In the Matter of Romero

Supreme Court of Colorado. EN BANCApr 23, 1990
790 P.2d 819 (Colo. 1990)

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No. 89SA248

Decided April 23, 1990.

Appeal from District Court Delta County Honorable Robert A. Brown, Judge

David Johnston, for Incapacitated Person/Appellant.

Bradley Kolman, for Guardian/Appellee.

Marjorie J. Long, for Amicus Curiae Legal Center Serving Persons with Disabilities.

Kelly/Haglund/Garnsey Kahn, Edwin S. Kahn, for Amicus Curiae ACLU Foundation of Colorado, Inc.


This case involves a guardian's petition seeking a court order authorizing sterilization of her ward, an incapacitated adult woman. After an evidentiary hearing, the Delta County District Court issued the sterilization order. We reverse the district court's order.

I.

LaVista Romero is a thirty-seven year old woman, who is the mother of two children. When Ms. Romero was thirty-three years old, she suffered oxygen deprivation from complications associated with diabetes, and brain damage resulted. On October 8, 1985, Shirley J. Harvey, Ms. Romero's mother, petitioned the Delta County District Court to have Ms. Romero declared an incapacitated person and to have herself appointed guardian. The court entered the requested order. See 15-14-301 to -314, 6B C.R.S. (1987) (provisions for appointment of guardians for incapacitated persons).

§ 15-14-101(1) defines an "incapacitated person" as "any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person."

On June 14, 1988, Ms. Harvey petitioned the Delta County District Court to order sterilization of Ms. Romero. A guardian ad litem was appointed for Ms. Romero, and on August 31, 1988, the court held an evidentiary hearing. After hearing the testimony of Ms. Harvey, Ms. Romero, three doctors, and a social worker on the staff of the nursing home where Ms. Romero resided, the court ordered that Ms. Romero be sterilized.

The court specified that the sterilization would be accomplished by tubal ligation, as the guardian had requested. Tubal ligation involves tying the uterine tubes. The Sloane-Dorland Annotated Medical-Legal Dictionary 416 (1987).

This appeal was then filed on Ms. Romero's behalf.

On appeal Ms. Romero has challenged the constitutionality of 27-10.5-128, -130, 11B C.R.S. (1989). Although we do not reach the constitutional issue, see n. 15, it supplies the basis for our jurisdiction over this appeal. See § 13-4-102(1)(b), 6A C.R.S. (1987).

II.

No Colorado statute authorizes district courts to act on petitions for sterilization in circumstances applicable to Ms. Romero. We have held, however, that district courts have jurisdiction to act on petitions for sterilization of incompetent persons under the courts' parens patriae authority. In re A.W., 637 P.2d 366, 373-75 (Colo. 1981); see also In re C.D.M., 627 P.2d 607, 611 (Alaska 1981); In re Moe, 432 N.E.2d 712, 718 (Mass. 1982); In re Grady, 426 A.2d 467, 479-81 (N.J. 1981); In re Guardianship of Hayes, 608 P.2d 635, 637-39 (Wash. 1980).

§§ 27-10.5-128, -130, 11B C.R.S. (1989), govern the sterilization of developmentally disabled individuals. § 27-10.5-102(10)(a) defines "developmental disability" as "a disability that is manifested before the person reaches twenty-two years of age; constitutes a substantial handicap to the affected individual; and is attributable to mental retardation or related conditions which include cerebral palsy, epilepsy, autism or other neurological conditions when such conditions result in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons." Because Ms. Romero's incapacity is the result of oxygen deprivation she experienced when she was thirty-three, she is not developmentally disabled within the statute's meaning. In 1985, Article 10.5 of Title 27 C.R.S. was amended substantially. Ch. 240, §§ 1-49, 1985 Colo. Sess. Laws 983. Before those amendments, §§ 27-10.5-128, -130, 11 C.R.S. (1982), referred to mentally retarded persons rather than developmentally disabled persons. § 27-10.5-102(b)(8) defined a "mentally retarded person" as "a person whose intellectual functions have been deficient since birth or whose intellectual development has been arrested or impaired by disease or physical injury to such an extent that he lacks sufficient control, judgment, and discretion to manage his property or affairs or who, by reason of this deficiency and for his own welfare or the welfare or safety of others, requires protection, supervision, guidance, training, control, or care."

