Matter of AW

Annotate this Case

637 P.2d 366 (1981)

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.

November 30, 1981.

*367 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 *368 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 XX-XX-XXX(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 (1927), 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 UnfitIs 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 *369 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 *370 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 Matter of Guardianship of Eberhardy, supra. 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.

Simply allowing the parents or guardians of the mentally retarded person to substitute their decision and consent to sterilization for that of the incompetent person is not an adequate solution to the problem.[5] Consent by parents to the sterilization of their mentally retarded offspring has a history of abuse which indicates that parents, at least in this limited context, cannot be presumed to have an identity of interest with their children.[6] The inconvenience of caring for the incompetent child coupled with fears of sexual promiscuity or exploitation may lead parents to seek a solution which infringes their offspring's fundamental procreative rights. See Stump v. Sparkman, 435 U.S. 349, 359, 98 S. Ct. 1099, 1106, 55 L. Ed. 2d 331 (1978); In re Grady, supra; Matter of Guardianship of Hayes, 93 Wash. 2d 228, 608 P.2d 635, 640 (1980). Neuwirth, Heisler & Goldrich, Capacity, Competence, Consent: Voluntary Sterilization of the Mentally Retarded, 6 Colum.Human Rights L.Rev. 447 (1975). Note, Addressing the Consent Issue Involved in the Sterilization of Mentally Incompetent Females, 43 Alb.L. Rev. 322, 326-28 (1979); Comment, Sterilization, Retardation, and Parental Authority, 1978 B.Y.U.L.Rev. 380; Hearings on S.B. 135 before Colorado Senate HEWI Committee, SCR 320E, March 13April 1, 1975. See also Bellotti v. Baird, 443 U.S. 622, 643, 99 S. Ct. 3035, 3048, 61 L. Ed. 2d 797 (1979) (Bellotti II); Planned Parenthood v. Danforth, supra, 428 U.S. at 74, 96 S. Ct. at 2843. For example, in Stump v. Sparkman, supra, the mother of a minor female characterized as "somewhat retarded" petitioned a court for permission to have a tubal ligation performed on her daughter "to prevent unfortunate circumstances." After gaining court approval, the mother had the procedure performed without the knowledge of her daughter, who only discovered her deprivation when she subsequently married and attempted to have children.

This record of past abuses necessitates governmental protection of a mentally retarded person's rights. Thus, the district court's reliance on the general parental consent statute was erroneous. While that statute empowers parents to consent to normal medical procedures on their minor offspring, sterilization is a special case which requires more than parental consent. Rather than parents or guardians, a court, using uniform criteria, must be the ultimate arbiter on this matter. See In re Grady, supra, 426 A.2d at 475. The court's decision must be based on an informed estimation of the person's own interests, limited by the constitutional protections outlined above and by the public policy of the state. We look first to state statutes and legislative history for guidance on Colorado's public policy.

*371 II.

Sections 27-10.5-128 through -132, C.R.S.1973 (1980 Supp.), concern sterilization of mentally retarded persons.[7] Subsection 27-10.5-128(1) provides that a mentally retarded person over eighteen years of age may be sterilized if that person has given consent, the person's parent or legal guardian has given consent, and two consultants who have interviewed the person have consented. Subsection 27-10.5-128(2) states that "No person who is mentally retarded and who has not given consent shall be sterilized." Section 27-10.5-129 provides: "(1) Any mentally retarded person or the parent, legal guardian, or custodian of said person may file a petition for a sterilization with the court."[8] The section also sets out what information the petition must contain, including the mental condition of the person to be sterilized and a short and plain statement of the medical reasons for sterilization.[9]

Subsection 27-10.5-130(1) provides that the mentally retarded person may petition the court if that person's competency to give consent is denied by the physician from whom sterilization is sought. If such a petition is filed, the court is directed to set a hearing immediately to determine, with the help of experts, the person's competency to consent. Subsection 27-10.5-130(2) provides that if the court finds that the person is incompetent to give consent or has not given consent then it shall order that no sterilization be performed.

