” The Tulley court recognized the remedy's narrow range when it noted: “We sympathize with [the parents’] cause and are well aware that institutionalization to which the sterilization procedure is presently tied is not easy to obtain in many instances.” Id. at 271.

69 See Wade v. Bethesda Hosp., 337 F. Supp. 671 (S. D. Ohio 1971), rehearing denied, 356 F. Supp. 380 (S.D. Ohio 1973).

70 See Ruby v. Massey, 452 F. Supp. 361 (D. Conn. 1978), where the court interpreted a Connecticut statute providing for the sterilization of institutionalized mentally retarded individuals to encompass noninstitutionalized mentally retarded individuals in order to avoid an equal protection problem. But cf. In re Tulley, 83 Cal. App. 3d 698, 703, 146 Cal. Rptr. 266, 271 (1978), cert, denied, 440 U.S. 967 (1979), where the court emphasized that the judiciary “may not encroach upon the province of the legislature, which alone is authorized to bring about suggested changes by adding to or amending the existing statute.” See also United States v. Rutherford, 442 U.S. 544, 555 (1979), where the Supreme Court cautioned that “[o]nly when a literal construction of a statute yields results so manifestly unreasonable that they could not fairly be attributed to congressional design will an exception to statutory language be judicially implied.“

71 The state has a legitimate interest in the protection of incompetents because of their inability to exercise and protect their own rights. See Prince v. Massachusetts, 321 U.S. 158, 165 (1944); Custody of a Minor, 1978 Mass. Adv. Sh. 2002, 2035, 379 N.E.2d 1053, 1066 (1978), reviewed and a§'d, 1979 Mass. Adv. Sh. 2124, 393 N.E.2d 836 (1979) (courts held that state has an interest in safeguarding children from parental decisions that threaten their health and well-being). See also Relf v. Weinberger, 372 F. Supp. 1196 (D.D.C. 1974) (court allowed Department of Health, Education and Welfare moratorium on federally funded sterilizations for minors and mentally retarded individuals because state's interest in protecting against coercive sterilization was held to be sufficiently compelling).

72 See Sheldon v. Tucker, 364 U.S. 479 (1960). See also Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972), aff'd in part, rev'd in part, and remanded in part sub nom., Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Murdock, supra note 56; Note, Procreation and the Population Problem, 55 N.C.L. REV. 1165, 1178 (1977).

73 See notes 36-38 supra.

74 See Boddie v. Connecticut, 401 U.S. 371 (1970), where the Supreme Court held that a state could not deny access to a court to welfare recipients seeking to file for divorce but unable to pay court costs and fees for service of process. The Court upheld the indigents’ claim that the state unconstitutionally created a financial barrier to court access with the caveat “due process requires that [indigents] be afforded an opportunity to go to court to obtain a divorce … [where] this right is the exclusive precondition to the adjustment of a fundamental human relationship.” Id. at 382-83. See, e.g., Skinner v. Oklahoma, 316 U.S. 535 (1942), which notes that “marriage and procreation are fundamental to the very existence and survival of the race.” Id. at 541.

75 170 N.J. Super. 98, 405 A.2d 851 (1979).

76 The legal reality of Lee Ann's incompetency triggers special protection by the state as parens patriae to protect her interest; therefore, the fact of her minority is a superfluous consideration. See note 45 supra and accompanying text.

77 See In re Grady, 170 N.J. Super. 98, 103-08, 405 A.2d 851, 853-55 (1979) for a discussion of the nature of Down's Syndrome and its physical and psychological repercussions.

78 Id. at 101.

79 Id.

80 Id. A guardian ad litem is a guardian appointed by the court to represent a legally incompetent individual's interest in any suit to which the incompetent is a party. BLACK's LAW DICTIONARY 834 (5th rev. ed. 1979).

81 See note 64 supra and accompanying text.

82 170 N.J. Super, at 108-09, 405 A.2d at 856-57.

