(dissenting). In addressing the matter of whether the court should respond to a petition to authorize the parents and legal guardians of Joan Eberhardy, an incompetent, to consent to her surgical sterilization, the majority opinion “conclude [s] that the question is not choice because it is sophistry to refer to it as such, but rather the question is whether there is a method by which others, acting in behalf of the person’s best interests and in the interests, such as they may be, of the state, can exercise the decision.” (Supra, p. 566.) The majority denominates any govern-mentally sanctioned procedure to sterilize as “the state’s intrusion into the determination of whether or not a per*605son who makes no choice shall be allowed to procreate.” (Supra, p. 566.) The majority correctly found this matter generally within the constitutionally granted plenary jurisdiction of this state’s unified court system, but because of what it perceives as complex problems of public policy, the majority concludes it is better to defer to the legislature as the more appropriate forum to provide the answer to the problem. Because the majority declines to permit the trial court to exercise jurisdiction and thereby respond to the Eberhardys’ petition, I dissent.
I believe my colleague, Justice- Day, is correct in his dissent that legislative action on this issue is unlikely. Apart from any aversion legislators may have to addressing a controversial question, there is the added practical problem of the press of legislative business. The thousands of problems presented to the legislature tax its ability to respond thoughtfully to the multiple problems of society. I have no reason to expect that this problem will receive meaningful consideration expeditiously enough to produce a legislative answer to the question presented by the Joan Eberhardy case. I am prepared to assume that even if legislative action were taken, it would not deny the relief sought on behalf of Joan Eberhardy. Rather, it would establish guidelines and standards for the court to use in rendering a decision to grant or deny the petition for court sanction of the requested sterilization. I do not agree with the majority in its conclusion that because the legislature has greater fact-finding capabilities than this court, it is better able to establish the guidelines and standards within which the trihl court must exercise its discretion.
It is evident from reading the majority opinion that, had it concluded that this matter was a proper subject for judicial determination, articulating the factors warranting consideration whenever this question is presented *606does not need vast scientific and medical input. It is applying the factors in a given case which will require expert testimony and a fact-finding apparatus. I am confident that this court is able, with the assistance provided by the thoughtful work of other courts having also considered the problem, to articulate standards by which the decision to sterilize an incompetent can be made. But neither we nor the legislature will make the decision in a particular case, and we must recognize that the yeoman’s task will be in laying the evidence alongside the standards and reaching the final conclusion.
This leads me to believe that the majority’s deference to the legislature is not based upon any recognition of that body’s superior capabilities to deal with the procedural aspect of this matter. Instead, I believe it is much more fundamental: The very first and most vital issue is not when, how, or by whom such a decision should be made, but whether, in the abstract, it should ever be made. I see nothing about this question which renders it more amenable to legislative than judicial resolution, and as a matter of policy, this court should answer affirmatively that there may be circumstances under the present state of medical knowledge in which it is in the best interests of an incompetent to be surgically sterilized.
The majority, after reference to a number of United States Supreme Court decisions, concludes that the nature of any individual’s decision to procreate or not to procreate, as a fundamental and constitutionally protected decisional choice, is “clearly relevant to the case before us.” (Supra, p. 563.) I agree. The difficulty is developing a judicial rationale which protects this intensely private and personal right but at the same time accommodates the fact that the individual whose right to choose must be protected is (and will continue to be) incapable of making the choice for herself. The supreme *607court of the state of New Jersey in In Re Grady, 85 N.J. 235, 426 A.2d 467, 474-75 (1981), recognizing this problem, stated:
“Implicit in both these complementary liberties is the right to make a meaningful choice between them. Yet because of her severe mental impairment, Lee Ann does not have the ability to make a choice between sterilization and procreation, or between sterilization and other methods of contraception — a choice which she would presumably make in her ‘best interests’ had she such ability. But her inability should not result in the forfeit of this constitutional interest 6r of the effective protection of her ‘best interests.’ If- the decision whether or not to procreate is ‘a valuable incident of her right of privacy, as we believe it to' be, then it should not be discarded solely on the basis that her condition prevents her conscious exercise of the choice.’ Quinlan, supra, at 41, 355 A.2d 647. To preserve that right and the benefits that a meaningful decision would bring to her life, it may be necessary to assert it on her behalf.”
