Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. The opinion of the Court was delivered by Pashman, J. Handler, J., specially concurred and filed opinion.
The opinion of the court was delivered by
As once before in In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976), we again examine a disturbing paradox: how we can preserve the personal freedom of one incapable of exercising it by allowing others to make a profoundly personal decision on her behalf. In Quinlan this Court held that a comatose person kept alive by extraordinary means shall have a guardian appointed who would decide whether to discontinue those means. The question now before us is closely related: under what conditions should a court appoint a guardian who may authorize the sterilization of a woman who is severely mentally impaired.
Lee Ann Grady is a 19-year-old mentally impaired woman seriously afflicted with Down's syndrome.*fn1 Within a few days of her birth, Lee Ann's parents decided not to place her in an institution but to care for her at home. Since that time they have provided her with love and emotional support, as well as the physical necessities of life. Together with her parents, Lee Ann lives with a younger brother and sister who also treat her affectionately.
Her formal education has consisted of special programs within the public schools. Over the years she has been tested by school personnel, who have recommended that she continue to participate in the special classes. Although unable to read words, she does recognize the letters of the alphabet. She has moderate success in writing her name. She has some ability to count low numbers, but it is not clear whether she counts by rote or with awareness of the function of numbers. In her conversation she often fails to form complete sentences.
At home Lee Ann's activities include playing simple games, watching television, and taking short walks. She is capable of performing tasks such as folding laundry and dusting. She can dress herself, but she cannot select clothes appropriate for the season or matching in color. She is able to bathe herself but needs help regulating the temperature of the water. She can open and warm a can of soup but has difficulty in controlling the heat of the stove burner. Her physical limitations have kept her from learning to ride a bicycle, to catch a ball or to jump rope. But she goes bowling occasionally, and she likes to swim.
Because Lee Ann does not suffer from some of the physical ailments associated with Down's syndrome, her life expectancy is about normal. Her physical maturation has not deviated significantly from that of other adolescents. While some of her external features identify her as a person born with Down's syndrome, her parents and others see her as an attractive young woman. Her mood is often jovial and friendly.
Although in a physical sense her sexual development has kept pace with that of others her age, Lee Ann's severe mental impairment has prevented the emotional and social development of sexuality. She has no significant understanding of sexual relationships or marriage. If she became pregnant, she would neither understand her condition nor be able to make decisions about it. Her lack of awareness could lead to severe health problems. It is uncontradicted that she would not be able to care for a baby alone. Indeed, she will probably need lifetime supervision to care for her own needs.
Recognizing her sexual growth, the Gradys have provided birth control pills for Lee Ann during the past four years. Although there is no evidence that Lee Ann has engaged in sexual activity or has any interest in doing so, her parents believe that contraception is an appropriate precaution to exercise under the circumstances of their daughter's life.
As Lee Ann has approached the age of 20-when she will leave her special class in the public school system-the Gradys have given more thought to her future. The parents fear they will predecease their daughter and she will be unable to live independently. Thus they have sought to attain for her a life less dependent on her family. The Gradys wish to place Lee Ann in a sheltered work group and eventually in a group home for retarded adults. But the parents see dependable and continuous contraception as a prerequisite to any such change in their daughter's environment. With the advice of their doctor, they sought to have Lee Ann sterilized at Morristown Memorial Hospital. The hospital refused to permit the operation.
The Gradys requested such authorization from the Superior Court, Chancery Division. They sought appointment of a special guardian with authority to consent on Lee Ann's behalf to a conventional sterilization procedure known as a tubal ligation. The hospital responded that it could not legally permit the operation without judicially authorized consent for Lee Ann. Soon after the complaint was filed, Judge Polow, the trial judge, appointed a guardian ad litem to represent Lee Ann's interests in the judicial proceedings. He also permitted the intervention of the Public Advocate and the Attorney General to represent the interests of the public and the State.
The court received several medical and educational reports about Lee Ann's condition and abilities. There was also testimony from Mr. Grady and several experts called by various parties and the court itself. Judge Polow met briefly with Lee Ann in counsel's office to get a first-hand impression of her condition. Lee Ann was not otherwise present at the judicial proceedings. Her only participation was in interviews for the medical and psychological examinations which were the bases of the expert evaluations.
None of the parties contended that the court should not authorize sterilization under any circumstances. The contested issues involved the standards the court should apply before deciding to authorize sterilization and whether Lee Ann's situation met those standards. After considering all the evidence, Judge Polow rendered judgment allowing the parents to exercise substituted consent for Lee Ann to be sterilized.
In a thoughtful opinion, 170 N.J. Super. 98 (Ch.Div.1979), Judge Polow began by reviewing the constitutional objections raised against compulsory eugenic sterilization. He then recognized the relationship between the right to consent to sterilization and the constitutional right of privacy found in the contraception and abortion cases. The trial judge thus perceived a conflict between two fundamental rights: the right to be free from involuntary sterilization and the right to obtain sterilization.