In re A.W. related specifically to a petition for sterilization of a mentally retarded minor. Our reasoning on the jurisdictional issue in that case, and the authorities supporting it, apply as well to other incompetent persons. 637 P.2d at 373-75.

III.

Any exercise of state power to order the non-consensual sterilization of an individual must be scrutinized carefully because of the individual's rights and interests that are at stake. An individual's right to procreate is fundamental. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). Sterilization involves a surgical invasion of bodily integrity. It destroys "an important part of a person's social and biological identity," Grady, 426 A.2d at 472, can be traumatic for the individual, and can have "long-lasting detrimental emotional effects." Hayes, 608 P.2d at 640.

Our society has a history of using sterilization procedures to prevent procreation by mentally retarded individuals. During the early 1900s, social reformers advocated eugenic sterilization as a solution to problems such as mental retardation. Thirty states enacted statutes authorizing compulsory eugenic sterilization, Sherlock Sherlock, Sterilizing the Retarded: Constitutional, Statutory and Policy Alternatives, 60 N.C.L. Rev. 943, 945 (1982), and the United States Supreme Court upheld such a statute, Buck v. Bell, 274 U.S. 200 (1927). Eugenic sterilization theories have since been largely discredited and many states have repealed their statutes. Note, Eugenic Sterilization Statutes: A Constitutional Re-evaluation, 14 J. Fam. L. 280, 284 (1975). The United States Supreme Court's recognition of the fundamental right of procreation in Skinner v. Oklahoma cast doubt upon the continued validity of state-ordered sterilization for eugenic purposes. See In re A.W., 637 P.2d at 368-69.

As explained in In re A.W., "Eugenics is defined as the science of improving the qualities of the human race by the careful selection of parents. Random House Dictionary, Unabridged edition (1973). "Positive eugenics would accomplish this by encouraging reproduction of those with favorable traits; negative eugenics, such as sterilization, would discourage or prohibit the reproduction of those with unfavorable traits." Note, Eugenic Sterilization — A Scientific Analysis, 46 Denver L.J. 631, 631 (1969)." 637 P.2d at 369 n. 2.

Colorado has never enacted a compulsory sterilization statute. See In re A.W., 637 P.2d at 368 n. 3.

Along with an individual's fundamental right to procreate, however, the United States Supreme Court has recognized an individual's right to prevent procreation. The decision whether to bear or beget a child is a constitutionally protected choice. Carey v. Population Serv. Int'l, 431 U.S. 678, 685 (1977); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); see Griswold v. Connecticut, 381 U.S. 479, 485 (1965). We have recognized the fundamental right to prevent conception through non-compulsory sterilization. In re A.W., 637 P.2d at 369.

Because of the seriousness of the rights and interests at stake and the irreversibility of sterilization, courts must exercise great care and caution in evaluating petitions for non-consensual sterilization. See C.D.M., 627 P.2d at 612; In re Truesdell, 304 S.E.2d 793, 805-06 (N.C.App. 1983), aff'd, 329 S.E.2d 630 (N.C. 1985); In re Terwilliger, 450 A.2d 1376, 1382 (Pa.Super. 1982); Hayes, 608 P.2d at 641.

Sterilization procedures are generally irreversible. Gostin, Consent to Involuntary and Non-medically Indicated Sterilization of Mentally Retarded Adults and Children, in Sterilization and Mental Handicap 39 (1980) (hereinafter Consent to Sterilization).

IV. A.

The threshold consideration in a trial court's determination whether to order sterilization of an incapacitated person is whether that individual is competent to grant or withhold consent to the sterilization procedure. In re A.W., 637 P.2d at 375; see also Moe, 432 N.E.2d at 721; Grady, 426 A.2d at 482; Hayes 608 P.2d at 641. Before a district court may consider whether sterilization is medically essential or in the individual's best interest, the petitioner must prove by clear and convincing evidence that the individual is incompetent to make a decision about sterilization and that the individual's capacity to make such a decision is not likely to improve in the future. Wentzel v. Montgomery Gen. Hosp., Inc., 447 A.2d 1244, 1253-54 (Md. 1982), cert. denied, 459 U.S. 1147 (1983); Grady, 426 A.2d at 482-83; Terwilliger, 450 A.2d at 1383; Hayes, 608 P.2d at 641; see In re A.W., 637 P.2d at 375 n. 20.

