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. 754 (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
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.
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
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, 383 Mass. 415 (1981); 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 Matter of Grady, 85 N.J. 235, 245-247 (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 antisocial 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 (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,
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 (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 (1978); Downs v. Sawtelle, 574 F.2d 1 (1st Cir.), cert. denied, 439 U.S. 910 (1978).
Massachusetts has never had compulsory sterilization laws. General Laws c. 112, § 12W, forbids sterilization of any person absent his 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. 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., Matter of A.W., supra at (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 (1976); Cook v. State, 9 Or.App. 224 (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
In Guardianship of Kemp, supra, for example, the California court noted that its Probate Court was a court of limited jurisdiction, possessed of no general equity jurisdiction. 43 Cal. App.3d at 761-762. Compare Matter of D.D., a Mentally Retarded Person, 64 App. Div.2d 898 (N.Y. 1978) (Surrogate's Court, court of limited jurisdiction, has no jurisdiction to order sterilization absent statutory authorization), with Matter of Sallmaier, 85 Misc.2d 295 (N.Y. Sup. Ct. 1976) (Supreme Court has jurisdiction to order sterilization by virtue of common law parens patriae power over incompetents). Our Probate Courts, however, are courts of superior and general jurisdiction possessing inherent powers apart from statutory authorization. These powers are broad and flexible, and extend to actions necessary to afford any relief in the best interests of a person under their jurisdiction. G.L.c. 215, §§ 2, 3, 6. Saikewicz, supra at 755-756. See Guardianship of Bassett, 7 Mass.App.Ct. 56, 61-62 (1979) (Probate Court has traditional equitable power to resolve problems involving mentally retarded persons). G.L.c. 201, § 6A (Probate Court proper forum to seek appointment of guardian for mentally retarded person). Cf. Police Comm'r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 660-665 (1978); G.L.c. 215, § 6.
In Frazier v. Levi, supra, the Texas court in a cursory opinion, quoting extensively from Corpus Juris Secundum and American Jurisprudence, concluded without stating a reason that "[a]ny order authorizing ... [sterilization]
We find more persuasive the view expressed in most recent decisions that a court of general jurisdiction which has powers of equity over incompetents and their guardians, such as the Probate Court, has the power to hear and adjudicate petitions such as the one in the case at bar.
The Probate Courts in this Commonwealth have general equitable power to act in all matters relating to guardianship. See G.L.c. 215, § 6. The power to appoint a guardian for a retarded person is confirmed by G.L.c. 201, §§ 6A, 14. This grant of jurisdiction is plenary, Guardianship of Bassett, supra at 63, and is inherent in the court even apart from statutory authorization. Saikewicz, supra at 755. The exercise of this power at times becomes necessary for the proper functioning of the court. Buckingham v. Alden, 315 Mass. 383, 389 (1944).
In Saikewicz, this court stated that "[i]n dealing with matters concerning a person properly under the court's protective jurisdiction, `[t]he court's action ... is not limited by any narrow bounds, but it is empowered to stretch forth its arm in whatever direction its aid and protection may be needed'.... In essence the powers of the court to act in the best interests of a person under its jurisdiction ... must be broad and flexible enough `to afford whatever relief may be necessary to protect his interests.' ... The Probate Court is the proper forum in which to determine the need for the appointment of a guardian or a guardian ad litem. It is also the proper tribunal to determine the best interests of a ward" (citations omitted). Saikewicz, supra at 755-756.
In the absence of any limiting legislative enactment, the Probate Court has plenary power to exercise its jurisdiction to provide for the needs of the mentally incompetent person. Cf. Matter of A.W., supra at (supra at 375).
2. The right to choose sterilization. The Supreme Court of the United States has implicitly recognized that the right of a person to be sterilized is a fundamental right. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). Other courts have explicitly recognized such a right. See Hathaway v. Worcester City Hosp., 475 F.2d 701 (1st Cir.1973); Ruby v. Massey, 452 F.Supp. 361, 368 (D. Conn. 1978). Cf. Relf v. Weinberger, 372 F.Supp. 1196 (D.D.C. 1974). The right
We have, in the past, consistently respected the right of a person to be free from nonconsensual invasion of bodily integrity. See, e.g., Guardianship of Roe, 383 Mass. at 434; Matter of Spring, 380 Mass. at 634. Cf. Commissioner of Correction v. Myers, 379 Mass. 255 (1979).
