Mildred G. et al., Petitioners and Appellants, v. VALERIE

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Court of Appeal, First District, Division 4, California.

CONSERVATORSHIP OF the Person of VALERIE N. Mildred G. et al., Petitioners and Appellants, v. VALERIE N., Objector and Respondent.

A012215.

Decided: February 23, 1984

Allen H. Fleishman, San Jose, for petitioners and appellants. Quin Denvir, State Public Defender, Paul D. Fogel, Deputy State Public Defender, San Francisco, for objector and respondent.

Respondent Valerie N. is a mentally retarded adult.   Appellants are her natural mother and stepfather.   They petitioned the superior court, sitting in probate, for orders appointing them as conservators of respondent's person and authorizing them to have her sterilized.   The probate court appointed them as conservators of her person;  conducted an evidentiary hearing on their application for authority to have her sterilized;  and made an order denying the application.   They appeal from the order.

PROCEDURAL SEQUENCE

For reasons which will appear, we recite this sequence in chronological detail.   On September 5, 1980, appellants petitioned the probate court for their appointment as conservators of respondent's person “with additional powers.”   They alleged in their petition that respondent “is unable properly to provide for ․ her personal needs” because she is “severely retarded.”   They requested that they be appointed as conservators of her person with the “additional power ․ to authorize the performance on conservatee of a salpingectomy or any other operation or treatment that will permanently sterilize but not unisex [sic:  unsex] the conservatee ․ because physicians have informed the petitioners that conservatee's mental retardation is a permanent condition.”

On September 25, 1980, the probate court conducted a hearing on the petition.   Respondent was interviewed in open court by a court-appointed investigator who reported that she (respondent) “had no comprehension of the proceedings.”   The court made a finding to that effect and appointed the public defender to represent respondent.   The public defender informed the court that there was “no opposition” to the appointment of conservators as prayed, but that respondent objected to the “additional powers” requested.   The court made an order appointing appellants as co-conservators of respondent's person.   Proceedings on their application for the “additional powers” were continued.

An evidentiary hearing on the application was conducted on December 10, 1980.   In its support, appellants filed declarations by two physicians and by a counselor who specializes in “behavior management with developmentally disabled clients.”   The court also heard testimony by appellant Mildred Gedney, respondent's mother.   At the conclusion of the hearing, the court orally denied the application for “additional powers.”   On the same day (December 10, 1980), the court made a minute order stating:  “ORDER:  Application by Conservators for Additional Power to perform [sic ] surgery upon ․ the Conservatee herein is DENIED.”

 On December 22, 1980, appellants filed a notice of appeal “from the Order entered herein on December 10, 1980.”

On June 12, 1981, the probate court signed and filed a formal order in which appellant's “request for special powers” was denied nunc pro tunc as of December 10, 1980.1

On August 18, 1981, appellants filed an “Amended Notice Of Appeal” in which they stated that they appealed “from the Nunc Pro Tunc Order filed on June 12, 1981, denying the special powers requested.” 2

THE EVIDENCE

As previously recited, the evidence received at the hearing conducted on December 10, 1980, included testimony by respondent's mother and declarations by two physicians and a counselor.   The evidence may be summarized and quoted as follows:

Respondent is 25 years old.   She is severely retarded as a result of Down's syndrome, and has an IQ of 30.   She lives with appellants in their home.   Her “social behavior in a lot of areas is not acceptable.”   This is particularly true with regard to men and boys, with whom she is “very aggressive” and “very affectionate” physically.   The counselor described this behavior as “inappropriate sexual attention to adult males.”

Appellants had attempted to have respondent take “birth control pills ․, which she rejected and became ill.”   Her mother testified that the use of contraceptive devices was not feasible because respondent “would not know how to apply them,” and that there was no “possibility for an IUD [intrauterine device] at this time” because respondent “won't cooperate” in having a pelvic examination performed.

The mother also testified to her opinions that an IUD was not “medically safe,” that tubal ligation was a “medically safe procedure,” and that there was no “feasible alternative to tubal ligation at this time.”   Asked why she wanted to have respondent sterilized, the mother stated:  “Because I do not wish her to become pregnant, but I would still like her to be able to broaden her social activities somewhat ․  I'm still concerned about her safety also, but that would be one problem that would be eliminated once and for all.”

Both physicians stated in their declarations that they were “aware of the family's desire to have a tubal ligation performed” on respondent, and that the “procedure is advisable and medically appropriate.”   There was agreement among the three declarants that pregnancy would cause psychiatric harm to respondent.

REVIEW

Probate Code section 2356, subdivision (d), effectively prohibits the sterilization of any person who is under conservatorship in proceedings conducted pursuant to the provisions of the Probate Code pertaining to guardianship and conservatorship.3  As will appear in further detail, the statute was not in effect when the order under review was made;  appellants and the probate court ignored this fact and treated the statute as if it were in effect;  and appellants have accordingly presented the principal question on appeal in terms of a contention that the statute is unconstitutional.   As will also appear, the chronology of the proceedings is such that we may affirm the order under review without regard to the constitutional challenge of the statute.   These features of the appeal are discussed in the full chronology which is recited next.

The Background Of The Statute

In Guardianship of Kemp (1974) 43 Cal.App.3d 758, 118 Cal.Rptr. 64, a mentally incompetent ward appealed from an order of the probate court authorizing her guardian to have her sterilized.  (Id., at p. 760, 118 Cal.Rptr. 64.)   This court reversed the order on the grounds that the jurisdiction and powers of a probate court were “wholly statutory”;  that no statute authorized it to order the sterilization of an incompetent ward;  and that the order was therefore invalid for lack of jurisdiction.  (Id., at pp. 761–762, 765, 118 Cal.Rptr. 64.)   We observed that Welfare and Institutions Code section 7254 then established a “comprehensive scheme” for the sterilization of mentally incompetent persons who had been committed to state hospitals, and that “it may be concluded that the Legislature did not intend that sterilization of the mentally retarded was to be carried out without meeting the requirements” of that statute's prescribed “examination, notice, administrative hearings, administrative review, and judicial review ․”  (Id., at p. 763, 118 Cal.Rptr. 64.) 4

In Guardianship of Tulley (1978) 83 Cal.App.3d 698, 146 Cal.Rptr. 266 (cert. den., 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783), a guardian petitioned the probate court for an order requiring the sterilization of his mentally incompetent ward.   The petition was denied, and the guardian appealed.  (Id., at pp. 700–701, 146 Cal.Rptr. 266.)   The Court of Appeal affirmed, principally on the authority of Kemp.  (See Guardianship of Tulley, supra, at pp. 702–704, 146 Cal.Rptr. 266.)   Rejecting a contention by the guardian that the probate court's refusal to order the sterilization violated the ward's constitutional right of privacy, the Tulley court pointed out that Welfare and Institutions Code section 7254, as it read at the time (see fn. 4, ante ), did not “erect an absolute bar” to the sterilization of mentally incompetent persons if they were “inmates of a mental hospital” and if the “procedural safeguards” prescribed in that statute were met.  (83 Cal.App.3d at p. 705, 146 Cal.Rptr. 266.)

Significant statutory changes were made in two 1979 enactments.   In the first one, the Legislature repealed Welfare and Institutions Code section 7254 effective January 1, 1980.  (Stats.1979, ch. 730, § 156.5, p. 2540;  Id., § 188, p. 2552.)   In the second enactment, the Legislature adopted Probate Code section 2356 (including its subdivision (d), the statute at issue here).  (Stats.1979, ch. 726, § 3.01, p. 2453.)   The Legislature thereby followed a recommendation made by the California Law Revision Commission as part of a program for comprehensive changes in the statutes pertaining to guardianships and conservatorships.  (See 14 Cal.Law Revision Com.Rep. (1978) pp. 501, 724–725;  15 Cal.Law Revision Com.Rep. (1980) pp. 451, 699–700.)   The commission pointed out in a contemporaneous comment that the enactment of section 2356, subdivision (d), was “consistent” with Guardianship of Kemp, supra, 43 Cal.App.3d 758, 118 Cal.Rptr. 64, and Guardianship of Tulley, supra, 83 Cal.App.3d 698, 146 Cal.Rptr. 266.  (15 Cal.Law Revision Com.Rep., supra, at p. 700.)

The Effect Of The Statute In The Present Proceedings

The 1979 enactment which added Probate Code section 2356, subdivision (d), provided that it was not to become operative until January 1, 1981.   (Stats.1979, ch. 726, § 4, p. 2454.)   Although the statute was consequently not in effect when appellants applied to the probate court for the “power” to have respondent sterilized, they treated it as the principal impediment to the relief prayed and challenged its constitutionality.   The probate court cited and relied on the statute when the application was denied on December 10, 1980.   The statute took effect before the formal order denying the application was filed on June 12, 1981, but that order was entered nunc pro tunc as of December 10, 1980.  (See fn. 1, ante.)   It therefore appears that the statute was not in effect at any time pertaining to the order of denial, which means that this court may sustain the order on the authority of Tulley and Kemp alone.  (Guardianship of Tulley, supra, 83 Cal.App.3d 698, at pp. 701–705, 146 Cal.Rptr. 266;  Guardianship of Kemp, supra, 43 Cal.App.3d 758 at pp. 761–763, 118 Cal.Rptr. 64.)

In conjunction with their constitutional challenge of the statute, appellants contended in effect that Tulley and Kemp are no longer authoritative because of the decision by the Supreme Court of the United States in Stump v. Sparkman (1978) 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331.   This contention is without merit.   The Stump court held that an Indiana judge who had authorized sterilization of a retarded minor was immune from personal liability under the federal Civil Rights Act of 1871 (42 U.S.C. § 1983).  (435 U.S. at pp. 355–360, 98 S.Ct. at pp. 1104–1106.)   The court explicitly pointed out that the judge had jurisdiction to authorize the sterilization pursuant to Indiana law.  (Id., at pp. 358, 359–360, 364, 98 S.Ct., at pp. 1105, 1106–1107–1108.)   The decision clearly does not affect the holdings in Tulley and Kemp that the law of California does not vest a probate court with jurisdiction to authorize or order sterilization.   We may therefore follow Tulley and Kemp in the present case, and affirm the order under review, without regard to appellants' constitutional challenge of the statute.

