Eugenic Sterilization: Medico Legal and Sociological Aspects Felipe C. Robinson, MD, Shirley W. Robinson, JD, and Loretta J. Williams, PhD San Francisco, California, and Columbia, Missouri

The court-ordered sterilization of a normal 18-year-old black female in North Carolina focused attention on the unfortunate impact of eugenic statutes that allow sterilization as a method of social control. The existence of these laws in many states allows misapplication and abuse of authority which, not infrequently, is directed liberally to blacks and other minority groups. Eugenic sterilization is, at this time, a legally accepted form of "medical treatment." The justification of such sterilization is the vague concept that the presumed "mentally deficient"" individual is probably a potential parent of socially inadequate offspring who would likewise be socially inadequate. Since there never has been factual substantiation of whether the sterilization of these individuals will diminish the incidence of mental retardation, it is necessary to focus attention on the concept of eugenic sterilization and point out its many fallacies. Eugenic sterilization as a method of social control to save and uipgrade the human species supposedly prevents the birth of children with defective characteristics and saves the state the expense of caring for these mentally and physically unfit offspring. ' It, however, raises thorny issues aboUt both social values and biomedical practices: To what extent does an individual possess a right to procreate? To what extent does one maintain control over one's body and one's reproductive abilities? How does one reconcile the interest of society with personal interest? What constitutes reproductive fitness? What constitutes reproductive unfitness? Can defective characteristics or traits of persons be identified and traced for root causes? If so, can they be altered or eliminated? "At what point are such defective Requests for reprints should be addressed to Dr. Loretta J. Williams, Department of Sociology, University of Missouri-Columbia, Columbia MO 65211.

characteristics deemed sufficiently undesirable that society's interest must prevail?' 2 Questions such as the above revolve around the central ethical issue of whether a society, in the name of public interest, has the right to attempt by any means necessary to decrease the number of feebleminded and/or government charges. If, indeed, society does have this right, what blend of biological sciences with politics will decide on what criteria for determining which group of humans is worthy of societal redemption?3 Of concern here is the fact that sterilization for eugenic purposes is still being applied punitively, and, further, that it is being applied based on the erroneous assumption that medical researchers have ascertained that mental and/or moral unfitness are tlansmissable through the gene pool of an individual. Mental retardation is not a "distinct disease entity"4 nor has it been proven to result from the hereditary transmission of defective genes. American society has yet to intelligently approach the problems of its mentally retarded. Compulsory sterili-

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zation still exists although it is often couched in the guise of voluntary consent. Further, there is reason to suggest that poor persons and minorities are being involuntarily sterilized "with consent" under the label of their being mentally retarded. There is increased evidence that governmental funding of sterilization procedures has had as an unfortunate byproduct an element of coercion of relatively powerless people. Low income and/or minority persons have submitted to sterilization under threat of loss of federally supported welfare benefits.5 The newsmedia in 1966 called attention to a situation in California where a thicano woman, the mother of one child born out of wedlock, was convicted on a marijuana charge. She was offered probation in lieu of a six-month jail sentence if she agreed to be sterilized. The California Supreme Court, in this case, reversed the judge's order.6 The accomplished sterilization of Nial Ruth Cox, an 18-year-old black woman in North Carolina, is more to the point, and unfortunately is an example of the allegedly voluntary approach. Consent in this situation was consent under coercion to what was explained as a temporary procedure. Under North Carolina law, there is no procedural safeguard to prevent sterilization of minors if a parent or guardian gives consent. Neither Miss Cox nor her mother understood the nature of the operation. Her mother, under the threat of removal of the entire family from the welfare roles, consented to a "temporary" tying of her daughter's fallopian tubes. Miss Cox had never been psychologically tested and/or determined to be mentally defective despite the assertion by the physician that she was mentally deficient. In her testimony before a Congressional investigatory committee, the young woman told both of the pressure placed upon 593

