Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy

Scott, Elizabeth S.

The undisputed objective of sterilization law is to promote decisions that reflect the interests of the disabled person. The autonomy model proposed in this article offers a more accurate and precise definition of these interests than does the paternalism model that forms the foundation of current law. The paternalism model limits the mentally disabled person's freedom through the erection of formidable barriers to sterilization. These barriers are justified by a strong presumption that the individual has a pervasive interest, not in autonomy, but in procreation. By clarifying the substantive interest in procreation as an interest in producing a child to rear, the autonomy model promotes a direct examination of whether the person in fact has this interest. If the person cannot rear a child, she lacks this interest and the law should take into account those interests that she retains. These residual interests include interests in optimal medical decisions, in human dignity and privacy, and in family stability. The desire to correct the abuses of the past is admirable. We should only take care that in pursuing this goal, we do not create a new set of problems for the future. In contrast to current law, the autonomy model accords substantial deference to personal and family autonomy. The model reveals that the law's objectives are best met by leaving the sterilization decision to the retarded person who is competent to make her own reproductive choices, with only as much intervention as is necessary to facilitate her decisions. For retarded persons who cannot make their own decisions, parents-not courts-are the best surrogates.


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Duke University School of Law
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December 10, 2015