 We are ordinarily enjoined from resolving a constitutional question on an appeal which may be decided on other grounds.   (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65–66, 195 P.2d 1;  Alice v. Department of Social Welfare (1976) 55 Cal.App.3d 1039, 1045, 128 Cal.Rptr. 374.)   The present appeal may be decided on other grounds because Probate Code section 2356, subdivision (d), was prematurely applied by the probate court, with the consequence that the challenge of its constitutionality is moot.   However, we may properly resolve a moot point if it presents “an issue of continuing public interest that is likely to recur in other cases [citations] and such resolution is particularly appropriate when it is likely to affect the future rights of the parties before us.   [Citations.]”  (Daly v. Superior Court (1977) 19 Cal.3d 132, 141, 137 Cal.Rptr. 14, 560 P.2d 1193;  see also Libertarian Party v. Eu (1980) 28 Cal.3d 535, 539, 170 Cal.Rptr. 25, 620 P.2d 612;  City of Monterey v. California Coastal Com. (1981) 120 Cal.App.3d 799, 805–806, 174 Cal.Rptr. 798.)  “․ [W]e should not avoid the resolution of important and well litigated controversies arising from situations which are ‘capable of repetition, yet evading review.’  [Citations.]”  (In re William M. (1970) 3 Cal.3d 16, 23, fn. 14, 89 Cal.Rptr. 33, 473 P.2d 737;  City of Monterey v. California Coastal Com., supra, at p. 806, 174 Cal.Rptr. 798.)   We find these features here, and we deal with the constitutional challenge accordingly.   For the reasons which follow in the sequence of appellants' arguments, we have concluded that Probate Code section 2356, subdivision (d), is constitutional.

The Statute And The Right Of Privacy

 Appellants contend that the statute is unconstitutional because it denies a conservatee's “fundamental right to privacy.”   Respondent has a fundamental right to choose whether or not to bear a child, and this is a right of privacy which is protected by the Constitution of the United States (Roe v. Wade (1973) 410 U.S. 113, 152–154, 93 S.Ct. 705, 726–727, 35 L.Ed.2d 147;  see Griswold v. Connecticut (1965) 381 U.S. 479, 483–486, 85 S.Ct. 1678, 1681–1682, 14 L.Ed.2d 510) and the Constitution of California.  (Cal. Const., art. I, § 1;  Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 262, 172 Cal.Rptr. 866, 625 P.2d 779;  People v. Belous (1969) 71 Cal.2d 954, 963–964, 80 Cal.Rptr. 354, 458 P.2d 194, cert. den., 397 U.S. 915, 90 S.Ct. 920, 25 L.Ed.2d 96.)   Only a “compelling state interest” will justify limitations on the exercise of the right.  (Roe v. Wade, supra, at p. 155, 93 S.Ct., at p. 728;  see also People v. Privitera (1979) 23 Cal.3d 697, 702, 153 Cal.Rptr. 431, 591 P.2d 919, cert. den., 444 U.S. 949, 100 S.Ct. 419, 62 L.Ed.2d 318.)

 Appellants treat the constitutional right of privacy as synonymous with “a constitutional right to sterilization.”   The courts of this state have recognized that a competent adult may be sterilized voluntarily (see Jessin v. County of Shasta (1969) 274 Cal.App.2d 737, 745–749, 79 Cal.Rptr. 359), but appellants have cited no California authority—and we know of none—supporting their contention that they may in effect compel respondent to be sterilized.   The question presented may therefore be stated as whether the right to sterilization, which is held by a competent person, may validly be denied to one who is incompetent.

Several courts in other jurisdictions have answered this question in the negative.  (See Matter of C.D.M. (Alaska 1981) 627 P.2d 607, 611–612;  Matter of A.W. (Colo.1981) 637 P.2d 366, 374–375;  Matter of Moe (1981) 385 Mass. 555, 432 N.E.2d 712, 718–720;  In re Penny N. (1980) 120 N.H. 269, 414 A.2d 541, 542;  In re Grady (1981) 85 N.J. 235, 426 A.2d 467, 474–475, 481;  Matter of Sallmaier (N.Y.Sup.Ct.1976) 85 Misc.2d 295, 378 N.Y.S.2d 989, 991;  Matter of Terwilliger (1982) 304 Pa.Super. 553, 450 A.2d 1376, 1380–1382;  Matter of Guardianship of Hayes (1980) 93 Wash.2d 328, 608 P.2d 635, 638.)   We decline to follow these courts for two reasons.

In the first place, it was held in each of the cited decisions that the respective trial or probate court was empowered to order sterilization on a jurisdictional basis which is not applicable in this case.   It was held in most instances that the lower court had the authority to order sterilization pursuant to its general, inherent, or equitable powers.  (Matter of C.D.M., supra, 627 P.2d 607 at p. 612;  Matter of A.W., supra, 637 P.2d 366 at pp. 374–375;  Matter of Moe, supra, 432 N.E.2d 712 at pp. 718–719;  In re Grady, supra, 426 A.2d 467 at pp. 479–481;  Matter of Sallmaier, supra, 378 N.Y.S.2d 989 at p. 991;  Matter of Terwilliger, supra, 450 A.2d 1376 at pp. 1380–1382.)   One of the reviewing courts held that this authority was derived from statute.  (In re Penny N., supra, 414 A.2d 541 at pp. 542–543.)   Another held that it was derived from the constitution of the state involved.   (Matter of Guardianship of Hayes, supra, 608 P.2d 635 at pp. 638–639.)   In California, however, jurisdiction and powers of the probate court are “wholly statutory” (Guardianship of Kemp, supra, 43 Cal.App.3d 758 at p. 761, 118 Cal.Rptr. 64) and no statute authorizes the court to order sterilization.

The second reason reflects matters of history and social ethics.   The power to sterilize is subject to abuse.  (See Maxon v. Superior Court (1982) 135 Cal.App.3d 626, 632, 185 Cal.Rptr. 516;  Stump v. Sparkman, supra, 435 U.S. 349 at pp. 351–354, 98 S.Ct. 1099 at pp. 1101–1103, 55 L.Ed.2d 331;  Downs v. Sawtelle (1st Cir.1978) 574 F.2d 1, 4–6, cert. den., 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 255;  Ferster, Eliminating the Unfit—Is Sterilization the Answer?  (1966) 27 Ohio St.L.J. 591, 592–594;  Haldane, Heredity and Politics (1938) 102–105.)   The interests of parents and their children in the subject are by no means identical, and are often opposed:  “The inconvenience of caring for the incompetent child coupled with fears of sexual promiscuity or exploitation may lead parents to seek a solution which infringes their offspring's fundamental procreative rights.”  (Matter of A.W., supra, 637 P.2d 366 at p. 370;  see also A.L. v. G.R.H. (1975) 163 Ind.App. 636, 325 N.E.2d 501, 502.)

Appellants are seeking an “awesome power” to effect an “extreme remedy.”   (Guardianship of Tulley, supra, 83 Cal.App.3d 698 at p. 701, 146 Cal.Rptr. 266.)   The fact that “the parents seek to have the child['s] rights exercised in favor of sterilization, rather than against it, does not affect the character of the right.   They may neither veto nor give valid consent to the sterilization of their child ․”  (Ruby v. Massey (D.Conn.1978) 452 F.Supp. 361, 366.)

The state obviously has a compelling interest in enacting a statute which preserves and protects a fundamental right of a person in respondent's unfortunate situation, and which is personal to her.   Proof of the desirability of sterilization has been rejected as inadequate in situations similar to the one presented here.  (See Guardianship of Tulley, supra, 83 Cal.App.3d 698 at pp. 700–701, 704–705, 146 Cal.Rptr. 266;  Ruby v. Massey, supra, 452 F.Supp. 361 at pp. 363–364, 366.)   In Maxon v. Superior Court, supra, 135 Cal.App.3d 626, 185 Cal.Rptr. 516, it was held that Probate Code section 2356, subdivision (d), did not prohibit a probate court from authorizing the performance of surgery, on an incompetent conservatee, where the procedure would have the incidental effect of sterilizing her but was medically necessary to prevent the onset of a cancerous condition which would endanger her life.  (Id., at pp. 627, 631, 633, 185 Cal.Rptr. 516.)   In the present case, it is undisputed that the proposed surgery would be conducted for the sole purpose of sterilizing the conservatee.  Probate Code section 2356, subdivision (d), therefore prohibited its authorization.  (Maxon v. Superior Court, supra, at p. 631, 185 Cal.Rptr. 516.)

The Statute And Due Process

Appellants also contend that Probate Code section 2356, subdivision (d), deprives respondent of due process of law.   This contention amounts to a restatement of their first argument, in that the right of privacy involved in a decision whether or not to bear a child is a fundamental personal right which is protected by the constitutional guarantee of due process.  (See Roe v. Wade, supra, 410 U.S. 113 at pp. 152–153, 93 S.Ct. 705 at pp. 726–727, 35 L.Ed.2d 147;  Griswold v. Connecticut, supra, 381 U.S. 479 at pp. 483–486, 85 S.Ct. 1678 at pp. 1681–1682, 14 L.Ed.2d 510;  People v. Belous, supra, 71 Cal.2d 954 at pp. 963–964, 80 Cal.Rptr. 354, 458 P.2d 194.)   Again, only a “compelling state interest” will warrant limitation of the right.  (See Roe v. Wade, supra, 410 U.S., at pp. 154–156, 93 S.Ct., at pp. 727–728;  People v. Belous, supra, at p. 964, 80 Cal.Rptr. 354, 458 P.2d 194.)

The California Supreme Court has held that the Legislature may constitutionally limit a fundamental personal right when the state has a “compelling interest” in the regulation of a subject which is within its police power;  when the “regulation is ‘necessary ․ to the accomplishment of a permissible state policy’ ”;  and when the regulatory legislation is “narrowly drawn and not of ‘unlimited and indiscriminate sweep’ [Citations.].”   (People v. Belous, supra, 71 Cal.2d 954 at p. 964, 80 Cal.Rptr. 354, 458 P.2d 194.)

Probate Code section 2356, subdivision (d), was enacted pursuant to this state's police power, which has been described as follows:  “The police power is the power to govern.   It is the inherent, reserved power of the state to subject individual rights to reasonable regulation in the interest of the general welfare.  [Citations.]  [¶]  The state has the sovereign right to protect its citizens and has wide discretion when it exercises its police power for this purpose.   The existence of the police power imposes upon the state the duty to take adequate steps to protect the lives of its residents.   [Citations.].”  (In re Quinn (1973) 35 Cal.App.3d 473, 486, 110 Cal.Rptr. 881, disapproved on another point in State of California v. San Luis Obispo Sportsman's Assn. (1978) 22 Cal.3d 440, 447–448, fn. 6, 149 Cal.Rptr. 482, 584 P.2d 1088;  see also 5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, §§ 435–438, pp. 3734–3738.)