A.W.'s guardian ad litem contends that these statutory provisions limit sterilization of mentally retarded persons to cases in which the person is over eighteen years of age, has given consent, and has been deemed competent to consent. The guardian ad litem argues that this scheme is the exclusive method of authorizing sterilizations and therefore precludes a court's authorization of a sterilization for a mentally retarded person under eighteen.[10] We disagree with the guardian ad litem's contentions. From our reading of the statute and the legislative history, we conclude that the General Assembly did not intend sections 27-10.5-128 through -132 to limit sterilizations to competently consenting adults. Rather, these provisions are designed to set out the procedure by which adult mentally retarded persons may consent to voluntary sterilization. The legislative design is clear from the language of 27-10.5-128 which begins: "(1) Any mentally retarded person over eighteen years of age who has given consent may be sterilized, subject to the following: ...." The remainder of 27-10.5-128, and -129 through -130, provide the procedure by which the person's consent may be evaluated and the voluntary sterilization approved. While the language of the provisions deals only with consenting adults, there is no explicit prohibition of sterilization of minors. The provisions make no reference at all to minors. To construe the omission of procedures relating to minors as constituting a blanket prohibition on sterilization of mentally retarded minors would be contrary to a logical reading *372 of these provisions[11] and would be inconsistent with the General Assembly's declaration of the purposes of article 10.5 which states that the statute is intended: "[t]o secure for each person who is developmentally disabled[12] a right to such care and treatment as is suited to his needs ... skillfully and humanely administered....; [t]o prohibit deprivation of liberty ... except when such deprivation is for the purpose of care and treatment and constitutes the least restrictive alternative ...;" and "[t]o ensure the fullest measure of privacy, dignity, rights, and privileges to persons who are developmentally disabled." 27-10.5-101, C.R.S.1973 (1980 Supp.). To completely foreclose the possibility of sterilization of minors, even where the procedure clearly is essential for maintenance of physical or mental health, goes against this legislative concern with the rights of the developmentally disabled to adequate care and treatment.

The legislative history of article 10.5 supports the reading of the statutory language as not limiting sterilizations to competently consenting adults. Senate Bill 135 was the measure which became article 10.5. The measure as originally drafted provided two different avenues by which a mentally retarded person could be sterilized. One section authorized sterilization of persons over eighteen years of age able to give competent consent.[13] This provision was substantially similar to that included in the statute as enacted. The bill also provided an alternative procedure by which a court could order sterilization in cases where the mentally retarded person had not given consent or had consented but had been determined incompetent to give valid consent.[14] In either of these two instanceswhere no consent was given, or where incompetency to consent had been determinedthe original bill provided that a court could order sterilization if such an operation was "medically essential."[15] Original section 130 specifically referred to minors, stating: "No mentally retarded person under 18 years of age may consent to sterilization, nor may a parent, guardian, or custodian of said person consent to sterilization for said person unless sterilization is found to be medically essential by the court." (Emphasis added.) "Medically essential" was defined as "clearly necessary to preserve the life or physical or mental health" of the mentally retarded person.[16]

Representatives from a variety of organizations testified at hearings on Senate Bill 135 before the Senate Committee on Health, Environment, Welfare and Institutions (HEWI) on March 13, 18, 20 and 27, and April 1, 1975. The section of the bill addressing sterilization was one of the sections which aroused strong opposition. See Hearings on S.B. 135 before Senate HEWI Committee [Hearings], SCR 320E, March 13April 1, 1975. This opposition prompted the bill's chief sponsor to question whether the Committee might be well-advised to excise the sterilization provisions from the bill. Hearings, March 27, 1975; 4:50 p.m. (statement of Senator Strickland).

At the conclusion of public comment on April 1, 1975, an amendment was offered proposing the removal of all reference to court-ordered sterilizations from section 130 *373 of the bill and the addition of a new subsection 130(2) reading: "No mentally retarded person under 18 years of age shall be sterilized." The Committee rejected the amendment. Hearings, April 1, 1975, 7:08 p.m. However, during subsequent debate on the Senate floor, the bill's chief sponsor proposed amendments removing sections 130 and 133 stating: "We're striking anything in the bill that makes reference to involuntary sterilization or a court order dealing with an involuntary sterilization" because of comments by representatives of groups opposing involuntary sterilization. Senate Debate on S.B. 135, May 26, 1975, 3:27 p.m.; Sen.J. 1305. The Senate adopted the proposed amendments. No further amendments substantially altering relevant sections of S.B. 135 were made during the legislative process.

