Eugenic sterilization supra at 19 many retarded

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Eugenic Sterilization, supra at 19. Many retarded personsare capable of having normal children and being goodparents. Eugenic Sterilization, supra at 20; MentallyRetarded Persons, supra at 116.Of great significance for the problem faced here isthe fact that, unlike the situation of a normal andnecessary medical procedure, in the question ofsterilization the interests of the parents of a retarded
person cannot be presumed to be identical to those of thechild. The problem of parental consent to sterilization isof great concern to professionals in the field of mentalhealth, and the overwhelming weight of opinion of thosewho have studied the problem appears to be that consentof a parent or guardian is a questionable or inadequatebasis for sterilization. See A. B. Foundation Study, supraat 216; Mentally Retarded Persons, supra at 121; II P. L.I. Mental Health Project, p. 1024 (1973); President'sCommittee on Mental Retardation, The MentallyRetarded Citizen and the Law, 101-105 (1976); EugenicSterilization, supra at 21; Comment, Sterilization,Retardation and Parental Authority, 1978 BrighamYoung U.L.Rev. 380 (19--); C. Murdock, Sterilization ofthePage 237Retarded: A Problem or a Solution?, 62 Cal.L.Rev. 917,932-34 (1974). See also N. C. Ass'n for RetardedChildren v. North Carolina,420 F.Supp. 451, 456(M.D.N.C.1976). It is thus clear that in any proceedingsto determine whether an order for sterilization shouldissue, the retarded person must be represented, as here, bya disinterested guardian ad litem.Despite all that has been said thus far, in the rare casesterilization may indeed be in the best interests of theretarded person. This was recognized in N.C. Ass'n forRetarded Children v. North Carolina, supra at 454-55.However, the court must exercise care to protect theindividual's right of privacy, and thereby notunnecessarily invade that right. Substantial medicalevidence must be adduced, and the burden on theproponent of sterilization will be to show by clear, cogentand convincing evidence that such a procedure is in thebest interest of the retarded person.Among the factors to be considered are the age andeducability of the individual. For example, a child in herearly teens may be incapable at present of understandingthe consequences of sexual activity, or exercisingjudgment in relations with the opposite sex, but may alsohave the potential to develop the required understandingand judgment through continued education anddevelopmental programs.A related consideration is the potential of theindividual as a parent. As noted above, many retardedpersons are capable of becoming good parents, and inonly a fraction of cases is it likely that offspring would[608 P.2d 641]inherit a genetic form of mentalretardation that would make parenting more difficult.Another group of relevant factors involve the degreeto which sterilization is medically indicated as the lastand best resort for the individual. Can it be shown byclear, cogent and convincing evidence, for example, thatother methods of birth control are inapplicable orunworkable?

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