dissenting.
In this appeal, we are asked to determine whether the proponents of sterilization have proven that sterilization is the only practicable means of contraception for C.W., a young woman with moderate to severe mental retardation, epilepsy and cerebral palsy. The majority wants us to infer that any attempt to administer the birth control pill or other hormonal methods of contraception to C.W. would have disastrous effects on her already tenuous physical condition. Clearly, the medical experts were concerned with the possible effect of introducing another medication into the existing array of medications C.W. already takes. Nonetheless, the effect of the interaction of the pill with C.W.’s seizure medications is not known. The proponents of sterilization have not satisfied their burden of proving by clear and convincing evidence that less drastic contraceptive methods such as birth control pills and hormonal treatments are unworkable. Accordingly, I must respectfully dissent.
The majority, in concluding that sterilization is in C.W.’s best interests, determines that the trial court’s decision does not demonstrate an error of law or abuse of discretion. See Majority Op. at 439. In so doing, my colleagues have abandoned the proper scope of appellate review. We have the broadest scope of review in cases such as this because of the permanent nature of a sterilization procedure. In the Matter of Mildred J. Terwilliger, 304 Pa.Super. 553, 450 A.2d 1376 (1982). I am dismayed that my colleagues have declined to exercise the full extent of our appellate powers in the discharge of our heavy responsibility in this case.
All parties to this action agree that C.W. may be capable of becoming pregnant and that full-term pregnancy would not be in C.W.’s medical or psychological best interests. It is undisputed that C.W. is incompetent to make a decision regarding sterilization. It also remains uncontested that C.W.’s mother had only the best of intentions in seeking the tubal ligation on behalf of her daughter. However, I cannot agree with the trial court’s conclusion that the best interests of C.W. require that a guardian with authority to consent to tubal ligation be appointed.
The parties to this action were, at all times, operating in good faith in this attempt to discern what is in the best interests of C.W. The most distinguished trial judge, the Honorable Judith J. Jamison, is to be commended on the thorough deliberation given to this important issue, as is evidenced by the extensive record and the painstaking consideration of the facts of this case contained in the trial court opinion. However, C.W.’s best interests do not automatically result from the process of careful consideration. While the majority places some emphasis on the process, I am mindful that mistakes involving another’s reproductive rights have been justified throughout history on the basis that a decision was only reached after careful consideration of all the issues and facts involved.
In our determination of this appeal, we are bound by the standard enunciated in Terwil-liger, supra. In deciding whether to authorize sterilization, we may only consider the best interests of the incompetent and we are not permitted to consider whether sterilization serves the interests or convenience of that individual’s parents, guardian, or of society. Id. at 564, 450 A.2d at 1382. The proponent of sterilization must prove that sterilization is in the incompetent’s best interests by clear and convincing evidence. Id. at 564, 450 A.2d at 1383.
The Terwilliger court articulated three minimum requirements with which the trial court must comply before authorizing sterilization. First, the trial court should appoint a guardian ad litem and insure that appropriate medical, psychological and social evaluations are made of the incompetent person, with evidence of these evaluations to be preserved in the record. Id. at 565, 450 A.2d at 1383. Second, the trial court must find that the individual lacks the capacity to make a decision about sterilization and that the incapacity is unlikely to change in the future. Id. Third, the proponent of sterilization must prove that the person for whom sterilization *441is sought is capable of reproduction, and that sterilization is the only practicable means of contraception, i.e., all less drastic contraceptive methods, including supervision, education and training are unworkable. Id. Detailed testimony must show, to a reasonable degree of medical certainty, that the sterilization procedure requested is the least intrusive means necessary to protect the interests of the individual. Id.
I find that the majority does not adequately address C.W.’s constitutional right of privacy, including the rights to bodily integrity and reproductive autonomy. Moreover, the record does not support the conclusion that all less drastic means of contraception are unworkable.
The Supreme Court of the United States has recognized a fundamental constitutional right to privacy, which encompasses an individual’s right to make autonomous decisions regarding reproduction. See, e.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The Supreme Court has also held that an individual’s fundamental right to privacy cannot be diminished due to that person’s incompetence. Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). Since a fundamental right is implicated in the decision to impose sterilization upon an individual, the state must demonstrate a compelling state interest before it may constitutionally deprive an individual of that right. See, e.g., Eisenstadt v. Baird, 405 U.S. at 448, 92 S.Ct. at 1035, 31 L.Ed.2d at 359. If a less restrictive alternative is available that can achieve the same stated goal without depriving an individual of a fundamental right, it must be utilized. Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); In re Schmidt, 494 Pa. 86, 429 A.2d 631 (1981); Terwilliger, supra. The Majority fails to consider these constitutional issues.
