Center for Gender & Sexuality Law
Sterilization is one of the most frequently chosen forms of contraception in the world; many persons who do not want to have children select this simple, safe, and effective means of avoiding unwanted pregnancy. For individuals who are mentally disabled, however, sterilization has more ominous associations. Until recently, involuntary sterilization was used as a weapon of the state in the war against mental deficiency. Under eugenic sterilization laws in effect in many states, retarded persons were routinely sterilized without their consent or knowledge.
Sterilization law has undergone a radical transformation in recent years. Influenced by a distaste for eugenic sterilization and a desire to redress past injustices, the emerging law seeks to protect the interests of mentally disabled persons by erecting formidable barriers to sterilization. The policy goals of this reform movement are commendable. However, in its singleminded effort to prevent erroneous sterilizations, the law departs from what would be its underlying objectives: to protect where possible the individual's right to make her own reproductive decisions and to ensure that any decision made by others will best protect her interests.
Current law purports to protect the individual's reproductive rights, but the focus is one-sided. Although the law protects the "right to procreate," it does so by unnecessarily burdening the reciprocal right not to procreate. The option of sterilization – seen as a legitimate exercise of the right of reproductive privacy when chosen by the normal person – may be unavailable to the retarded person. Despite rhetorical emphasis on the importance of reproductive autonomy, the paternalistic stance of the law improperly limits the freedom of some persons who may be capable of making their own reproductive choices. In many states, only a court acting as decisionmaker is deemed capable of protecting disabled persons from those who would violate their rights.
Elizabeth S. Scott,
Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy,
Duke L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/327