 California has gradually been restricting the circumstances in which involuntary sterilization may be performed.  (See Guardianship of Kemp, supra, 43 Cal.App.3d 758 at p. 762, 118 Cal.Rptr. 64.)   The enactment of Probate Code section 2356, subdivision (d), concurrently with the repeal of former Welfare and Institutions Code section 7254, offers convincing evidence that the Legislature has determined to end the state's participation in the sterilization of incompetent persons.   In light of the actual and potential abuse of this “extreme remedy which irreversibly denies a human being the fundamental right to bear and beget a child” (Guardianship of Tulley, supra, 83 Cal.App.3d 698 at p. 701, 146 Cal.Rptr. 266), and the state's compelling interest in preserving that fundamental right, Probate Code section 2356, subdivision (d), is constitutionally justified as “ ‘necessary ․ to the accomplishment of a permissible state policy.’ ”  (See People v. Belous, supra, 71 Cal.2d 954 at p. 964, 80 Cal.Rptr. 354, 458 P.2d 194.)

The Statute And Equal Protection

Appellants further contend that Probate Code section 2356, subdivision (d), operates to deny respondent the equal protection of the laws.   They argue in effect that the statute unreasonably classifies incompetent persons as different from those who are competent, and that it thereby deprives the former of their fundamental right to sterilization on the same terms afforded to the latter.   Respondent argues that the statute validly distinguishes between the two classes on the basis of whether “informed consent” to sterilization may be given by the person involved.   This distinction is clearly embodied in the statute.

Two tests are used in the examination of statutory classifications which are challenged as violative of the constitutional guarantees of equal protection.   “In ordinary equal protection cases not involving ․ the alleged infringement of a fundamental interest, the classification is upheld if it bears a rational relationship to a legitimate state purpose.  [Citations.]  But if the statutory scheme imposes ․ a classification which infringes on a fundamental interest ․, the classification must be closely scrutinized and may be upheld only if it is necessary for the furtherance of a compelling state interest.   [Citations.]”  (Weber v. City Council (1973) 9 Cal.3d 950, 958–959, 109 Cal.Rptr. 553, 513 P.2d 601.)

 Because competent and incompetent persons differ significantly in their ability to give informed consent, a classification based on the difference is reasonable.   The state has a duty to take reasonable steps to protect an incompetent person's rights to privacy, which—as we have seen—include the right to bear children or not.  (See Roe v. Wade, supra, 410 U.S. 113 at pp. 152–154, 93 S.Ct. 705 at pp. 726–727, 35 L.Ed.2d 147;  People v. Belous, supra, 71 Cal.2d 954 at pp. 963–964, 80 Cal.Rptr. 354, 458 P.2d 194.)   Sterilization is generally an irreversible procedure.  (See Guardianship of Tulley, supra, 83 Cal.App.3d 698 at p. 701, 146 Cal.Rptr. 266;  Matter of A.W. (Colo.1981) 637 P.2d 366, 369 fn. 4.)   As the present record shows, there are many types of birth control which will prevent conception.   Alternatives short of sterilization are thus available which will permit exercise of the right not to bear children.

 In recent years, society has become increasingly aware that childbearing by incompetent persons presents complex problems.  (See Note (1979) 31 Stan.L.Rev. 785.)   There is also an increasing awareness of conflicts which may exist between incompetent persons and those who are charged with their care.  (See Stump v. Sparkman, supra, 435 U.S. 349 at pp. 351, 353, 98 S.Ct. 1099 at pp. 1101, 1103, 55 L.Ed.2d 331;  Murdock, Sterilization of the Retarded:  A Problem or a Solution? (1974) 62 Cal.L.Rev. 917, 932–934.)   Because many unknown and variable considerations are thus involved in a decision whether or not to undergo or impose sterilization, it is perceptibly necessary that the procedure be limited to persons who are able to give informed consent.   The limitation protects the fundamental right of an incompetent person to bear children.   In light of the necessity perceived, and the compelling state interest to be served, Probate Code section 2356, subdivision (d), meets the “strict scrutiny” test of its validity.  (See Weber v. City Council, quoted supra, 9 Cal.3d 950 at p. 959, 109 Cal.Rptr. 553, 513 P.2d 601.)   The statute does not deny respondent equal protection of the laws.   Other contentions made by appellants need not be reached.

The order under review is affirmed.

I respectfully dissent.

A rehearing was granted in this case to enable this writer to review material in supplemental briefs which, through inadvertence, I had not perused prior to the time I approved the majority opinion, and to give me an opportunity to reexamine the principles enunciated in that opinion.

After all the evidence was in, counsel for appellants and the public defender, on behalf of Valerie, presented their arguments to the court.   On the facts the public defender suggested, without presenting any evidence contrary to that set forth above, that there might be some method of coming up with a birth control device short of the drastic irreversible sterilization.   He conceded that if Valerie did become pregnant, and her mental or physical health were endangered, the court could authorize an abortion.   He relied upon the premise that the court had no jurisdiction to order a sterilization.   On behalf of petitioners it was argued that the decisional law so indicating was no longer valid, and that the statutory limitation on the jurisdiction of the probate court (a law [Prob.Code, § 2356, subd. (d) ] not yet then effective though assumed to be so by all concerned) was unconstitutional.

The court concluded “․ I take it there is a need for having this surgery for Valerie, as requested by her mother.   I think Valerie would live a much happier life if she had it.   And I think sterilization, from what I have heard, ․ is desirable and should be ordered.  [¶] And I would order it except for the problem—the code section that says I cannot order it.   And the recent case of Tulley, [83] Cal.App.3d 698, 146 Cal.Rptr. 266, says I have no jurisdiction.  [¶] So I will deny your petition.”

Petitioners appealed from the minute order denying the petition and from a subsequent formal order entered nunc pro tunc which denied petitioners' motion for special powers for the reasons stated in the record at said hearing.   The principal issue framed on appeal is the constitutionality of a statute adopted prior to but not effective until after the hearing and original ruling in this matter.

It has occurred to me that if today we deny this severely retarded young woman a forum in which it can be determined whether her constitutional right to bear or not to bear children may be exercised in the best interests of her physical and mental health by a tubal litigation that will permanently sterilize but not unsex her, tomorrow we may well have to decide whether that right may be best exercised by an abortion.   Or are we condemning her to a life in a closet, away from all interaction with members of the opposite sex?   I find that these, to me absurd and inhumane, results are not necessary, and the more rational and understanding approach not only prescribes, but constitutionally requires, the state to provide a forum in which such a substituted choice can be made.1

For reasons expressed below, I conclude as follows:

(1) Consensual sterilization is legal, and the government may not legally prohibit it as a means of exercising the personal right to not beget or bear children;

(2) Although the government may be constitutionally prohibited from imposing compulsory sterilization upon a competent nonconsenting individual, it cannot constitutionally deny an incompetent the right to secure an adjudication as to whether or not the best interests of his or her physical or mental health will be served by sterilization;

(3) The decision of the courts of this state have not gone so far as to prohibit a recognition of that constitutional right, or, if they have, should not be followed;

(4) The inconclusive legislative history on the subject of the right of an incompetent to such a determination fails to reflect a legislative policy against such right.   Insofar as it does, it is unconstitutional;

(5) The current situation indicates that there is no need for judicial restraint or deference to the Legislature in providing such constitutional relief to the petitioner;  and

(6) The standard of proof and the factors to be considered have been well established and enunciated in those jurisdictions where the right to such an adjudication has been recognized.

Preliminarily, it should be noted, and I recognize, that the compulsory sterilization of incompetents based on eugenic theories can no longer be justified as a valid exercise of governmental authority.  (See Maxon v. Superior Court (1982) 135 Cal.App.3d 626, 632, 185 Cal.Rptr. 516, and discussion of statutory background in part IV below.) 2  That the power to sterilize is subject to abuse, as stated by the majority, is an aphorism that can be applied to any power vested in the courts.3  The possible abuse of power cannot be a deterrent for seeking to ascertain what power may be necessary to preserve a fundamental constitutional right.  (See parts II and III below.)   Nor can one be thwarted in the search for a remedy to enforce a constitutional right of choice by a thicket of procedural complexities which attempts to stifle that search because of lack of a forum.   (See parts III, IV, and V below.)

The majority hold that the right to sterilization, which is held by a competent person, may be validly denied to one who is incompetent.   To me, the issue is whether the incompetent person is to be given the same rights as those vested in a competent person, and if so, how and by what means.   I would follow those jurisdictions which hold that the courts in proper cases must substitute their judgment in order to give the incompetent the benefit of the choice guaranteed by the Constitution.

I

The majority recognize that Valerie “has a fundamental right to choose whether or not to bear a child, and this is a right to privacy which is protected by the Constitution of the United States (Roe v. Wade (1973) 410 U.S. 113, 152–154 [93 S.Ct. 705, 726–727, 35 L.Ed.2d 147];  see Griswold v. Connecticut (1965) 381 U.S. 479, 483–486 [85 S.Ct. 1678, 1681–1682, 14 L.Ed.2d 510] ) and the Constitution of California.  (Cal. Const., art. I, § 1;  Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 262 [172 Cal.Rptr. 866, 625 P.2d 779];  People v. Belous (1969) 71 Cal.2d 954, 963–964 [80 Cal.Rptr. 354, 458 P.2d 194], cert. den. 397 U.S. 915 [90 S.Ct. 920, 25 L.Ed.2d 96].)”  (Majority opinion, pp. 11–12;  see also Foy v. Greenblott, supra, 141 Cal.App.3d 1, 9, 190 Cal.Rptr. 84;  Maxon v. Superior Court, supra, 135 Cal.App.3d 626, 632, 185 Cal.Rptr. 516.)   By calling this a “right to sterilization,” rather than a constitutional right to choose, the majority conclude that it may be limited by a compelling state interest in protecting the choice of bearing children.   I recognize the anomaly in referring to the choice of one whose predicament is before us because of her lack of competence to make a competent and intelligent decision, and address that problem below.   (See part II.)   Before doing so, it is important to bear in mind that the freedom of choice of a competent person does embrace the right to be sterilized, and that the state may not grant to some and deny to others the right to elect not to bear a child.