83 Id. at 112. See also note 20 supra and accompanying text.

84 Id. at 120, 405 A.2d at 862. See also notes 36-38 supra and accompanying text.

85 See notes 40-41 supra and accompanying text.

86 170 N.J. Super, at 120, 405 A.2d at 862.

87 Id. at 122, 405 A.2d at 863.

88 id. at 118, 405 A.2d at 861.

89 The court considered whether two New Jersey statutes applied to noninstitutionalized mentally retarded individuals. The first was N.J. STAT. ANN. § 30:4-24.2 (d)(2) (1975), a section of what is commonly known as the bill of rights for the mentally retarded, which provides:

[Each patient is] [n]ot to be subjected to sterilization, without the express and informed consent of the patient after consultation with counsel or interested party of the patient's choice. Such consent shall be made in writing, a copy of which shall be placed in the patient's treatment record. If the patient has been adjudicated incompetent a court of competent jurisdiction shall hold a hearing to determine the necessity of such procedure at which the client is physically present, … to be confronted with and to cross-examine all witnesses alleging the necessity of such proceedings. In such proceedings, the burden of proof shall be on the party alleging the necessity of such procedures ….

The guardian ad litem in Grady, however, stressed that the definition of “patient” under the Act was limited to “any person or persons alleged to be mentally ill, tuberculous, or mentally retarded whose admission to any institution for the care and treatment of such class of persons in this State has been applied for.” N.J. STAT. ANN. § 30:4-23 (1972). The Grady court agreed with the guardian ad litem, and held that the statute did not confer authority to sterilize noninstitutionalized individuals, 170 N.J. Super, at 112-14, 405 A.2d at 858-59.

The second statutory provision concerning sterilization was N.J. STAT. ANN. § 30:6- 5(a)(4) (1977), which provides that:

a. No person receiving services for the developmentally disabled at any facility shall:

(4) be subjected to … sterilization … without the express and informed consent of such person, if a competent adult, or of such person's guardian ad litem specifically appointed by a court for the matter of consent to these proceedings, if a minor or an incompetent adult or person administratively determined to be mentally deficient. Such consent shall be made in writing and shall be placed in such person's record.

However, facility is defined as one which is “operated by any public or private agency, organization or institution for the provision of services for persons with developmental disabilities.” N.J. STAT. ANN. § 30:60-3(c) (1977). Therefore, the Grady court held that this statute also applied only to developmentally disabled persons resident in or attendant at particular institutions. 170 N.J. Super, at 114-16, 405 A.2d at 859-60.

90 See note 70 supra.

91 170 N.J. Super, at 119-20, 405 A.2d at 862.

92 435 U.S. 349 (1978), rehearing denied, 436 U.S. 951 (1978). However, it is uncertain whether the Grady court's interpretation of Stump is correct. Although it can be suggested that the Stump decision stands for the legal principle that parens patriae is an appropriate jurisdictional basis for the consideration of sterilization requests, the Supreme Court did not actually resolve this issue, and expressly narrowed the scope of certiorari to the issue of judicial immunity from damage liability. 435 U.S. at 351.

93 170 N.J. Super, at 118, 405 A.2d at 861.

94 435 U.S. at 359-60.

95 170 N.J. Super, at 118, 405 A.2d at 861.

96 70 N.J. 10, 355 A.2d 647, cert, denied sub nom. Garger v. N.J., 429 U.S. 922 (1976).

97 170 N.J. Super, at 120-21, 405 A.2d at 862-63.

98 70 N.J. at 41-42, 355 A.2d at 664.

99 170 N.J. Super, at 121-22, 405 A.2d at 863.

100 170 N.J. Super, at 122, 405 A.2d at 863, (citing John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 279 A.2d 670 (1971)); State v. Perricone, 37 N.J. 463, 181 A.2d 751 (1962); In re Schiller, 148 N.J. Super. 168, 372 A.2d 360 (Ch. Div. 1977). These cases held that imminent danger of severe and irreparable brain damage was sufficient to allow a guardian to provide substituted consent, against the wishes of the parents, to a blood transfusion.

