STERILIZATION OF MINORS AND THE DISABLED (SEVERAL STATUTES)
C.R.S. § 27-10.5-128. Sterilization rights.
(1) It is the intent of the general assembly that the procedures set forth in the following subsections be utilized when sterilization is being considered for the primary purpose of rendering the individual incapable of reproduction.
(2) Any person with a developmental disability over eighteen years of age who has given informed consent has the right to be sterilized, subject to the following:
(a) Prior to the procedure, competency to give informed consent and assurance that such consent is voluntarily and freely given shall be evaluated by the following:
(I) A psychiatrist, psychologist, or physician who does not provide services or supports to the person and who has consulted with and interviewed the person with a developmental disability; and
(II) A developmental disabilities professional who does not provide services or supports in which said person participates, and who has consulted with and interviewed the person with a developmental disability.
(b) The professionals who conducted the evaluation pursuant to paragraph (a) of this subsection (2) shall consult with the physician who is to perform the operation concerning each professional's opinion in regard to the informed consent of the person requesting the sterilization.
(3) Any person with a developmental disability whose capacity to give an informed consent is challenged by the developmental disabilities professional or the physician may file a petition with the court to declare competency to give consent pursuant to the procedures set forth in section 27-10.5-129.
(4) No person with a developmental disability who is over eighteen years of age and has the capacity to participate in the decision-making process regarding sterilization shall be sterilized in the absence of the person's informed consent. No minor may be sterilized without a court order pursuant to section 27-10.5-130.
(5) Sterilization conducted pursuant to this section shall be legal. Consent given by any person pursuant to subsection (2) of this section shall not be revocable after sterilization, and no person shall be liable for acting pursuant to such consent.
Source: L. 75: Entire article added, p. 918, § 1, effective July 1. L. 85: IP(1), (1)(b), and (2) amended, p. 1007, § 27, effective July 1. L. 92: Entire section R&RE, p. 1382, § 26, effective July 1.
ANNOTATION
C.J.S. See 56 C.J.S., Mental Health, §§ 7-12.
Law reviews. For article, "Involuntary Sterilization of Retarded Minors in Colorado", see 11 Colo. Law. 421 (1982). For article, "Cruzan: The Right to Die, Parts I and II", see 19 Colo. Law. 2055 and 2237 (1990). For article, "In re Romero: Sterilization and Competency", see 68 Den. U. L. Rev. 105 (1991).
Constitutional rights extend to incompetents. The constitutionally-protected procreative alternatives available to competent adults must also extend where possible to individuals who are not mentally competent to make the choice for themselves. In re A.W., 637 P.2d 366 (Colo. 1981).
Sterilization sections not limited to competent adults. The general assembly did not intend §§ 27-10.5-128 through 27-10.5-132 to limit sterilizations to competently consenting adults. In re A.W., 637 P.2d 366 (Colo. 1981).
Court's power to act in absence of statutory authorization. A district court acting in its probate capacity has the power in the absence of statutory authorization to act on a petition for sterilization of a mentally retarded minor. In re A.W., 637 P.2d 366 (Colo. 1981).
A court's inherent parens patriae jurisdiction over incompetents may extend to decisions involving irrevocable consequences for the incompetent individual. In re A.W., 637 P.2d 366 (Colo. 1981).
Since statutory provisions concerning sterilization of mentally retarded persons do not address the issue of sterilization of a minor, it is within the district court's inherent authority to consider a petition for sterilization of a minor, and, in the absence of legislative pronouncement, it is proper and necessary for the supreme court to promulgate standards for determining the circumstances under which such a procedure may be performed. In re A.W., 637 P.2d 366 (Colo. 1981).
Preliminary determinations court must make. In considering a petition to sterilize a mentally retarded minor, the district court must make the following preliminary determinations. First, while the mentally retarded person need not testify or be present at the proceedings if the person's presence would serve no useful purpose, the trial judge should talk with the person and observe the person's physical and mental condition. The wishes of the person, although not conclusive, are relevant, and a strong indication that the person does not wish to be sterilized must weigh heavily against authorizing the procedure. Second, the district court must determine that the person's capacity to make a decision about sterilization is unlikely to improve in the future. Third, the person for whom sterilization is requested must be proven capable of reproduction. In re A.W., 637 P.2d 366 (Colo. 1981).
Sterilization of mentally retarded minor must be medically necessary. Once a district court determines preliminary matters relating to a petition to sterilize a mentally retarded minor, it must find by clear and convincing evidence that the sterilization is medically essential. A sterilization is medically essential if clearly necessary, in the opinion of experts, to preserve the life or physical or mental health of the mentally retarded person. In re A.W., 637 P.2d 366 (Colo. 1981).
For legislative history of provisions relating to sterilization, see In re A.W., 637 P.2d 366 (Colo. 1981).
C.R.S. § 27-10.5-129. Competency to give consent to sterilization.