In In re A.W., we held that before a court may order the sterilization of a mentally retarded minor, it must find by clear and convincing evidence that sterilization is medically essential. 637 P.2d at 375.

Several courts have adopted best interests tests to determine whether to order sterilization of incompetent adults. E.g., C.D.M., 627 P.2d at 612-13; In re Debra B., 495 A.2d 781, 783 (Me. 1985); Grady, 426 A.2d at 483; Truesdell, 304 S.E.2d at 806-07; Terwilliger, 450 A.2d at 1383-84.

An individual who is incompetent to make some decisions is not necessarily incompetent to make all decisions. Moe, 432 N.E.2d at 721; Grady, 426 A.2d at 483. Implicit in our holding in In re A.W. was a recognition that some mentally retarded individuals are competent to grant or withhold consent to sterilization. See 637 P.2d at 375 n. 19. Many mentally retarded individuals are, in fact, capable of understanding the implications of sterilization and the responsibilities of parenthood, and are competent to make a decision regarding sterilization. Grady, 426 A.2d at 482-83.

See Murdock, Sterilization of the Retarded: A Problem or a Solution? 62 Calif. L. Rev. 917, 933-34 (1974): "Retardation is not co-extensive with lack of capacity to give informed consent. Most mentally retarded persons can appreciate the responsibilities of parenthood and the implications of sterilization. This is certainly true of the 90 percent who suffer from mild retardation. Likewise, many considered to be moderately retarded might also be capable of informed consent. Those who proved to be of doubtful competence could perhaps be assisted in their decision by professional counseling, provided it was strictly limited to noncoercive advice. "While there is undoubtedly some point at which diminished intelligence prevents informed consent, such cases are far from common. Moreover, many retarded persons in this quite limited group are incapable of reproduction, because of physical or genetic disabilities, and others remain in protected environments which make sterilization unnecessary. In short, the state may rarely confront a retarded individual who should be sterilized, but who lacks the capacity to consent."

An individual should be deemed competent to grant or withhold consent if the individual understands the nature of the district court's proceedings, the relationship between sexual activity and reproduction and the consequences of the sterilization procedure. See Moe, 432 N.E.2d at 721-22 n. 8; In re Grady, 405 A.2d 851, 865 (N.J.Super. 1979), aff'd, 426 A.2d 467 (N.J. 1981). To be competent, an individual need not have a technical understanding of bodily functions or fully understand the medical complications or risks involved in the sterilization procedure. Moe, 432 N.E.2d at 721-22 n. 8. Nor must the person comprehend all the risks of pregnancy and childbirth in order to be considered competent to grant or withhold consent to sterilization. See Grady, 405 A.2d at 865. The fact that a court finds the decision an individual would make to be unreasonable is not enough to find the individual incompetent. See Moe, 432 N.E.2d at 720; Consent to Sterilization at 40 ("If a mentally retarded person is capable of understanding that sterilization will render him/her unable to produce children and that it involves a surgical procedure, this understanding will suffice for the purpose of providing or withholding effective legal consent. The standard for determining consent does not involve an assessment by others of the cogency of the reasons for refusal . . . . If this were the measure of competency it would result in paternalism"); Scott, Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy, 1986 Duke L. J. 806, 840 (1986).

Because the determination pursuant to §§ 15-14-101(1), -303 that an individual is incapacitated involves different criteria, it is not determinative on the question of capacity to consent to sterilization.

The seriousness of the sterilization decision merits broad appellate review. Terwilliger, 450 A.2d at 1384. We now must undertake such review by applying the foregoing standards to the record in the present case.

B.

Although the district court found Ms. Romero incompetent to grant or withhold consent knowingly, we find that conclusion to be unsupported by clear and convincing evidence. The evidence was that Ms. Romero has an intelligence quotient (IQ) of approximately 74, which is higher than individuals who are classified as mentally retarded. Individuals with similar IQs often hold jobs and live independently. DSM-III-R at 31.