101 170 N.J. Super, at 122, 405 A.2d at 863.

102 The court specifically insisted that “the ‘necessity’ test is difficult to apply to sterilization requests because they are not ordinarily based upon threat to life or serious, immediate risk to health as in the cited blood transfusion cases.” 170 N.J. Super, at 122, 405 A.2d at 864.

103 170 N.J. Super, at 125-26,405 A.2d at 865.

104 170 N.J. Super, at 126, 405 A.2d at 865.

105 The Grady court cited the Supreme Court's language in Wisconsin v. Yoder, 406 U.S. 205, 232 (1972): “[t]he history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” 170 N.J. Super, at 124, 405 A.2d at 865.

106 Parents traditionally have a common law right and duty to substitute their consent to medical procedures when their children are deemed incompetent to exercise their own constitutional right of privacy and common law right of informed consent. See notes 40-41 supra and accompanying text.

107 170 N.J. Super, at 125 n.19, 405 A.2d at 865 n.19, (citing Goldstein, , Medical Care for the Child At Risk: On State Supervention of Parental Autonomy, 86 YALE L.J. 645, 655 (1977)CrossRefGoogle Scholar).

108 Wisconsin v. Yoder, 406 U.S. 205 (1972); Prince v. Massachusetts, 321 U.S. 158 (1944); Meyer v. Nebraska, 262 U.S. 390 (1923).

109 See, e.g., Mr. Justice Stewart's concurring opinion in Parham v. J.R. which stated that “it has been a cannon of the common law that parents speak for their minor children. So deeply embedded in our tradition is this principle of law that the Constitution itself may compel a state to respect it.” Parham v. J.R., 442 U.S. 584, 621 (1979) (Stewart, J., concurring) (footnote and citations omitted).

110 170 N.J. Super, at 124, 405 A.2d at 864, (citing Parham v. J.R., 442 U.S. 584 (1979)). In Parham, the Supreme Court upheld a statute which allowed parents to commit their children to a mental hospital without state intervention even though the childrens’ liberty interests were implicated.

111 170 N.J. Super, at 124-25, 405 A.2d at 865.

112 Id.

113 Id. at 125, 405 A.2d at 865.

114 Id. at 126, 405 A.2d at 862.

115 Id. The court also gave the guardian ad litem the right to cross-examine witnesses. The Grady court did not specify any other responsibilities.

116 This possibility is not unlikely; it occurred in Grady. The guardian ad litem argued that Lee Ann's parents wanted only what was in Lee Ann's best interests without any mention of what factors led him to his findings. 170 N.J. Super, at 125, 405 A.2d at 865.

117 See Baron, Assuring “Detached But Passionate Investigation and Decision“: The Role of Guardians Ad Litem in Saikewicz-Type Cases, 4 AM. J. L. & MED. I l l (1978). Baron suggests that both the incompetent individual and the court have the right to passionate investigation and advocacy.

118 170 N.J. Super, at 124-25, 405 A.2d at 865.

119 The existence of countervailing parental interests may detract from the purity of a “best interests” decision. Caution must prevail since if the mentally retarded individual is unable to care for herself or her offspring, the burden of menstrual care and potential care of offspring may fall on the parents. The fear of this burden may cause the parents’ decision to be based on personal convenience, a consideration the Grady court stressed may not be a primary motive in the parents’ decision. 170 N.J. Super, at 126, 405 A.2d at 865. The Grady court, however, failed ,to establish a strict standard meant to detect and prevent parental self-interests from strongly influencing the decision.

120 170 N.J. Super, at 125 n.19, 405 A.2d at 865 n.19.

121 170 N.J. Super, at 125, 405 A.2d at 865.

122 170 N.J. Super, at 124, 405 A.2d at 865. The court notes that “no one is in a better position nor is better equipped than the child's parents to decide what course to pursue.” Id.