her mother by the welfare caseworker, and of the misinformation received from the physician at the hospital. She stated that the physician performing the operation assured her that she would be able to have more children.7 This case is recorded by the state of North Carolina as a voluntary sterilization. The National Association of Social Workers, Inc, testifying before the Congressional Subcommittee on Health, deplored the "irresponsible climate" surrounding this case in which there was no documentation of "alleged promiscuity," juvenile delinquency, or venereal disease history. Other cases similar to this occasionally make headlines.8-" Extensive publicity was given in the summer of 1973 to the forced sterilization of 18 black and poor females by an Alabama doctor. The punishment by sterilization phenomenon has been interpreted as another manifestation of the dehumanizing "mere gook syndrome."9 When persons are perceived as "mere gooks," or aliens, social distance barriers are maintained allowing for complacency on the part of the general public. The doctor in these cases was the only physician in the county: his policy regarding obstetrical care was to refuse to serve any women having three children who refused to agree to sterilization. Following the publicity this particular individual was banned from receiving Medicaid funds. No further action was taken. The US Department of Health, Education, and Welfare took the matter under advisement. State assemblies have addressed the issue. In North Carolina the compulsory sterilization of unwed mothers was debated in two sessions and an amendment to the statute on eugenic sterilization was proposed, hotly debated, and defeated. The law states that persons who are feebleminded, mentally ill, or epileptic can be sterilized at state expense. The defeated amendment stated that proof of twice giving birth out of wedlock would have been prima facie evidence of a woman's feeblemindedness. '0 Additional fuel to this climate of opinion was at the same time being created by the pronouncements of scientist William Shockley who proposed a financial bonus to low IQ parents who voluntarily submit to sterilization. For the most part, Shockley and his followers were laughed at by professionals. However, concerns about the hered594

itary transmission of imbecility or insanity still abound and sterilization under the guise of an elected option is being ordered by courts based on alleged illegitimacy, poor parenthood, and/or a potential burden on public funds.8 Additional moral and ethical questions arise: What is the correlation between low measured intelligence in a person and the intelligence of his/her offspring? Should fitness be equated with high IQ alone? What is the correlation between low intelligence in a woman and her "mothering" abilities? What are the components of fitness for parenthood? Is it accurate to assume that persons of low measured intelligence have different sexual proclivities than persons of higher levels of measured intelligence? Is it accurate to assume that persons of low measured intelligence will have less traumatic responses to sterilization than persons of higher levels of intelligence? Is there an individual right to one's own bodily integrity? The questions are difficult. Ignoring them, however, will have devastating consequences for a disproportionate number of low socioeconomic groupings who are potentially affected by the maintenance of eugenic sterilization policies for the mentally disabled. The frustration for health care professionals and biomedical researchers is real for it is clearly acknowledged that terms such as mental deficiency and feeblemindedness connote mere statistical aggregations and not biologically distinct types. As Sells and Bennett recently noted,4 mental retardation is a perplexing "symptom" that the medical profession does not know how to eliminate. They state that "for the majority of our mentally retarded citizens, the causes and, hence, the modes of prevention remain unknown."4 Theirs is not a new conclusion. In 1937, an American Medical Association Task Force found "little scientific basis" to justify eugenic sterilization. The state of knowledge concerning human heredity was not yet sufficiently developed, they maintained, to support such medical intervention. A similar judgment was rendered by an American Psychological Association consultant in 1960.12

