I respectfully dissent.
Today’s holding will permit the state, through the legal fiction of substituted consent, to deprive many women permanently of the right to conceive and bear children. The majority run roughshod over this fundamental constitutional right in a misguided attempt to guarantee a right of procreative *175choice for one they assume has never been capable of choice and never will be. Yet precisely because choice and consent are meaningless concepts when applied to such a person, the majority’s invocation of the theory of procreative choice and the fiction of substituted consent cannot withstand constitutional scrutiny.
The majority opinion opens the door to abusive sterilization practices which will serve the convenience of conservators, parents, and service providers rather than incompetent conservatees. The ugly history of sterilization abuse against developmentally disabled persons in the name of seemingly enlightened social policies counsels a different choice.
Fortunately, the Legislature has already made that choice. The state has a compelling interest in protecting the fundamental right of its citizens to bear children. The prohibition on sterilization of incompetent conservatees in Probate Code section 2356, subdivision (d) is necessary to effectuate that interest.1 I would hold that section 2356, subdivision (d) is constitutional and, on that basis, affirm the judgment.
I.
The history of involuntary sterilization of incompetent, developmentally disabled individuals over the past 80 years is a history of wholesale violations of constitutional rights carried out with the approval of the highest judicial tribunals. (See, e.g., Buck v. Bell (1927) 274 U.S. 200 [71 L.Ed. 1000, 47 S.Ct. 584].) In the first half of this century, approximately 60,000 people were subjected to compulsory sterilization in the United States. A disproportionate number of these operations was carried out in California— nearly 20,000 between 1900 and 1960. (See State Council on Developmental Disabilities, Cal. Developmental Disabilities State Plan, 1984-1986, pp. 58-59 [hereafter State Plan].)2
This phenomenon was fueled by a widely held but incorrect belief that virtually all developmental disabilities were inherited and could be eliminated by preventing those affected from reproducing.3 (Price & Burt, Sterilization, State Action, and the Concept of Consent (1975) 1 L. & Psychol*176ogy Rev. 57, 61-62 [hereafter The Concept of Consent]; Burghdorf & Burghdorf, The Wicked Witch Is Almost Dead: Buck v. Bell and the Sterilization of Handicapped Persons (1977) 50 Temple L.Q. 995, 1007-1008 [hereafter The Wicked Witch].)
It is now recognized that many forms of mental retardation have no hereditary component, while in others heredity is but one of several contributing factors. (Matter of Guardianship of Hayes (1980) 93 Wn.2d 228 [608 P.2d 635, 640]; Brakel & Rock, The Mentally Disabled and the Law (rev. ed. 1971) p. 211 [hereafter Brakel & Rock]; Robitscher, Eugenic Sterilization (1973) pp. 113-116; Friedman, The Rights of Mentally Retarded Persons (1976) pp. 115-117.) Eighty to ninety percent of mentally disabled children are born to normal parents. (Murdock, Sterilization of the Retarded: A Problem or a Solution? (1974) 62 Cal.L.Rev. 917, 926 [hereafter Problem or Solution].)
The majority scarcely acknowledge this shameful history. Instead, they quote at length and largely without comment from the statutes and decisions which made such abuses possible. When they do comment, it is to explain sympathetically that the legal justifications advanced during that period were merely expressions of “[t]he prevalent attitude, reflective of the limited knowledge of the nature of developmental disabilities then available . . . .” (Maj. opn., ante, at p. 152, fn. 8.) The extensive literature recording the scope of the abuses and the constitutional infirmities of the statutes and decisions which permitted them is cavalierly ignored.4
Most importantly, the majority fail to note that abuses continue to occur. For example, the North Carolina Court of Appeals recently permitted the involuntary sterilization of a 23-year-old woman on the grounds that she was mildly retarded and “had exhibited emotional immaturity, the absence of a sense of responsibility, a lack of patience with children, and continuous nightly adventures with boyfriends followed by daily sleep and bedrest. Such conduct and personality traits in addition to mental retardation,” the court said, “clearly . . . show that respondent failed to meet any acceptable standard of fitness to care for a child by providing a reasonable domestic *177environment.” (Matter of Johnson (1980) 45 N.C.App. 649 [263 S.E.2d 805, 809]; see Problem or Solution, op. cit. supra, at pp. 928-932 [arguing against parental unfitness as a basis for sterilization of developmentally disabled persons on overbreadth and underinclusiveness grounds]; Brakel & Rock, op. cit. supra, at p. 217; The Concept of Consent, op. cit. supra, at pp. 72-73.)5
Of course, compulsory sterilization, initiated by the state, is not the issue in this case. As the majority note, California no longer has a compulsory sterilization statute. (See former Welf. & Inst. Code, § 7254, repealed by Stats. 1979, ch. 730, § 156.5, p. 2540; maj. opn., ante, at p. 150.) However, the history of compulsory sterilization under such statutes provides the frame of reference for evaluating the constitutionality of the Legislature’s ban on sterilization of incompetent conservatees. It is also useful in assessing the ostensibly “consensual” approaches which have been adopted in other states and which the majority adopt today.