Although G.L.c. 112, § 12W, which prohibits a physician from performing a sterilization unless the physician has the knowledgeable consent of the patient in writing, appears to be "limiting" legislation, this statute cannot be read to deny incompetent individuals the same procreative choices
3. Procedure. (a) Substituted judgment. In utilizing the doctrine of substituted judgment, this court seeks to maintain the integrity of the incompetent person by giving the individual a forum in which his or her rights may be exercised. The court dons "the mental mantle of the incompetent" and substitutes itself as nearly as possible for the individual in the decision-making process. Saikewicz, supra at 752, quoting from In re Carson, 39 Misc.2d 544, 545 (N.Y. Sup. Ct. 1962). In utilizing the doctrine the court does not decide what is necessarily the best decision but rather what decision would be made by the incompetent person if he or she were competent. "In short, if an individual would, if competent, make an unwise or foolish decision, the judge must respect that decision as long as he would accept [or be bound to accept] the same decision if made by a competent individual in the same circumstances." Guardianship of Roe, supra at 449 n. 20. Compare Custody of a Minor (No. 3), 378 Mass. 732, 744 (1979) (parental rights do not clothe parent with life and death authority over children).
We are aware of the difficulties of utilizing the substituted judgment doctrine in a case where the incompetent
b. Applicable standards. We now consider the standards the Probate Court must apply when authorizing sterilization upon petition of an incompetent person's parent or guardian. We keep in mind that the court is to determine whether to authorize sterilization when requested by the parents or guardian by finding the incompetent would so choose if competent. No sterilization is to be compelled on the basis of any State or parental interest.
In all cases, the parties must be given adequate notice of the proceedings, an opportunity to be heard in the trial court, and to pursue an appeal. Upon a guardian's petition
In addition to the appointment of a guardian ad litem, the court may appoint independent medical and psychological experts for the purpose of examining the ward and reporting to the court. See Matter of A.W., supra. The experts should report, and the court make, findings regarding: (1) Whether the ward, despite being mentally retarded, is able to make an informed choice as to the need and desirability of sterilization. Thus, as a threshold matter, the court, on the basis of the experts' reports and evidence adduced at the hearing, must determine whether the individual lacks the capacity to make his or her own decision concerning sterilization and whether this condition is likely to change in the near future.
The court, to the extent possible, must also "elicit testimony from the incompetent concerning [his or] her understanding and desire for the proposed operation and its consequences." C.D.M. v. State, supra at 613. The judge, in his discretion, and the guardian ad litem in his recommendation, should attempt to ascertain the ward's actual preference for sterilization, parenthood, or other means of contraception. This inquiry is an important part of the substituted judgment determination. The result of the judge's exercise of discretion should be the same decision which would be made by the incompetent person, "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." Saikewicz, supra at 752-753.
Additionally, the court must consider the ward's religious beliefs, if any. Guardianship of Roe, supra at 445. An individual might choose to refuse sterilization if the operation would be contrary to his or her religious beliefs. "If such a reason is proffered by or on behalf of an incompetent, the judge must evaluate it in the same manner and for the same purposes as any other reason: the question to be addressed is whether certain tenets or practices of the incompetent's faith would cause him [or her] individually to reject the specific [operation] proposed for him [or her] in [the] present circumstances." Id. The Probate Court judge should also consider any special circumstances presented by the parties in favor of, or against, the proposed sterilization.
c. Standard of Proof. We emphasize again that this is not a case wherein the Commonwealth seeks to interfere with the ward's fundamental right to procreate. If that
This is a case where a mother, as guardian of her daughter, is asking the court to utilize the doctrine of substituted judgment and consent to a sterilization operation that the guardian feels would be in the ward's best interest.