He proceeded to consider two New Jersey statutes, N.J.S.A. 30:4-24.2(d)(2) and 30:6D-5(a)(4), which protect the rights of mentally retarded persons. Concluding that the statutes were inapplicable here, Judge Polow instead found power to authorize substituted consent for sterilization in the inherent parens patriae jurisdiction of the Chancery Court. As to the exercise of that power, the judge set a five-part standard:
Before this court may exercise its inherent power to grant this application the following conditions must exist:
1. That the subject is incapable of understanding the nature of the sexual function, reproduction or sterilization and cannot comprehend the nature of these proceedings, hence is incompetent;
2. That such incompetency is in all likelihood permanent;
3. That the incompetent is presumably not infertile and not incapable of procreation;
4. That all procedural safeguards have been satisfied, including appointment of a guardian ad litem to act as counsel for the incompetent during court proceedings, with full opportunity to present proofs and cross-examine witnesses;
5. That the applicants have demonstrated their genuine good faith and that their primary concern is for the best interests of the incompetent rather than their own or the public's convenience. [170 N.J. Super. at 125-26. (footnote omitted)]
Finding that these conditions had been met, he granted the parents' application.
The Public Advocate and the Attorney General appealed, while both the parents and the guardian ad litem sought an affirmance. Before argument, we granted the guardian ad litem's motion for direct certification. 84 N.J. 389 (1980).
Although we agree with much of the trial court opinion, the standard we establish today for judicial authorization of sterilization differs from that applied by the trial court. Therefore, we vacate the judgment of the Superior Court, Chancery Division, and remand for application of the new standard to the facts of this case.
The Right to Obtain Sterilization
We are well aware that the decision before us is awesome. Sterilization may be said to destroy an important part of a person's social and biological identity-the ability to reproduce. It affects not only the health and welfare of the individual but the well-being of all society. Any legal discussion of sterilization must begin with an acknowledgment that the right to procreate is "fundamental to the very existence and survival of the race." Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed. 1655 (1942). This right is "a basic liberty" of which the individual is "forever deprived" through unwanted sterilization. Id.
A court must take particular care to protect the rights of the mentally impaired when considering the prospect of sterilization. Those rights have recently received increased attention from public authorities in this country. See, e. g., 42 U.S.C.A. § 6000 et seq.; N.J.S.A. 30:4-24 to -24.3 and 30:6D-1 et seq.; Joint Mental Health Subcommittee of the Senate and Assembly Institutions, Health and Welfare Committees, Final Report to the Legislature (1975); cf. Parham v. J. R., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979) (due process requirements of state commitment procedures). After a history of isolation and neglect, the mentally retarded members of our society are finally being accorded their basic civil rights. See generally F. de la Cruz & G. LaVeck (eds.), Human Sexuality and the Mentally Retarded 145-46 (1973); P. Friedman, The Rights of Mentally Retarded Persons (1976).
It cannot be forgotten, however, that public attitudes toward mental impairment and the handicapped in general have some times been very different. We must always remain mindful of the atrocities that people of our own century and culture have committed upon their fellow humans. We cannot adequately express our abhorrence for the kind of ideology that assigns vastly differing value to the lives of human beings because of their innate group characteristics or personal handicaps.
Sterilization has a sordid past in this country especially from the viewpoint of the mentally retarded. In the early part of this century many states enacted compulsory sterilization laws as an easy answer to the problems and costs of caring for the misfortunate of society. Lawmakers may have sincerely believed that the social welfare would improve if fewer handicapped people were born, but they were too quick to accept unproven scientific theories of eugenics.*fn2 In the United States Supreme Court, a compulsory sterilization law withstood a challenge that such legislation unconstitutionally infringes upon liberty protected by the due process clause. In Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584, 71 L. Ed. 1000, 71 L. Ed. 1000 (1927), the Court upheld a law authorizing the compulsory sterilization of a mentally impaired woman for no more compelling reason than to prevent another generation of "imbeciles." Compulsory, eugenic sterilization would have to overcome much higher constitutional hurdles today. See Note, Eugenic Sterilization Statutes: A Constitutional Re-Evaluation, 14 J.Fam.L. 280 (1975).
Half a century later, we have serious doubts about the scientific validity of eugenic sterilization, see North Carolina Assn. for Retarded Children v. North Carolina, 420 F. Supp. 451, 454 (M.D.N.C. 1976); Note, Eugenic Sterilization-A Scientific Analysis, 46 Den.L.J. 631 (1969); Ferster, Eliminating the Unfit-Is Sterilization the Answer?, 27 Ohio St. L. J. 591, 602-04 (1966), as well as its morality.*fn3 Yet compulsory sterilization is not altogether part of the past. Many of our sister states have not abandoned their compulsory sterilization laws. See Note, supra, 14 J.Fam.L. at 304-08; Ferster, supra, 27 Ohio St. L. J. at 626-33. Nothing we say today should be interpreted as approval of compulsory sterilization for any purpose.
