I concur in the affirmance of the judgment, but I cannot join in the majority’s analysis which leaves open the possibility of Valerie N.’s sterilization, done in the name of her “habilitation.”
Our opinion in In re Hop (1981) 29 Cal.3d 82 [171 Cal.Rptr. 721, 623 P.2d 282], affords an illuminating backdrop for this case. There, we considered a scheme under which nonobjecting mentally retarded persons incompetent to request hospital placement could “voluntarily” be so placed at the request of a person other than a duly authorized conservator or guardian. No judicial determination of disability or need for such placement was required. In the course of disapproving that procedure, we noted a contradiction inherent in the scheme: “Hop is presumed sufficiently competent to understand the need for her to object to her placement when it has been initiated by a third party, her mother. At the same time she is presumed incompetent to a degree which would prevent her from requesting admission or, once confined, obtaining unilaterally and without review her own release.” (Id., at p. 90.)
The analytical fallacy we explored in Hop is echoed and expanded upon in the present case. The majority acknowledges that the incompetent is, by definition, unable to make a choice. Nonetheless, it concludes that “she has a constitutional right to have these decisions made for her, in this case by her parents as conservators, in order to protect her interests in living the fullest and most rewarding life of which she is capable.” (Ante, at p. 160.) However, while she has a constitutional right to have a “substituted choice” made on her behalf to effectuate her constitutional rights to be free of her procreative capabilities in order to advance her right to habilitation, the former “right” is severely circumscribed by the assertion that there is no intention to “open the way to unrestricted approval of applications for additional powers” to enable sterilizations to take place. (Ante, at p. 168.) The sweeping terminology utilized to discern constitutional imperatives permitting sterilization suddenly narrows when the significant past abuses in this area are recalled. To that end the majority proposes adoption of an “adapted” version of Probate Code section 2357’s requirements to be applied in conjunction with the standards enunciated by the Washington Su*171preme Court in Matter of Guardianship of Hayes (1980) 93 Wn.2d 228 [608 P.2d 635, 640-641].
As the majority mentions, and the Chief Justice’s dissent emphasizes, the history of sterilization of mentally incompetent persons is not one of which we should be proud. My colleagues refer to the “prevalent attitude, reflective of the limited knowledge of the nature of developmental disabilities then available.” (Ante, at p. 152, fn. 8.) Many of those responsible for eugenic sterilizations acted in accord with those “prevalent” views and out of high personal and societal motives. Nonetheless, the extremes to which eugenics could be misapplied were more than amply demonstrated during World War II.
I find fundamentally problematic my colleagues’ conclusion that there is a constitutional right to “substituted consent” in this context. The statutory scheme providing for habilitation concededly does not itself permit sterilization of persons such as Valerie. The majority nonetheless has transmuted the process of habilitation set forth in the applicable laws into a constitutional “right” which encompasses the “right” to be sterilized if one’s conservator so elects. I worry whether the “rights” which we are “protecting” are in fact more likely to become those of the incompetent’s caretaker.
In In re Hop, supra, we expressly considered the argument that we should afford deference to those like Ms. Hop’s mother who acted in the best interests of their charges. We responded: “In justifying disparate treatment of the developmentally disabled, we are unable to substitute for constitutional safeguards the admitted good intent both of the state and of those treating the developmentally disabled . . . .” (29 Cal.3d at p. 93.) Here, that “good intent” is used as a basis for concluding that an incompetent has a constitutional right to sterilization which outweighs her rights to be free of intrusive medical procedures and to retain her procreative capacity.
It is especially interesting to take a closer look at the record which has produced the majority’s exegesis on constitutional rights. Petitioner presented in support of the application for sterilization the briefest of written declarations by Valerie’s pediatrician and a counselor specializing in working with developmentally disabled clients. Valerie’s pediatrician, after observing that Valerie was mentally retarded apparently as a result of Down’s syndrome, stated in relevant part: “4. I am aware of the family’s desire to have a tubal ligation performed on Valerie. This operation will permanently sterilize but not unisex [szc] the conservatee. [f] 5. In my opinion this procedure is advisable and medically appropriate in that a potential pregnancy would cause psychiatric harm to Valerie.” That is the sum and substance of the doctor’s evidence. Significant in this offering are his men*172tion of “the family’s desire” to have the operation performed and the complete lack of information showing that as a pediatrician he had the training and the relevant information necessary to determine what might or might not affect Valerie’s psychiatric well-being. I wonder what effect we would give a similar conclusory declaration by an obstetrician that a patient’s broken leg would cause “psychiatric harm.”
The next declaration was by a licensed counselor holding a master’s degree in developmental psychology. The counselor specializes in “behavior management with developmentally disabled clients” and has acted as a vendor providing services to clients connected with regional centers set up to serve the developmentally disabled. She had worked with Valerie weekly for approximately one year ending about two years before the court hearing. The counselor declared that “From my numerous contacts with Valerie as well as her family, I am of the opinion that a tubal ligation is an appropriate means of guarding against pregnancy.” Specifically she had observed “Valerie act affectionately” towards men and had worked with Valerie’s family “on Valerie’s problem concerning her inappropriate sexual attention to adult males.” No specifics regarding the conduct involved are provided.