123 See, In re Hofbauer, 65 A.D.2d 108, 411 N.Y.S.2d 416 (1978); Goldstein, , Medical Care for the Child at Risk: On State Supervention of Parental Autonomy, 86 YALE L.J. 645, 650 (1977)CrossRefGoogle Scholar (“[a]s parens patriae the state is too crude an instrument to become an adequate substitute for parents“); Levy, The Rights of Parents, 1976 B.Y.U.L. REV. 693, 698 (“[I]n general, parents will make better decisions than judges since they are more familiar with the psychological and other dynamics of the family than judges can become through the judicial process.“).

124 170 N.J. Super, at 104-05, 405 A.2d at 854.

125 The court explained that:

[t]he current professional trend is toward encouraging interaction among mentally handicapped persons of opposite sexes for the achievement of greater maturity and living experience. Sexual experiences and encounters are not to be prohibited. The [parents] envision the relief sought here as a factor toward attainment of such a goal without the need for constant intensive supervision.

170 N.J. Super, at 107-08, 405 A.2d at 856.

126 170 N.J. Super, at 124-25, 405 A.2d at 865.

127 The fact that the parents had not institutionalized their daughter was held to indicate that the parents felt affection for their mentally retarded child because it suggests that the parents are not interested more in their own personal convenience than in the child's best interests. “The parents of Lee Ann have given her the advantages of home care … from which Lee Ann has unquestionably benefitted.” 170 N.J. Super, at 104, 405 A.2d at 854.

128 170 N.J. Super, at 107-08, 405 A.2d at 856.

129 Normalization requires the utilization of means which are as culturally normative as possible in order to establish and/or maintain personal behavior and characteristics which are as normative as possible. Wolfensberger, Normalization, Toronto Nat'l Institute on Mental Retardation (1972), cited in Roos, Psychological Impact on the Individual, LAW & PSYCH. REV. 45 (Spring 1975).

130 See notes 27-29 supra and accompanying text.

131 However, the court's failure to account for this peripheral effect may have stemmed from the fact that Lee Ann was afflicted with severe retardation. Superimposing the severity of retardation on the normalization doctrine suggests that the Grady court apparently envisioned that the freedom from the burden of monthly menstrual care and the physical and psychological stress of pregnancy would ease the mentally retarded individual's transition into a moire normal environment. 170 N.J. Super, at 106, 405 A.2d at 855. Cf. Perrin, Sands, Tinker, Dominguez, Dingle & Thomas, A Considered Approach to Sterilization of Mentally Retarded Youth, 130 AM. J. DIS. CHILD 288, 290 (1976) [hereinafter cited as Perrin], where the authors theorize that sterilization reinforces the objectives of the normalization doctrine for mentally retarded individuals “who are dependent or of marginal independence, [since] eliminating the stress of childbearing and rearing may allow them to function with better physical and emotional health and greater freedom.” Id. at 290 (footnote omitted). The authors’ thesis is based on a study of poststerilization effects on mentally retarded individuals where, prior to the surgery, the mentally retarded individuals experienced unsuccessful attempts at contraception, incapacitating menstrual bleeding, or the inability to independently cope with menstrual hygiene which necessitated absenteeism from school several days a month. The authors noted that, in at least one case study, a retarded woman expressed relief that following sterilization she would cease having her period and that, in general, school attendance increased among those mentally retarded individuals previously unable to deal with menstrual hygiene. Id. at 289.

132 Economic self-interest includes the cost of caring for children of the mentally retarded individual or the expense of [an] abortionfs].

133 In the Perrin study, the authors emphasized that the parents’ plight weighed in favor of the sterilization. The authors reported that following the sterilization of a mentally retarded child, parents expressed relief that the threat of unwanted pregnancy and the responsibility for menstrual caretaking was lifted. Perrin, supra note 131, at 290. But cf. David, Smith & Friedman, , Family Planning Services for Persons Handicapped by Mental Retardation, 6 AM. J. PUB. HEALTH 1053, 1054 (1976)CrossRefGoogle Scholar, where parents favored sterilization only when their child participated more actively and independently in the normalization process. In Grady, the court noted that “[the parents] perceive the relief sought … as a desirable step toward more independent living.” 70 N.J. Super, at 105, 405 A.2d at 854

134 See note 4 supra.

135 70 N.J. 10, 355 A.2d 647, cert, denied sub nom. Garger v. N.J., 429 U.S. 922 (1976).