In Jessin v. County of Shasta (1969) 274 Cal.App.2d 737, 79 Cal.Rptr. 359, the court concluded “that there is no legislative policy or any other overriding public policy proscribing consensual vasectomy in this state.   Nor does there appear to be any other good legal reason why such a voluntary operation, given competent consent, should not be performed.   In fact, the few cases in this area indicate that it is an acceptable method of family planning, while Griswold [Griswold v. Connecticut, supra, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510] indicates that it may fall within constitutional protection.   We adopt the ruling of the Shaheen case [Shaheen v. Knight (1957) 11 Pa.D. & C.2d 41, 43–44] and hold that California has no public policy prohibiting consensual sterilization operations, and further hold that nontherapeutic surgical sterilization operations are legal in this state where competent consent has been given.”  (274 Cal.App.2d at p. 748, 79 Cal.Rptr. 359;  see also Custodio v. Bauer (1967) 251 Cal.App.2d 303, 317–318, 59 Cal.Rptr. 463;  53 Ops.Cal.Atty.Gen. (1970) 298.) 4  We find our state Supreme Court has compared the right to obtain voluntary sterilization, as recognized in Jessin, with other examples of the principles of privacy and individual freedom recognized in Griswold.  (In re Lifschutz (1970) 2 Cal.3d 415, 432, fn. 12, 85 Cal.Rptr. 829, 467 P.2d 557.)

In Jessin, the court refused to review the noncontroverted assumption that the county was required to perform the vasectomy without charge as part of its medical service to indigents in order to give them constitutional due process of law and equal protection.  (274 Cal.App.2d at p. 744, 79 Cal.Rptr. 359.)   Subsequently our highest state court, in an analogous situation, refused to follow a contrary rule promulgated by the United States Supreme Court under the federal Constitution.  (See Harris v. McRae (1980) 448 U.S. 297, 315–318, 100 S.Ct. 2671, 2687–2688, 65 L.Ed.2d 784.)   Our court answered in the negative “[the] question of whether the state, having enacted a general program to provide medical services to the poor, may selectively withhold such benefits from otherwise qualified persons solely because such persons seek to exercise their constitutional right of procreative choice in a manner which the state does not favor and does not wish to support.”   (Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252, 256–258, 172 Cal.Rptr. 866, 625 P.2d 779.)   The lead opinion, in striking down the provisions of the 1978, 1979 and 1980 California Budget Acts that limited Medi-Cal funding for abortions, concluded:  “[W]hen the state finances the costs of childbirth, but will not finance the termination of pregnancy, it realistically forces an indigent pregnant woman to choose childbirth even though she has the constitutional right to refuse to do so.”  (Id., at p. 285, 172 Cal.Rptr. 866, 625 P.2d 779.)

One may well ask, may the state, by denying those responsible for the health and welfare of an incompetent a forum in which to determine whether the incompetent's mental and physical health and best interests will be served by sterilization, force the incompetent to withdraw from all association with the opposite sex or bear the risk of pregnancy if she seeks or suffers sexual relationships without comprehension of the result?

Valerie, if capable of an informed decision, would have the fundamental right to choose whether to bear a child, a right to privacy which is protected by the Constitution of the United States.  (Roe v. Wade, supra, 410 U.S. 113, 152–154, 93 S.Ct. 705, 726–727, 35 L.Ed.2d 147;  see Griswold v. Connecticut, supra, 381 U.S. 479, 483–486, 85 S.Ct. 1678, 1681–1682, 14 L.Ed.2d 510), and the Constitution of California (Cal. Const., art. I, § 1;  Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252, 262, 172 Cal.Rptr. 866, 625 P.2d 779;  People v. Belous, supra, 71 Cal.2d 954, 963–964, 80 Cal.Rptr. 354, 458 P.2d 194;  Foy v. Greenblott, supra, 141 Cal.App.3d 1, 9, 190 Cal.Rptr. 84;  Maxon v. Superior Court, supra, 135 Cal.App.3d 626, 632, 185 Cal.Rptr. 516.)   If we find that her incompetency renders her unable to make an intelligent choice, do we automatically make the choice in favor of bearing children by depriving her of a hearing, or do we protect her constitutional right of choice by a hearing and a substituted judgment for a sterilization where it appears in her best interest?

II

It is suggested that matters of history and social ethics indicate that it is proper to deny an incompetent the right to be sterilized even in those cases where it might be shown to be in the incompetent's best interests and promotive of her physical and mental health.   It has been pointed out “[t]he inconvenience of caring for the incompetent child coupled with fears of sexual promiscuity or exploitation may lead parents to seek a solution which infringes their offspring's fundamental procreative rights.”  (Matter of A.W., supra, 637 P.2d 366, 370;  see also A.L. v. G.R.H. (1975) 163 Ind.App. 636, 325 N.E.2d 501, 502.)

The foregoing cases and Ruby v. Massey (D.C.Conn.1978) 452 F.Supp. 361, do establish that a parent solely by virtue of that relationship does not have authority to confer consent to the sterilization of a minor child.   More significantly, however, two of those cases equate the right to be sterilized with the right to have an abortion.   In other words an incompetent, as well as a competent person, is entitled to a choice as to whether to bear or beget a child.  (Matter of A.W., supra, 637 P.2d 366, 369–370;  Ruby v. Massey, supra, 452 F.Supp. 361, 366.)   Moreover, I note that in P.S. by Harbin v. W.S. (Ind.App.1982) 443 N.E.2d 67, affd. (1983) 452 N.E.2d 969, the court, in granting an injunction against the proposed sterilization of a mentally handicapped child on the parents' consent alone without court approval, recognized that many cases permitted substituted judgment by the court for the benefit of an incompetent, and that a petition to seek judicial authorization was not foreclosed despite the earlier Indiana case.  (Id., at p. 73, fn. 4.)

In the Colorado case, the court also recognized that there was a general right to reproductive autonomy, and that the retarded minor's constitutional right to have the option of sterilization could not be foreclosed by lack of a statutory remedy.  (Matter of A.W., supra, 637 P.2d 366, 371, 375.)

The foregoing cases are typical of what appears to be the general rule set forth in those cases which the majority has cited as holding that “the right to sterilization” which is held by a competent person may not be denied to one who is incompetent.  (Majority opinion, pp. 483 – 484;  see Matter of C.D.M. (Alaska 1981) 627 P.2d 607, 611–612;  Matter of A.W., supra, 637 P.2d 366, 374–375;  Matter of Moe, supra, 432 N.E.2d 712, 718–720;  In re Penny N. (1980) 120 N.H. 269, 414 A.2d 541, 542;  In re Grady, supra, 426 A.2d 467, 474–475, 481;  Matter of Sallmaier (1976) 85 Misc.2d 295, 378 N.Y.S.2d 989, 991;  Matter of Terwilliger (1982) 304 Pa.Super. 553, 450 A.2d 1376, 1380–1382;  Matter of Guardianship of Hayes, supra, 608 P.2d 635, 638.)

Examination of these cases indicates that the courts are not concerned with the “right to sterilization” but the right of the incompetent to not have the alternative of sterilization foreclosed, when it is shown that it would be in the best interests of the individual's physical or mental health to have such an operation.

I find the first full exposition of the problem in the 1979 opinion of the trial judge presiding in Matter of Grady (1979) 170 N.J.Super. 98, 405 A.2d 851.   Reference also may be made to the complete description of the nature of Downs Syndrome found in that opinion.  (Id., at pp. 853–856.)   The opinion clearly demonstrates the constitutional right of the incompetent individual to have the alternative of sterilization available.  (Id., at pp. 856–858.)   Although the opinion was vacated on appeal, the appellate court approved the trial court's decision on the constitutional point.  (In re Grady, supra, 426 A.2d 467, 473–475.)   The New Jersey Supreme Court concluded:  “Our discussion thus far leads to the following conclusions.   The right to choose among procreation, sterilization and other methods of contraception is an important privacy right of all individuals.   Our courts must preserve that right.   Where an incompetent person lacks the mental capacity to make that choice, a court should ensure the exercise of that right on behalf of the incompetent in a manner that reflects his or her best interests.”  (426 A.2d at p. 475.)

In most of the cases cited above, as pointed out by the majority, the appellate court found that its state trial court had jurisdiction to dispose of the issue without depending on the principle that there is constitutional necessity for furnishing the incompetent a substituted judgment to be exercised in his or her best interest.   If, as is contended herein, the prior California decisions do not apply to preclude the superior court from exercising the general jurisdiction conferred by the Constitution of this state (see part III below), those decisions are persuasive because of their reasoning.

In most of the cited cases the courts reviewed some or all of the so-called “weight of authority”—cases holding that in the absence of express legislative authorization courts are totally devoid of subject matter jurisdiction to consider a petition seeking sterilization of an incompetent 5 —and rejected them.   Typical of the rejected cases is Hudson v. Hudson, supra, 373 So.2d 310, wherein the court stated:  “We conclude that the inherent equity power of the circuit court over both incompetents and minors does not include the power to order a surgical sterilization under the circumstances here presented, absent specific legislative authorization.   The profound nature of the constitutional and social issues raised by this case and the irreversible character of the physical consequences of the requested relief preclude judicial resolution absent legislative action.”  (Id., at p. 312.)

In Matter of Guardianship of Hayes, supra, 608 P.2d 635, the court decried the refusal of other courts to decide this type of case due to an alleged lack of jurisdiction and described those holdings as an “abdication of the judicial function.”  (Id., at p. 637.)   In the Grady case, the Supreme Court pointed out that when the courts refuse to entertain jurisdiction, and substituted consent was not considered, the very fact of incompetence subjected the incompetent to the choice of childbearing whether it was in the best interests of that person's mental and physical health or not.  (In re Grady, supra, 426 A.2d 467, 472–473.)   The appellate court pointed out that the contrary decisions failed to consider the best interests of the incompetent.   (Id., at pp. 480–481.)   In Matter of C.D.M., supra, 627 P.2d 607, the majority noted that the reasoning of the contrary cases was constitutionally faulty.  (Id., at p. 610;  see also Matter of A.W., supra, 637 P.2d 366, 374;  Matter of Moe, supra, 432 N.E.2d 712, 718.)   Finally, in Matter of Terwilliger, supra, 450 A.2d 1376, the author, after listing contrary cases, concludes:  “[W]e view such decisions as being insensitive to the constitutional rights of the incompetent person.”  (Id., at p. 1381.)