Based on these sound constitutional principles, and the long history of eugenic sterilization of the mentally retarded in the United States, (see Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927)), courts in other jurisdictions, as well as our own, have held that sterilization of mentally retarded individuals implicates a fundamental right and requires that we impose the least restrictive alternative in seeking contraceptive measures for those individuals. See, e.g., In the Matter of the Welfare of Hillstrom, 363 N.W.2d 871 (Minn.Ct.App.1985); Conservatorship of Valerie N., 40 Cal.3d 143, 219 Cal.Rptr. 387, 707 P.2d 760 (1985); Wentzel v. Montgomery General Hospital, 293 Md. 685, 447 A.2d 1244 (1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 790, 74 L.Ed.2d 995 (1983); Terwilliger, supra.
It is with these constitutional principles in mind that the trial court’s decision to appoint a guardian with authority to consent to tubal ligation should be reviewed. The trial court, while stating that it was adhering to the principles set forth in Terwilliger, actually rejects the fact that C.W.’s fundamental rights are at stake in this proceeding. In addressing this issue, the trial court stated, citing the opinion of Lord Hallsham in the English case of Re B, 2 All ER, 2 WLR 1213, FLR 314 (1987):
To talk of the ‘basic right’ to reproduce of an individual who is not capable of knowing the causal connection between intercourse and childbirth, nature of pregnancy, what is involved in delivery, unable to form maternal instincts or to care for a child appears to me wholly to part company with reality.
Trial Court Opinion, February 28, 1990, at 56.
The trial court also spoke to the issue of the loss of a fundamental right in a case such as C.W.’s:
The basic right to reproduce is meaningful only when such procreation is the result of informed choice. Certain retarded and mentally impaired individuals may be capable of making such a choice and their right to choose must be safeguarded. Because of organic brain damage and retardation, [C.W.] is incapable of making such a choice. Thus, the loss of choice is the loss of an illusory right only.
Id. at 57-8.
The rationale of the trial court on the issue of C.W.’s fundamental right to privacy and *442bodily integrity is simple sophistry. This Court must adhere to the sound constitutional principle that these fundamental rights inure to all citizens and may be invaded only when there are no alternate means to protect the best interests of an individual.
Tubal ligation has not been established as the least restrictive nor as the only practicable means of contraception available to C.W. Therefore, I conclude that the trial court’s Order violates C.W.’s fundamental rights to privacy and bodily integrity and should be reversed.
The majority does not faithfully apply these constitutional principles to the facts of this case. The majority acknowledges the constitutional dimension of this case, stating that the Terwilliger court recognized that a decision to sterilize an incompetent impinges on that person’s fundamental right to procreate and involves an invasion of that person’s bodily integrity. See Majority Op. at 428. However, the majority’s constitutional analysis ends with that acknowledgment. My colleagues abandon constitutional principles while failing to consider the effect of their decision upon C.W.’s fundamental rights.
Next, the majority concludes that sterilization is in C.W.’s best interests. They seemingly recognize that this determination ultimately depends upon a finding that sterilization is the only practicable means of contraception, i.e., all less drastic contraceptive methods are unworkable and sterilization is the least significant intrusion necessary to protect C.W.’s interests. See Majority Op. at 428, 433, 434, 437. However, I cannot agree that sterilization is in C.W.’s best interests because the record does not support a finding that sterilization is the only practicable means of contraception.
C.W. was a twenty year old woman at the time that this action was initiated. She suffers from organic brain damage. Experts who have evaluated C.W. agree that she has the mental age of a three to five year old child with an I.Q. of between 30-50. From the time she was twelve years old, C.W. has lived in a community living arrangement (a highly supervised group residence) but she spends every other weekend and holidays visiting her mother at home. C.W. is active and communicates with her caretakers through the use of signing and other oral non-language communication.
C.W. is also epileptic. Although she receives high daily doses of three different anti-seizure medications, Phenobarbital, Dilantin, and Tegretol, C.W.’s epilepsy is not well-controlled and leaves her subject to intermittent seizure activity. C.W.’s caretakers monitor and administer all of C.W.’s medication. These same caretakers also check C.W. every 15 minutes during the day to insure her safety. At night, C.W. is checked less frequently but her room is equipped with a monitor by which the caretaker can be made aware of any sounds in C.W.’s room.
