Sterilization is a very serious matter. It requires a medical operation, usually can't be reversed, and keeps a person from ever producing children. Legal safeguards were set up to prevent unnecessary sterilization of people who may not be able to decide whether to be sterilized.
Before 1983, a State Board of Social Protection made sterilization decisions for people it considered incapable of deciding for themselves. When the Board stopped operating, lawmakers set up a court procedure for deciding whether a person is able to make a sterilization decision and, if not, whether sterilization is the right thing to do.
State law defines sterilization as "any medical procedure, treatment or operation for the purpose of rendering an individual permanently incapable of procreating". It requires using the least intrusive method of sterilization that conforms with standard medical practices. Those methods are likely to be tubal ligation and vasectomy. The law prohibits hysterectomies to be "performed solely for the purpose of sterilization or for the purpose of hygiene and sanitary care of a female's mensus." Surgical procedures that are necessary for other medical reasons but may result in sterilization are not governed by this law.
Why do people have to agree to sterilization?
The right to have children is protected by the United States Constitution. This right may not be taken away; a person must agree to give it up. To validly give up this right, a person must be capable of doing so:
Knowingly1 - that is, the person must be given all the information necessary to make an informed decision,
Voluntarily2 - that is, without undue influence or coercion, and
Intelligently3 - that is, with an understanding of the right being waived and probable consequences.
A person who is at least 15, is capable of giving informed consent, and who does consent may be sterilized. Sterilization may not be legally performed on a person who is not yet 15.
A parent, guardian or conservator may not give consent for sterilization of his or her minor child or protected person.
A petition may be filed in state court asking for a determination of the person's ability to consent. The petition may be filed by the person seeking sterilization, the attending physician, or anyone concerned with the health and well-being of the person. The petition may be filed in the Circuit Court of the county in which the person for whom sterilization is sought lives.
The court will schedule a hearing within thirty days. If the person for whom sterilization is sought would have difficulty attending a hearing at the courthouse, the court may hold the hearing at some other place.
At least fourteen days before the hearing date, the court must serve a copy of the petition and hearing notice on:
The court must appoint an attorney at the person's request, or if the person does not have an attorney and seems incapable of asking for one.
If the court appoints an attorney and the person is "without sufficient means", the court will pay for the attorney. The court will also pay for an attorney to conduct an appeal, if necessary. The court does not have authority to appoint an attorney for anyone other than the person for whom sterilization is sought, such as parents or guardians.
Yes. However, the right to be present may be waived by the person or the person's attorney, but only if the person's presence grossly interrupts the proceedings, or is medically contraindicated.
The hearing has two steps. The first step is to decide whether the person is capable of giving informed consent for sterilization.
The person filing the petition must present evidence that includes reports by a team of at least three professionals, having at least two different disciplines. All three professionals must have experience with persons who have disabilities similar to the disability of the person for whom sterilization is sought. The professionals may include teachers, doctors, social workers, mental health workers and other health professionals. Their reports must contain information about the person's ability or lack of ability to give consent and the reasons for their opinion.
The person for whom sterilization is being sought must testify and may present evidence and cross-examine witnesses. Witnesses may be subpoenaed, if necessary. At the time of the hearing, the court must inquire as to the types and effects of any medication taken by the person for whom sterilization is being sought.
A judge can find a person incapable of giving informed consent by "clear and convincing evidence". In other words, the judge must find it highly probable from the evidence that the person lacks ability; otherwise, the person will be found capable of giving informed consent.
If the person consents to sterilization, the court will issue an order permitting it. The hospital and doctor must still obtain written consent prior to the sterilization.
If the person refuses sterilization, the court will issue an order
forbidding it. If the person later consents, sterilization is not permitted
without a rehearing.
If the person is 18 or older, the second step of the hearing goes forward to determine whether sterilization is in the person's "best interest". (Sterilization may not be performed on persons who are not yet 18 and incapable of giving informed consent.)
After hearing evidence from all parties, including opinions by a doctor, a psychologist and a social worker, the judge must find that there is clear and convincing evidence that each of the following five factors is true:
The judge will issue an order prohibiting sterilization and give reasons for that decision.
The judge will issue an order permitting sterilization and give reasons for that decision.
1. The law requires a physician to give the person seeking sterilization the following information or advice. All of this information or advice must be given orally.
(a) Advice that the person is free to withhold or withdraw consent at any point prior to the sterilization without affecting future rights to care and treatment;
(b) A description of available alternative methods of family planning and birth control;
(c) Advice that sterilization is considered to be irreversible;
(d) A thorough explanation of specific sterilization procedure to be performed;
(e) A full description of the discomforts and risks that may accompany or follow sterilization, including the type and possible effects of any anesthetic to be used; and
(f) A full description of the benefits or advantages that may result from sterilization. A physician must also offer to answer any questions the person has about sterilization.
2. The law requires informed consent to be given "wholly voluntary and free from coercion, express or implied". For example, pressure from parents, group home providers, or other family members may be considered to be coercive. The law further states that informed consent may not be obtained while the person to be sterilized is:
(a) in labor or childbirth;
(b) seeking to obtain or obtaining an abortion; or
(c) under the influence of alcohol or drugs that affect the person's awareness.
3. The law requires:
(a) that the person fully understands the information given by the physician, and
(b) that the person be "competent" to make a decision such as sterilization. "Competency" may be determined in consideration of:
(i) the person's age;
(ii) specific situations (in this case, consenting to sterilization); and
(iii) the person's physical or mental capacity as determined in another court proceeding. However, a person for whom a guardian or conservator has been appointed may be found to be capable of consenting or withholding consent to sterilization.
This document summarizes ORS 436.005 to 436.335. It should not be relied upon or used as a substitute for legal advice. It was last revised December 2002.
For further information contact Oregon Advocacy Center at
(503)243-2081 or
1-800-452-1694 or write to: Oregon Advocacy Center
620 SW Fifth Ave., #500
Portland, OR 97204-1428