The average score on an IQ test is 100. D. Evans, The Lives of Mentally Retarded People 8 (1983) (hereinafter Retarded People). The American Psychiatric Association classifies an individual having an IQ of 70 or below as mentally retarded. The scale of abilities ranges as follows: IQ Classification Description 50-55 to approx. 70 Mild Educable; can live independently or in group homes. 35-40 to 50-55 Moderate Trainable; require moderate supervision. 20-25 to 35-40 Severe Able to perform simple tasks under close supervision. below 20 or 25 Profound Require highly structured environment, with constant aid and supervision. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32-33 (rev. 3d ed. 1987) (hereinafter DSM-III-R). Individuals with IQs between 71 and 84 are considered to have "borderline intellectual functioning" and are not classified as retarded. Id. at 31. Commentators disagree about the value of these classifications and the use of IQ scores to define them. Retarded People at 8. In this case, Ms. Romero does not fit neatly into these classifications, which include only those individuals whose mental and physical impairment manifest themselves before the individuals reach eighteen years of age. DSM-III-R at 32.

Ms. Romero testified at the district court hearing in an articulate manner. Her testimony demonstrates that she understood the nature of the court's proceedings. Both her testimony and that of Dr. Paula Trautner, a psychiatrist, reflect that she understands the relationship between sexual intercourse and pregnancy. Ms. Romero further demonstrated an understanding of the consequences of a tubal ligation. She expressed clearly her desire to remain capable of having another child.

Dr. Trautner was the only witness the petitioner offered to testify on the issue of competency. She testified in general terms that Ms. Romero is subject to rapid changes in mood, has poor social judgment, has episodes of anger and apathy, is sometimes paranoid, and has difficulty thinking abstractly. Although Dr. Trautner concluded that Ms. Romero is not competent to consent to sterilization, her only explanation for this conclusion was that Ms. Romero "doesn't look at things in terms of future consequences." In short, Dr. Trautner's testimony does not indicate that Ms. Romero is incapable of understanding the nature of the court proceedings, the relationship between sexual intercourse and pregnancy, or the consequences of sterilization.

Most of the testimony at the hearing focused on the reasonableness of Ms. Romero's decision to oppose sterilization and the extent of her understanding of the risks of pregnancy and childbirth rather than on her competence to grant or withhold consent. Various experts who testified concluded that it would be unwise for Ms. Romero to try to have another child, and the district court found that to be true. The witnesses expressed the belief that Ms. Romero's desire to bear a child is unreasonable. Although Ms. Romero has not indicated any intention to become pregnant in the near future, she has clearly articulated her desire to remain capable of having children. She would like another child if and when she is able to leave the nursing home at which she now lives and if her diabetes becomes more manageable. Dr. Trautner testified that Ms. Romero is not realistic in assessing the risks of pregnancy and child birth or in making a judgment based on those risks, but Dr. Trautner did not state that Ms. Romero is unaware of those risks. Moreover, Ms. Romero's statement that she would like to have a child when and if her diabetes is cured indicates her understanding that pregnancy at this time would be risky.

The record demonstrates that pregnancy would be risky for Ms. Romero and a baby. Ms. Romero's fragile diabetic condition combined with pregnancy would require constant blood sugar monitoring and appropriate insulin and dietary regulation. Experts testified that Ms. Romero would not be able to maintain her health during pregnancy without considerable supervision, and that a baby might be born prematurely, as was one of Ms. Romero's previous children.

In the final analysis, however, a court's role is not to pass judgment upon the wisdom of Ms. Romero's decision or the importance she assigns to potential risks and benefits. If Ms. Romero is competent to make a decision, she must remain free to do so, even if that means making a decision that many would consider unwise.

Because the record does not support a finding that Ms. Romero is incompetent to withhold consent to a sterilization procedure, we do not consider whether her capacity to make such a decision is likely to improve in the future through education, treatment or the passage of time. Our disposition of the case also makes it unnecessary to address Ms. Romero's challenge to the constitutionality of §§ 27-10.5-128, -130, 11B C.R.S. (1989), or her claim that less intrusive contraceptive alternatives are available.

V.

In summary, we find the trial court's determination that Ms. Romero is incompetent to grant or withhold consent to sterilization to be unsupported by clear and convincing evidence and, therefore, we reverse the trial court's sterilization order.

JUSTICE MULLARKEY dissents; and JUSTICE ERICKSON and JUSTICE ROVIRA join in the dissent.