As Professors Price and Burt have argued, the trend away from compulsory sterilization and toward sterilization on the basis of substituted consent obscures the fact that the issue remains one of state action threatening the fundamental right of procreation. “Forms of state control and intervention change and become so sophisticated, appealing, subtle, and delicate that modern governmental action seems to be less and less restricted by an ordinary application of constitutional protections. For example, when government intervention primarily took the form of institutionalization, particularly compulsory institutionalization, certain ideals of due process which had developed in the criminal law system could be brought to bear ... to increase the protection of the individual from arbitrary state action ....
*178“When a modern state determines to intervene, for example by means of . . . sterilization, it offers modern justifications. ‘Positive eugenics’ are no longer in vogue, but the intense competition for tax dollars has merely replaced genetic considerations with fiscal and psychological ones. Where the Holmes[] statement, ‘three generations of imbeciles are enough,’ was sufficient to uphold the constitutionality of intervention by sterilization a half-century ago, we talk confidently in the compulsory 1970’s about ‘parenting,’ of ‘breaking the vicious cycle’ of three generations of welfare clients. Beyond these justifications, there is an additional factor . . .: through adroit statutory change and through nonstatutory efforts to confer power to consent on persons other than the individual directly affected, the always thin line between involuntary and voluntary action has been further attenuated to the point of disappearance.” (The Concept of Consent, op. cit. supra, at pp. 59-60, fns. omitted.) Writing in 1975, Price and Burt predicted “a trend toward third-party consent to cover many transactions that would have been justified by pure state intervention at a time when such action was more palatable and available.” (Id., at p. 78.)
That prediction has been borne out in the intervening years. Courts in a number of jurisdictions without compulsory sterilization statutes or where such statutes had been repealed or were inapplicable under the circumstances of a particular case have permitted third persons to consent to sterilization of incompetent, developmentally disabled women. (See Matter of Guardianship of Hayes, supra, 608 P.2d at pp. 638-641; Matter of C. D. M. (Alaska 1981) 627 P.2d 607, 610; Matter of A. W., supra, 637 P.2d at pp. 370-375; Matter of Moe (1982) 385 Mass. 555 [432 N.E.2d 712, 719-720]; In re Grady (1981) 85 N.J. 235 [426 A.2d 467, 480-481]; Ruby v. Massey (D. Conn. 1978) 452 F.Supp. 361, 368-369.)
Like the majority here, these courts have turned to the substituted consent device after concluding that the right to be sterilized is an aspect of a constitutional right of procreative choice enjoyed equally by all persons, whether or not they are developmentally disabled. The justifications that have been advanced for applying both the underlying constitutional theory of procreative choice and the doctrine of substituted consent to individuals who never were and never will be capable of choice cannot withstand critical scrutiny. Because the majority’s use of the procreative choice theory presents the more fundamental problem, it will be addressed first. A detailed critique of the majority’s use of the substituted consent doctrine will follow.
II.
That the “right to have offspring” is a fundamental right was first recognized in Skinner v. Oklahoma (1942) 316 U.S. 535, 536 [86 L.Ed. 1655, 1657, 62 S.Ct. 1110], That case involved Oklahoma’s Habitual Criminal *179Sterilization Act, which, with exceptions for certain white collar crimes, permitted sterilization for multiple convictions of felonies involving moral turpitude. The high court held the statute violated the equal protection clause as applied to a man who had been convicted once of stealing chickens and twice of robbery.6
None of the opinions in Skinner characterized the right to procreate as a right of choice or privacy.7 Rather, the majority referred to the right to bear and beget children as “a basic liberty” and as “one of the basic civil rights of man.” (Id., at p. 541 [86 L.Ed. at p. 1660].) In a concurring opinion, Justice Jackson observed that involuntary sterilization implicated “the dignity and personality and natural powers of a minority . . . .” (Id., at p. 546 [86 L.Ed. at p. 1663].) In another concurring opinion, Chief Justice Stone spoke of involuntary sterilization as an invasion of the personal liberty of the individual. (Id., at p. 544 [86 L.Ed. at p. 1662].)8
The terms employed by the Skinner opinions suggest that the interests implicated by sterilization are more primal than the retention of control over decisions in important areas of personal life. As one commentator has observed, “the great conceptual background for due process privacy law [is] bodily autonomy .... At present only the most powerless members of society appear to need to rely on the Constitution for such a basic right. The courts have . . . recognized individual liberty in things of the body as a touchstone.” (Note, Due Process Privacy and the Path of Progress (1979) U. Ill. L. F. 469, 515 [hereafter Due Process Privacy]; id., at pp. 504-505; see Union Pacific R. Co. v. Botsford (1891) 141 U.S. 250, 251-252 [35 L.Ed. 734, 737, 11 S.Ct. 1000] [common law right of personal injury plaintiff to be free of compulsory physical examination], cited in Roe v. Wade (1973) 410 U.S. 113, 152 [35 L.Ed.2d 147, 176, 93 S.Ct. 705]; Schmerber *180v. California (1966) 384 U.S. 757, 778-779 [16 L.Ed.2d 908, 924, 86 S.Ct. 1826] (dis. opn. of Douglas, J.); Breithaupt v. Abram (1957) 352 U.S. 432, 441-442 [1 L.Ed.2d 448, 454, 77 S.Ct. 408] (dis. opn. of Warren, C. J.); id., at pp. 443-444 [1 L.Ed.2d at p. 455] (dis. opn. of Douglas, J.).)