After reciting these factors, the counselor states “Because of the parents’ fear of a pregnancy whith might result from Valerie’s inappropriate sexual advances, they have felt compelled to overly restrict her social activities. This close monitoring has severely hampered her from being able to form social relationships appropriate to her developmental level.” The focus is on the parents’ fears and the conclusion they have “overly restricted” Valerie’s activities. No actual description of the supervision afforded Valerie or any alternatives available is given. Nor is there mention of whether there might be ways to modify the parents’ conduct if indeed they are “overly restrictive.”
The declaration then concludes “It is my professional opinion that if Valerie were to become pregnant, the pregnancy itself would have severe psychologically damaging consequences to Valerie.” Moreover, “[b]ecause of Valerie’s severe mental retardation there appears to be in my judgement [j/c] no alternative birth control measures available to her which would guarantee that she would not become pregnant.” As in the pediatrician’s report, there is no specific basis given for the conclusion that Valerie would be psychologically harmed by pregnancy. If the harm is the same as that which would occur to any similarly disabled person, then the specter of wholesale sterilization of such persons looms more concrete. Indeed, there is absolutely nothing in the medical evidence presented that significantly differentiates Valerie’s medical and psychological condition from that of any other severely developmentally disabled woman in similar circumstances.
*173In addition to this information, Valerie’s mother and conservator testified at the hearing. She stated Valerie’s social behavior was “not acceptable.” Valerie was not, to her knowledge, sexually active, “[b]ut she is very aggressive, very affectionate—likes boys.” Her conduct included hugging, kissing, climbing on men and wanting to sit on their laps.
As to training, behavior modification had been tried: “Shaking hands, you know, not being so aggressive.” Valerie remained “aggressive.” When Valerie was in her early teens, two kinds of birth control pills were tried, but she “rejected [them] and became ill.” Therefore, according to Valerie’s mother, the pediatrician recommended tubal ligation to avoid potential psychological and medical problems. Valerie had not cooperated in attempts to have a pelvic examination. Finally, when asked why sterilization of Valerie was sought, her mother stated “Because I do not wish her to become pregnant, but I would still like her to be able to broaden her social activities.”
The above constitutes the relevant medical and psychological information presented to the court. After hearing argument, the trial judge stated that “I think, sterilization, from what I’ve heard, I think it is desirable and should be ordered.” He concluded that “on the basis of what I’ve heard so far, I would rule sterilization is in order except for the lack of jurisdiction.” (See Guardianship of Tulley (1978) 83 Cal.App.3d 698 [146 Cal.Rptr. 266]; Prob. Code, § 2356, subd. (d).)
The point of my recitation of the facts adduced at the hearing and the trial judge’s response is not to cast aspersions on the sincere beliefs and good intentions of those concerned with Valerie’s welfare. Rather, it is to demonstrate that on this skimpy and, I believe, totally inadequate record the trial court, but for clear restraints, would have ordered sterilization. Moreover, on this record the majority of this court has seen fit to posit a denial of constitutional rights. Consider the situation of other incompetents who might be deemed incapable of making decisions regarding sterilization, such as the mentally ill or juveniles. It is clear to me that any appellate court would consider the inadequacies of this record woefully apparent and find it an insufficient basis for concluding that sterilization should be authorized. The difference when we consider the case of the developmentally disabled arises in large part, I submit, because of societal attitudes, as well as the admittedly significant problems which may be involved in their care. The difficulty, however, is that those responsible for the decision may be more willing, for the sake of convenience and relying upon the benevolence of those making the request, to allow such surgery. However, generalized “good intentions” simply are not enough to support the constitutional framework erected by the majority.
*174My fear of the potential for abuse of the sterilization procedure is neither embroidered out of whole cloth, nor alleviated by the assertion that eugenics and convenience for the caretaker and society are now historic anomalies. The Chief Justice’s citation to recent cases where, for example, parental consent was deemed adequate to permit sterilization demonstrates that the misuse of sterilization in such a way is still quite possible. (See post, at p. 177, fn. 5 (dis. opn. by Bird, C. J.).) Under the circumstances, I cannot conclude that the Legislature’s determination that barring sterilization of those unable to consent to the procedure amounts to an unconstitutional invasion of an incompetent’s rights.1
Our purpose here is to consider whether Probate Code section 2356, subdivision (d), prohibiting sterilization of incompetents such as Valerie, is unconstitutional. I conclude that whether one uses a compelling state interest or rational basis test to measure this regulation, the Legislature had sufficient cause to act as it did. It may well have decided that in light of past history the risks of abuse for those incompetent to consent to sterilization were simply too great. It may therefore justifiably have determined that to allow an exercise of discretion in this arena by courts and those responsible for the care of the incompetent posed an unacceptable hazard. The approach selected is further supported by the fact that not only is the nature of the procedure contemplated such that it is irreversible, but also the interests of those concerned may be served by utilizing other available alternatives to avoid unwanted pregnancies.
In conclusion, I cannot join with the majority in finding that the Legislature’s action amounted to an unconstitutional intrusion into the rights of Valerie N. or any similarly situated incompetent person. The Legislature may well have found a compelling state interest in limiting the power of even the best-intentioned persons. The state of the record here, although found by the majority insufficient to support sterilization under the new standards enunciated, nonetheless serves only to heighten my concern that sterilization of persons such as Valerie will become pro forma commonplace occurrences even under the standards proposed. With that I cannot agree.
Of course, sterilization necessitated by an incompetent’s medical condition would be permissible under the present statutory scheme.