For mentally incapable persons, it is standard for the Courts to appoint a guardian to take care of the person (the Ward) and make decisions that are in their best interest. However, what happens when a guardian decides that a procedure that may result in sterilization may be in the best interest of the Ward?
Sterilization may be the consequence of a necessary medical procedure. If the procedure rids an individual of the ability to reproduce, the guardian of such a person must get court approval. There are various legitimate reasons in which a person would advocate for sterilization of a mentally disabled or incompetent person, and in nearly every case, it is because the person suffers from some other medical ailment, and either the cure for the ailment or relief from the symptoms of the ailment would be accomplished by a procedure which would have a side effect of sterilization.
Our State, North Carolina, does not approve of sterilization for the mere sake of convenience or for the purpose of rendering the person unable to reproduce.
If a guardian believes that a procedure resulting in sterilization is in the best interest of their Ward, they must petition the Court to allow such a procedure. In accordance with North Carolina law, the petition must include a sworn statement from a North Carolina licensed physician who has examined the ward and believes that the procedure is medically necessary.
Is Sterilization Medically Necessary?
Sterilization is deemed medically necessary in order to preserve the life or physical or mental health of the disabled person. The physician must swear that the procedure is not for the sole purpose of sterilization or for the purpose of hygiene or convenience. The petition must also include a sworn statement from a North Carolina licensed psychiatrist or psychologist who has examined the ward and can determine whether or not the ward can comprehend the nature of the procedure and its consequences.
Consent and Sterilization
If the ward is able to understand and provide consent, a sworn statement of consent must be included with the petition. If the ward can give consent to the procedure, a hearing before the Court may not be necessary. However, if the ward is unable to understand and unable to give consent or if it is requested, a hearing shall be held.
It is important to note that a guardian cannot consent to a sterilization procedure without an order from the Court. Also, a Court will only grant an order if they find that the proposed procedure is medically necessary and not for the sole purpose of sterilization, hygiene, or convenience.
Understandably, sterilization of those with disabilities and the inability to consent is a highly contentious and debated topic, one with a particularly dark history in our State. However, the Courts make every effort to ensure that these procedures are only performed as a medical necessity and not purely to prevent incompetent individuals from reproducing. Due to the sensitive nature of the matter, it is recommended that petitioners retain an attorney to ensure all processes are followed and that the petitioner has representation in potential hearings before the Court.
If you are a guardian of a Ward who is in need of a sterilization procedure that is determined to be medically necessary, our guardianship attorneys can assist every step of the way, including preparing and gathering affidavits, filing the petition, and providing representation at the hearing.