What mechanism exists by which a right to choose may be asserted on behalf of one who is incapable of choosing ? The New Jersey court concluded that with the proper guidelines the decision could be made by a court. The majority criticizes the Grady court’s substituted choice rationale, stating “ [w] e believe it somewhat inconsistent for the New Jersey court to equate in a single breath ‘the choice made in her behalf’ and ‘providing her with a choice.’ ” (Supra, p. 566.) I am troubled by this superficial criticism, and I believe it is a disservice to the reasoning of the New Jersey court. There is no “legerdemain” in recognizing the stark reality that Lee Ann Grady could not make the choice herself. Nor is there any legerdemain in permitting a trial court, upon a detailed analysis of what is in her best interests, to make a decision on her behalf. This is the substance of the Grady decision. Is it legerdemain to say that this substituted *608judgment by the trial court provides her with a choice? Even if the New Jersey court seriously contended that the court’s choice was Lee Ann’s choice, that contention might at worst be considered naive. But it is obvious from reading the entire opinion that the Grady court recognized the result as being exactly as the majority claims it 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.) So what is to be said about the doctrine of substituted judgment? It is not legerdemain, as the majority pejoratively describes it. It is a legal fiction designed to give Lee Ann Grady the benefit of that very precious and protected right to choose and to accord her the dignity as a human being of making the choice “she would presumably make in her ‘best interests’ had she such ability.” 462 A.2d, at 474. Perhaps this, too, is a naive assumption. But as long as we must wrestle with the notion that even one incapable of choosing has a right to choice, a notion that exists only in the theoretical, not the practical, realm, we must use a ratio decidendi of equivalent ethereality to deal with it.
But as a court dealing with real controversies and, in this case, a child-woman of twenty-two years of age who is faced with a real problem, we cannot permit our obligations to be so easily excused because we cannot resolve what appears to be an insoluble philosophical conundrum. In the final analysis, it is unimportant whether the justification for state intrusion is that the choice is really that of the incompetent merely exercised by a substituted competent entity, or that the choice, as the state’s choice, is made in the best interests of the incompetent and, as such, best vindicates her constitutionally protected rights. What is important is that the choice be made. That was the result in the Grady case, as well as in Matter of Guardianship of Hayes, 93 Wash.2d 228, 608 P.2d *609635 (en banc 1980), and In Re Penny N., 414 A.2d 541 (N.H. 1980). I believe it should be the result here.
Returning to the ultimate question for a moment — that being whether, in the abstract, sterilization of an incompetent should ever be authorized — it is significant to me that, as pointed out by Justice Day, to answer that question with an unequivocal “no” (the practical effect of the majority decision) is itself to make a personal choice on behalf of the incompetent. Not only does it resolve the question of the incompetent person’s choice to procreate or not to procreate in a different but equally substitute manner, that is, the state deciding in favor of procreation, but it does so without any procedural safeguards or any consideration of the incompetent person’s best interests. I wonder, should Joan Eberhardy become pregnant while waiting for legislative action, if a court can exercise its jurisdiction to determine whether it is in her best interests to carry the child to term ?
From the standpoint of sheer common sense concerning the matter of sterilization, it is far better to fashion a remedy that will permit reasoned results in particular cases according to the needs and interests of the individual incompetent person involved than the nonremedy this court today endorses by judicial default: That Joan Eberhardy, and any other similarly situated incompetent person, cannot be surgically sterilized regardless of whether that decision is in her best interests. For a trial court to authorize this procedure clearly is, as the majority describes, state intrusion into a very personal decision, but I do not find intrusion offensive if failure to intrude produces a harmful, even tragic, result.