A dilemma also exists for the legal

profession. In rendering the decision in Relf vs Weinberger, the judge urged caution in the establishment of a standardized policy since "unfathomed implications" might include the undue deprivation of rights guaranteed to each and all citizens. Legal safeguards which balance the individual's rigbt to procreate with the promotion of the general welfare must of necessity be ensured. Unfortunately, we have already drifted from such a balance. Statutes aimed at improving the quality of the human race, society, and environment are in the codes of many states. Many are based on the fallacious assumption that the danger which the feebleminded present to society is the transmission of mental defects from one generation to another.'3 The law sanctions eugenic sterilization as a method of social control and does so in a manner usually withheld from public scrutiny." The intent of eugenic sterilization is to eliminate future generations of mental retardates; thus it is usually couched in such terms as a "benevolent interdiction.""II However, biomedical res.earchers estimate that 89 percent of the next generation of mentally ill and deficient persons will be produced by hormal parents. 14 Thus, one must question whether sterilization statutes addressed to those who are presently identified as feebleminded will effectively abolish retardation in the United States. It is suggested here that deprivation of the fundamental right to procreate based upon the classification, "mentally retarded," is a violation of the equal protection clause of the 14th Amendment to the US Constitution. Unfortunately, little recognition has been given to the rights of the mentally retarded. Eugenic sterilization has generally been accepted as merely a form of medical treatment. Under imputed voluntariness, children are "voluntarily" sterilized at the request of their parents, superintendents of mental institutions, and states which sanction compulsory or voluntary sterilization. The state acting under parens patriae assumes the right to treat certain classes of individuals in the interest of both the state and the individual. The individual, regardless of age, is reduced to the status of a child, and the state elevated to the status of parent. Implementation of a sterilization law or procedure is discretionary, and thus does not adhere to minimal procedural due process standards. Minimum stan-

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dards of procedural due process would include some form of fair notice: a hearing, an opportunity to be heard, and an appeal process. For eugenic sterilization, most states provide none of these safeguards. As a result of this, eugenic sterilization is many times inappropriately recommended, because the criterion used is the proof or assumption of mental retardation itself, or concern about the possibility of future parenthood. 15 The states rely upon recommendations of superintendents of state mental institutions, eugenic boards, physicians, guardians, relatives, and public agencies such as public welfare commissions. The basis used to justify the sterilization is the vague concept that the individual is probably the potential parent of socially inadequate offspring who would be likewise afflicted.13 Fitness for parenthood is, then, being determined by the fact that one is labelled by society as "normal." An erroneous assumption is being made here that (1) fitness for parenthood can be defined, and (2) that lack of fitness for parenthood is characteristic of all retarded persons, and (3) that unfitness for parenthood is limited only to those who are retarded. It is the authors' opinion that the relation of retardation to parental unfitness is still unclear. The range of diversity within that category of persons under discussion is blurred by their placement under the categorical label of retardation. Murdock suggests distinguishing four basic subgroupings. Ninety percent of the retarded are only mildly retarded. These persons, through special educational efforts, can be taught to be self-sufficient. Persons moderately retarded can learn to function comfortably in sheltered situations such as family of kinship or group home. A third grouping, those severely retarded, can be taught basic self-care habits but have little or no potential for economic productivity. Those persons profoundly retarded have difficulty learning and maintaining basic self-care. Ten percent of the retarded fall within the last three categories; 90 percent do not. Today it is difficult to determine accurately the number of eugenic sterilizations that are performed. Voluntary sterilization is often the phrase or label used for what is in effect involuntary sterilization of the mentally retarded. Although sterilization procedures have gained wide acceptance in

this country as one of the alternatives to contraception, it appears that far too many of those sterilized are persons labelled as mentally defective. It also appears that many of those individuals who have the authority to perform eugenic sterilizations have little or no desire to understand or to give the mentally retarded person the opportunity to make his or her own decision. Thus, voluntary consent is more theoretical than real. The number of reported compulsory eugenic sterilizations is decreasing.6 In one state, California, there were 60,166 state-ordered sterilizations between the years of 1907 and 1958. In 1970, this number had decreased to seven. Supposedly, these seven operations were performed with the consent of the inmate and his or her guardian.8 It would be foolish, however, to assume that all compulsory sterilizations are listed as such. There has been a dramatic increase in the number of voluntary sterilizations within the total population in the last decade or so. This increase in voluntary sterilization must be carefully analyzed for the possible inclusion of coerced sterilizations of the mentally retarded. Few, if any, statistics and facts are available to verify the "voluntary" conditions, to give the reasons why consent was given, and to reveal the number of mental retardates involved. The cases that have come to the attention of the courts suggest that voluntary consent often equates with involuntary coercion. The question then arises as to when consent is voluntary, and who may give this consent. For voluntary sterilization to be truly voluntary, consent must be given without coercion, duress, and/or undue influence. Sterilization ". . . can not be used as a condition to beneficial treatment, such as release from an institution or receipt of welfare benefits."17 Three elements are involved in consent. First, the exercise of one's free will without the existence of coercion or force. Secondly, a true consent requires that the individual have all of the relevant information at his/her disposal in order to be able to give informed consent. The third element of consent would require that the person have the mental competency to appreciate what he or she is doing and the implications of such consent.'8 Legally, there are two forms of consent: personal and substituted. Personal

