Mental Disabilities Law Issues
| Publication year | 1981 |
| Pages | 1380 |
| Citation | Vol. 10 No. 6 Pg. 1380 |
1981, June, Pg. 1380. Mental Disabilities Law Issues
In Colorado, sterilization of mentally retarded persons is governed by the provisions of the Care and Treatment of the Develop-mentally Disabled Act ("Act").(fn1) Because of the impact of sterilization on the fundamental right to procreate(fn2) and the resulting liability that flows from a violation thereof,(fn3) health care officials, lawyers and judges must be particularly careful in dealing with this sensitive issue.
It is imperative that persons who work in this area of the law be provided with specific and unambiguous guidelines, not only for the protection of the mentally retarded person, but also for the protection of the health care agency or individual performing the sterilization.(fn4) Unfortunately, the sterilization provisions found in the Act do not rise to this level of clarity and preciseness.
There are three sections in the Act which specifically deal with sterilization procedures: sections 128, 129 and 130.(fn5) A close analysis of these sections and the ramifications resulting therefrom clearly indicate that sterilization of mentally retarded persons in Colorado under these guidelines is in all likelihood an unconstitutional deprivation of the fundamental right to procreate. This deprivation of constitutional rights is based upon lack of due process protections which are necessary to prevent sterilization of mentally retarded persons based upon the whims and caprices of particular individuals, be they health care officials or parents.
Section 128 of the Act provides a consensual procedure for the sterilization of a mentally retarded person.(fn6) Under § 128, any mentally retarded person over the age of eighteen years may be sterilized if there is consent by (1) the mentally retarded person, and (2) the mentally retarded person's lawful parent or legal guardian, and (3) a psychiatrist or psychologist who consults with and interviews the mentally retarded person and (4) a person who works in the field of mental retardation, who is knowledgeable in it, and who consults with and interviews the mentally retarded person.(fn7)
Thus, if all four persons consent, and the physician who is to perform the sterilization believes that the mentally retarded person is competent to consent, then the mentally retarded person can be sterilized without any judicial supervision whatsoever.
This consensual procedure at first blush appears to be very protective in that it requires the consent of the patient, parent or guardian, psychiatrist, mental health worker and, ultimately, the physician who is to perform the sterilization. However, the key to the section is the consent of the mentally retarded person to his or her own sterilization. Under the Act, a mentally retarded person
means 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.(fn8)
Consent is defined in the Act as follows: (2)(a) "Consent" means an informed consent, expressed in writing, freely given. Consent always shall be preceded by the following:
(I) A fair explanation of the procedures to be followed, including an identification of those which are experimental;
...
To continue reading
Request your trial