Parens Patriae: Judicial authority to order the sterilization of mental incompetents

Abstract

This article considers the problem of the rights of mental incompetents and judicial authority. The article reviews re Grady and Matter of C.D.M. 2 cases which were recently brought before the Supreme Courts of New Jersey and Alaska respectively. In these cases the parents of 2 mentally retarded but physically mature young women petitioned the court for an order authorizing their sterilization. The majority of courts hold that in the absence of specific legislation granting it courts of general jurisdiction lack the power to order sterilizations. The Supreme Courts of New Jersey and Alaska however proclaimed that the doctrine of parens patriae permits courts of general jurisdiction to order the sterilization of mental incompetents. The article examines the concept of substituted consent which is the power given to a parent or guardian while acting in behalf of a minor or incompetent to give consent to medical or surgical treatment. The article also considers the historical development and limitations of the parens patriae power and analyzes current sterilization cases paying particular attention to the potential abuses and problems these cases have generated. In order to protect the rights of the incompetent the author suggests that what is needed is a legislated procedure which defines specifically how and when sterilization may be approved. Proof of the necessity for sterilization would come from a neutral medical professional whose input would be subject to judicial review pursuant to a statutory scheme.