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consent requires the person affected to make the authorization. Substituted consent allows another party to provide the authorization on behalf of the mentally retarded person. Substituted consent is used when a person is considered incapable of providing personal consent.'8 With "voluntary" consent by substitution, clearly every effort must be made to honor only the consent of a guardian or relative whose interests are found to coincide with those of the disabled person.14 Most sterilization of the mentally defective is through substituted consent. The policy at one state hospital should cause concern over the procedure taken to obtain authorization by substitution. At Pacific State Hospital in California, sterilization was a prerequisite for release. The form letter sent to the parents or guardians stated unequivocally that permission to sterilize will ". . . permit parole, leave of absence, and visits with less fear of undesirable complications."' 9 The bargain, as Neuwrith has stated, is clearly weighted in a fashion to nullify the real meaning of the word voluntary.'8 The deprivation of the right to procreate raises serious constitutional questions. However, the rights of the mentally retarded are not based upon constitutional guarantees, but are determined at the discretion of legislators, courts, and health professionals, groups which have been, in the past, oblivious to the needs and rights of the mentally retarded. Pending, spring session 1978, is a bill reported out by the House Judiciary Committee which would establish the civil rights of certain institutionalized persons given the establishment by the Attorney General of a pattern of institutional abuse. Coupled with this evidence of rising social concern over the rights of individuals should be a questioning of the unsound application of biomedical intervention. The term eugenics was coined by Sir Francis Galton in the late nineteenth century, in the context of the spread of Darwinian theories. The theory of eugenics emphasized social control of those factors that would in some manner impair society. Thus the eugenic movement evolved around the concept of the propagation of the biologically fit and the discouragement of the production of inferior individuals.20 In 1907 the first state sterilization law went into effect in Indiana. By 1917, 15 states had 595

adopted eugenic sterilization laws. By 1937 the number of states was 32.16 The popularity of eugenic sterilization was directly related to Galton's impact, and also to the increasing interest in Mendel's theory of acquired characteristics. The development of, and rationale for, intelligence testing also had major impact, for concern for the mental and intellectual stock of the population clearly has been an abiding interest for eugenicists. More recently, statistics on the number of mentally ill patients have been combined with rising concern over the number of charges supported by public welfare funds. Medical technological breakthroughs, such as the development of simple and safer surgical procedures such as the vasectomy and salpingectomy, have also impacted on the increased acceptibility of sterilization procedures. Although there is some relationship between hereditary and mental deficiency, it is estimated that about 89 percent of inheritable deficiencies are transmitted by normal individuals. At present, it is impossible to determine who is a normal carrier. If all of the feebleminded were sterilized based on the theory of hereditary transmission of mental deficiency, the next generation of feebleminded persons would only be diminished by about eleven per-

cent.21 As Bligh has argued, 22 to be effective in stemming an increase of retarded persons, a comprehensive program of eugenic sterilization would of necessity involve sterilization of "at least 10,000,000 normal" persons, approximately ten percent of the present population. Persons phenotypically normal produce the vast majority of offspring that are retarded. The dilemmas and magnitude involved in diagnosing potential parents of the retarded are overwhelming. If medical knowledge were at a level of sophistication to do so, which it clearly is not, implementation and administration of a social control program would be a Sisyphean nightmare. The proponents of eugenic sterilization argue that mental deficiency is increasing because persons with these problems propagate at a greater than average rate.2' It is further asserted that a child, ". . . even if of normal intelligence, will be gravely handicapped by the mere fact of being reared by a feebleminded parent. .".s2 Stereotypes 596

