(dissenting). I dissent: The majority is wrong in refusing to permit the circuit court to authorize the sterilization of Joan Eberhardy, even though it admits the circuit court has the power to do so.
Two thousand years ago a judge, clothed with the power and authority to do justice, but sensing the political winds (“willing to content the people” as the ancient word puts it), washed his hands and said to the people: “See ye to it.” His act resulted not in justice but in injustice. Today, the majority of this court, in my opinion, withholds justice from Joan Eberhardy. It turns to the legislature, the “representatives of the people,” and says in effect, “you see to it.” Washing its hands and turning the demand for justice over to the legislature demeans this court, denigrates its role, and makes a mockery of its powers.
The majority cannot be unaware that the legislature will do nothing about this matter. In today's political atmosphere, few, if any, state legislators would sponsor or support sterilization legislation. The legislature would, of necessity, have to deal with the whole gamut of when sterilization could be done. It could not legislate for this young woman alone. Such legislation will not be forthcoming, and for this court to tell this unfortunate woman’s parents to turn to the state legislature is to leave them without justice and without hope.
Justice is denied in refusing to permit Joan Eberhardy to have an operation that is the only practical1 way to prevent her from a possible pregnancy that her physician said would be “tragic.”
Let’s look at this “child-woman” described by her doctor as “this most unfortunate individual,” whose “right to procreate” the majority wishes to protect.
*594At the time of the hearing in the trial court she was twenty-two years old but had the mental capacity of a two-year old child.
She can’t cut her food on the plate.
She often puts clothes on inside out.
She can’t find her way home if taken any distance from the house.
She is unaware of the danger from traffic.
The majority opinion says, “although she could bathe herself, she could not safely regulate the temperature of her bath.” (Supra, p. 544). But it’s worse than that. Her father testified: “She cannot draw her bath. She would step in ice cold water or scalding water. She doesn’t know the difference.”
She cannot take care of herself during menstruation.
She is sexually mature and “. . . has the same sexual passions as most human beings,” according to her doctor. He further stated she could become pregnant “if she were not under complete and total surveillance at all times.” She lacks the moral sense or mental capacity to resist sexual exploitation by others.
She would be unable to understand or communicate physical symptoms and pain during pregnancy or delivery and would be totally baffled and noncomprehending as to what was happening to her.
Her father described her potential pregnancy: “It would be something terrible for her for something like that to happen.”
Her doctor described a potential pregnancy as “tragic” for her.
Even the majority opinion recognizes that Joan Eber-hardy’s mental condition had deteriorated during the period 1971 to 1978. (Supra, p. 544). But the decline is not arrested. Dr. Louis J. Ptacek2 was asked at *595the hearing by the trial judge if there was “any possibility of improvement in her condition as she grows older ?” Dr. Ptacek replied: “None at all, I believe over the years there would be some deterioration.” Dr. Ptacek was firm in his recommendation that tubal ligation was in Joan Eberhardy’s best interest.
Her parents sought the help of the Wisconsin court system to get authorization for a tubal ligation to prevent this tragedy.
Three doctors, including a psychiatrist, requested it. Her guardian ad litem requested it. The ethics committee of St. Joseph’s Hospital approved it.3
The trial court said that, “. . . given the facts stated . . . [she] is a proper subject for sterilization.”
The Court of Appeals said, “. . . the evidence is undisputed that it [sterilization] will serve her best interests.” In the Matter of Guardianship of Eberhardy, 97 Wis.2d 654, 664, 294 N.W.2d 540 (Ct App 1980).
But a majority of this court finds that this pathetic, helpless, vulnerable, “most unfortunate individual” has a “right" to become pregnant! And further, under the superintending powers of this court, the whole judicial machinery will grind to a halt and will refuse to exercise *596its power in order to guarantee this “right” to her. The court will do so in spite of the fact that those nearest and dearest to her, her parents, and her doctors and her guardian ad litem, all want her to have the operation.
The majority cites from the language of Carey v. Population Services International, 431 U.S. 678, 685 (1977),
“The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices . . .” (Emphasis added.)
The majority opinion of this court then says:
“. . . that the right to procreate or to prevent procreation is a protected, fundamental personal decisional choice appears to be clearly relevant to the case before us.” (Supra, pp. 562-563.)
But the important words in the Carey quotation are “decision” and “choices.” When is Joan Eberhardy’s “personal decisional choice” to be exercised by her? The answer is never.
