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California Court Decides Adult DD Patient May Be Sterilized

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In 1927, the U.S. Supreme Court issued one of its most famously wrong-headed opinions. Buck v. Bell dealt with whether Carrie Buck, who had been committed to the Virginia State Colony for Epileptics and Feeble Minded, had the right to oppose an order directing that she be sterilized.

The judge deciding Ms. Buck’s future had found that she was “the probable potential parent of socially inadequate offspring,” and so ordered that she be sterilized. In fact, Ms. Buck’s mother was institutionalized, and Ms. Buck herself already had one developmentally disabled child In the U.S. Supreme Court decision, Justice Oliver Wendell Holmes dismissed the objections of civil libertarians with the now infamous statement that “three generations of imbeciles are enough.”

The eugenic movement of the 1920s soon fell into disrepute, and Justice Holmes left the Supreme Court shortly after the Buck v. Bell holding. The notion of sterilizing the developmentally disabled, however, has remained controversial. Controversy has increased in recent decades, with aggressive mainstreaming and deinstitutionalization of disabled individuals.

Although the practice of sterilizing developmentally disabled adult women has diminished substantially, it still occurs. In enlightened legal and medical systems, the decision to sterilize is made after extensive consultation with the patient, consideration of her wishes and ability to handle pregnancy and childbirth, and review of any medical (rather than social) dangers inherent in conception.

A few states have adopted specific procedures to govern the decision-making process. Consider, for example, the process utilized in California, as reported in a recent case involving “Angela D.”

Angela D. is a twenty year old severely developmentally disabled woman living with her parents. She is autistic, suffers from epileptic seizures and is diabetic. She can not read, write or talk (except for simple words like “Hello” and “Goodbye”). She has never been institutionalized, and attends a full-time special education program at her local high school.

Angela’s parents requested that the California courts permit them to authorize surgical sterilization. A California law adopted in 1987 set out the findings that were required. Angela’s parents were required to show beyond a reasonable doubt that she was incapable of giving her consent, that she was or would likely become sexually active, and either that she was completely unable to care for a child or that pregnancy and childbirth would be dangerous to her. They also had to show that other, less invasive contraceptive methods would not work.

After the petition was filed, an attorney was appointed to represent Angela; the attorney was required to start from the assumption that Angela would object to the sterilization. A psychologist was also appointed to determine whether Angela could form any opinion on the subject, and to make a recommendation.

All agreed that Angela would not understand pregnancy and could not care for a child. Contraceptives would not work, since they either required her cooperation or might worsen her diabetes or epileptic seizures. Furthermore, her medical condition would be seriously compromised by a pregnancy. On the basis of this overwhelming evidence, the court approved the sterilization. After a review initiated by another attorney, the California Court of Appeals agreed.Conservatorship of Angela D., March 30, 1999.

Arizona law is not nearly so clear on how to protect the rights of the developmentally disabled in this setting. No Arizona case has addressed the question, though most lawyers believe that it is permissible to authorize sterilization in circumstances similar to those involved in Angela D.’s case. It is less clear whether court involvement is required in every case.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.