about the characteristics and capabilities of a mentally retarded person confound the issue. Despite the findings of a number of definitive studies that sexual activity among retarded persons is less than that of "normal" persons, the public tends to stereotype all retarded persons as sexually active but incapable of self-care. The high fecundity of mentally defective groups is a myth. Arguments that mental defectives procreate more often than "normal" folk confuse class issues with alleged intelligence. Low income populations consistently have higher birth rates than other socioeconomic categories. In addition, there is no indication that mental defects are increasing as a result of a biological deterioration of the race due to the infiltration of the offspring of mentally deficient parents. As stated earlier, ninety percent of those presently identified as mentally retarded may be fully capable of being "fit" parents if that condition of fitness could be delineated. The courts, unfortunately, have not been enlightened in this area. In Cook vs State, the court stated that it was not a constitutional abuse of substantive due process to compel sterilization as prescribed in the Oregon statutes because a mentally retarded parent could not provide the proper environment for a child.23 Proper environment for a child has yet to be defined. It is not clear whether it means the physical trappings in the environment of the child or the state of mind of the parent. Nor has there ever been one standard agreed upon by this society as to what is the proper environment which would produce "normal" children. Given the different environments in which children are raised, it appears that such decisions as Cook vs State and eugenic sterilization statutes would place the determination of a potentially proper environment on the bias of judges. This would continue to result in decisions based on the undefined presumption of "fitness" for parenthood. The mistaken assumption of great criminality of those who are mentally deficient also is a factor that should be considered. The eminent Justice Oliver Wendell Holmes wrote in the 1927 Supreme Court Case of Buck vs Bell: "It is better for all the world if, instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continu-

ing their kind."6 Judges clearly are men of their times, subject to the irrational prejudices of the community. Eugenic theory can be substantively attacked on the basis of its illogical nature. Evolution and natural selection are the basic groundings for this attempted intervention to preserve and improve the quality of human population. The "fit," those who are "normal," are threatened by the retarded "unfit." But despite this evolutionary foundation, and the implication that natural processes to accomplish this end will occur, there exists "the concerted assumption that men can correctly evaluate all the infinite future environmental stresses his progeny will need to cope with, and correctly select for breeding (only) those individuals who will have and pass on those hereditary characteristics allowing a balanced adaptation to the future environment.' '24 The real and ethical dilemmas of such futuristic control planning are frightening. The unknowns in medical science bode poorly for public policy formulation. Legislatures have not judiciously enacted eugenic laws given the doubt and uncertainty surrounding the subject. ". . . the extreme carelessness and confusion, the abuse of elementary terms, the lack of precision and definition, and the failure to prescribe adequate details and safeguards. . ."25 illustrate the ignorance of legislators in this area. Justification for sterilization statutes by states falls within one of three broad groupings. The first encompasses the betterment-of-society concept: the welfare of society as a whole will be improved by continual population stock improvement. A second pattern of justification can be discerned as the betterment of life for those persons who are institutionalized or who have lessened autonomy due to mental impairment. The third rationale combines these and approaches mental retardation as an environmental problem. 13 In 21 states, including three with voluntary statutes, sterilization may be performed to prevent procreation by mental defectives. Nine jurisdictions allow sterilization for improvement of the patient's condition. In other jurisdictions, justification ranges from the best interest of the patient and society to the probability that the patient's offspring would become a social menace or ward of the state.21