Having concluded to this point that there may be instances where surgical sterilization is in the best interests of an incompetent person, I further conclude, as in Grady, Hayes, and Penny N., that the power to authorize such a procedure in a particular case should reside with the *610trial courts of this state. It cannot be placed exclusively with the parents or legal guardians because the interests of the parents or guardians may not always be consistent with the interests of the incompetent. The trial courts of this state are seasoned decision makers accustomed to applying the “best interests” standard in other circumstances affecting the rights of those who cannot decide for themselves. Moreover, by definition, a trial court is a fact-finding entity, and it has at its disposal, through adversarial processes, amici curiae, independent experts, and guardians ad litem, a considerable capacity to generate evidence bearing upon any given case. Finally, the decision of the trial court is subject to review by appellate courts. An aggrieved party could seek a stay of a sterilization order and appeal.
Despite the majority’s dissatisfaction with the “best interests” standard, I believe it is suitably flexible and familiar to trial courts and should be applied to this situation. Therefore, as a general rule, a trial court should be able to authorize the surgical sterilization of an incompetent person only if it finds, by clear and convincing evidence, that such a procedure is in the best interests of the incompetent person. In any proceeding the incompetent must be represented by a guardian ad litem, and the trial court should be encouraged to obtain independent, expert assistance. And in every case, such a decision must be preceded by a finding that the incompetent person lacks the capacity to make a decision in this regard and is not likely to acquire that capacity in the foreseeable future.
In making the determination whether sterilization is in the best interests of the incompetent, the court should consider, among any other factors thought to be relevant, the following factors, which I have drawn from the Grady and Ha/yes cases:
(1) The physical capability of the incompetent person to procreate.
*611(2) The likelihood that the person will engage in sexual activity. .
(3) Any physical, psychological, or emotional trauma the individual is likely to experience as a result of pregnancy.
(4) Any physical, psychological, or emotional trauma the individual is likely to experience as a result of the sterilization procedure.
(5) The age and present and projected educability of the individual.
(6) The availability, feasibility, or advisability of other means of contraception.
(7) The individual’s ability to care for and rear a child.
(8) Insofar as any evidence bearing on these factors comes from the proponents of the sterilization procedure, the extent to which the proponents are or appear to be acting in their own or the general- public’s interests as opposed to the best interests of the incompetent.
That these factors can be listed in so short a space should not be a sign that the decision itself is to be made lightly or without all due deliberation. The trial court should recognize that there is a heavy presumption against sterilization in every case, and the above-listed factors should be weighed against that presumption. This means that doubts should be resolved against the procedure; that gaps or insufficiencies in the evidence must be presumed to cast doubt upon the appropriateness of the procedure. Only if the trial court, after considering these and other relevant factors in light of the presumption against the procedure, finds by clear and convincing evidence that sterilization is in the incompetent person’s best interests, may the court authorize the procedure.
The majority opinion expresses fear that this resolution of the issue in this case would establish precedent that sterilization of any person would be acceptable if in the best interests of the person to be sterilized. Certainly *612this case could not stand for the proposition that any person is subject to court authorized sterilization; it would only be applicable to those persons who are incompetent to exercise the choice in their own behalf and for whom the court finds that sterilization is in their best interests. But other than making the initial, albeit awesomely weighty, determination that sterilization is a legal alternative, it need not open the floodgates for sterilizations en masse or necessarily raise the spectre of self-appointed advocates of sterilization for the public good or even of self-serving parents or guardians clamoring for court orders. While it is probably unnecessary, I would caution the trial court to recognize that the decision is a most profound one which is, in all likelihood, irreversible.
In sum, I think it is most unfortunate that the majority has chosen to defer to the legislature on this matter. While I agree the case involves a fundamental policy question, these are not strangers to this court. The people of this state have the right to apply to the courts for the protection of their inherent human rights to life, liberty, and the pursuit of happiness and to have their applications for relief adjudicated. The rights of those least able to protect themselves are the rights most in need of judicial attention. Joan Eberhardy should have a judicial determination on this critical issue which can have a profound effect on her ability to live a happy and healthy life.
With the establishment of guidelines to assist the trial court in making this decision, I would reach the policy question the majority avoids, reverse the decision of the court of appeals, and remand the case to the trial court for the exercise of its discretion in accordance with those guidelines.