Our own courts have recognized that the right to procreate has roots that go deeper than and do not depend upon a capacity for rational choice. “[T]he preservation of one’s bodily reproductive functions is a fundamental right, and the termination thereof constitutes a serious invasion of the sanctity of the person.” (Guardianship of Tulley (1978) 83 Cal.App.3d 698, 705 [146 Cal.Rptr. 266], italics added.)
By contrast, sterilization, abortion, and contraception all necessarily involve the exercise of choice. Hence, restrictions or prohibitions on such choices implicate not only the fundamental right to procreate recognized in Skinner but also the right to choose not to procreate. The courts have invoked the constitutional right of privacy to strike down statutes which prohibit or unduly restrict access to contraceptive devices and information, abortion, and voluntary sterilization. The individual’s right to make her own decision in this highly personal area was stressed. In Eisenstadt v. Baird, supra, 405 U.S. 438, a contraception case, the United States Supreme Court recast the right of privacy first recognized in Skinner as “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (Id., at p. 453 [31 L.Ed.2d at p. 362], italics added and omitted.)
Other decisions have sounded the same theme. (See Roe v. Wade, supra, 410 U.S. at p. 153 [35 L.Ed.2d at p. 177] [the right of privacy is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”]; Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 263 [172 Cal.Rptr. 866, 625 P.2d 779, 20 A.L.R.4th 1118]; People v. Belous (1969) 71 Cal.2d 954, 963 [80 Cal.Rptr. 354, 458 P.2d 194]; Jessin v. County of Shasta (1969) 274 Cal.App.2d 737, 748 [79 Cal.Rptr. 359, 35 A.L.R.3d 1433] [privacy right to seek sterilization].) Even Justice Douglas, the author of the majority opinion in Skinner, later referred to the existence of a body of fundamental privacy rights safeguarding “freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.” (Doe v. Bolton (1973) 410 U.S. 179, 211 [35 L.Ed.2d 201, 187, 93 S.Ct. 1410] (cone. opn. of Douglas, J.), italics added.)
With regard to individuals competent to make such decisions, the recognition of a comprehensive right of procreative choice, linking the right to *181procreate with the right to prevent procreation through sterilization or other less permanent means, was a positive and logical advance. Yet if applied unaltered to incompetent, developmentally disabled individuals, the concept of procreative choice obscures more than it clarifies.
The choice model creates a false impression of equivalence between the “decision” to procreate and the “decision” to be sterilized. On closer examination, it is apparent that only the right to be sterilized is necessarily premised on a capacity for rational, informed choice and decision. Sterilization, like abortion and the use of contraceptives, requires a conscious decision by someone aware of the significance of pregnancy and childbearing. Sterilization and abortion in particular, as medical procedures, clearly take place only as the result of choices made by individuals aware of the consequences of their actions. By contrast, procreation is a natural function which can and often does occur without the exercise of a rational or knowing choice. This is true for both competent and incompetent individuals.
Thus, a constitutional theory which treats the right to prevent procreation as an aspect of a larger right of procreative choice is sensible, since the actions necessary to exercise the right require conscious choice and decision. On the other hand, the right to procreate is more than a byproduct of a right of choice. Its roots go deeper; they are constitutional in the physical sense, implicating the individual’s rights to physical integrity and to retention of the biological capabilities with which he or she was born into this world. Hence, even in the case of a mentally competent individual, it is somewhat illogical to treat the right to procreate solely as a matter of control over basic personal decisions. In the case of a permanently incompetent individual, such logic has no place whatsoever. (See Matter of Storar (1981) 438 N.Y.S.2d 266 [420 N.E.2d 64, 71-73] [fundamental right to life paramount to right to decline medical treatment where terminally ill patient has never been competent to understand or make a reasoned decision about medical treatment].)
In their discussion of appellants’ equal protection challenge, the majority disregard these differences between the right to procreate and the right to prevent procreation. By adopting the procreative choice model, they assume that, regardless of whether the woman is competent or incompetent, the sterilization decision requires the same choice between equally weighted competing interests. The majority conclude in essence that the state’s interest in protecting a severely disabled woman’s right to procreate is not sufficiently compelling to justify the denial of her right to be sterilized. This reasoning cannot withstand scrutiny.
Unlike the right to bear children, the right to be sterilized is a function of the capacity for rational choice, a capacity the incompetent, develop*182mentally disabled woman lacks. Thus, the balance between the two rights is not the same for an incompetent, developmentally disabled woman as it is for her competent, nondisabled counterpart.
In the case of an incompetent, severely disabled woman, the conditions upon which to premise a constitutional right to be sterilized are essentially nonexistent. By contrast, her right to procreate, which is not rooted in or dependent upon a capacity for informed decision, is undiminished. Indeed, it requires even greater protection due to her legally dependent status and limited capacity to defend her own rights. In this context, the state’s interest in prohibiting sterilization is a compelling one.