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Though involuntary sterilization is not authorized by some state statutes, it should not be presumed that sterilization is prohibited. Those jurisdictions without sterilization laws approach the lack of legislative sanction variously; some interpret it as not granting statutory authority to perform the operation while others view it as no prohibition against sterilization. The courts in these jurisdictions usually are not involved in determining the validity of a sterilization decision. However, when asked to decide, the court may authorize compulsory sterilization on the basis of its general equity powers.2' Twenty-one states give the superintendents of mental institutions authority to apply for a sterilization procedure; and in the remaining states, the application may be submitted by physicians, guardians, state welfare commissions, sheriffs, and supervisors of townships.2' Sterilizations are conducted outside of mental institutions in some states without sterilization laws. In one state, one doctor stated that he had performed 50 to 60 such eugenic sterilizations between 1969 and 1970.16 If true, the operations performed by this individual alone would give that state a higher sterilization rate than states having sterilization laws for mental defectives. The doctrine of parens patriae is the foundation for the state's authority in these matters. The doctrine assumes that a mental retardate is in need of supervision and is incompetent to make decisions affecting his or her own interests. The state, acting in the best interest of the individual, thus steps in as parent and absorbs the rights of the individual. As some have argued,9"7 the doctrine of parens patriae is not a persuasive argument for eugenic sterilization, for it assumes that retardation implies the lack of a capacity to render an informed consent on matters of personal concern. Matters of sexual, contraceptive, and parental responsibility can be understood and appreciated by at least 90 percent of the retarded population who are only mildly retarded. Seventeen of the states with involuntary statutes provide for a hearing; twelve require the patient's presence at the hearing. Six of these 17 states provide for a judicial hearing. In two states there is no judicial appeal of that hearing.2' Seventeen of the involuntary statutes also require that the

patient be notified of the hearing. Fifteen states require that the patient's relatives be notified, and three states require notification of relatives or guardians, but not the patient. Thirteen state statutes set forth the patient's right to counsel, and in four jurisdictions, the court will appoint counsel for those who are not represented.21 The court, however, is not as enlightened as one would hope. For example, In re Simpson, the court decided that sterilization of a mental defective was the best solution as the quotas for commitment to the state school had been filled. The sterilization of a young woman was ruled "necessary for her health and welfare" and to prevent "future additional burdens upon the county and state welfare departments. "26 The potential also exists for overprotectiveness on the part of the courts.'7 In a similar vein to actions of parents, surrogates may be prone to make decisions, albeit benign, which unduly protect those who are defined as retarded. The best interest of the retarded person may be compromised by such action by the courts. The impact of voluntary sterilization as it applies to children whose parents or guardians consent must also be reexamined. Particularly perplexing are states such as North Carolina and Virginia where statutes authorize sterilization of very young children. There is no minimum age requirement. 14 Thus, a child who is incapable of consent because of his or her age is in effect deprived of his or her procreative ability. In order to constitutionally deprive a citizen of the equal protection of the law, action by the state must be able to survive the strict scrutiny test that is deemed necessary by the Court when a law substantially infringes upon the right of a suspect class.27 Section One of the Fourteenth Amendment declares that no state ". . . shall deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."28 To meet the strict scrutiny standard, the compelling state interest must be documented. The problem evolves from the motive for the action: what is to be done, what is to be achieved, and how will it best be brought about. In order to determine if there is a valid and compelling state interest, it is necessary to examine the end that is to be

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achieved by the state action. The more substantial the effect of this end on a fundamental liberty of an individual, the greater the state interest and benefit to society must be.27 Unfortunately the Supreme Court precedent, and a discriminatory one at that, has been established that ". . . three generations of imbeciles are enough.' '29 The scientific basis that forms the justification for state sterilization is, as has been established, speculative. Further, court decisions are questionable because of the presumption that all mental retardation is caused by the hereditary transfer of defective genes. As has been noted, "since there is so much doubt as to whether the mental deficiences aimed at are actually transmissable, legislation would not accomplish the desired purpose, but would simply lead to confusion and complicated litigation."30 Approaching the matter from another angle, one must examine the concept of the state having police power. Such power is used to authorize and enforce laws depriving persons of fundamental rights if there is a compelling state interest. For example, civil commitment laws are a valid exercise of the police power of a state, because society is being protected from the potential and probable violent acts of the mentally ill.27 However, authorization to enforce eugenic sterilization as the proper exercise of state police power has legal precedence. It has been argued (In re Cavitt)31 that the state has the power and obligation to override the natural and constitutional rights of individual citizens in situations where the welfare of the collectivity would be enhanced. The court acknowledged the natural right of individuals to procreate and its constitutional guarantee; it stated, however, that "no citizen has any rights that are superior to the common welfare." Thus was established the precedent for the state, in the legal and usual exercise of its police power, to intervene to prevent or blunt the harmful deterioration of a society's population. The court ruled in In re Cavitt that "hereditary transmission of mental deficiency should be medically contravened and that it was the responsibility of legislatures, acting in the public good, to devise policy in this area which would preserve the race from the known effects of the procreation of mentally deficient children by the men597