In Guardianship of Roe, this court held that the Commonwealth had to prove its interest in the prevention of
Further, we think that to require a high standard of proof in such a proceeding, that recognizes and implements the incompetent's rights, would defeat the entire purpose of the proceeding and have the effect of denying recognition of rights for incompetents that are available to people who are competent. For example, that science is on the threshold of cure for the ward's disability is a nebulous eventuality of science that is impossible to prove beyond a reasonable doubt. A requirement of proof beyond a reasonable doubt of such a possibility would jeopardize an incompetent's fundamental right to decide whether to bear or beget a child and, might well preclude it. Cf. Custody of a Minor (No. 1), 377 Mass. 876, 885 (1979).
We prefer to take the position that the personal rights implicated in guardian or parent petitions for sterilization require the judge to exercise the utmost care in reviewing all the evidence presented and in determining whether the ward would consent to sterilization if competent to make such a decision. Id. at 885-886. The judge must enter detailed written findings indicating those persuasive factors that determine the outcome. We are persuaded that a conscientious judge, being mindful of adverse mental and social consequence which might follow the authorization or not of a sterilization operation, will give serious and heedful attention at all stages of the proceeding.
I dissent. Sterilization is a species of self mutilation which is almost always irreversible. Its effect is to deprive the sterilized person of her or his capacity to beget or bear a child. We do not deal here with what has been described as therapeutic sterilization in which as a secondary effect to an operative procedure which is necessary to save the life of a person such person is rendered sterile (e.g., cancer of a reproductive organ may require its surgical removal).
The court today has decided that the probate judge has the power to divine the wishes of a severely mentally retarded women who "currently functions at the level of a four year old" as to whether she should permit herself to be rendered forever incapable of conceiving and bearing a child. To say the least, this is an impossible task.
An examination of the criteria which are prescribed for the probate judge's consideration leads me to the conclusion that the bias is heavily in favor of contraception. Somehow, pregnancy comes off as an evil to be avoided. The court vouchsafes that the probate judge must consider the possibility of "less intrusive means of birth control." The opinion continues: "The court should find that all less drastic contraceptive methods, including supervision, education, and training are unworkable."
The court seems to find support for its position in the fact that competent men and women have a statutory right to be sterilized according to G.L.c. 112, § 12W, and that (the argument continues) the government deprives the incompetent person of a sacred constitutional right to be sterilized if it denies a judge the power to approve such sterilization. The flaw in this argument is its attribution of denial of such a dubious right to the government. It is the incompetent's mental condition which makes him or her incapable of free choice, not the government. The very condition of incompetence makes the doctrine of substituted judgment a cruel charade.
The court speaks of human dignity in connection with the free choice to be sterilized. It is difficult to think of an experience
We acknowledge the considerable assistance we have received from the amicus briefs filed by the Civil Liberties Union of Massachusetts, the Developmental Disabilities Law Clinic of Western New England College School of Law, the Mental Health Legal Advisors Committee and the Developmental Disabilities Law Center.
(637 P.2d 366, 369 [Colo. 1981]). The court, however, further noted and we agree that "the severely limited ability of some mentally retarded persons to understand the nature and consequences of sexual activity and to exercise judgment about such activity constitutes the major reason for considering sterilization in the first place. See Guardianship of Eberhardy, [102 Wis.2d 539 (1981)]. The potentially tragic consequences of pregnancy for an individual who neither understands her condition nor is capable of taking responsibility for a child may, in some cases, necessitate considering the alternative of preventing procreation as early as the onset of fertility." Id. at
This inquiry is similar to that required under G.L.c. 112, § 12S, regarding an unmarried minor's informed consent to an abortion absent parental approval. If a Superior Court judge determines that the minor is "mature and capable of giving informed consent to the proposed abortion," G.L.c. 112, § 12S, the judge may authorize the abortion. In the instant case the judge must make an initial determination regarding the incompetent's ability to give his or her informed consent to the sterilization procedure. If the person is able to give his or her informed consent, the judge shall so find and terminate the proceedings at that point. If the person is incapable of consenting to the proposed operation, then the substituted judgment doctrine will be employed.
Such a rule, however, is the antithesis to our holding today which extends the rights of a competent person to an incompetent person. Rather, we think that the medical necessity for the proposed operation is but one factor to be considered in employing the substituted judgment analysis. The weight to be given to this factor depends on the facts of the case and the degree of medical necessity.