The amendments deleting the court-ordered sterilization provisions explain the omission in the measure as enacted of any reference to mentally retarded persons under the age of eighteen. The deletion also explains subsection 27-10.5-128(2), which reads: "No person who is mentally retarded and who has not given consent shall be sterilized," the presence of which is confusing in the absence of any other specific prohibitions against sterilizations of minors. The original language of the provision read, "No person who is mentally retarded and who has not given consent shall be sterilized except upon an order of the court." (Emphasis added.) The amendments deleting all reference to court-ordered sterilization struck the phrase "except upon an order of the court." Sen.J. 1305 (May 26, 1975).

It does not appear from the legislative history that the amendments removing the provisions governing court-ordered sterilizations were intended specifically to prohibit such sterilizations. Rather, modification of the bill appears to have been based primarily on the bill's chief sponsor's determination that inclusion of the provisions might jeopardize the passage of the bill as a whole. Such a conclusion is supported also by the failure of the Senate HEWI Committee to adopt the proposed April 1 amendment expressly prohibiting sterilization of mentally retarded persons under the age of eighteen. Because the statute fails to address the problem raised by the petition before the district court for sterilization of a minor, the district court's authority to consider such a petition and act upon it, if the authority exists at all, must be based on the court's inherent, non-statutory powers of adjudication.

III.

The district courts in Colorado are courts of general jurisdiction and have wide latitude in hearing and deciding issues of law. General jurisdiction is conferred under Colo. Const. Art. VI, Sec. 1, which vests the judicial power in the state supreme court and district courts, and in certain other enumerated courts, and Sec. 9, entitled "District courtsjurisdiction," which provides:

(1) The district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, probate, and criminal cases, except as otherwise provided herein, and shall have such appellate jurisdiction as may be prescribed by law.

These provisions of the Colorado Constitution confer unrestricted and sweeping jurisdictional powers in the absence of limiting legislation.[17]People ex rel. Cruz v. Morley, 77 Colo. 25, 234 P. 178 (1925); Patterson v. People ex rel. Parr, 23 Colo.App. 479, 130 P. 618 (1913). The absence of a statute or constitutional provision which specifically designates a forum or spells out standards for decision will not preclude exercise of a court's jurisdiction, even where the subject matter would not have been subject to judicial authority at common law. Patterson v. People ex rel. Parr, supra.

*374 While jurisdiction may be limited by the legislature, no statute will be held to so limit court power unless the limitation is explicit. People ex rel. Cruz v. Morley, supra.

In the absence of legislative action, it is clear that courts are free to exercise their inherent powers. Recently, in a case involving promulgation of standards defining brain death, we stated:

We recognize the authority of, and indeed encourage, the General Assembly to pronounce statutorily the standards by which death is to be determined in Colorado. We do not, however, believe that in the absence of legislative action we are precluded from facing and resolving the legal issue of whether irretrievable loss of brain function can be used as a means of detecting the condition of death. Under the circumstances of this case we are not only entitled to resolve the question, but have a duty to do so.

Lovato v. District Court, 198 Colo. 419, 601 P.2d 1072, 1081 (1979).

A court's authority is at its widest reach when acting as an equity court to protect the person or property of an incompetent, Matter of C.D.M., 627 P.2d 607 (Alaska 1981); In re Grady, supra, and has been described as "plenary and potent to afford whatever relief may be necessary to protect his interests." 27 Am.Jur.2d Equity ยง 69, at 592 (1969). Inherent parens patriae jurisdiction over incompetents may extend to decisions involving irrevocable consequences for the incompetent individual. Courts have accepted responsibility for deciding whether to authorize a kidney transplant from an incompetent to his gravely ill brother, Strunk v. Strunk, 445 S.W.2d 145 (Ky.App.1969); whether to consent on behalf of the incompetent to shock treatment, Price v. Sheppard, 307 Minn. 250, 239 N.W.2d 905 (1976); whether to administer chemotherapy treatment, Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 738, 370 N.E.2d 417 (1977); and whether to discontinue artificial life support mechanisms, In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. den. 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976).