tally deficient."31 The medical knowledge in this area is clearly erroneously assumed. The dimensions of the bioethical dilemma for the medical and legal professions should be clear. Unless the means used, eugenic sterilization, accomplishes the end of elimination of mentally retarded individuals, the eugenic sterilization statutes and state actions unequivocally violate substantive and procedural due process guarantees of the Fourteenth Amendment. To satisfy this test, the state would have to demonstrate that the statute and the state action would benefit the state and the welfare of society to such a substantial proportion as to justify the subordination of the personal liberty involved. Eugenic sterilization statutes can also be challenged as violative of substantive due process because of their breadth. Sterilization statutes which presume that every mentally retarded person will have mentally defective children are overinclusive. By the same token they are underinclusive since the statutes do not extend the same treatment to all possible producers of mentally retarded children. The existence of such eugenic sterilization state laws allow misapplication, and, thus, termination of the procreative potential of another human being in a manner invasive of his or her bodily integrity. When dealing with the parental right to authorize sterilization for an individual, three kinds of authority are of basic concern. The first division of authority is the state having a sterilization statute. The second division of authority is the mental institution itself which appears to have, in most instances, plenary power over the life of those persons institutionalized. The third area of authority is the state without a sterilization statute but with the authority to order eugenic sterilizations. Such an order is based on the general equity powers of the state. As society supposedly moves toward a more humane method of dealing with the mentally retarded, the authority of these three power entities, combined with public policy which has never been carefully rationalized, results in coercive voluntary sterilizations. Assuming that a parent or guardian is always acting for the interests of the person labelled mentally deficient may also be problematic. The state, parent, and guardian often exist in a conflict situation with various in598

terests, "benign" overprotection, or venial self interest, in conflict with the rights of the mentally retarded individual. Since mental retardation is estimated to be mild in 90 percent of those cases diagnosed, the law should sustain self-governance as a principle; it should "maximize personal choice and recognize the capability of most retarded persons to make the decision whether or not to be sterilized."''7 The fundamental liberty of ownership of one's own body is threatened by the continuing legacy of Galton's eugenics concepts. It is the responsibility of the biomedical profession to acknowledge and make known the present state of medical knowledge, or lack thereof, concerning the causes and transmission of mental defects. Further, it is the responsibility of both the medical and legal professions to take action to discredit public laws and policies depriving individuals of their constitutionally guaranteed right to choose to procreate.

Summary Since there is no empirical proof that mental retardation is the conclusive result of hereditary factors, it seems an anachronism that eugenic sterilization should continue as routine policy in a majority of states. It has been argued that although the number of jurisdictions with compulsory sterilization policies has decreased, the decline in the number of compulsory statutes is not a true indication that society is taking a more intelligent approach to sterilization of those who are mentally defective. It is also argued that the nature of that population encompassed by the label of mentally defective is more diverse than commonly realized and that within that population, a substantial majority of persons are capable of making a competent decision concerning their right to procreate. It is further argued that no stringent procedural safeguards comparable to those designed to protect the rights of criminals presently exist for those labelled accurately, or for the sake of convenience, as mentally deficient. The hesitancy of most courts to ensure procedural due process is no doubt explained by past treatment practices for mentally retarded individuals and prevalent public attitudes and misconcep-