The majority also find a constitutional right to sterilization in Valerie’s due process liberty interest in minimizing restrictions on her social interactions. (See maj. opn., ante, at pp. 161-163.) That conclusion is flawed by the absence of any showing that the restrictions are truly necessary and by the majority’s failure to balance the deprivation of liberty resulting from such restrictions against the irreversible loss of her fundamental right to procreate if she is sterilized.
The majority concede the inadequacy of the evidence as to the nature and effects of the restrictions placed on Valerie’s activities in the attempt to prevent her becoming pregnant. However, relying on descriptions in other cases, they readily assume that unacceptable restrictions are “necessarily placed upon sexually mature mentally retarded women in the effort to prevent pregnancy . . . .” (Maj. opn., ante, at p. 163, fn. 25.)
In this case, the restrictions on Valerie’s activities have been imposed by her parents rather than by the state. Nonetheless, it is essential to require a showing that the state has a compelling interest in preventing Valerie from becoming pregnant and that the restrictions are no broader than necessary to protect that interest. (See Roe v. Wade, supra, 410 U.S. at p. 155 [35 L.Ed.2d at p. 178].) Only then may the right to “personal growth and development” be weighed against the right of procreation. This, the majority has not attempted to do.
If such an analysis were attempted, it would become clear that any unavoidable adverse impact of the sterilization ban on a developmentally disabled, incompetent conservatee’s liberty interests is insufficient to justify the permanent deprivation of her right to procreate. This conclusion flows inexorably from a comparison of the intrusions on the two rights. Sterilization results in a complete and irreversible deprivation of the right to pro*183create.9 By contrast, any restriction on social activities that results from a ban on sterilization constitutes at most a partial deprivation of liberty.
The majority’s failure to engage in a meaningful weighing of these interests is indicative of a basic problem with their analysis. In their effort to protect Valerie’s rights of liberty and procreative “choice,” they fail to seriously acknowledge her right to procreate. The majority make several unsupported assumptions which suggest that they recognize Valerie’s right to procreate for purposes of conceptual symmetry only. They do not regard it as a real right, entitled to meaningful protection.
For example, the majority assert without citation to any authority that Valerie’s conservators may legally compel her to undergo an abortion or to surrender custody over any child she might bear. (Maj. opn., ante, at pp. 160-161; but see id., at p. 150 & fn. 6; The Concept of Consent, op. cit. supra, at pp. 72-74.) Indeed, having incorrectly cast Valerie’s fundamental right to procreate as a right of procreative choice, the majority summarily conclude that she will never have the right to bear children because she will never be competent. “That right has been taken from her both by nature which has rendered her incapable of making a voluntary choice, and by the state through the powers already conferred upon the conservator.” (Maj. opn., ante, at p. 165.)
I strongly disagree. As explained above, the roots of the fundamental right to procreate go deeper. A woman should not be stripped of that right by conditioning its recognition on her capacity to make informed choices.
In sum, the majority’s constitutional analysis fails to give proper weight to the fundamental right to procreate. It also fails to acknowledge that the right to procreate has independent roots which, in contrast to the right to sterilization, are not linked to a capacity for decision and choice. Finally, the majority fail to weigh the impact of the irreversible deprivation of the right to procreate against the partial impairment of liberty which they cite to strike down section 2356, subdivision (d). When proper consideration is given to these questions, it is apparent that the statute’s ban on sterilization, which applies only to incompetent, developmentally disabled conservatees, is constitutionally sound.
*184III.
The majority’s use of the substituted consent doctrine to permit sterilization of an incompetent individual underscores and exacerbates the problems inherent in applying the constitutional “choice” model which forms the core of their analysis. Like the theory of procreative choice, substituted consent derives its legitimacy from the premise that the affected individual once possessed a capacity to make informed choices or will be able to do so at some point in the future. Even so, the doctrine requires a court to engage in a questionable legal fiction. This departure from reality reaches its zenith when the third party deciding on a matter as vital as whether to undergo sterilization purports to stand in the shoes of a severely retarded adult who has since birth been incapable of making such choices.
In many situations, the law prohibits actions affecting an individual’s rights without his or her informed consent. Courts developed the doctrine of substituted consent so that third persons could make decisions on behalf of incompetents in these situations. (E.g., Annot., Power of Court or Guardian to Make Noncharitable Gifts or Allowances Out of Funds of Incompetent Ward (1969) 24 A.L.R.3d 863; see generally Superintendent of Belchertown v. Saikewicz (1977) 373 Mass. 728 [370 N.E.2d 417, 431].)
The substituted consent doctrine is often invoked to permit surgery on incompetent conservatees, since a surgical operation performed without consent is a battery. (See §§ 2355, 2357; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, §§ 199, 200, pp. 2485-2486.) On similar grounds, substituted consent is also employed to permit consent by parents or guardians to surgery on minors. (See § 2353; 4 Witkin, supra, at p. 2486.) The familiarity of the doctrine in the surgery context explains why courts have so readily turned to it when confronted with a request to authorize the surgical sterilization of an incompetent, developmentally disabled individual. (See Right to Choose, op. cit. supra, at pp. 565-566.)