The majority opinion, in rejecting what I consider the better line of authority, relies upon “matters of history and social ethics.”   Such reliance must be considered in the light of Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779.   There, Justice Tobriner pointed out:  “The morality of abortion is not a legal or constitutional issue;  it is a matter of philosophy, of ethics and of theology.   It is a subject upon which reasonable people can, and do, adhere to vastly divergent convictions and principles.”  (29 Cal.3d at p. 284, 172 Cal.Rptr. 866, 625 P.2d 779.)   He concluded:  “Because a woman's right to choose whether or not to bear a child is explicitly afforded this constitutional protection, in California the question of whether an individual woman should or should not terminate her pregnancy is not a matter that may be put to a vote of the Legislature.”  (Ibid.)

So here I would rule that the incompetent woman has the constitutional right to a judicial determination as to whether sterilization will be in the best interests of her mental and physical health, and the Legislature and the courts cannot arbitrarily withhold that right from her and force her to undergo the risk of childbirth.   It would appear that the incompetent cannot intelligently consent to sexual intercourse and if she is exposed to such relationship she is in legal effect raped.  (See dis. opn. of Day, J., in Matter of Guardianship of Eberhardy, supra, 307 N.W.2d 881, 905–911.)   For that reason alone, she might be entitled to an abortion.   She so conceded in the trial court.   In any event, she would be entitled to an abortion if it were shown that bearing a child would adversely affect her physical or mental health.   Yet under the rule denying relief, if intelligent and believable medical opinion indicated that such a result was probable in the absence of sterilization, such a preventive measure would be unavailable.   I assume from the record that we are dealing with an irreversible mental disability of the most severe type.   If the facts are otherwise there is merit in denying an irreversible method of contraception.   The latter is not what the offered proof suggests in this case.

I therefore conclude that in the absence of authoritative constitutional case law or legislation in this state compelling a contrary view, we should recognize the incompetent's constitutional right to have “freedom of choice” exercised on her or his behalf through substituted judgment of a court of record predicated upon the best interests of the mental and physical health of the incompetent.  (See Stump v. Sparkman, supra, 435 U.S. 349, 358, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331.)

III

At the time (December 10, 1980) the trial court pronounced its ruling in this case, the amendments to the Probate Code enacted in 1979, but effective January 1, 1981, were not in force;  but the repeal of Welfare and Institutions Code section 7254, enacted at the same time, had been in effect since January 1, 1980.  (See part III below.)   The trial court denied the petition on the ground that under the decision in Guardianship of Tulley, supra, 83 Cal.App.3d 698, 146 Cal.Rptr. 266, it was without jurisdiction to grant relief.

This court in Tulley affirmed the probate court's denial of the guardian's petition for an order approving the sterilization of his ward because it lacked jurisdiction, principally on the authority of Guardianship of Kemp, supra, 43 Cal.App.3d 758, 118 Cal.Rptr. 64.

Before examining the present weight of Kemp as a precedent, we note that Tulley also alluded to the “awesome power” to effect an “extreme remedy” in support of its conclusion.  (83 Cal.App.3d at p. 701, 146 Cal.Rptr. 266.)   Whatever may be said with respect to ordering sterilization without the consent of one competent to understand the results of copulation and the effect of contraception, of an abortion, or of sterilization (see Downs v. Sawtelle, supra, 574 F.2d 1, 4–6), or with respect to the failure to offer a hearing and due process to one not competent of such understanding (see Sparkman v. McFarlin, supra, 552 F.2d 172, revd., Stump v. Sparkman, supra, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331), for reasons expressed above, I find it equally awesome to deny relief when, under proper procedural standards, it is made to appear that the best interests of an incompetent and unreasoning ward will be served by such an operation.  Tulley's reliance upon Holmes v. Powers, supra 439 S.W.2d 579, Wade v. Bethesda Hospital, supra, 337 F.Supp. 671, and In Interest of M.K.R., supra, 515 S.W.2d 467, in support of its position is not persuasive for the reasons set forth in part II above.

The fundamental shortcoming in Tulley as a precedent in this case is its reliance on the provisions of section 7254 of the Welfare and Institutions Code as an escape hatch for the constitutional issue, which has surfaced in this case.   In Tulley the court avoided the guardian's contention that the probate court's refusal to order the sterilization violated the ward's constitutional right of privacy by pointing out that section 7254 of the Welfare and Institutions Code as it read at the time did not “erect an absolute bar” to the sterilization of mentally incompetent persons if they were “inmates of a mental hospital” and if the “procedural safeguards” prescribed in that statute were met.  (83 Cal.App.3d at p. 705, 146 Cal.Rptr. 266.) 6  With repeal of section 7254, there was no longer such an escape hatch, and from January 1, 1980, through December 31, 1980, the case and statutory law of this state furnished no forum in which the incompetent's freedom of choice could be asserted.   We therefore write on a clean slate if we hold that such a right should have been granted.

Moreover, even Kemp's precedential value is questionable.   I find no recognition of the constitutional right to privacy in that case.   Its approach was threefold:  first, the court sitting in probate was one of limited jurisdiction (43 Cal.App.3d at p. 760–762, 118 Cal.Rptr. 64;  see Guardianship of Reynolds (1943) 60 Cal.App.2d 669, 673–676, 141 P.2d 498);  second, section 7254 of the Welfare and Institutions Code provided a remedy, and by the repeal of a more general statute (Stats.1913, ch. 363, § 3, p. 775;  repealed 1953, ch. 110, p. 844) the Legislature intended the former provisions to be the exclusive manner in which sterilization could be authorized (43 Cal.App.3d at pp. 762–763, 118 Cal.Rptr. 64;  cf. fn. 6, ante);  and third, it approved those cases in other jurisdictions which had denied the court's power to order sterilization except as expressly authorized by the Legislature.  (43 Cal.App.3d at pp. 763–764, 118 Cal.Rptr. 64;  see In re Simpson, supra, 180 N.E.2d 206;  Wade v. Bethesda Hospital, supra, 337 F.Supp. 671;  Holmes v. Powers, supra, 439 S.W.2d 579.)

In my opinion, subsequent amendments to the Probate Code (see part IV below), the repeal of section 7254 of the Welfare and Institutions Code, and the paucity of reasoning in the cases denying a forum to incompetents in the circumstances under review, render Kemp an inadequate three-legged stool to uphold a decision adverse to the constitutional rights asserted on behalf of the incompetent in this case.

If we were faced with this situation without further statutory enactments, we should resort to the general jurisdiction of the courts conferred by section 10 of article VI of the state Constitution.  “In this state the principal trial court, having unlimited monetary and subject matter jurisdiction ․ is the superior court.”  (Whitaker v. Superior Court (1968) 68 Cal.2d 357, 362, 66 Cal.Rptr. 710, 438 N.E.2d 358;  see also American Radio Assn. v. Superior Court (1965) 237 Cal.App.2d 891, 894, 47 Cal.Rptr. 419.)

The courts of this state have often indicated that the powers of the probate court in guardianship matters were analogous to those formerly vested in courts of Chancery as keepers of the conscience of the King, who as parens patriae was the original protector of all infants, idiots, and lunatics.  (See Sullivan v. Dunne (1926) 198 Cal. 183, 189, 244 P. 343;  Lord v. Hough (1869) 37 Cal. 657, 660–661;  Fox v. Minor (1867) 32 Cal. 111, 116;  Guardianship of Reynolds, supra, 60 Cal.App.2d 669, 673–675, 141 P.2d 498;  and note Guardianship of Kemp, supra, 43 Cal.App.3d 758, 761–762, 118 Cal.Rptr. 64.)

However, there are amendments to the Probate Code effective January 1, 1981, which respondent contends would affect any further hearing in this case.   I therefore turn to an analysis of those amendments.

IV

On January 1, 1981, a general revision of the provisions of the Probate Code relating to guardianships and conservatorships, adopted by the Legislature in 1979 (Stats.1979, ch. 726, p. 2335), became effective.  Section 2356 of the revised code deals with limitations on the powers and duties of a guardian or conservator of the person.   Subdivision (d) of that section reads:  “No ward or conservatee may be sterilized under the provisions of this division.”   In connection with the introduction and passage of this legislation, the Legislature was furnished with a comprehensive report and recommendation from the California Law Revision Commission.  (See 14 Cal.Law Revision Com.Rep. (1978) 501 et seq.;   as revised after passage of the legislation, see 15 Cal.Law Revision Com.Rep. (1980) 451 et seq.)

In Maxon v. Superior Court, supra, 135 Cal.App.3d 626, 633, 185 Cal.Rptr. 516, the court accepted without question the comment contained in both reports, reading in pertinent part as follows:  “Subdivisions (b)–(d) are new and make clear that the provisions of other codes relating to highly intrusive forms of medical treatment are the only provisions under which such treatment may be authorized for a ward or conservatee, thus assuring that the procedural safeguards contained in those provisions will be applied.   Subdivision (d) is consistent with Guardianship of Tulley, 83 Cal.App.3d 698, 146 Cal.Rptr. 266 (1978) and Guardianship of Kemp, 43 Cal.App.3d 758, 118 Cal.Rptr. 64 (1974).   Subdivision (e) is new.”  (14 Cal.Law Revision Com.Rep., supra, at p. 725;  15 Cal.Law Revision Com.Rep., supra, at p. 700.)

As we have seen, both Tulley and Kemp recognized, as does the comment, that there was an existing alternative method of authorizing a sterilization for a certain class of incompetents.   That this was the intention of the Law Revision Commission is clear from the “Guardianship-Conservatorship Recommendation” contained in both the 1978 and 1980 reports.7

In conformity with the recommendation, and the accompanying comment, subdivision (d) of Probate Code section 2356, as initially proposed in the Legislature in 1979, read as follows:  “(d) A ward or conservatee may be sterilized only as provided in Section 7254 of the Welfare and Institutions Code.”  (See 14 Cal.Law Revision Com.Rep., supra, at p. 725;  Assem. Bill No. 261 (1979–1980 Reg.Sess.) as introduced Jan. 11, 1979 (1 Assem. J. (1979–1980 Reg.Sess.) p. 208;  compare Prob.Code, § 2356 as found in Stats.1979, ch. 726, § 3, p. 2380, with Prob.Code, § 2356 as found in Stats.1979, ch. 726, § 3.01, p. 2453.)   At about the same time, in recognition of the changes proposed by the Law Revision Commission, a bill was introduced to amend other provisions of law, including section 7254 of the Welfare and Institutions Code, so that their terminology would refer to “conservator” as well as “guardian.”  (Assemb. Bill No. 167 (1979–1980 Reg.Sess.) as introduced Dec. 22, 1978 (1 Assem. J., supra, at p. 115;  compare Welf. & Inst.Code, § 7254 as found in Stats.1979, ch. 730, § 156, p. 2539, with Stats.1979, ch. 730, § 156.5, p. 2540, repealing Welf. & Inst.Code, § 7254.)

