K. C. M. v. State

MATTHEWS, Justice,

with whom RABI-NOWITZ, Chief Justice, joins, dissenting.

The majority holds that the superior court,' as a court of general jurisdiction has inherent parens patriae authority to order the sterilization of a mental incompetent. I disagree. In my opinion, courts are without jurisdiction to act upon sterilization requests unless such jurisdiction is specifically conferred by statute.

Sterilization is an extreme remedy which irreversibly denies a human being the fundamental right to bear and beget children.1 Because of the importance of the interest involved and the irreversible physical consequences of the requested relief, a majority of courts in the United States has refused to order surgical sterilization in the absence of specific statutory authority. As noted in Sparkman v. McFarlin, 552 F.2d 172, 176 (7th Cir. 1977), rev’d sub nom. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), the power of the courts to fashion new common law does not include the power “to create new decisional law to order extreme and irreversible remedies such as sterilization.... ” I agree with the majority of courts and commentators2 that courts lack inherent power to sanction sterilizations.

The majority in holding that states have inherent parens patriae power to order sterilization, cites several cases in which courts have consented to shock treatment, chemotherapy treatment, amputation, medication and the removal of artificial life support systems on behalf of incompetents. This case does not involve a request for ordinary medical treatment or surgery necessary to preserve life, but rather, involves a request for elective surgery which would irreversibly deprive a human being of a fundamental right. Although sterilization may be appropriate in some situations, the profound nature of the interest involved leads me to the conclusion that jurisdiction to sanction sterilizations may only be conferred by the legislature after a full consideration of the important social and constitutional issues involved.3

The majority opinion is based on the facts of a single case in which there were no *615truly adverse parties.4 Consequently, issues essential to an informed resolution of the problem were not presented to the court. Because sterilization touches upon constitutional rights of privacy and procreation, it is important that all possible arguments and viewpoints be considered before any policy in favor of state-ordered sterilization is adopted.

In resolving this issue the court did not hear, for example, testimony concerning the ability of retarded persons to parent. The majority seems to assume that because C.D.M. is apparently incapable of caring for a child, mental retardation is coextensive with unfitness as a parent. However, studies have shown that persons with mild or moderate forms of retardation can provide suitable environments for child rearing.5 Nearly 90% of the mentally retarded persons in the United States are only mildly retarded. In light of the fact that such a large proportion of retarded persons are capable of functioning as parents, the majority’s determination that courts have inherent power to terminate a person’s right to procreate is particularly troubling.

In addition, no testimony was heard concerning the possibility that safe, long-term methods of birth control or reversible sterilization may be available in the future.6 If the current state of scientific and medical knowledge is such that a less intrusive method of birth control may be available shortly, articulation of a policy in favor of sterilization would be unnecessary or could be postponed. In any event, postponement would seem to be appropriate where, as in the case of C.D.M., the present method of birth control is not creating a health risk.

Finally, the majority did not consider the particularly troubling aspects of the sterilization of a teenager or young adult. C.D.M. is only 20 years old and lives with her parents. The validity of predicting her desire to be permanently sterilized on the basis of her present acquiescence in the wishes of her parents is questionable. As C.D.M. moves out of her parents’ home, perhaps and into a controlled housing situation, her attitudes towards marriage and children may change. She may marry a spouse who would be able to care for a child of the marriage. Moreover, as she becomes more independent, C.D.M. may develop the legal capacity to decide for herself whether to be sterilized.

If sterilization legislation were pending before the legislature, persons and groups unrepresented in this litigation would undoubtedly come forward and provide testimony invaluable to a resolution of the problem. In addition, the legislature has the necessary resources to fully research issues of public policy. The legislature, is, therefore, better equipped than this court to determine whether and under what conditions the state may order sterilizations.

The majority cannot rely on Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). In Stump, the issue was whether a state judge who ordered the sterilization of a minor girl was entitled to judicial immunity from damages in a suit brought by the sterilized woman and her husband. The court noted that under the well-established doctrine of judicial immunity “judges ... are not liable to civil actions for their judicial acts, even where such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” 435 U.S. at 355-56, 99 S.Ct. at 1104-05, 55 L.Ed.2d at 338-39, quoting, Bradley v. Fisher, 13 Wall 335, 347, 20 L.Ed. 646, 650 (1872). The Court did not hold that courts of general jurisdiction have the *616authority to order sterilizations,7 rather, it concluded that the scope of a judge’s jurisdiction must be construed broadly where the issue is judicial immunity.

Stump illustrates the dangers inherent in allowing courts of general jurisdiction to order sterilizations in the absence of specific statutory guidelines. In Stump the mother of a minor girl alleged her daughter, Linda, was “somewhat retarded,” although she attended public school and had been promoted each year with her class. The mother further alleged that Linda had been staying overnight with young men and therefore a tubal ligation was necessary “to prevent unfortunate circumstances.’’ On the basis of these allegations, the court ordered Linda sterilized. Linda did not discover she had been sterilized until she was unable to become pregnant after two years of marriage. As noted by the dissent in In re Hayes, 608 P.2d 635, 646 (1980) (dissenting opinion) Stump “stands as an ominous warning of how easily the asserted power to order sterilization can be mistakenly exercised.”

Any restrictions on the fundamental right to bear and beget children must be delineated by the legislature. After the legislature has established the standards and conditions, if any, under which sterilizations may be performed, the courts can determine whether the statutory restrictions on procreation are constitutional.

.The fundamental nature of the right to procreate was noted by Justice Douglas in Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942), “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race ... There is no redemption for the individual whom the law touches ... he is forever deprived of a basic liberty.”

. See, R. Burgdorf and M. Burgdorf, The Wicked Witch is Almost Dead: Buck v. Bell And the Sterilization of Handicapped Persons, 50 Temp. L.Q. 995 (1977); Comment, Sterilization, Retardation, and Parental Authority, 1978 B.Y.U. L.R. 380; Note, The Constitution and the Family, 93 Harv.L.R. 1156, 1296, 1303 (1980).

. As noted by the dissent in In re Hayes, 608 P.2d 635, 644 (Wash. 1980) (dissenting opinion) “[sterilization] legislation lies within the sphere of the police power, it is not within the inherent power of the courts.. . . ”

. On appeal C.D.M.’s parents and her guardian ad litem argued in favor of sterilization. The state was appointed to brief the other side, but had no real interest in the outcome of the appeal.

. See C. Murdock, Sterilization of the Retarded: A Problem or Solution, 62 Cal.L.R. 917 (1974).

.The only medical testimony presented was that of C.D.M.’s doctor, Dr. Wells, who recommended that C.D.M. be sterilized. Dr. Wells testified briefly about alternative forms of birth control, but did not discuss the possibility that less intrusive methods of birth control may be available in the future.

. By denying certiorari in (Guardianship of Tulley, 83 Cal.App.3d 698, 146 Cal.Rptr. 266 (Cal.App.1978), cert. denied, 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783 (1979), the Supreme Court recently declined an opportunity to specifically hold that courts of general jurisdiction have authority to order sterilizations absent specific statutory authority.