The majority recognizes that there is an area of deci-sional choice protected by the due process clause of the 14th Amendment. This protection embraces the right of personal decisions in matters of procreation, and includes the right of the individual to decide to procreate or to decide to prevent pregnancy. The right to prevent pregnancy by use of contraceptives is clearly established by the decisions of the United States Supreme Court. The right to prevent pregnancy by sterilization, as the majority concedes, also “implicates a protected personal procreative decisional choice.” (Supra, p 562.) This important distinction between the “right to procreate” and the “right to decide” is central to this case. Because that right to decide this issue cannot be exercised by Joan, the *597majority concludes that it may not be exercised by others for her. What the majority fails to recognize is that its refusal to permit Joan’s parents, guardians and physicians to make this decision for her simply decides the question for hér in another way and against her best interests. By refusing to authorize a trial court to consent to the operation, the court has effectively made a fundamental personal choice for Joan- — she will remain susceptible to a “tragic” pregnancy. Because she lacks the mental capacity or moral sense, Joan cannot even choose to abstain from sexual conduct.
The majority opinion goes to great length to analyze the New Jersey Supreme Court’s decision in the case of In re Grady, 85 N.J. 235, 426 A.2d 467 (1981), where that court in a well-reasoned opinion, in a fact situation similar to the one here, authorized sterilization of a mentally retarded young woman. The New Jersey court held that an incompetent had the same right as any other person to choose sterilization. The court recognized that the “choice” made by parents, guardian ad litem or a court was not really the incompetént’s but said: “. . . it is a genuine choice nevertheless . . . one designed to further the same interests she might pursue had she the ability to decide herself.” In re Grady, supra, 426 A.2d at 481.
The majority of this court says:
“The fault we find in the New Jersey case is the ratio decidendi of first concluding, correctly we believe, that the right to sterilization is a. personal choice, but then equating a decision made by others with the choice of the person to be sterilized. It clearly is not a personal choice, and no amount of legal legerdemain can make it so.” (Supra, p. 566.) (Emphasis added.)
I would add that no amount of “legal legerdemain” can escape the fact that the New Jersey court acted correctly in granting the very relief asked for here and denied by this court. Whether the ratio decidendi is “substituted *598consent” or “best interest,” the result is what is important.
If a person who was incompetent or unconscious due to injury needed an emergency appendectomy, does anyone doubt that a court would authorize the operation ? What is the difference to the one needing the operation which ratio decidendi was used? The majority cites In re Guardianship of Pescinski, 67 Wis.2d 4, 226 N.W.2d 180 (1975), in support of its argument against the rationale of the New Jersey court. In Pescinski the majority of this court rejected the concept of “substituted judgment.”4
The majority then lays before us its view of the issue:
“Any governmentally sanctioned (or ordered) procedure to sterilize a person who is incapable of giving consent must be denominated for what it is, that is, the state’s intrusion into the determination of whether or not a person who makes no choice shall be allowed to procreate.” (Supra, p. 566.) (Emphasis added.)
It does sound ominous! But we are dealing with Joan Eberhardy, a helpless person. The “intrusion” is really by her parents who have loved, cared for, watched over and worried about her all her life. It is by her doctors who have treated her and are concerned about the harm a pregnancy will cause her. It is by her guardian ad litem who obviously has a keen sense of his role and responsi*599bility. In short, it is by those in the best position to know what is in her best interest. Viewed thus, the “state” acting through the court, is far from an “intruder” but plays the noble role of pcurens patriae for one who needs its help. I doubt that even the majority seriously believes Joan Eberhardy should be “allowed to procreate.” (Supra, p. 566.) Carried to its logical conclusion that position would say that watching over her, “protecting” her, is interfering with her “right to procreate.” Merely stating it shows its absurdity.
The majority opinion states that if it permitted the sterilization of Joan Eberhardy it would be setting precedent “that it is appropriate and not contrary to public policy to order the sterilization of a person when a court decides it is in the best interests of that person to do so.” (Slip Opinion, p. 566.) And so it should. The question here is really not “ordering,” but permitting, an operation that clearly is in the best interest of Joan Eberhardy as all those most closely associated with the case have repeatedly and persistently declared. This court has declared many times what is or is not against public policy. Why not here? The majority’s concern for “precedent” is over-apprehensive. The “precedent” that would be established on the facts in this case would be narrow indeed. Future cases will as always be judged on the particular facts as they arise and appropriate guidelines to prevent abuse could be set by this Court.5
The majority opinion recognizes that the trial court does have the inherent authority to permit the sterilization of Joan Eberhardy. In light of Stump v. Sparkman, 435 U.S. 349 (1976), no other conclusion could reasonably be drawn.