One need not seek far for the reason for the shift away from the recommendations of the Law Revision Commission.   On March 23, 1979, Assemblyman Torres, with the cosponsorship of Senator Roberti, introduced Assembly Bill 1204 to repeal section 7354 of the Welfare and Institutions Code.  (Assem. Bill No. 1204 (1979–1980 Reg.Sess.).)   This bill unanimously passed the Assembly on June 19, 1979 (4 Assem. J. (1979–1980 Reg.Sess.) p. 115), a little over a month after Probate Code section 2356, subdivision (d), had similarly been unanimously approved by the Assembly in its final form.  (3 Assem. J. (1979–1980 Reg.Sess.) p. 4981.)   The discrepancy between Assembly Bill 1204 and the proposed Probate Code revisions apparently surfaced in the Senate in the latter part of August, 1979.   On August 24, the general revisionary bill was amended at the request of the author to add sections 3.01 and 8 providing for the change of language in Probate Code section 2356, subdivision (d).  (4 Sen. J. (1979–1980 Reg.Sess.) p. 6666.)   On August 27, Assembly Bill 167 was amended by the addition of section 156.5 to repeal, rather than modify, section 7254 of the Welfare and Institutions Code.  (4 Sen. J., supra, at p. 6738.)

The repealer was unanimously passed by the Senate on August 29, 1979.  (4 Sen. J., supra, at p. 6885.)   It was enrolled and sent to the Governor on the following day (5 Assem. J. (1979–1980 Reg.Sess.) p. 1762.)   The general revisionary measure as amended (Assem. Bill No. 261), adding Probate Code section 2356, subdivision (d), in its present form, was passed by the Senate, 25 to 3, on September 4, 1979.  (4 Sen.J., supra, at pp. 7054, 7095.)   It was concurred in by the Assembly on the following day (5 Assem.J., supra, at p. 9229), and was enrolled and sent to the Governor on September 12, 1979.   (Id., at p. 9653.)   It was approved on September 18, and filed on the following day, but by its terms was not effective until January 1, 1981.  (See Stats.1979, ch. 726, p. 2334;  id., § 3.01, p. 2453;  id., § 4, subd. (a), p. 2454;  id., § 8, p. 2455.)

The particular revisionary bill (Assem. Bill No. 167), with its repealer of section 7254 of the Welfare and Institutions Code, was passed by the Senate, 23 to 4, on September 4, 1979.  (4 Sen. J., supra, at pp. 7094–7095.)   It was concurred in by the Assembly on the following day (5 Assem. J., supra, at pp. 9228–9229), and was enrolled and sent to the Governor on September 10, 1979.  (Id., at p. 9423.)   It was approved on September 18 and filed on the following day, after the general revision, to become effective January 1, 1981.  (See Stats.1979, ch. 730, p. 2463;  id., § 156.5, p. 2540;  id., § 181, p. 2550.)

Before analyzing the legislative intent as manifested by this sudden reversal in the course of the history of a bill proposing qualified statutory permission for sterilization, it is important to review the provisions of law that the Legislature unanimously repealed.   The provisions of Welfare and Institutions Code section 7254 applied “to any person who has been lawfully committed or admitted to any state hospital for the mentally disordered or mentally retarded and who is afflicted with, or suffers from, any of the following conditions:

“(a) Mental disease which may have been inherited and is likely to be transmitted to descendants.

“(b) Mental retardation, in any of its various grades.

“(c) Marked departures from normal mentality.”

The statute conferred broad authority, “upon compliance with the provisions of ․ [the] ․ section,” on the state department with jurisdiction over the hospital or home in which such person was a patient or resident, “to cause such person to be sterilized by the operation of vasectomy upon the patient if a male and of salpingectomy if a female, or any other operation or treatment which will permanently sterilize but not unsex the patient.”   The procedural provisions of the statute required the superintendent of the hospital or state home where such a person is a patient, when he was “of the opinion that a patient who is afflicted with or suffering from any of the conditions specified in this section should be sterilized,” to certify such opinion to the appropriate department director, and give notice of such certification and the right to object or consent (to the sterilization) to a comprehensive group of presumably interested persons prescribed in the statute.   If a written consent was filed, or if no objection was filed within the prescribed 30 days, the director could authorize the superintendent to proceed with the sterilization of the patient if, with “such examination of the patient and other inquiry to be made as he deems advisable,” he was satisfied that the sterilization would not unduly endanger the patient's health and that it was a proper case for sterilization.

If a written objection was filed within the prescribed time by the patient, his spouse, next of kin, or guardian (to have been expanded to “conservator” by Assem. Bill No. 167, supra) and in those cases where the person had no known relatives or guardian (conservator) the appropriate director was required to make full inquiry into the case, and could hold a hearing at the institution, at which hearing the patient would be present and the objecting party and others interested on behalf of the patient could be heard.   If the decision was against sterilization, the superintendent, patient and objecting parties were to be notified.   If the decision was for sterilization, notice of the decision and the right to judicial review in the superior court was required to be given to the patient and all specified interested parties.   If a petition for review was not filed within 30 days, the director could authorize the superintendent to proceed with the sterilization.   If a timely petition was filed and served, the patient could not be sterilized “unless and until the court, after hearing, [issued] an order authorizing the sterilization ․ in accordance with the provisions of [the] section.”

In the absence of any standards other than the opinion of the superintendent of the institution that an incompetent of a certain class should be sterilized, and a restriction on the operation if it would unduly endanger the patient's health, Welfare and Institutions Code section 7254 was clearly a statute authorizing the compulsory sterilization of any persons of the specified categories without reference to what might be for the best interests of the patient or resident himself.   Despite the procedural requirements, the absence of substantive standards rendered the statute subject to the attacks on eugenic sterilization that have been noted above.   It may be concluded therefore that the Legislature's repeal of section 7254, and the last minute patchwork added to subdivision (d) of section 2356 of the revised Probate Code, do not indicate a legislative stand that precludes this court from upholding the right of an incompetent to secure a substituted judgment for the exercise of that person's constitutional freedom of choice in the best interests of his or her mental or physical health.   The legislative slate is as bare as the outmoded case authority, and we are bound to write our own formula for a forum for relief from the vacuum so created.

This conclusion is strengthened by a reading of Matter of A.W., supra, 637 P.2d 366.   In that case, the court ordered sterilization of a mentally retarded person over the age of 18 years of age with the consent of his or her guardian and of two consultants.   The law also provided:  “No person who is mentally retarded and who has not given consent shall be sterilized.”   (Id., at p. 371.)   The law further stated that if, on a hearing to require sterilization where the person's competency to give consent is denied by the physician, the court finds that the person is incompetent to give consent, or has not given consent, then it shall order that no sterilization be performed.  (Ibid.)

The court reviewed the statutory history and concluded that the words “except upon an order of the court” had been deleted from the first prohibition, and that the second provision originally was qualified to provide for a court ordered sterilization where it was “essential,” defined as “ ‘clearly necessary to preserve the life or physical or mental health’ of” the mentally retarded person.   It found that these amendments, made at the request of the author of the original bill to secure its passage, could not be broadly construed as a prohibition of court review of a minor's right to sterilization because the statute originally and as enacted only purported to deal with those over 18.   (637 P.2d at pp. 371–373.)   So here we can read the language of subdivision (d) of Probate Code section 2356 as reading, “No ward or conservatee may be sterilized under the provisions of this division solely because he is afflicted with or suffers from (a) mental disease which may have been inherited and is likely to be transmitted to descendants;  (b) mental retardation, in any of its various grades, or (c) marked departures from normal mentality.”   As in Matter of A.W., we should recognize that a retarded person may have a constitutional right not to have the option of sterilization completely foreclosed (id., p. 375), and that this court has a duty and the right to prescribe a procedure for the protection of that right.  (637 P.2d at pp. 373–375;  and see Ruby v. Massey, supra, 452 F.Supp. 361 at p. 368.)

In Matter of Guardianship of Eberhardy, supra, 307 N.W.2d 881, the court reviewed the effect of the repeal of a statute that had authorized the sterilization of incompetents, as it bore on the jurisdiction of the trial court to consider whether an incompetent should be sterilized.   In holding that Wisconsin's trial courts of general jurisdiction had such power, the court noted that there was a distinction between sterilization for eugenic purposes, and for contraceptive and therapeutic purposes to protect the physical and mental well-being of the incompetent.   It concluded that the repeal of the law providing for sterilization of institutionalized incompetents did not divest the court of its general jurisdiction.  (307 N.W.2d at p. 890.)   Nevertheless, the Wisconsin court did defer action by the courts pending consideration of the problem by the Legislature, reserving the right to act if the Legislature failed to do so.  (Id., at pp. 896–899.)

That subdivision (d) of Probate Code section 2356 does not formulate an absolute prohibition to sterilization of an incompetent is already established by Maxon v. Superior Court, supra, 135 Cal.App.3d 626, 185 Cal.Rptr. 516.   There the court acknowledged:  “Courts now recognize that the constitutional rights at stake, a woman's right to freedom from unwarranted governmental intrusion and to choose whether to bear children, are of a fundamental nature.  (See Eisenstadt v. Baird (1972) 405 U.S. 438, 453 [92 S.Ct. 1029 [1038] 31 L.Ed.2d 349, 362];  Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 273–275 [172 Cal.Rptr. 866, 625 P.2d 779].)”   (Id., at p. 632, 185 Cal.Rptr. 516) [emphasis in original].)   As we interpret the cases cited, the emphasis should be on the “freedom ․ to choose whether to bear children.”  The court continued as though the protection of the right to bear children was imperative, and found support in an interpretation of Tulley and Kemp and the legislative history which is contrary to the views expressed herein.  (Id., pp. 632–633, 185 Cal.Rptr. 516.)   Nevertheless, the court recognized that the subject's constitutional interests in privacy and procreation would be of little value were she to develop fatal cancer of the cervix.   It concluded that the prohibition of subdivision (d) of section 2356 was inapplicable in cases in which the proposed surgery is to protect the life of the incompetent rather than to prevent her from bearing children.  (Id., at p. 633, 185 Cal.Rptr. 516.)