The case before us presents a situation that is difficult to characterize as either "compulsory" or "voluntary." "Compulsory" would refer to a sterilization that the state imposes despite objections by the person to be sterilized or one who represents his interests. Here, however, Lee Ann's parents and her guardian ad litem all agree that sterilization is in her best interests, and while the state may be acting in the constitutional sense, it would not be compelling sterilization. Lee Ann herself can comprehend neither the problem nor the proposed solution; without any such understanding it is difficult to say that sterilization would be against her will. Yet for this same reason, the label "voluntary" is equally inappropriate. Since Lee Ann is without the capacity for giving informed consent, any explanation of the proposed sterilization could only mislead her. Thus, what is proposed for Lee Ann is best described as neither "compulsory" nor "voluntary," but as lacking personal consent because of a legal disability.
 Having created this third category--sterilization which is neither voluntary nor compulsory--we must now give it content. Since analogy is the vessel that carries meaning from old to new in the law, we begin by considering the right to obtain sterilization voluntarily. We believe that an individual's constitutional right of privacy includes the right to undergo sterilization voluntarily. Beginning with Griswold v. Connecticut, 381 U.S.479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the United States Supreme Court has given constitutional recognition to personal autonomy over procreation and contraception. In Griswold, the Court sought to preserve the right of privacy in marriage against governmental intrusion in the form of a law forbidding the use of contraceptives. To shield that right from governmental interference, it forged substantive rights of privacy out of the "penumbras" of the Bill of Rights. See id. at 484, 85 S. Ct. at 1681.
In Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972), the Court extended the right to use contraceptives to all individuals, rather than restricting it to married couples. Thus Eisenstadt proclaimed a right to prevent conception which complements the fundamental right to procreate recognized in Skinner v. Oklahoma, supra.
If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. [405 U.S. at 458, 92 S. Ct. at 1038]
Any remaining doubt about a personal right to prevent conception has been put to rest. see Carey v. Population Services Int'l, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977); Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976).
The recent cases invalidating restrictions on abortion further expanded the right to control one's own body. Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); cf. Doe v. Bridgeton Hospital Ass'n, 71 N.J. 478, 366 A.2d 641 (1976), cert. denied, 433 U.S. 914, 97 S. Ct. 2987, 53 L. Ed. 2d 1100 (1977) (private, non-sectarian hospitals could not refuse to permit their facilities to be used for elective abortions). Their thrust is unmistakable when considering whether the constitutional right of privacy includes the right to be sterilized.
A right to sterilization has yet to receive express constitutional protection from the United States Supreme Court. Several lower courts, however, have acknowledged its existence. Hathaway v. Worcester City Hospital, 475 F.2d 701 (1st Cir. 1973); Ruby v. Massey, 452 F. Supp. 361 (D.Conn.1978); Peck v. Califano, 454 F. Supp. 484 (D.Utah 1977); Ponter v. Ponter, 135 N.J. Super. 50, 55, 342 A.2d 574 (Ch.Div.1975) (holding that a married woman has "a constitutional right to obtain a sterilization operation without the consent of her husband").
The right to be sterilized also derives from the rationale of our decision in In re Quinlan, supra. There we held that a person has a constitutional right to discontinue use of artificial life-sustaining apparatus when the prognosis for returning to cognitive or sapient life is dim. Our holding grew out of a belief that, under some circumstances, an individual's personal right to control her own body and life overrides the state's general interest in preserving life. A decision to be sterilized is also a part of an individual's personal right to control her own body and life. The state's interest in procreation cannot be greater than its interest in preserving life. If one can decide to forgo artificial life-preservation and thereby sacrifice life, then one can certainly decide to forgo reproductive capacity and thereby relinquish the ability to procreate. Therefore, the right to be sterilized is included in the privacy rights protected by the federal Constitution.
We observe briefly that the right of privacy is protected as well by our State Constitution. N.J.Const. (1947), Art. I, par. 1; see State v. Saunders, 75 N.J. 200, 381 A.2d 333 (1977); In re Quinlan, supra. We have not expounded the scope of that right, as contrasted with the federal right of privacy, because our previous decisions have found the federal right sufficient to dispose of the issues presented. But cf. Saunders, supra, (Schreibor, J., concurring) (fornication statute violates right of privacy under State, not federal, Constitution). Nor do we do so now except to note, as we did in Saunders, that governmental intrusion into privacy rights may require more persuasive showing of a public interest under our State Constitution than under the federal Constitution. 75 N.J. at 217. Thus, we also find that the right to be sterilized comes within the privacy rights protected from undue governmental interference by our State Constitution. Such a choice that bears so ...