Substituted consent is problematic even in cases where the affected individual once possessed the capacity to make informed decisions. In the well-known Karen Quinlan case, a 22-year-old woman who had fallen into a permanent coma was living in a “non-cognitive, vegetative” state. (Matter of Quinlan (1976) 70 N.J. 10 [355 A.2d 647, 664, 79 A.L.R.3d 205].) The New Jersey Supreme Court invoked the substituted consent doctrine to permit a parent and guardian, with the concurrence of other family members, attending physicians, and a medical ethics committee, to consent to the removal of life-support equipment. (Id., at p. 671.)
The court held that the constitutional privacy right of the comatose woman included the right to decline physically invasive and seemingly pointless *185treatment.10 (Quinlan, supra, 355 A.2d at p. 664.) It concluded that this right could only be protected by permitting “the guardian and family of Karen to render their best judgment ... as to whether she would exercise it in these circumstances.” (Ibid.)11
Several constitutional scholars, while sympathizing with the plight of the Quinlan family, have questioned the court’s constitutional analysis as well as its application of the substituted consent doctrine. Professor Tribe has observed that “[g]iven the supposedly vegetative state that alone justified the court’s holding, attributing ‘rights’ to Karen at all was problematic; more realistically at stake were the desire of her anguished parents to be rid of their torment and the interest of society in freeing medical decision makers from blind adherence to a practice of keeping vegetating persons ‘alive’ simply out of a fear of prosecution. But to give those interests constitutional status even where the state interposes an objection in the interest of the child’s life seems most troubling.” (Tribe, American Constitutional Law, op. cit. supra, at pp. 936-937, fn. omitted.)
Focusing more specifically on the use of the substituted consent doctrine, Professor Kamisar has challenged the court’s willingness to guess at what Karen" Quinlan would want if she could decide for herself. “What the court is really saying, I believe, is that if Karen’s constitutional right of privacy includes a right to elect to die and she presently lacks the capacity to choose and we cannot discern from her previous statements how she as a particular individual would have chosen, we may surmise that she would have chosen to die because we presume that the great majority of those in her situation would so chose. ... If, in the absence of hard evidence about a patient’s wishes when actually put in a Quinlan-type situation, a court is to indulge in presumptions, one would think that it would presume just the opposite of what it did in Quinlan. ” (Kamisar, A Life Not (or No Longer) Worth Living: Are We Deciding the Issue Without Facing It? (Nov. 10, 1977) Mitchell *186Lecture delivered at the State University of Buffalo, quoted in Due Process Privacy, op. cit. supra, at p. 518, fn. 238.)12
If the substituted consent doctrine poses difficult problems in a case where the affected individual was once competent, those problems magnify tenfold in the case of an individual whose incompetency is lifelong. Yet, the majority rely on just such cases to support their application of the doctrine. (Maj. opn., ante, at pp. 166-167; Matter of Moe, supra, 432 N.E.2d 712; In re Grady, supra, 426 A.2d 467.)
In Grady, the New Jersey Supreme Court relied on the substituted consent analysis of Quinlan to hold that the parents of a developmentally disabled, noninstitutionalized, 18-year-old woman could consent on her behalf to a sterilization operation. (Grady, supra, 426 A.2d at pp. 480-481.) Whatever merit there may have been in authorizing the exercise of substituted consent in Quinlan, its use in Grady was logically unsupportable. Indeed, Grady exemplifies the way in which substituted consent fosters the ascendancy of legal fiction over reality.
In Quinlan, the court stressed the strong bonds of “familial love” that had existed between Karen and her family when she still possessed normal mental capacities. (See Quinlan, supra, 355 A.2d at p. 657.) It was pre*187cisely the family’s knowledge of Karen’s way of thinking that the court believed would enable the family to determine the choice she would make if she were still capable of choosing. (See id., at p. 664.)
In Grady, however, as in this case, there was no basis for a similar assumption. Like Valerie, the daughter in Grady had never been capable of articulating choices. There was not the slightest bit of evidence regarding the ability of the parents to determine that their daughters would choose to be sterilized. Hence, “a decision by the parents [was] mere speculation, rather than an ascertainment of the incompetent’s preferences based on prior observations and conversations, as in Quinlan. ” (Right to Choose, op. cit. supra, at p. 584; see Note (1981) 12 Seton Hall L.Rev. 96, 110-111.)
Courts in several jurisdictions have recognized the absurdity of applying the substituted consent doctrine to individuals whose incompetence is the result of severe, lifelong developmental disability. In Matter of Storar, supra, 420 N.E.2d 64, the New York Court of Appeals held that blood transfusions could not be withheld from a severely retarded man suffering from a terminal illness. (Id., at p. 73.)
The court acknowledged the right of a competent patient to refuse medical treatment. It also recognized that a third person might be permitted to make the decision for an incompetent patient under certain circumstances. However, the court emphasized that unlike Karen Quinlan, “John Storar was never competent at any time in his life. He was always totally incapable of understanding or making a reasoned decision about medical treatment. Thus it is unrealistic to attempt to determine whether he would want to continue potentially life prolonging treatment if he were competent. As one of the experts testified . . ., that would be similar to asking whether ‘if it snowed all summer would it then be winter?’ ” (Id., at pp. 72-73.) As a result, the court concluded that Storar’s right to life took precedence over the right to refuse treatment which he would have had if he were competent. A judgment denying permission to continue the transfusions was reversed. (See ibid.)