At trial, and again on appeal, the guardian ad litem contends that the record does not support the trial court’s conclusion that lapa-roscopic tubal ligation is the least restrictive and the least intrusive alternative means of contraception for C.W. The guardian ad litem also maintains that C.W.’s mother has not proved by clear and convincing evidence that all other less intrusive methods of contraception are unworkable. I agree with these two contentions.
Most of the testimony in this ease concentrated on the devastating effects that a full-term pregnancy could have on C.W. and compared the risks of pregnancy to the risks of a tubal ligation. The experts who testified agreed that pregnancy would be potentially harmful for C.W. and that the statistical risk associated with sterilization is always less than pregnancy. This comparison, however, is both inappropriate and misleading for the resolution of the only issue before us. Once it has been determined, under Terwilliger, that C.W. is capable of becoming pregnant, that pregnancy is not in C.W.’s best medical and psychological interests, and that C.W. is incompetent to make choices about childbirth or contraception, the question then becomes: what is the least intrusive or restrictive method of contraception that can be used to prevent pregnancy?
The trial court rejected the birth control pill and other hormonal methods of contraception, concluding that they would not be in *443C.W.’s best interests. Hormonal medications such as birth control pills, Depo-Provera, and Delalutin were considered and rejected by the experts. However, these methods of contraception have not been proven to be unworkable by clear and convincing evidence, as is required under Terwilliger. On that basis, the guardian ad litem contests the trial court’s rejection of hormonal methods of contraception. This contention is well-founded.
The experts put forth several reasons to support their conclusions that hormonal methods of contraception would not be in C.W.’s best interests. First, the experts indicated that since C.W.’s condition will not change over time, a permanent form of contraception should be employed in this case. The experts did not dispute the efficacy of hormonal methods of treatment nor did they dispute the fact that the use of hormonal treatments would be less intrusive than the tubal ligation that the trial court ultimately authorized. The experts rely on the temporary nature of hormonal methods to reject them without a trial or any proof that they are in fact unworkable options for C.W.
The trial court also relied upon the permanent nature of tubal ligation to reject other less intrusive forms of contraception, stating: “[t]o ask that the Court review what, if any, form of contraception is appropriate, every year or two is to deny any remedy, as the process is extremely burdensome.” Trial Court Opinion, supra, at 47. By rejecting trials of other methods of birth control based on the burdens which would be placed on the court, C.W.’s family, and her caretakers, the trial court specifically disregards the mandates of Terwilliger. Id. A decision to reject less intrusive methods of contraception, and to impose sterilization upon an individual based upon these factors alone is specifically prohibited by Terwilliger. Terwilliger 304 Pa.Super. at 564, 450 A.2d at 1382.
I cannot accept the trial court’s rationale that sterilization, because it is permanent, is in C.W.’s best interests. Under the eighth Terwilliger guideline, the trial court was required to assess the possibility of scientific advances in the area of contraception and sterilization prior to authorizing sterilization. Id. at 567, 450 A.2d at 1384. C.W. was twenty years of age at the time of the hearing, and all experts agreed that the use of hormonal medications should cease once C.W. is thirty-five. However, no expert was willing to rule out the possibility that new or safer methods of contraception might be available when, in 15 years, C.W. would reach the age at which hormonal methods of contraception should be discontinued, based upon present medical knowledge. While C.W.’s contraceptive needs may be permanent, there is no evidence in the record that would support a finding that less intrusive methods of contraception will not serve her needs for the fifteen years immediately following the hearing. Sterilization now is not in C.W.’s best interests.
As a second rationale for rejecting hormonal methods of contraception, the experts also relied on the fact that birth control pills must be taken on a daily basis to be effective and that C.W. lacks the capacity to monitor the intake of her medications. All of C.W.’s medication is administered to her by her caretakers. However, there was some concern regarding the possibility that C.W. might at some time in the future refuse to take her medication. Speculation about C.W.’s future behavior constitutes no rationale for imposing sterilization upon her, given the lack of any empirical data or other information concerning C.W.’s response to taking an additional medication as part of her daily routine.
Third, the experts also expressed concern that since birth control pills, in particular, may cause side effects in some women, they should not be administered to C.W. because she may be unable to accurately communicate her symptoms to her caretakers. The record is clear, nevertheless, that while side effects are possible with the administration of birth control pills, they do not occur in most women and can be detected by regular and conscientious medical care. See, e.g., N.T., August 17, 1989, at 75-6.