*600I think the majority opinion could have been a landmark decision on the authority of this court to act in the absence of specific statutory authorization. Unfortunately, it is weakened by an unreasonable and unjustifiable retreat with much rhetoric about “judicial restraint” that presents no workable guidelines as to when such restraint should be exercised. The facts in this case are so demanding for action that, because action is denied here, anyone looking for rule or guide can only conclude that if the legislature hasn’t specifically granted a particular authority, inherent power should not be relied upon. This of course flies in the face of a long line of cases in which this court has acted in the great common-law tradition and fashioned remedies where facts demanded it.
The majority, to justify this result, explains that this court would be required to write “on a clean slate.” (Supra, p. 577.) The “clean slate” results from the want of precedent in this state on the question posed. That other state courts, operating with similar grants of plenary judicial power, have reached the issue, seems to the majority an insufficient “start” to a resolution of the problem. The court draws from the writings of Cardozo, but overlooks his further observations that: “We do not pick our rules of law full-blossomed from the treés” and that a judge’s “duty to declare the law in accordance with reason and justice is seen to be a phase of his duty to declare it in accordance with custom.” Cardozo, The Nature Of The Judicial Process, at pp. 103 and 107. (New Haven, 1945). Sometimes of course, this search for the law is difficult, but to resort again to Cardozo:
“What really matters to me is this, that the judge is under a duty, within the limits of his power of innovation, to maintain a relation between law and morals, between the precepts of jurisprudence and those of reason and good conscience. . . . This is judicial legislation, and the judge legislates at his peril. Nevertheless, it is the necessity and duty of such legislation that gives to judi*601cial office its highest honor, and no brave and honest judge shirks the duty or fears the peril.
“You may say that there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. I am not disposed to deny this, but in my view, it is quite beside the point. The point is rather that this power of interpretation must be lodged somewhere, and the custom of the constitution has lodged it in the judges. If they are to fulfill their function as judges, it could hardly be lodged elsewhere.” The Natwre Of The Judicial Process, supra, at pp. 133-136.
Because I am persuaded that it is this court’s duty, I would grant the petition. Unlike the majority, I do not see our task as one of statute writing. Rather, I believe our task under the facts of this case is to authorize the Wood county circuit court to grant the Eberhardy’s petition seeking sterilization of this retarded child-woman.
Unlike the legislature which deals with broad issues of social policy,6 courts deal with individual cases. It is from the resolution of cases that the common law evolves.
The majority opinion goes into considerable detail on the origin, history and demise of Wisconsin’s 1913 sterilization statute that was repealed in 1977. The majority concludes that it is “irrelevant to the problems posed by this case.” I agree. But it adds proof, if any is needed, that the legislature will not take action to protect the Joan Eberhardys of this state.
This case is ripe for decision. The facts are clear. The court has the authority and should exercise it to permit an operation that is clearly in Joan Eberhardy’s best interest.
The court expresses grave concern that the sterilization procedure is “irreversible”7 and says: “It would per*602manently and irrevocably deprive Joan of her procreative capability.” (Swpra,, p. 575). But in Joan Eber-hardy’s case one would hope the operation would be permanent. One can hardly imagine wanting to reverse the procedure so she could become pregnant!
The majority says that “scant consideration was given to the possibilities of contraception by means short of sterilization.” (Supra, p. 569.) The fact is her medical advisor did consider them and rejected them.8 The majority then says, “The possibility that some new or improved method, perhaps suitable for use by retarded persons might shortly become available.” (Supra, p. 569.) (Emphasis added.) What has that to do with the case before us? In my opinion, nothing. Under the logic of the majority, no one should be allowed to do anything that could possibly “interfere” with the “right to bear children” when the person in question is incapable of making the choice herself.
Then the majority tells us that among: “. .'. seriously mentally retarded persons . . . some may be good parents.” (Supra, p 569.) But the medical testimony here was that Joan Eberhardy could not possibly care for a child, so the majority’s observation, if true, would have no relevance here.
The majority opinion recognizes that Joan Eberhardy’s parents brought this action for the “physical and mental well-being of Joan.” (Supra, p. 558.) Then why turn our backs on her? The majority says that “no societal benefits were urged.” But isn’t society benefited when the mental and physical well-being of the least among us are fostered and protected? We go to great lengths to defend and protect the rights of the most despicable criminal. Shouldn’t this unfortunate child-woman share equally in our solicitude ?
*603The majority laments the lack of what it calls a “devil’s advocate” at the trial to argue “why sterilization might be improper.” (Supra, p. 570.) But that role has been most ably played by the majority in its long opinion. If, as Shakespeare tells us: “The devil can cite Scripture for his purpose,”9 it is obvious that mere man-made law is likewise readily available.