Courts faced with requests to authorize sterilization have recognized the same problem. In Matter of Guardianship of Eberhardy (1981) 102 Wis.2d 539 [307 N.W.2d 881], the Wisconsin Supreme Court criticized the Grady court’s attempt to equate “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.” (Id., at p. 893.) In In the Matter of Terwilliger (1982) 304 Pa.Super. 553 [450 A.2d 1376], the court reached a similar conclusion, noting that “if the trial court . . . determines that [the conservatee] lacks the ability to make [the] choice for herself, we do not *188pretend that the choice of her guardian to consent to sterilization would be her own choice.” (Id., at p. 1381, fn. 1; see also Ruby v. Massey, supra, 452 F.Supp. at pp. 370-371, fn. 24; Grady, supra, 426 A.2d at p. 487 (conc. opn. of Handler, J.); Superintendent of Belchertown v. Saikewicz, supra, 370 N.E.2d at p. 430; In re Hop (1981) 29 Cal.3d 82, 90-91 [171 Cal.Rptr. 721]; cf. Farber v. Olkon (1953) 40 Cal.2d 503 [254 P.2d 520].)
Commentators have expressed stronger reservations. Professors Price and Burt have attacked the use of substituted consent in the sterilization context as “nothing short of an extended conceit on the proposition of voluntariness. It is a fiction which authorizes the state to intervene because a party other than the subject provides the green light.. Often that third party is the parent of the subject individual, but the doctrine is equally applicable when the third party is ... a guardian ad litem[] or a conservator. By characterizing the transaction as ‘consensual’ rather than ‘compulsory,’ third-party consent allows the truly involuntary to be declared voluntary, thus bypassing constitutional, ethical, and moral questions, and avoiding the violation of taboos. Third-party consent is a miraculous creation of the law—adroit, flexible, and useful in covering the unseemly reality of conflict with the patina of cooperation.” (The Concept of Consent, op. cit. supra, at p. 58, fns. omitted.)
Other writers have stressed the inability of the third person to know the wishes of the incompetent individual. “While substituted parental consent may be legally and morally appropriate in circumstances with less potentially harmful results, parental consent in [the] non-therapeutic sterilization context is less legitimate, for it may not be easily presumed that [a developmentally disabled] child, upon reaching majority, would choose sexual sterilization for him/herself. ” (Shedding Myth-Conceptions, op. cit. supra, at p. 635, fn. omitted.)
Still others have stressed the likelihood that the third party decisionmaker, the court and the incompetent person will have conflicting interests. “Judicial refusal to recognize substituted consent as a proper alternative to an incompetent’s consent to sterilization is indicative of its inadequacies. A part of this reluctance may be due to a belief that a parent’s interests in the sterilization may not be consistent with the incompetent’s best interests. For example, a parent seeking sterilization for the incompetent may be motivated by such concerns as illegitimate mentally deficient offspring, and the care and financial support of such offspring. These concerns, although considerable, do not reflect the personal welfare and interests of the incompetent in improving her condition through sterilization. In addition, substituted judgment leaves great discretion in the judiciary and could lead to inconsistent application.” (Note, Addressing the Consent Issue Involved in the Ster*189ilization of Mentally Incompetent Females (1979) 43 Albany L.Rev. 322, 328, fns. omitted.)
IV.
Notwithstanding all of the foregoing problems, courts in other jurisdictions have concluded that incompetent, developmentally disabled persons have a constitutional right to be sterilized, a right which can be vindicated only by giving to others the power to make this awesome decision.
For the reasons stated earlier in this opinion, the procreative choice model and the substituted consent device are ill-suited to the situation confronting this court. As a result, the sister state decisions which rely on this approach fail to provide adequate protection for the incompetent, developmentally disabled person’s fundamental right to procreate. (See Hayes, supra, 608 P.2d at pp. 640-641; Grady, supra, 426 A.2d at pp. 481-483; In re Penny N. (1980) 120 N.H. 269 [414 A.2d 541, 543]; Matter of A. W., supra, 637 P.2d at pp. 375-376; Matter of C. D. M., supra, 627 P.2d at pp. 612-613.)
The majority patch together a test which combines the standards and procedural requirements set forth in one of these decisions—Hayes—with those of section 2357. (See maj. opn., ante, at pp. 165-166, 168.)
Even the most cursory examination of section 2357 reveals that it is intended for application in entirely different circumstances and is ill-suited to the task. Section 2357 was designed for decisions regarding treatment of medical conditions posing a threat to the life or health of an incompetent conservatee. Judicial authorization of a conservator’s request for medical treatment is permitted only where, “[i]f untreated, there is a probability that the condition will become life-endangering or result in a serious threat to the physical health of the . . . conservatee.” (§ 2357, subd. (h)(2), italics added.) In Valerie’s case, this prerequisite is nonexistent, since no one has even suggested that her capacity to procreate, assuming that she is in fact fertile, constitutes a threat to her physical health.
Section 2357 does require the conservator to show what, if any, efforts have been made to obtain an informed consent from the conservatee. (§ 2357, subd. (c)(6).) However, it does not require a finding that the conservatee’s inability to make a decision about treatment is permanent. (See § 2357, subd. (h)(3).) This omission is probably due to the fact that the section is designed for use in medical emergencies presenting a moderate degree of time urgency, a situation in which such a requirement would be inappropriate. Similarly, section 2357 does not require a court to find that *190a less drastic and irreversible alternative is unlikely to become available in the near future. In the sterilization context, that omission is shocking.