A number of courts have considered whether they have jurisdiction to rule on petitions for sterilization of incompetent persons. The recent decisions which have dealt with the issue in depth have found jurisdiction to rule, even in the absence of explicit legislative authorization. Matter of C.D.M., supra; In re Grady, supra; In re Penny N., N.H., 414 A.2d 541 (1980); Matter of Guardianship of Hayes, supra. See Matter of Guardianship of Eberhardy, 102 Wis.2d 539, 307 N.W.2d 881 (1981) (court found jurisdiction but declined to exercise it on prudential grounds). But see Wade v. Bethesda Hospital, 337 F. Supp. 671 (S.D.Ohio 1971); Guardianship of Tulley, 83 Cal. App. 3d 698, 146 Cal. Rptr. 266, cert. den. 440 U.S. 967, 99 S. Ct. 1519, 59 L. Ed. 2d 783 (1978); Guardianship of Kemp, 43 Cal. App. 3d 758, 118 Cal. Rptr. 64 (1974); Matter of S.C.E., 378 A.2d 144 (Del.Ch.1977); In re M.K.R., 515 S.W.2d 467 (Mo.1974); A.L. v. G.R.H., 163 Ind. App. 636, 325 N.E.2d 501 (1975), cert. den. 425 U.S. 936, 96 S. Ct. 1669, 48 L. Ed. 2d 178 (1976); Frazier v. Levi, 440 S.W.2d 393 (Tex.Civ.App.1969); Smith v. Command, 231 Mich. 409, 204 N.W. 140 (1925).[18]See also Sparkman v. McFarlin, 552 F.2d 172 (7th Cir. 1977), rev'd sub nom. Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978).

*375 We conclude that the district court acting in its probate capacity has the power in the absence of statutory authorization to act on a petition for sterilization of a mentally retarded minor. Our conclusion is buttressed by A.W.'s constitutional right not to have the option of sterilization completely foreclosed and the language and legislative history of Article 10.5 which indicate that the General Assembly's recent decision not to provide statutory direction leaves the question to the discretion of the court.

IV.

Having decided that the district court has authority to consider a petition to sterilize a mentally retarded minor and recognizing that it may be in A.W.'s constitutional best interests for the court to exercise this authority, see Matter of Guardianship of Eberhardy, supra, we now consider what standards guide the discretion of the district court in granting or denying a petition.[19] Procedural protection requires a court order for sterilization of mentally retarded minors. See Wyatt v. Aderholt, 368 F. Supp. 1382 (D.C.Ala.1974). Neither the individual mentally retarded person nor that person's parent, guardian or custodian may consent to sterilization unless ordered by the court. Upon petition to the court, the court shall appoint a guardian ad litem who will represent the interests of the mentally retarded person at a full judicial hearing. To ensure that adequate evidence will be presented at the hearing, the court shall appoint one or more experts in the field of mental retardation to examine the mentally retarded person and to testify at the hearing about the person's mental and physical condition and any other relevant factors.

As to the substance of the matters to be decided, the district court shall make the following preliminary determinations. First, while the mentally retarded person need not testify or be present at the proceedings if the person's presence would serve no useful purpose, the trial judge should talk with the person and observe the person's physical and mental condition. The wishes of the person, although not conclusive, are relevant, and a strong indication that the person does not wish to be sterilized must weigh heavily against authorizing the procedure. Second, the district court must determine that the person's capacity to make a decision about sterilization is unlikely to improve in the future. Special care must be taken to allow for possible further development of mental capacity. We agree with the Supreme Court of Washington that the youth of a minor retarded person "may make it difficult or impossible to prove by clear, cogent and convincing evidence that he or she will never be capable of making an informed judgment about sterilization or of caring for a child." Matter of Guardianship of Hayes, supra, 608 P.2d at 641. Third, the person for whom sterilization is requested must be proven capable of reproduction.