As authority for its nonaction, the majority has a Wisconsin precedent, “A court may have jurisdiction of a particular subject matter, but by settled judicial policy ought not to exercise it.” The quote is from the granddaddy of long opinions, Harrigan v. Gilchrist, 121 Wis. 127, 227-228, 99 N.W. 909 (1904). At 334 pages, Gilchrist holds the all-time record for judicial verbosity in Wisconsin. It is a veritable gold mine of legalisms. Had the majority mushed on to pages 234-235, it would have found this gem:
“To support the proposition last suggested it is insisted that there are no precedents to be found in the books, of any suit exactly like this, . . . True, the suit is novel in character, but so are the alleged circumstances giving rise thereto. ... In all situations and under all circumstances, whether new or old, the principles of equity will point the way to justice where legal remedies are infirm. Precedents will be a constant guide, but never a bar. Where a new condition exists, and legal remedies afforded are inadequate or none are afforded at all, the never-failing capacity of equity to adapt itself to all situations will be found equal to the case, extending old principles, if necessary, not adopting new ones, for that purpose. That is a very old doctrine.” Harrigan v. Gilchrist, supra, 121 Wis. at 234-235.
The result was that the Gilchrist court decided exercise of jurisdiction was proper despite the novelty of the unprecedented action.
But the majority opinion is not without a sense of humor. “Unlike sterilizations, our decisions are reversi*604ble,” it quips. Then comes the admonition that if the legislature does not act, this court can “permit the invocation of its original jurisdiction for the further consideration and resolution of this problem” . . . “in an appropriate case at an appropriate time.” (Supra, p 578.)
What more “appropriate case” could it want? Where the mental age of the unfortunate is one instead of two ? What more “appropriate time” will ever present itself?
The old adage that “Hard cases make bad law” has a corollary — “Bad law makes hard cases.” And so this decision will make help for the Joan Eberhardys of this state impossible for years to come. It will also adversely affect the exercise of the very power it claims to uphold —the power of the court to act in the absence of legislative mandate.
Perhaps people in the position of the Eberhardys, if their circumstances permit, will be able to get help in states where a more enlightened attitude toward their plight prevails.
Maybe someday, even in Wisconsin, those with power to do justice will not ask for the wash basin.
I would reverse.
See footnote 3, infra.
Dr. Ptacek, in my opinion, has very impressive credentials. He is board certified in Pediatrics and is a pediatric neurologist. *595At .the trial he testified that he has seen thousands of mentally retarded people. He was medical director at Southern Colony and Training School at Union Grove, Wisconsin, for five years and had responsibility for some 1,800 retarded patients. He said, “For at least twenty-four years I have had the responsibility of the diagnosis and treating of individuals who are retarded.”
On May 18, 1978, Thomas J. Rice, M.D., wrote to Raymond E. Burrill, M.D., chairman, ethics committee St. Joseph’s Hospital, recommending a tubal ligation for Joan Eberhardy. Among other things, he said: “I considered' other methods of protection, however, aside from the I.U.D., I doubt that anything would be of value, and I hesitate to use this in her case.”
On May 23, 1978, Dr. Burrill wrote to Dr. Rice: “Joan Eber-hardy was approved by the medical ethics committee for sterilization.”
Dr. Louis J, Ptacek testified that the ethics committee was made up of “. . . several physicians including a psychiatrist, and *596I believe people from the hospital administration and from the Diocese of La Crosse.”
In that case the guardian of the incompetent consented to a kidney transplant to save.the life of the incompetent’s sister, a woman thirty-nine years of age with six minor children. The case was decided by this court on March 4, 1975. The sister, Elaine Jeske, died on January 5, 1977. According to her death certificate, the “immediate cause” of death was “intracerebral hemorrhage.” Under “conditions contributing to death but not related to cause” was listed “3rd state renal [kidney] disease.” Death Certificate #77200078, dated February 14, 1977, Local File No. 78, on file with the Section of Vital Records, Wisconsin Department of Health and Social Services.
See, for example, the sterilization guidelines established by the New Jersey Supreme Court. In re Grady, supra, 426 A.2d at 483 (1981).
As, .for instance, when it deals with comprehensive revision of divorce laws or adoption proceedings.
The record includes a letter from Thomas J. Rice, M.D., dated May 21, 1979, in which he proposes use of the “Pomeroy tech-*602ñique” of tubal ligation, which has a sixty to seventy percent chance of successful reversal.
See footnote 3.
“The Merchant Of Venice,” Act I, scene 3, line 98.