tions. Far too few legal and medical challenges have been made. Literature Cited 1. O'Hara JB, Sanks TH: Eugenic sterilization. Georgetown Law J 45:20-44, 1966 2. Jones H: Genetic endowment and obligations to future generations. Soc Theory Pract 4:29-32, 1976 3. Gullattee A: The politics of eugenics. In Robitscher J(ed): Eugenic Sterilization, Springfield, Ill, Charles C Thomas, pp 82-94, 1973 4. Sells C, Bennett F: Prevention of mental retardation: The role of medicine. Am J Mental Defic 82:117-130, 1977 5. Reif vs Weinberger. Federal Suppl 372: 1196-1205, St. Paul, West, 1974 6. Robitscher J: Eugenic Sterilization. Springfield, III, Charles C Thomas, pp 3-16, 1973 7. US Congress, Committee on Labor and Public Welfare: Quality of Health Care: Human Experimentation, 1973. Hearings before Subcommittee on Health, 93rd Congress, 1st session, pt 4, on S2072, Washington, DC, April 30, June 28-29, and July 10, 1973 8. Bolas D: Sterilization in California: An anachronism in 1973. Calif Trial Lawyers Assoc J 13:71-86, 1974 9. Leifermann H: They still think sterilization is good enough for welfare mothers. South Voices 1:2-8, 1974 10. Morrison J: Illegitimacy, sterilization, and racism: A North Carolina case history. Soc Service Rev 39:1-9, 1965 11. Fong M, Johnson L: The eugenics movement: Some insight into the institutionalization of racism. Issues Criminol 9:89-115, 1974 12. Gianella D: Eugenic sterilization and the law. In Robitscher J: Eugenic Sterilization. Springfield, III, Charles C Thomas, pp 61-81, 1973 13. Sterilization of mental defectives, editorial. Cumberland Samford Law Review 3:458-473, 1972 14. Brackel SJ, Rock R: The Mentally Disabled and the Law. Chicago, Chicago University Press, pp 212-214, 1971 15. Rollins RL, Wolfe A: Eugenic sterilization in North Carolina. N C Med J 34:944-949, 1973 16. Allen R: The retarded citizen: Victim of mental and legal deficiency. Md Law Forum 2:4-10, 1972 17. Murdock C: Sterilization of the retarded: A problem or a solution? Calif Law Rev 62:917-935, 1974 18. Neuwrith G, Heisler P, Goldrich K: Capacity, competence, consent: Voluntary sterilization of the mentally retarded. Columbia Hum Rights Law Rev 6:447-472, 1975 19. Sabagh G, Edgerton R: Sterilized mental defectives look at eugenic sterilization. Eugenics 9:213-222, 1962 20. Zenoff E: Reappraisal of eugenic sterilization laws. Cleveland-Marshall Law Rev 10:149-169, 1961 21. Cochran B: Conception, coercion, and control: Symposium on Reproductive Rights of the Mentally Retarded. Hosp Commun Psychiatr 25:283-293, 1974 22. Bligh R: Sterilization and mental retardation. Am Bar Assoc J 51:1059-1062, 1965 23. Cook vs State of Oregon. Pacific Rep 495:768-772, St. Paul, West, 1972 24. Baldwin J: History of the eugenic movement. Nebr State Med J 47:458-464, 1962 25. Compulsory sterilization of criminals: Perversion in the law; Perversion of the law. Syracuse Law Rev 15:738-753, 1963 26. In re Simpson. North Eastern Rep 180:206-208, St. Paul, West, 1962 27. Susbstantive constitutional rights of the mentally ill. Univ Calif-Davis Law Rev 7:128135, 1974 28. U nited States Constitution, XIV Amendment, Section 1 29. Buck vs Bell. US Rep 274:200-208. Washington, DC, US Government Printing Office, 1927 30. Whitridge J, Coleman R: Medical and legal aspects of human sterilization. Md State Med J 15:61-69, 1966 31. In re Cavitt. Northwestern Rep 157:171-185, St. Paul, West, 1968

JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 71, NO. 6, 1979