Once the district court determines preliminary matters, it must find by clear and convincing evidence[20] that the sterilization is medically essential. A sterilization is medically essential if clearly necessary, in the opinion of experts, to preserve the life or physical or mental health of the mentally retarded person. The term "medically essential" is reasonably precise and provides *376 protection from abuses prevalent in this area in the past. The term also avoids confusion as to whose interests are to be considered. It is not the welfare of society, or the convenience or peace of mind of parents or guardians that these standards are intended to protect. The purpose of the standards is to protect the health of the minor retarded person, and to prevent that person's fundamental procreative rights from being abridged. In some circumstances, the possibility of pregnancy, if supported by sufficient evidence that it would threaten the physical or mental health of the person and that no less intrusive means of birth control would prove safe and effective, could justify granting a petition for sterilization as medically essential.[21]

Finally, we note that the record before us contains no evidence at all on a number of crucial issues, including the degree of A.W.'s retardation and her capacity to mature and progress intellectually. On remand, testimony must be developed on these and all other relevant issues before a clear and convincing case for sterilization can be established.

We reverse and remand the case for further proceedings consistent with this opinion.

LEE and LOHR, JJ., specially concur.

LEE, Justice, specially concurring:

I concur in the reversal of the trial court's order, but I would dismiss the petition rather than remand for another hearing under the standards announced by the majority.

The majority opinion concedes that the statute, section 27-10.5-101 et seq., C.R.S. 1973 (1980 Supp.), which provides for the sterilization of mentally retarded persons does not confer authority on the courts to order the sterilization of a mentally retarded person under the age of 18 years. The majority, therefore, grounds the exercise of such authority on the constitutionally conferred general jurisdiction of the district courts under art. VI, sec. 9, which grants to the district courts "unrestricted and sweeping jurisdictional powers in the absence of limiting legislation." Majority opinion at page 373.

Assuming, but without conceding,[1] that the constitutional authority conferred on the district court encompasses the power to authorize the sterilization of a mentally retarded minor child, in the circumstances as are present in this case, it is my firm belief that the exercise of such power should be deferred until the general assembly has enacted legislation clearly approving such judicial relief and announcing clear standards and criteria for judicial guidance, or has determined not to adopt such legislation. In my view, because of the irreversible nature *377 of the sterilization process and the significant consequences to the person upon whom the surgical procedure is imposed, judicial restraint and prudence dictate that this court ought not attempt to formulate procedures or adopt standards for the guidance of the district courts. This task is more properly left to the wisdom of the general assembly.

I am in agreement with the rationale adopted by the Supreme Court of the State of Wisconsin in Guardianship of Eberhardy, 102 Wis.2d 539, 307 N.W.2d 881 (1981), which aptly expressed the view I have adopted:

"[T]here are inherent limitations in the factual posture of any case which make the extrapolation of judicially made policy into an entire area of such a sensitive nature as this risky indeed. The legislature is far better able, by the hearing process, to consider a broad range of possible factual situations. It can marshal informed persons to give an in-depth study to the entire problem and can secure the advice of experts in the field of psychology, psychiatry, sociology, and medicine, as well as in the field of law, to explore the ramifications of the adoption of a general public policy which will give specific imprimatur to the courts to order sterilization in well defined circumstances." Id., 307 N.W.2d at 895.

It is apparent that the general assembly in enacting section 27-10.5-101 et seq., expressed a public policy concerning the sterilization of mentally retarded persons by limiting the relief that might be granted to mentally retarded persons over the age of 18 years who have consented to such process. The legislative history as recited by the majority demonstrates the policy concerns of the general assembly. If this court's opinion has correctly assessed that public policy, perhaps further legislation will not be forthcoming. On the other hand, if the opinion has erroneously interpreted the statute and the policy expressed therein, legislative clarification may reasonably be expected to be forthcoming.

Therefore, I decline to endorse the standards and rationale set out in the majority opinion, and I would defer this matter to the legislature's careful consideration. Should the legislature decline to act, however, this court would retain the authority to again consider the matter if presented with compelling facts.

LOHR, Justice, specially concurring:

I agree that the order of the district court authorizing the performance of a hysterectomy on A. W., a mentally retarded minor, should be reversed. My reasons for this conclusion, however, are very different from those expressed by the majority.