The Hayes standards remedy some of the more glaring deficiencies in section 2357. However, Hayes suffers from all the problems inherent in the application of the procreative choice model and the substituted consent device in this context. Moreover, it includes fitness for parenthood among its criteria. (Hayes, supra, 608 P.2d at p. 640; accord Grady, supra, 426 A.2d at p. 483.) There is merit in respondent’s argument that this criterion is inconsistent with the notion that the choice being made is the one the conservatee would make. Considering fitness for parenthood is also inconsistent with the goal of putting an incompetent conservatee in the same position as normal individuals, who are free to bear or beget children without reference to their fitness as parents. Employing parental fitness as a criterion may also be constitutionally impermissible on overbreadth and underinclusiveness grounds. (See Problem or Solution, op. cit. supra, at pp. 928-932; Note, Developments in the Law—The Constitution and the Family (1980) 93 Harv. L.Rev. 1296, 1302-1313; Right to Choose, op. cit. supra, at p. 569, fn. 54.)
At least one of the other Hayes requirements conflicts with the theory of the majority opinion. The majority rest much of their constitutional analysis on Valerie’s liberty interest in minimizing restrictions on her social interactions. Yet Hayes permits a trial court to authorize the sterilization of an incompetent, developmentally disabled woman only if it finds “by clear, cogent and convincing evidence” that “all less drastic contraceptive methods, .including supervision . . . have been proved unworkable or inapplicable. ” (Hayes, supra, 608 P.2d at p. 641, italics added.) The majority do not explain how this requirement, which they purport to adopt, can be squared with their theory that Valerie has a liberty interest in being sterilized in order to be free of parental supervision.
In sum, the majority compound the errors of their constitutional analysis with the adoption of an unsatisfactory patchwork of contradictory standards. I cannot subscribe to this careless exercise in judicial legislation, particularly where such a fundamental right is at stake.
V.
Respondent has demonstrated a compelling state interest in protecting an incompetent, developmentally disabled conservatee’s fundamental right to procreate. Contrary to the majority’s effort to merge this right into a general right of procreative choice, the right to procreate has an independent foundation. For a permanently incompetent individual who is incapable of mak*191ing choices about sterilization, the right to procreate must be regarded as paramount to any “right to be sterilized.” The latter right, as a component of the right of procreative choice, is meaningful only in the case of an individual capable of making such choices.
The adverse impact of a sterilization ban on a developmentally disabled conservatee’s liberty is also insufficient to justify jeopardizing her right to procreate. Sterilization results in a complete and irrevocable deprivation of the right to procreate, while restrictions on an individual’s activities resulting from a ban on sterilization constitute at most a partial deprivation of that individual’s liberty.
The ban on sterilization of incompetent conservatees in section 2356, subdivision (d) is necessary to effectuate the state’s compelling purpose of protecting the fundamental right to procreate. Manifestly, the legal fiction of substituted consent is inadequate to protect this fundamental right. Accordingly, I would hold that section 2356, subdivision (d) is constitutional.
All subsequent statutory references are to the Probate Code unless otherwise noted.
Many of the compulsory sterilizations performed in this state were undertaken on the same rationale advocated by the majority in this case—that sterilization was necessary in order to permit developmentally disabled persons unsupervised social contact with members of the opposite sex. (State Plan, supra, at pp. 58-59.)
This theory, known as “negative eugenics,” was also applied to the mentally ill and to persons convicted of certain types of crime. (See Note, Eugenic Sterilization—A Scientific Analysis (1969) 46 Denver L.J. 631.)
See, e.g., Problem or Solution, supra, 62 Cal.L.Rev. 917; The Concept of Consent, supra, at pages 62-65; Comment, Sterilization of the Developmentally Disabled: Shedding Some Myth-Conceptions (1981) 9 Fla.St.U. L.Rev. 599 [hereafter Shedding Myth-Conceptions]; Kindregan, Sixty Years of Compulsory Eugenic Sterilization: “Three Generations of Imbeciles” and the Constitution of the United States (1966) 43 Chi.-Kent L.Rev. 123; The Wicked Witch, op. cit. supra, 50 Temple L.Q. 995; Note, In re Grady: The Mentally Retarded Individual’s Right to Choose Sterilization (1981) 6 Am. J. L. & Med. 559, 568-570 [hereafter Right to Choose]; Note, Eugenic Sterilization—A Scientific Analysis, op. cit. supra, 46 Denver L.J. at page 642; Maxon v. Superior Court (1982) 135 Cal.App.3d 626, 632 [185 Cal.Rptr. 516]; Matter of A. W. (Colo. 1981) 637 P.2d 366, 368-369.)