136 170 N.J. Super, at 120-21, 405 A.2d at 862-63.

137 Grady held that the parents of the mentally retarded individual could consent to the sterilization, following a court, hearing at which expert medical testimony is presented. The court did not specify, however, whether the medical approval is required. In contrast, Quinlan explicitly held that a decision made in concert by the parents, physicians and the Hospital Ethics Committee was a prerequisite to the exercise of substituted consent. 70 N.J. at 54, 355 A.2d at 641. The Quinlan court sought to attach an additional safeguard to the decision making process by imposing the input of the Hospital Ethics Committee as a check on the parents’ decision.

138 Custody of a Minor, 1979 Mass. Adv. Sh. 2124, 393 N.E.2d 836 (1979). The substituted judgment test is composed of two questions. The first determines the choice the incompetent would make if he or she were competent to exercise informed judgment. The second question concerns the nature of the parental motivation in seeking to exercise substituted consent in the incompetent's behalf. The Quinlan court actually added a “reasonable person” standard to the “substituted judgment” test. The court stated that:

The only practical way to prevent the destruction of the right is to permit the guardian and family of Karen to render their best judgment, subject to the qualifications hereinafter stated as to whether she would exercise it in these circumstances. If their conclusion is in the affirmative, this decision should be accepted by society the overwhelming majority of whose members would, we think, in similar circumstances, exercise such a choice in the same way for themselves or those closest to them.

70 N.J. at 41-42, 355 A.2d at 664. See also Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977). In Saikewicz the court exercised substituted judgment to consent to the discontinuance of chemotherapy treatments meant to prolong the life of an aged mentally retarded man with leukemia. The court explained the “substituted judgment” test more narrowly, as “that which would be made by the incompetent person, if that person were competent, but taking into account the present and future incompetency of the individual as one of the factors which would necessarily enter into the decision-making process of the competent person.” 373 Mass, at 752-53, 370 N.E.2d at 431.

139 In re Quinlan, 70 NJ. 10, 355 A.2d 647, cert, denied sub nom. Garger v. N.J., 429 U.S. 922 (1976).

140 70 NJ. at 53, 355 A.2d at 671.

141 Id. It is not clear, however, that the facts in Quinlan actually guaranteed that parental conflicts of interests would not contaminate their decision, since the parents in Quinlan were faced with economic hardship and the disruption of family life, just as the parents in Grady. For purposes of this Note, however, it is unnecessary to resolve this dilemma, since this Note contends that the sterilization context is distinguishable.

142 In Superintendent of Belchertown State School v. Saikewicz, however, although the nature of the incompetent's disability was the same as the disability in Grady, the court accomplished this task by “donning the mental mantle” of the incompetent. The Saikewicz court bolstered its projection of the mentally retarded individual's choice with psychological studies indicating “the supposed inability of profoundly retarded persons to conceptualize or fear death.” 373 Mass, at 751, 370 N.E.2d at 430. No such statistical data detailing Lee Ann's feelings concerning sterilization were introduced into evidence in Grady.

143 One court aptly capsulized the problematic application of the “substituted judgment” test as requiring the “projection of an adult viewpoint into the mind of an individual, to function alongside one which has long been incompetent of functioning rationally.” Ruby v. Massey, 452 F. Supp. 361, 370-71 n.24 (D. Conn. 1978).

144 Both the “substituted judgment” test and the “best interests” test advocate inquiry into the good faith of the parents’ motives. In Hart v. Brown, 29 Conn. Supp. 368, 289 A.2d 836 (1972), the court granted the parents the authority to consent to a kidney transplant between their minor twin daughters, but only after judicial scrutiny of parental motives. The court emphasized the importance of this investigation with the proviso:

Because of the unusual circumstances of this case and the fact of great medical progress in the field, it would appear that the natural parents would be able to substitute their consent for that of their minor children after a close, independent and objective investigation of their motivation and reasoning. This has been accomplished in this matter by the participation of a clergyman, the defendant physicians, an attorney guardian ad litem for the donor, the guardian ad litem for the donee, and, indeed, this court itself.