As a starting point, I share the majority's view that section 13-22-103(3), C.R.S.1973, permitting a parent to request and consent "to the furnishing of hospital, medical, dental, and surgical care to his child or ward" does not encompass authorization of sterilization. This was the authority upon which the district court mistakenly relied to support its order authorizing the sterilization of A. W.

I cannot agree, however, that our statutes are silent as to the sterilization of mentally retarded minors. Rather, as A. W.'s guardian ad litem argues, those statutes prohibit sterilization of mentally retarded persons under eighteen. My fundamental disagreement with the majority relates to the construction of the relevant parts of sections 27-10.5-128 through 132, C.R.S.1973 (1980 Supp.), treating the consensual sterilization of mentally retarded persons.

I.

Section 27-10.5-128(2), C.R.S.1973 (1980 Supp.) states:

No person who is mentally retarded and who has not given consent shall be sterilized.

These words have a plain meaning which cannot be obscured or explained away by legislative history or statutory context. The General Assembly could not have expressed its intent more lucidly: nonconsenting mentally retarded persons are not to be sterilized.

*378 Sections 27-10.5-128 through 132, C.R.S. 1973 (1980 Supp.) authorize the sterilization of consenting mentally retarded persons over eighteen years of age, pursuant to procedures designed to assure that such persons are adequately advised and that their consent is competently given. The authorization for sterilization in such cases is specifically limited to persons over eighteen years of age. Section 27-10.5-128(1), C.R.S.1973 (1980 Supp.); see also section 27-10.5-130(1), C.R.S.1973 (1980 Supp.). However, when the legislature stated the converse principle, that nonconsenting mentally retarded persons must not be sterilized, it did not limit the application of that principle to persons over eighteen. Instead, it stated that "[n]o person who is mentally retarded and who has not given consent shall be sterilized." (Emphasis added). Section 27-10.5-128(2), C.R.S.1973 (1980 Supp.). I find in this language an explicit prohibition of sterilization of nonconsenting mentally retarded persons of any age.

The conclusion that section 27-10.5-128(2) constitutes a prohibition of sterilization of mentally retarded minors is buttressed by section 27-10.5-114(8), C.R.S. 1973 (1980 Supp.), which empowers a parent of an institutionalized minor to consent to removal of the minor's organs for transplantation under certain circumstances. The statute does not grant parents of institutionalized minors a like power to consent to sterilization.

Finally, it would be incongruous and contrary to the manifest intent of the legislature to construe the statutes to mandate greater involuntary sterilization protections for adults deemed incompetent to consent than for mentally retarded minors. Given time, these young persons will become eighteen. Whether a mentally retarded person will grow in understanding with the passage of time is not always susceptible of accurate evaluation. A legislative policy that a decision so final and so basic to the personal integrity of the individual should not be made before that person achieves the age of eighteen is manifest in the statutes. I find this construction fully consistent with the declared legislative purposes, including insuring "the fullest measure of privacy, dignity, rights, and privileges to persons who are developmentally disabled." Section 27-10.5-101(1)(c), C.R.S.1973 (1980 Supp.).

II.

I do not disagree with the majority that the prohibition of sterilization of minor mentally retarded persons may in some cases impinge upon their constitutionally protected rights. Situations can be envisioned where refusal of sterilization to such a person could gravely endanger that person's life or health. As the majority indicates, the constitutionally protected interests which are implicated in sterilization decisions may extend beyond life-threatening situations. When such an issue is properly presented we may be called upon to determine whether the denial of sterilization to a mentally retarded minor can be squared with that person's constitutionally protected rights. The parties have raised no such issue in this case, and in my view it is not necessary or appropriate to reach it.

I would reverse the order of the district court and remand the case to that court with directions to dismiss the petition.

NOTES

[1] The trial court order cites XX-XX-XXX(1)(d), C.R.S.1973, which deals generally with the competence of a person eighteen years of age or older "[t]o make decisions in regard to his own body and the body of his issue." The proper statutory reference is to XX-XX-XXX(3) which specifically empowers parents to consent on behalf of their minor children to surgical procedures.

[2] Eugenics is defined as the science of improving the qualities of the human race by the careful selection of parents. Random House Dictionary, Unabridged edition (1973).