A decision that the section cannot preclude an operation resulting in sterilization, where there is clear and convincing evidence of the medical necessity that the operation is to save a life, is not a decision that such an operation should not be permitted when there is clear and convincing evidence that sterilization is necessary for the enjoyment of such life, liberty and happiness as society is able to furnish the mentally retarded person, in order to avoid inflicting on that person a mental and physical trauma of a pregnancy that the person cannot understand.   I would take the next step and provide substituted judgment for the choice furnished by the Constitution.

Maxon v. Superior Court, supra, 135 Cal.App.3d 626, 185 Cal.Rptr. 516, was recognized and followed by this division of the court in Foy v. Greenblott, supra, 141 Cal.App.3d 1, 190 Cal.Rptr. 84.   There, the court reviewed the incompetent's claim for damages because she was permitted to become pregnant and bore a child while institutionalized.   Here again the court voiced its concern with the right to choose to procreate, without appreciation of the fact that the right to choose to not procreate is the alternative.  (Id., pp. 9–10, 190 Cal.Rptr. 84.)   It would appear that the case is not one in which the subject was without understanding of the results of copulation.   The court stated:  “[T]he complaint does not allege any fact other than the status of Virgie as a conservatee to justify overriding her own wishes in reproductive matters.”  (Id., at p. 10, 190 Cal.Rptr. 84.)   The court concluded:  “Although respondents' alleged negligence in failing to make contraceptive counseling and medication available or to diagnose the pregnancy earlier, is possibly actionable, solicitude for mental patients' rights of reproductive choice must also govern the manner in which appellants are permitted to prove causation.   Thus, with respect to the former omission, Virgie must show that had contraceptive care been available she would have taken advantage of it and that it would have been effective.   Regarding the failure to diagnose the pregnancy, she must show either that she would have consented to an abortion or, if she lacked capacity to consent, that her conservator would have been able to make to a court the type of extraordinarily strong showing which would pemit the court to authorize this surgery.  (Maxon v. Superior Court, supra, 135 Cal.App.3d 626, 185 Cal.Rptr. 516.)   If she should prevail on either of these theories, she is entitled to general and special damages for wrongful birth in accordance with Custodio and Stills.”  (Foy v. Greenblott, supra, 141 Cal.App.3d at p. 13, 190 Cal.Rptr. 84.)

We note that the Foy court's strict restriction on an abortion for one who is not competent to consent is tempered by the following reference:  “By this review of the legal rights affected by the procedures appellants urge respondents should have followed, we do not indicate that mental health personnel can never restrict consensual sexual activities of a patient or prescribe contraceptives over a patient's objections without infringing civil rights.   Nor do we suggest that a conservator is precluded from obtaining court authorization for an abortion in a nonlife-threatening situation.  (See Matter of A.W., supra, 637 P.2d 366, 369–370.)   Nonetheless, the statutes and case law discussed above do more than define the minimum patients' rights, which mental health professionals are obliged to respect;  they also express a public policy of maximizing patients' individual autonomy, reproductive choice, and rights of informed consent.”  (Foy v. Greenblott, supra, 141 Cal.App.3d at p. 11, 190 Cal.Rptr. 84.)   As we have seen, the Colorado court is in the forefront of those cases rejecting the notion that the Legislature, not the courts, must provide a forum for a decision to be made in the incompetent's best interests when the person is incapable of understanding or making a choice.

Insofar as Probate Code section 2356, subdivision (d), purports to or is interpreted as denying to an unreasoning mentally retarded incompetent the right to have a substituted choice made on her behalf, it is, in my opinion, unconstitutional.   I would temper it, and interpret it as forbidding only those eugenic sterilizations formerly embraced in section 7254 of the Welfare and Institutions Code.   Insofar as it may limit the jurisdiction of the probate court, it cannot prevent the superior court from asserting its general jurisdiction to enforce a constitutional right.

V

Before delineating the standards and procedures to be followed in a matter of this nature, one must recognize that even in those jurisdictions which recognize the general jurisdiction to proceed without legislative authorization, there is a view that the court should, because of the nature of the question, defer to give the Legislature a chance to act.  (See Matter of Guardianship of Eberhardy, supra, 307 N.W.2d 881, 896;  cf. dis. opn. of Day, J., and Callow, J., id., at pp. 905–915;  Matter of A.W., supra, 637 P.2d 366, 376–377, conc. opn. of Lee, J.;  Wentzell v. Montgomery General Hospital, Inc. (1982) 293 Md. 685, 447 A.2d 1244, 1255;  cf. separate dis. opns. by Smith, J., Digges, J., and Davidson, J., id., at pp. 1255–1264.)

On the other hand, courts cannot escape the demands of judging or making difficult appraisals.  (See Matter of Guardianship of Hayes, supra, 608 P.2d 635, 637;  Matter of Moe, supra, 432 N.E.2d 712, 718;  Matter of Terwilliger, supra, 450 A.2d 1376, 1382.)   Those jurisdictions which decline to act, including what I now consider is dicta in earlier decisions in this state, are making a choice for procreation.   Such an abdication should not be countenanced because it leaves the incompetent without the choice constitutionally guaranteed to others with greater comprehension.

It does appear that in the 1981–1982 session of the Legislature an attempt was made to provide a procedure for court authorized sterilization.   Assembly Bill 603 was introduced on February 23, 1981, to amend section 2356 of the Probate Code so that subdivision (d) would read:  “No ward or conservatee may be sterilized except as provided in Chapter 6 (commencing with Section 1950).”  (Assem. Bill No. 603 (1981–1982 Reg.Sess.) § 2.)  Section 1 of the bill proposed the addition of chapter 6, entitled “Sterilization” and consisting of proposed new sections 1950 through 1977, to part 3 of division 4 of the Probate Code.8  The bill provided for two alternatives:  (1) a finding that the subject of the petition is capable of giving a voluntary consent to his or her sterilization to protect those acting on such consent for a period of one year (§ 1964);  or (2) upon a finding that the person proposed to be sterilized is incapable of giving a voluntary informed consent to sterilization, the appointment of an existing conservator or guardian or another person to act in the matter in prescribed proceedings leading to findings on issues which would enable the court to authorize the appointed conservator to consent to the sterilization.  (§§ 1965–1971.)   A proposed urgency clause recited:  “The courts have refused to order the sterilization of certain adult incompetent persons without specific statutory authorization.   No provision in existing law authorizes a court, after procedural safeguards have been satisfied, to grant to the conservator, guardian or special conservator, the power to consent to the sterilization of an incompetent adult or emancipated minor who is unable to give his or her consent when the proposed sterilization is necessary for the mental and physical health and well-being of such person.   In order that this act, which authorizes a court to grant to the conservator or guardian the power to consent to such needed sterilization, may take effect as soon as possible, it is necessary that this act take effect immediately.”  (Assem. Bill No. 603, supra, § 5.)

On July 7, 1981, the urgency clause was adopted and the bill passed the Assembly 61 to 9.  (Assem. Final History (1982 Reg.Sess.) vol. 1, p. 464.)   In the Senate the bill was re-referred to the Committee on Judiciary after some amendments by the author on August 12, 1981.  (Ibid.)  There it apparently died, and was discharged from the Senate Committee on November 30, 1982, without further action.  (Ibid.)  So far as has been ascertained, there has been no attempt to reintroduce this legislation in the 1982–1983 or 1983–1984 sessions of the Legislature.

As I view the question, may we by refraining from action deprive Valerie and others so situated, particularly if they are not only incapable of giving a voluntary informed consent or objection to sterilization and unable to comprehend the nature of the proceedings taken on their behalf but also incapable of understanding the nature of the sexual functions, reproduction and sterilization, of the right to have a substitute choice made against procreation if it is shown that sterilization is necessary for the subject's mental or physical health and best interests and no less intrusive alternatives are feasible?   I would answer this question in the negative.   The Legislature may or may not act during her lifetime.   I can act now.

VI

In assuming to make this awesome choice, it is necessary to set standards to preclude the abuse feared by respondent, and to ensure that an irrevocable decision is not made in a case where there is a chance in the future for a voluntary, as distinguished from substituted, choice.   Such standards are available.  (See cases cited p. 489, ante, passim.)

In the first place, I recognize that a salpingectomy or other operation that will permanently sterilize but not unsex the conservatee, i.e., tubal litigation, is a serious and intrusive form of medical treatment and forecloses a future choice of procreation.   Therefore, any such order must be supported by clear and convincing evidence of the criteria established below.  (See Maxon v. Superior Court, supra, 135 Cal.App.3d 626, 633–634, 185 Cal.Rptr. 516.)   The incompetent must be afforded and be present at a full judicial hearing, after notice to relatives and all interested parties, at which medical testimony is presented and the incompetent through a guardian ad litem is allowed to present proof and cross-examine witnesses.   The trial judge must be assured that a comprehensive medical, psychological and social evaluation is made of the incompetent, and that the standards presented below are supported by medical opinion.

It must be established clearly and convincingly that the individual is legally incompetent to make a decision as to whether to be sterilized and has not expressly objected to such an operation;  that he or she is incapable of comprehending the nature of the proceedings;  that he or she is incapable of understanding the nature of the sexual function, reproduction or sterilization;  and that such incapacity is in all likelihood permanent.

It must also be established that the individual is capable of reproduction;  that the nature of the individual's disability renders him or her permanently incapable of parenting a child, even with reasonable assistance;  and that it is necessary for the mental or physical health and well being of the individual that pregnancy or procreation be avoided.

Finally, it must appear that less intensive and permanent contraceptive methods are unworkable, inapplicable or contraindicated;  that the proposed sterilization operation is the least restrictive alternative available;  and that the operation will not be harmful to the individual.

In my opinion, such a hearing is constitutionally mandated, and I would reverse the order and remand the cause for that purpose.