An earlier Orphans’ Court case, In re Rubis, 4 Fiduciary 2d 412 (Phila.Comm.Pleas 1984) addressed this issue in the only published Pennsylvania opinion to impose the Terwilliger standard. In that case, the par*444ents sought permission from the court to sterilize their daughter, Diane, who was a twenty year old incompetent woman functioning at the level of a nine month old infant. The court, under the Terwilliger guidelines, rejected the petition for sterilization where less intrusive methods of contraception were potentially available, despite the fact that Diane was unable to communicate her symptoms to her parents in anyway, and despite her parents’ fears about potential side effects from the use of hormonal contraceptive agents. Id.
On the record before us, I am unable to conclude that the mere chance that side effects might develop constitutes a sufficient basis for rejecting a less intrusive method of contraception for C.W. in favor of sterilization. While C.W. is unable to use language, she is able to communicate her needs, wants and discomforts to her caretakers. The expert testimony also reveals that while the risk of side effects of birth control pills or other hormonal contraceptives may be present for C.W., as it is for any woman, frequent medical evaluations would allow C.W.’s physicians to detect any possible side effects from the use of these medications.
The fourth rationale advanced for the rejection of hormonal contraceptive methods is that there is a possibility of an adverse interaction between C.W.’s seizure medications and birth control pills or other hormonal medications. The record establishes that the experts did not know what the interaction would be between C.W.’s seizure medications and any of the hormonal methods of contraception. Dr. Bolognese testified that he was “not aware of any good consistent report that implies or confirms that [C.W.’s] seizure disorder would be worsened by the use of birth control pills.” N.T., August 17, 1989, at 75. While expert testimony indicated that a neurologist would be most qualified to speak to the issue of the possible interaction of hormonal contraceptive medications and C.W.’s seizure medications, the testimony of C.W.’s neurologist was not offered at the hearing before the trial court. However, a letter from the neurologist, Dr. Elliott Schulman, was introduced into evidence as exhibit G-ll. N.T., June 6,1988, at 656-7. This letter only indicated that birth control pills might be an option for C.W., but the combined effect of her seizure medications and birth control pills was unknown. Id. The letter did not mention other hormonal contraceptive methods. Id.
Based on my review of this record, I must conclude that the proponents of sterilization have not satisfied their burden of proof. They have failed to produce detailed medical testimony showing that, to a reasonable degree of medical certainty, the sterilization procedure requested is the least intrusive means necessary to protect C.W.’s interests as is required under Terwilliger. While maintaining that tubal ligation was in C.W.’s best interests, the court appointed expert, Dr. Bolognese, testified: “[c]ertainly it is not-the least invasive. I think there are other methods that we have discussed that certainly are not invasive.” N.T., August 17, 1989, at 87. Moreover, none of the experts testified that they believed “to a reasonable degree of medical certainty” that birth control pills or hormonal treatments are unworkable for C.W.
The most compelling evidence refuting the medical necessity of sterilization, based on C.W.’s epilepsy and use of seizure medications, was agreed to by all of the testifying physicians. Each stated that they would not recommend tubal ligation for a person of “normal” intelligence with C.W.’s medical problems and would attempt to discourage such a person from pursuing such an option. Both gynecologists, Drs. Bolognese and Seitz, testified that they would not personally perform a tubal ligation on a “normal” woman of C.W.’s age, even if her medical problems were identical to C.W.’s. How then can we escape the obvious conclusion that the bodily invasion threatened here is being condoned not because it is the least intrusive means necessary, but because this is “good enough” for one with C.W.’s abnormalities?
Under Terwilliger, we are not permitted to engage in a balancing test between the available contraceptive measures and sterilization to decide which best suits the perceived needs of a particular patient and her family. Rather, Terwilliger prohibits this Court from affirming the trial court’s grant of a petition *445for sterilization of an incompetent individual unless all less drastic contraceptive methods are unworkable and expert medical testimony has shown that the sterilization procedure requested is the least significant intrusion necessary to protect the interests of the individual. Terwilliger 304 Pa.Super. at 566, 450 A.2d at 1383. On the record before us, one cannot reasonably conclude that the intrusion of a tubal ligation is minimal or that it provides the least restrictive alternative for C.W.
Absent clear and convincing evidence that all other methods of contraception are unworkable for C.W., this Court cannot uphold the trial court’s authorization of C.W.’s sterilization.
Accordingly, I dissent. I would reverse the decree of the trial court and remand for proceedings to insure that sterilization is not authorized before other practicable means of contraception are carefully considered, tried, and rejected under existing Pennsylvania law as the Terwilliger guidelines provide.
DEL SOLE, J., joins.