"Positive eugenics would accomplish this by encouraging reproduction of those with favorable traits; negative eugenics, such as sterilization, would discourage or prohibit the reproduction of those with unfavorable traits." Note, Eugenic SterilizationA Scientific Analysis, 46 Denver L.J. 631, 631 (1969).

[3] Colorado is among the minority of states which have never enacted a compulsory sterilization law. See Ferster, Eliminating the UnfitIs Sterilization the Answer?, 27 Ohio St. L.J. 591, 596-98 (1966); Note, Eugenic Sterilization A Scientific Analysis, 46 Denver L.J. 631, 632-33 (1969); Note, Human Sterilization, 35 Iowa L.Rev. 251, 253 (1950).

[4] One type of male sterilization, vasectomy, is reversible on occasion, but not dependably. None of the methods of female sterilization are reversible. R. Shane and C. Powerstein, Fertility Control, Biologic and Behavioral Aspects 115 (1980). Note, Addressing the Consent Issue involved in the Sterilization of Mentally Incompetent Females, infra at 322, n. 2. See In re D. D., 90 Misc.2d 236, 394 N.Y.S.2d 139 (Sup.Ct. 1977).

[5] This solution has been used by courts in other contexts, most notably in In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. den. 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976), where the New Jersey Supreme Court allowed the guardians of a comatose patient to authorize discontinuance of life-support mechanisms. See In re Spring, 8 Mass.App. 831, 399 N.E.2d 493 (1979) (discontinuance of life-sustaining treatment of terminally ill incompetent patient authorized by family using "substituted judgment"). We decline to endorse this approach in part because the decision to sterilize is more complex and more reflective of public policy considerations than the decision whether to terminate treatment of a person terminally ill or in a permanent vegetative state.

[6] Courts dealing specifically with this issue have ruled that absent specific statutory authority, the parental right to consent on behalf of a child to medical services necessary for the health of the child does not encompass the right to consent to sterilization. Ruby v. Massey, 452 F. Supp. 361 (1978); A. L. v. G. R. H., 163 Ind.App. 636, 325 N.E.2d 501 (1975), cert. den. 425 U.S. 936, 96 S. Ct. 1669, 48 L. Ed. 2d 178 (1976).

[7] Sterilization is defined in 27-10.5-102(12) as "Any surgical or other medical procedure which has as its primary purpose to render a person permanently incapable of reproduction."

[8] As defined in 27-10.5-102(3), C.R.S.1973 (1980 Supp.), "court" means a district court of the state of Colorado or the probate court in the city and county of Denver.

[9] It is not clear from the face of the statute under what circumstances such a petition is required. Subsection 27-10.5-130(1) mandates such a petition when the physician from whom sterilization is sought challenges the person's competence to consent. We conclude that a petition is required if the retarded person's competency is questioned either by the physician from whom sterilization is sought or by a parent, legal guardian or custodian of the person. Thus, we note that under the statute, a mentally retarded person over eighteen who consents, is deemed competent to consent by his or her guardian and physician, and who has obtained the approval of experts required by 27-10.5-128, may be sterilized without approval of a court.

[10] The trial court agreed that sections 27-10.5-128 through -130 do not apply in full to persons under eighteen, but concluded on this basis that it was free to authorize the sterilization of A.W. based on the consent of A.W.'s parents.

[11] Implicit references to other instances in which sterilizations might be performed are included in the statute. For example, 27-10.5-129(1) requires that a petition to the court must include, inter alia, "A statement that capacity to give consent is the only issue for the court's determination if voluntary sterilization is sought." (Emphasis added.) Similarly, 27-10.5-130 provides: "If voluntary sterilization ... is sought, the only issue for the court's determination is competency to give consent." (Emphasis added.)

[12] "Developmental disability" is defined in the statute as "a disability attributable to mental retardation, cerebral palsy, epilepsy, autism, or a neurological impairment, which may have originated during the first eighteen years of life, which can be expected to continue indefinitely, and which constitutes a substantial handicap." 27-10.5-102(4)(a), C.R.S.1973 (1980 Supp.).

[13] S.B. 135, section 27-10.5-129 (1975).

[14] Id. sections 27-10.5-130 through -132.