Thlis is not to suggest that contemporary sterilization abuse is attributable solely to compulsory sterilization statutes. (See, e.g., Stump v. Sparkman (1978) 435 U.S. 349 [55 L.Ed.2d 331, 98 S.Ct. 1099] [“[sjomewhat retarded” 15-year-old girl sterilized without her knowledge after judge approved her mother’s petition to authorize the operation in an ex parte proceeding without notice to the daughter, appointment of a guardian ad litem, or hearing]; Downs v. Sawtelle (1st Cir. 1978) 574 F.2d 1, 5-6 [21-year-old deaf-mute woman sterilized with consent of her spendthrift guardian by doctor whose report recommended the
operation “ ‘based 90% on this girl’s low mentality involving poor judgment and her lack of restraint on sex appetite and its consequences’ ”j.) As the Colorado Supreme Court has explained, “[c]onsent by parents to the sterilization of their mentally retarded offspring has a history of abuse which indicates that parents, at least in this limited context, cannot be presumed to have an identity of interest with their children. The inconvenience of caring for the incompetent child coupled with fears of sexual promiscuity or exploitation may lead parents to seek a solution which infringes their offspring’s fundamental procreative rights.” (Matter of A. W., supra, 637 P.2d at p. 370, fn. omitted.)
The court observed that “[t]he power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear.” (Skinner v. Oklahoma, supra, 316 U.S. at p. 541 [86 L.Ed. at p. 1660].) Skinner has thus been described as “the leading instance in which a new star appears to have been added to the firmament of preferred freedoms primarily because of concerns about invidious discrimination and majoritarian domination.” (Tribe, American Constitutional Law (1978) p. 1011.)
The high court first referred to Skinner as a privacy case 23 years later when it struck down a statute forbidding use of contraceptives. (Griswold v. Connecticut (1965) 381 U.S. 479, 485 [14 L.Ed.2d 510, 515, 85 S.Ct. 1678]; see also Eisenstadt v. Baird (1972) 405 U.S. 438, 453-454 [31 L.Ed.2d 349, 362-363, 92 S.Ct. 1029]; San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 34, fn. 76 [36 L.Ed.2d 16, 44, 93 S.Ct. 1278].)
For one of the concurring justices, “the only facts which could justify so drastic a measure” would be proof of the inheritability of the individual’s “socially injurious tendencies.” (Skinner v. Oklahoma, supra, 316 U.S. at p. 544 [86 L.Ed. at p. 1662] (conc. opn. of Stone, C. J.); see id., at p. 546 [86 L.Ed. at pp. 1662-1663] (conc. opn. of Jackson, J.).)
Other methods of contraception do not irreversibly prevent procreation, nor do they require the surgical destruction of any biological capacity for a nonmedical purpose. Nothing in this opinion is intended to question the conservators’ reasonable exercise of the power to select an appropriate form of contraception for Valeric. I agree with the majority that the unavailability of this option has not been sufficiently proven.
The life-support apparatus included a respirator, a catheter, and a feeding tube.
The opinion also suggests that the court considered itself to be capable of determining that Karen or any other lucid, competent adult would decide to disconnect life-support equipment from themselves under similar circumstances: “We have no doubt, in these unhappy circumstances, that if Karen were herself miraculously lucid for an interval (not altering the existing prognosis of the condition to which she would soon return) and perceptive of her irreversible condition, she could effectively decide upon discontinuance of the life-support apparatus, even if it meant the prospect of natural death." (355 A.2d at p. 663.) The court also stated that a decision by the family to terminate the life-support measures “should be accepted by a society the overwhelming majority of whose members would, we think, in similar circumstances, exercise such a choice in the same way for themselves . . . ." (Id., at p. 664.)
The justification for presuming, as the majority do, that Valerie would choose to be sterilized is even weaker. Research has debunked the myth that retarded persons do not object to sterilization and suffer no adverse emotional effects from the loss of their procreative capacities. This myth was reflected in Buck v. Bell, supra, where Justice Holmes opined that the loss of procreative capacity through compulsory sterilization of developmentally disabled persons is “often not felt to be a sacrifice by those concerned.” (274 U.S. at p. 207 [71 L.Ed. at p. 1002].)
An exhaustive survey of scientific literature on the subject supports the opposite conclusion. One of the reports covered by the survey revealed that, “of 50 sterilized retarded individuals discharged from Pacific State Hospital (California) between 1949 and 1958, . . . 68% disapproved of the operation, while only 20% clearly approved. Only 9% of the women approved, in contrast to 35% of the men.” (Roos, Psychological Impact of Sterilization on the Individual (1975) 1 L. & Psychology Rev. 45, 50.)
The author of the survey, then the executive director of the National Association for Retarded Citizens, summarized his conclusions as follows: “Assumptions that mentally retarded persons are insensitive to the consequences of sterilization have been vitiated by recent studies. The psychological impact of sterilization on the mentally retarded is likely to be particularly damaging in those instances where the procedure is the result of coercion and when the retarded person has not previously had children. Existential anxieties commonly associated with mental retardation are likely to be seriously reinforced by coercive sterilization of those who have had no children. Common sources of these anxieties include low self-esteem, feelings of helplessness, and need to avoid failure, loneliness, concern over body integrity and the threat of death.” (Id., at p. 54.)
The mildly and moderately retarded individuals surveyed were admittedly more articulate than Valerie. However, counsel for respondent argue persuasively that these individuals’ perceptions of the world are more likely to correspond to Valerie’s than are those of a social worker, a conservator or even a parent.