29 Conn. Supp. at 372, 289 A.2d at 390. See also Prince v. Massachusetts, 321 U.S. 158, 170 (1944) (“Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.“).

145 170 N.J. Super, at 122, 405 A.2d at 864.

146 The only evidentiary standard set down by the Grady court is a “clear and convincing” standard with respect to the mentally retarded individual's adjudication of incompetence. 170 N.J. Super, at 125-26 n.20, 405 A.2d at 865 n.20.

147 Where a fundamental right is implicated, a state, and a court as an arm of the state, is constitutionally required to narrowly confine the discretion of those responsible for the deprivation of the fundamental right. See Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). The vagueness of the “best interests” standard as enunciated by the Grady court coupled with the lack of an evidentiary standard fosters broad discretion in the court as to its finding of “best interests.” Such discretion encourages arbitrary line drawing by the court and is impermissible where the result is the deprivation of a fundamental right. See North Carolina Ass'n for Retarded Children v. State of N.C., 420 F. Supp. 451 (M.D.N.C. 1976), where the court held that a section of a North Carolina statute was unconstitutional, because the absence of clear “best interests” guidelines promoted the unfettered discretion of a guardian to have his or her institutionalized mentally retarded ward sterilized.

148 C. MCCORMICK, HANDBOOK OF EVIDENCE § 339 (2d ed. 1972).

149 id. at §340.

150 See Parham v. J.R., 442 U.S. 584 (1979).

151 Addington v. Texas, 441 U.S. 418 (1979).

152 C. MCCORMICK, supra note 148, at § 340. See also Note, supra note 41, at 285, which suggests that “[t]he burden o£ proof that is applied can have a profound impact on the parents’ rights to make medical decisions for their children and on the ability of the state agency to intervene when parental decisions are suspect.“

153 170 N.J. Super, at 125, 405 A.2d at 865.

154 See note 72 supra and accompanying text.

155 Note, Legislative Naivete in Involuntary Sterilization Laws, 12 WAKE FOREST L. REV. 1064 (1976) (less drastic alternatives must be investigated and found to be unsuitable by the court before a sterilization order resulting in the deprivation of a fundamental right of procreative choice can be granted).

156 Perrin, supra note 131. However, the Perrin article also notes that sterilization is the most effective protection against unwanted pregnancy, along with its physical and psychological danger td the mentally retarded individual and the hazards to the illegitimate child, since substitute forms of contraception are not used effectively or reliably. Id. at 290. See also Voe v. Califano, 434 F. Supp. 1058 (D. Conn. 1977) § Hathaway v. Worcester City Hosp., 475 F.2d 701 (1st Cir. 1973), for an illustration of cases where other birth control techniques were medically contraindicated even for nonretarded individuals.

157 170 N.J. Super, at 102, 405 A.2d at 853.

158 170 N.J. Super, at 126, 405 A.2d at 865.

159 An adjudication of incompetency should focus on the future as well as the present state of the mentally retarded individual's ability to provide informed consent. If a reasonable probability exists that the mentally retarded individual may become competent in the future, the court should be extremely reticent to sanction an irrevocable deprivation of a fundamental right.

160 170 N.J. Super, at 101, 405 A.2d at 853.

161 170 N.J. Super, at 126, 405 A.2d at 865.

162 Even if the court determined that the parents were seeking the sterilization in their mentally retarded child's best interests, the court should not compel the sterilization. Instead, the court should hold that the parents are permitted to provide substituted consent. 170 N.J. Super, at 127, 405 A.2d at 866.

163 See notes 131 and 133 supra and accompanying text.

164 See notes 130-34 supra and accompanying text.

165 See notes 146-47 supra and accompanying text.

166 id.