FOOTNOTES

1.   With some nonsubstantive corrections by this court, the formal order read in part as follows: “ORDER NUNC PRO TUNC“Petitioners' request for special powers to perform [sic] a tubal ligation on the conservatee ․ came on for hearing on December 10, 1980.   A formal order denying petitioners' motion for the special powers was inadvertently not prepared at that time.   Therefore, it is ordered Nunc Pro Tunc that the request of Petitioners is hereby denied for the reasons stated on the record at said hearing.”

2.   The appeal is timely in these circumstances.  (See Cal.Rules of Court, rule 2(c).)   The order is appealable pursuant to Probate Code section 2750, subdivision (e), which provides in pertinent part:  “An appeal may be taken from the making of, or the refusal to make, a judgment, order, or decree doing any of the following:  ․  [¶] (e)  Authorizing and instructing a ․ conservator ․”  (Italics added.)

3.   Section 2356, subdivision (d), appears in chapter 5 (“Powers and Duties of Guardian or Conservator of the Person,” commencing with § 2350) of Division 4 (“Provisions Common to Guardianship, Conservatorship, and Other Protective Proceedings,” commencing with § 1400) of the Probate Code.   The statute provides:“2356․  [¶] (d) No ward or conservatee may be sterilized under the provisions of this division.”

4.   As will appear in the text, Welfare and Institutions Code section 7254 was repealed in 1979.   We refrain from quoting it here because of its length.  (For its language as it read when Kemp was decided, see Stats.1971, ch. 1593, § 441, pp. 3371–3372;  for its language as last amended, see Stats.1977, ch. 1252, § 658, pp. 4609–4610.)

1.   See Murdock, Sterilization of the Retarded:  A Problem or A Solution?  (1974) 62 California Law Review 917, in which the author recognizes the right of a retarded person to live as normal a life as possible, and the fact that as retarded persons increasingly come to live in a heterosexual environment the likelihood of parenthood also increases.  (Id., pp. 918–919.)   Although the author concludes that there is not sufficient state intent to require sterilization, and that 90 percent of retarded have sufficient intelligence to choose, he does not meet the question of what may be in the best interest of the other 10 percent.   See also Foy v. Greenblott (1983) 141 Cal.App.3d 1, 190 Cal.Rptr. 84, which emphasizes the incompetent's right to treatment under the least restrictive conditions feasible.  (Id., at pp. 10–11, fn. 2, 190 Cal.Rptr. 84, which points out that it has been held that the patient should be granted “ ‘suitable opportunities for the patient's interaction with members of the opposite sex ․’ ”)

2.   The swing of the pendulum with respect to eugenic sterilization is also documented in the following cases which are incorporated in this opinion:  Matter of Guardianship of Hayes (1980) 93 Wash.2d 228, 608 P.2d 635, 639–640;  In re Grady (1981) 85 N.J. 235, 426 A.2d 467, 472–473;  Matter of Guardianship of Eberhardy (Wis.1981) 307 N.W.2d 881, 888–890;  Matter of A.W. (Colo.1981) 637 P.2d 366, 368;  and Matter of Moe (1982), 385 Mass. 555, 432 N.E.2d 712, 717;  see also, as cited in the majority opinion, Stump v. Sparkman (1978) 435 U.S. 349, 351–364, 98 S.Ct. 1099, 1101–1108, 55 L.Ed.2d 331;  Downs v. Sawtelle (1st Cir.1978) 574 F.2d 1, 4–6, cert. den. 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 255;  Ferster, Eliminating the Unfit—Is Sterilization the Answer? (1966) 27 Ohio St.L.J. 591, 592–594;  Haldane, Heredity and Politics (1938) 102–105.

3.   Paradoxically, we are told that a court may not be trusted to exercise the incompetent's freedom of choice to bear or not to bear children when it will affect that individual's mental or physical health, while at the same time the doctrine of substituted judgment with respect to his wealth is recognized by both the courts and the Legislature.  (See Estate of Christiansen (1967) 248 Cal.App.2d 398, 56 Cal.Rptr. 505;  Conservatorship of Wemyss (1971) 20 Cal.App.3d 877, 98 Cal.Rptr. 85;  Prob.Code, §§ 2580–2586;  15 Cal.L.Revision Com.Rep. (1980) 451, 514–517.)

4.   Provisions of the Health and Safety Code prohibit the imposition of any special non-medical qualifications on individuals seeking a sterilization operation.  (§ 1232, clinics;  § 1258, health facilities;  § 1459, County hospitals;  § 32128.10, hospital districts.)In like vein, such restrictions are prohibited in health care service plans (Health & Saf.Code, § 1373, subd. (b)), disability insurance policies (Ins.Code, § 10120), and hospital service contracts (Ins.Code, § 11512, subd. (j)).Other provisions of law and regulations are designed to secure informed consent for and reflection on the nature of a sterilization operation.   (Health & Saf.Code, §§ 208, 1275, 1276;  22 Cal.Adm.Code, §§ 70707.1–70707.9;  Welf. & Inst.Code, §§ 14053, 14105;  14124.5, 14191;  22 Cal.Adm.Code, §§ 51305.1–51305.8.)   Specified federal (Medi-Cal) funds cannot be used for sterilization of an individual who has been declared mentally incompetent by a court of competent jurisdiction (22 Cal.Adm.Code, § 70707.6);  nor is such an individual eligible for an operation under the state medical assistance program.  (Id., § 51305.1;  generally, see California Medical Assn. v. Lackner (1981) 124 Cal.App.3d 28, 177 Cal.Rptr. 188;  Note, Sterilization Abuse, 10 Golden Gate L.R. (1980) 1147, 1156, 1163;  Comment, Sterilization Regulation (1978) 18 Santa Clara L.Rev. 971, 976, 990.)   Finally, I note Health and Safety Code section 25955.3, which prohibits making nonsubmission or submission to abortion or surgical sterilization a ground for loss of privileges or immunities, or a condition precedent to public benefits.

5.   Cases so holding, referred to in the opinions cited above, include:  Guardianship of Tulley (1978) 83 Cal.App.3d 698, 146 Cal.Rptr. 266;  cert. den. 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783;  Guardianship of Kemp (1974) 43 Cal.App.3d 758, 118 Cal.Rptr. 64;  Holmes v. Powers (Ky.1968) 439 S.W.2d 579;  Frazier v. Levi (Tex.Civ.App.1969) 440 S.W.2d 393;  Wade v. Bethesda Hospital (S.D.Ohio 1971) 337 F.Supp. 671;  In Interest of M.K.R. (Mo.1974) 515 S.W.2d 467;  A.L. v. G.R.H., supra, 325 N.E.2d 501, cert. den. 425 U.S. 936, 96 S.Ct. 1669, 48 L.Ed.2d 178;  Sparkman v. McFarlin (7th Cir.1977) 552 F.2d 172, revd., Stump v. Sparkman, supra, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331;  Matter of S.C.E. (Del.Ch.1977) 378 A.2d 144;  Application of A.D. (1977) 90 Misc.2d 236, 394 N.Y.S.2d 139;  Matter of D.D. (1978) 64 A.D.2d 898, 408 N.Y.S.2d 104;  Hudson v. Hudson (Ala.1979) 378 So.2d 310.

6.   In Ruby v. Massey, supra, 452 F.Supp. 361, which stands for the proposition, recognized in this opinion, that the parent or guardian alone cannot give consent to the sterilization of a minor or adult incompetent, the court, having recognized the constitutional right of the incompetent children to have a decision made in their best interest, had to structure a remedy.   It ruled that it would be a denial of equal protection to deny them a hearing similar to that afforded the inmates of Connecticut institutions under a statute similar to former Welfare and Institutions Code section 7254.  (Id., at pp. 367–369;  see also In re Simpson (Ohio 1962) 180 N.E.2d 206, disapproved in Guardianship of Kemp, supra, 43 Cal.App.3d 758, 764, 118 Cal.Rptr. 64, on the basis of Wade v. Bethesda Hospital, supra, 337 F.Supp. 671.)In Stump v. Sparkman, supra, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331, the court stated:  “The statutory authority for the sterilization of institutionalized persons in the custody of the State does not warrant the inference that a court of general jurisdiction has no power to act on a petition for sterilization of a minor in the custody of her parents, particularly where the parents have authority under the Indiana statutes ․”  (Id., p. 358, 98 S.Ct. at 1105.)On the other hand, it has been suggested and held that a statute which provides for the sterilization of institutionalized incompetents, but does not provide for persons of similar status outside of institutions, is unconstitutionally void.  (See In re Grady, supra, 426 A.2d 467, 478;  In re Thomson (1918) 103 Misc. 23, 169 N.Y.S. 638, affd. 185 A.D. 902, 171 N.Y.S. 1094;  Matter of Sallmaier, supra, 378 N.Y.S.2d 989, 990.)In view of the changes in California statutory law, it would not be profitable to reanalyze Tulley and Kemp in the light of these principles, although they reflect on their viability.

7.   Each recommendation reads in part:“Medical treatment for Ward or Conservatee“․  [¶] The proposed law also clarifies the interrelationship of the medical treatment provisions of guardianship-conservatorship law with provisions of other codes relating to medical treatment․”“124.  The proposed law makes clear that the provisions of other codes relating to highly intrusive forms of medical treatment are the only provisions under which such treatment may be authorized for a ward or conservatee, thus assuring that the procedural safeguards contained in those provisions will be applied.   The provisions relate to administration of experimental drugs (Health & Safety Code, §§ 26668–26668.9), convulsive treatment (Welf. & Inst.Code, §§ 5326.7–5326.95), and sterilization (Welf. & Inst.Code, § 7254).”  (14 Cal.Law Revision Com.Rep., supra, at pp. 543–544;  see also 15 Cal.Law Revision Com.Rep., supra, at pp. 502–503 [fns. omitted].)

8.   It appears that this bill was originally introduced by Assemblymen Duffy and Filante, with Senator Garcia listed as a coauthor.   (Assem. Bill No. 603, supra.)   Subsequently, Assemblyman Torres, the author of the original bill repealing section 7254 of the Welfare and Institutions Code, appears as “Principal coauthor.”  (See id., as amended to May 5, 1981.)   This strengthens my conviction that the repeal of section 7254 in 1979, and the amendment of proposed subdivision (d) of Probate Code section 2356 in the same year, manifested an intent to preclude eugenic sterilization of incompetents without concern as to what effect it might have on therapeutic sterilization in the best interests of that class.

 RATTIGAN, Acting Presiding Justice.

POCHÉ, J., concurs.