[15] Id. section 27-10.5-130(2).

[16] Id. section 27-10.5-133.

[17] The district court in this case was sitting as a probate court. The court's probate jurisdiction is directed toward certain subjects, see Title 15, C.R.S.1973 as amended, including protection of persons impaired by mental deficiency, see section 15-14-312(1)(c), C.R.S.1973 (1980 Supp.), but the scope of jurisdiction is indistinguishable from the court's general jurisdiction. Colo.Const. Art. VI, Sec. 9.

[18] Some of these cases holding the court did not have jurisdiction are distinguishable because the court petitioned was one of limited jurisdiction. See, e.g., Wade v. Bethesda Hospital, 356 F. Supp. 380 (S.D.Ohio 1973); Guardianship of Kemp, 43 Cal. App. 3d 758, 118 Cal. Rptr. 64 (1979); In re M.K.R., 515 S.W.2d 467 (Mo.1974); Frazier v. Levi, 440 S.W.2d 393 (Tex.Civ.App.1969). As to all of the decisions concluding that courts are without jurisdiction to consider the issue, we agree with the cogently argued conclusion of the Supreme Court of Alaska in Matter of C.D.M., 627 P.2d 607 (Alaska 1981), that

these decisions confuse the question of a court's authority to hear and decide such matters with the question of whether, in exercising that authority, the court can order a particular individual sterilized without violating his or her constitutional rights.

Id. at 610.

[19] We emphasize that these standards do not apply to all mentally retarded persons. Section 27-10.5-128, C.R.S.1973 (1980 Supp.), sets out the limited circumstances under which a mentally retarded person over eighteen, competent to do so, may consent to sterilization. If the court finds the mentally retarded person competent and the person rejects sterilization, sterilization shall not be ordered. Section 27-10.5-130(2), C.R.S.1973 (1980 Supp.).

[20] A clear and convincing standard of proof is required in a case such as this where a fundamental right is concerned. In re Grady, supra; Matter of C.D.M., supra; In re Penny N., supra. The United States Supreme Court has mandated such a burden of proof in the analogous case of a civil commitment proceeding. Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). Colorado statutes require the clear and convincing evidence standard for involuntary civil commitment, 27-10-111(1), C.R.S.1973 (1980 Supp.) and imposition of legal disability, 27-10-125(4)(d), C.R.S.1973 (1980 Supp.).

[21] Alternative methods of birth control must be considered and detailed medical testimony must show that the sterilization procedure requested is the least significant intrusion necessary to protect the interests of the individual. The petition in this case seeks permission for a hysterectomy, both to foreclose the possibility of pregnancy and to terminate A.W.'s menstrual cycle. A hysterectomy is a serious and intrusive medical procedure which has been proven to have significant physical and mental health effects on retarded and non-retarded females alike. P. Roos, "Basic Facts About Mental Retardation," Legal Rights of Mentally Disabled Persons 127 (P. Friedman, ed. 1979). Approval of a hysterectomy would require clear and convincing evidence of the medical necessity of the procedure and of the conviction that it was the least intrusive means possible to achieve the objective. See In re Penny N., supra.

[1] It is not at all certain that, absent statutory authorization, a court of general jurisdiction, either at common law, in equity, or under the theory of parens patriae, has authority to order the sterilization of a mentally retarded minor child in the absence of any lifesaving necessity. See Wade v. Bethesda Hospital, 337 F. Supp. 671 (E.D.Ohio, 1971), motion den., 356 F. Supp. 380 (E.D.Ohio, 1973); Guardianship of Kemp, 43 Cal. App. 3d 758, 118 Cal. Rptr. 64, 74 A.L. R.3d 1202 (1974); Guardianship of Tulley, 83 Cal. App. 3d 698, 146 Cal. Rptr. 266 (1978), cert. denied, 440 U.S. 967, 99 S. Ct. 1519, 59 L. Ed. 2d 783 (1978); In re M. K. R., 515 S.W.2d 467 (Mo.1974); A. L. v. C. R. H., 163 Ind.App. 636, 325 N.E.2d 501 (1975); Frazier v. Levi, 440 S.W.2d 393 (1969 Tex.Civ.App.).