(1) If the competency of the person with a developmental disability to give consent to sterilization is disputed by the developmental disabilities professional, the psychiatrist or psychologist, or physician, said person may file a petition for declaration of competency to give consent to sterilization with the court. Upon the filing of a petition which shows that said person is over eighteen years of age and desires to give consent to sterilization, the court shall immediately set a hearing to determine the person's competency to give such consent. For the purpose of determining competency, the court shall appoint two or more independent professional persons with expertise in the field of developmental disabilities who do not provide services and supports to said person to examine said person and to present their findings as to said person's competency to give consent to sterilization at the competency hearing.
(2) If the court determines that the person has given consent to sterilization and is competent to give such consent, the court shall order that the sterilization be performed unless the person withdraws consent to sterilization prior to the sterilization being performed. If the court determines that the person is incompetent to give consent to sterilization, the court shall order that no sterilization be performed without further court proceedings pursuant to section 27-10.5-130.
(3) Determination of competency in these proceedings is specific to the ability to give consent to sterilization and does not determine legal competency for any other purpose.
Source: L. 75: Entire article added, p. 918, § 1, effective July 1. L. 85: IP(1) and (2) to (4) amended, p. 1008, § 28, effective July 1. L. 92: Entire section R&RE, p. 1383, § 27, effective July 1.
ANNOTATION
C.J.S. See 56 C.J.S., Mental Health, §§ 7-12.
When petition required. A petition is required if the retarded person's competency is questioned either by the physician from whom sterilization is sought or by a parent, legal guardian, or custodian of the person. In re A.W., 637 P.2d 366 (Colo. 1981).
C.R.S. § 27-10.5-130. Court-ordered sterilization.
(1) A person with a developmental disability who has been determined to be incompetent to give consent, the person's legal guardian, or the parents of a minor with a developmental disability, may petition the court to hold a hearing to determine whether said person should be ordered to be sterilized. The petition shall set forth the following:
(a) The name, age, and residence of the person to be sterilized;
(b) The name, address, and relation to said person of the petitioner;
(c) The names and addresses of any parents, spouse, legal guardian, or custodian of said person;
(d) The mental condition of the person to be sterilized;
(e) A statement that the sterilization is medically necessary to preserve the life or physical or mental health of the person, including a short and plain description of the reasons behind the determination of medical necessity;
(f) A statement that other less intrusive measures were considered and the reasons behind the determination that less intrusive means would not protect the interests of the individual.
(2) Upon petition to the court, the court shall appoint an attorney who will represent the interests of the person with a developmental disability and one or more experts in the developmental disability field to examine the person and to give testimony at the hearing regarding the person's mental and physical status and other relevant matters.
(3) The hearing on the petition shall be held promptly. The person with a developmental disability shall be represented by an attorney and shall have the opportunity to present testimony and to cross-examine witnesses.
(4) Copies of the petition and notices of the time and place of the hearing shall be mailed, not less than ten days prior to the hearing, to the person with a developmental disability, that person's attorney, a parent or next of kin, and legal guardian or custodian.
(5) Reasonable fees and costs incurred pursuant to this section shall be paid by the court for a person who is indigent.
(6) Prior to ordering sterilization, the court must find:
(a) That the person lacks the capacity to effectively participate in the decision-making process regarding sterilization or is a minor with a developmental disability;
(b) That the court has heard from the person regarding that person's desires, if possible, and the court has considered the desires of the person;
(c) That the person lacks the capacity to make a decision regarding sterilization and that the person's capacity to make such a decision is unlikely to improve in the future;
(d) That the person is capable of reproduction and is likely to engage in activities at the present or in the near future which could result in pregnancy;
(e) By clear and convincing evidence, that the sterilization is medically necessary to preserve the life or physical or mental health of the person, including a short and plain description of the reasons behind the determination of medical necessity;
(f) That other less intrusive measures were considered and the reasons behind the determination that less intrusive means would not protect the interests of the person.
Source: L. 75: Entire article added, p. 919, § 1, effective July 1. L. 85: (1) amended, p. 1009, § 29, effective July 1. L. 92: Entire section R&RE, p. 1384, § 28, effective July 1.
ANNOTATION
Law reviews. For article, "Cruzan: The Right to Die, Parts I and II", see 19 Colo. Law. 2055 and 2237 (1990). For article, "In re Romero: Sterilization and Competency", see 68 Den. U. L. Rev. 105 (1991).
C.R.S. § 27-10.5-131. Confidentiality of sterilization proceedings.
All records, hearings, and proceedings pursuant to sections 27-10.5-128 to 27-10.5-130 shall be strictly confidential unless requested to be open to the public by the person with a developmental disability or the person's legal guardian.
Source: L. 75: Entire article added, p. 919, § 1, effective July 1. L. 85: Entire section amended, p. 1009, § 30, effective July 1. L. 92: Entire section amended, p. 1386, § 29, effective July 1.
C.R.S. § 27-10.5-132. Limitations on sterilization.
(1) Consent to sterilization shall be made neither a condition for release from any institution nor a condition for the exercise of any right, privilege, or freedom.
(2) Nothing in this article shall require any hospital or any person to participate in any sterilization, nor shall any hospital or any person be civilly or criminally liable for refusing to participate in any sterilization.
Source: L. 75: Entire article added, p. 919, § 1, effective July 1.