Constitutionality of Prohibiting Procreation

Yesterday's post about a Wisconsin court's decision to prohibit a man from procreating as a condition of probation in a felony non-support case and a comment from Carrie E. Huff, of Mallory, Cunningham, Lapka, Scott & Selin, PLLC in Lansing, Michigan, that the probation requirement of not procreating sounded unconstitutional to her inspires this post. The answer is: In Michigan, such a prohibition is unconstitutional. In Wisconsin (and who knows where else), it is not. The issues of course are fundamental rights of privacy, due process, and equal protection of law.

A 1925 Michigan Supreme Court case upheld a Michigan statute that provided that, so long as procedural steps were followed, a Court could issue an order for sterilization of "mentally defective" persons. Smith v. Command, 231 Mich. 409, 204 N.W. 140 (1925) Download Smith_v_Command,_Probate_Judge

It amazes me that it took seventy--70--years for the Michigan Court of Appeals ("COA"), on remand from the supreme court in lieu of granting leave, to reject the holding in Smith.  The supreme court remanded to the COA for reconsideration as on leave granted "to reconsider, without limitation, whether probate judges possess the power to authorize a guardian to consent to the sterilization of a developmentally disabled citizen."  In re Wirsing (On remand), 214 Mich.App. 131 (1995)

The issue came before the courts in 1986 when a mother, the plenary guardian of her mentally disabled child, sought court authority to sterlize her daughter. The case made its way through the probate court, the court of appeals and the supreme court and was remanded to the court of appeals. The Opinion on remand, although decided in October 1995, wasn't even released for publication until late January 1996. Imagine! Ten years to decide this issue.

The COA stated clearly the history of eugenics as practiced among various states of our nation as follows:

During the mid to late 1970s, Michigan, as well as many other states, abandoned the practice of compulsory eugenic sterilization by repealing enabling statutes. This shift resulted from a coalescence of social, political, and legal forces, including many eugenic-based sterilization theories being discredited, the developmentally disabled and mentally ill being deinstitutionalized and reintegrated into society, and recognition that these individuals enjoyed the same fundamental rights of privacy, due process, and equal protection of law as other citizens. See, generally, In re Grady, supra; In re Hayes, 93 Wash.2d 228, 608 P.2d 635 (1980).

However, the COA noted:

Since 1974, the Legislature has amended the Mental Health Code three times and, in each instance, sterilization was not expressly authorized. After half a century of express authority granted to a court of limited jurisdiction, we are now asked to rule that such authority has existed by implication for the last decade. This we refuse to do.

The majority considered the sections of the Mental Health Code cited as authority for the probate court to permit sterilization and held them to be  unconstitutional as an impermissible infringement of a developmentally disabled person's right to privacy, equal protection, and due process.

Judge Holbrook wrote a dissenting opinon. It makes for interesting reading since he acknowledged the prior important US Supreme Court cases involving privacy rights and stated that the court could not infringe upon those rights absent a compelling state interest. Specifically, he stated:

Competent persons possess a fundamental interest in procreative choice, incident to their right of privacy. See Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (fundamental right to marry and procreate); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (right to privacy encompasses contraceptive use and counseling for married persons); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (extending Griswold to unmarried individuals); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (fundamental right to decide whether to terminate a pregnancy).

However, Holbrook, J. then stated:

Sections 629 and 631 of the Mental Health Code unambiguously provide statutory authority to a
probate judge to authorize a guardian to consent to sterilization of a developmentally disabled ward. The due process interests of a DDP in such a proceeding are protected by the procedural safeguards set forth in the MHC. These conclusions are wholly consistent with the Legislature's intent in enacting and amending the revised MHC, and they advance the established important public policy of this state to accord due process and equal protection of the law to all Michigan citizens, including the developmentally disabled.

Thus, Justice Holbrook would have allowed sterlization of developmentally disabled persons so long as their guardians authorized it and followed specific procedures. Amazing! Those interested in constitutional issues will find the Wirsing decision fascinating reading. Download In_re_Wirsing

Comments

[Calvin A. Luker]

Wirsing was my case. The Michigan Supreme Court granted leave to appeal the COA decision you discuss above. In In Re Wirsing, 441 Mich 886, 495 NW2d 388 (1992), in what I still believe was a legally vacuous decision,the MSC reversed the COA and ruled that the Michigan Mental Health Code did in fact give probate courts the jurisdiction to order the involuntary sterilization of adults with disabilities, even when, as here, the evidence clearly demonstrated that the adult was neither ovulating nor sexually active.

So chalk this one up as "the rest of the story." In Michigan, probate courts now have the authority to authorize the involuntary sterilization of adults. Do not, however, go looking for any Michigan statutory or case law authority describing the general factors to be considered in making such a decision. There is none.