Sterilization of Mentally Incompetent Persons

  1. Law
  2. Georgia Code
  3. Health
  4. Performance of Sterilization Procedures
  5. Sterilization of Mentally Incompetent Persons

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  1. Declaration of policy. The General Assembly finds that the present laws of this state provide no means for the performance of sterilization procedures upon persons who, because of a developmental disability, brain damage, or both, are irreversibly and incurably mentally incompetent to the degree that such persons, with or without economic aid (charitable or otherwise) from others, could not provide care and support for any children procreated by them in such a way that such children could reasonably be expected to survive to the age of 18 years without suffering or sustaining serious mental or physical harm.
  2. Definitions. As used in this Code section, the term "person subject to this Code section" means a person who, because of a developmental disability, brain damage, or both, is irreversibly and incurably mentally incompetent to the degree that such person, with or without economic aid (charitable or otherwise) from others, could not provide care and support for any children procreated by such person in such a way that such children could reasonably be expected to survive to the age of 18 years without suffering or sustaining serious mental or physical harm, when there has been, according to the procedures of this Code section as hereinafter stated, the required finding that the condition of such person is irreversible and incurable.
  3. Prerequisites to performing a sterilization procedure on a person subject to this Code section. A sterilization procedure may be performed by a physician on a person subject to this Code section pursuant to subsection (d) of this Code section only after satisfaction of all of the following conditions precedent:
    1. A petition shall be filed by one or more of the parents or legal guardian or next of kin of the person alleged to be subject to this Code section stating the reasons why such person is alleged to be subject to this Code section and containing the written consent of the parent or parents not filing the petition, if such parents are surviving, can be found after reasonable effort, and are mentally competent. If no such parent or parents survive or can be found after reasonable effort or if such parent or parents are mentally incompetent, the petition shall contain the written consent of a guardian ad litem who shall be appointed by the probate court and who shall make investigation and report to such court before the hearing shall commence, provided that such guardian ad litem shall be a duly qualified and licensed member of the State Bar of Georgia. The written consent of any parent shall not be required if such parent has not within six months of the date of filing of the petition provided any support or maintenance to the person alleged to be subject to this Code section and such parent does not reside within the same household as such person;
    2. The judge of the probate court shall appoint an examining team composed of a psychologist or psychiatrist qualified in the area of developmental disabilities and brain damage and one physician, neither of whom is the physician who proposes to perform the sterilization procedure on the person alleged to be subject to this Code section and neither of whom is a member of the committee of the accredited hospital described in paragraph (3) of this subsection. Said persons so appointed shall make an investigation and make a consolidated report to the court before the hearing shall commence that they have examined the person alleged to be subject to this Code section and whether or not they find such person to be a person subject to this Code section and whether, in their opinion, the condition of such person is irreversible and incurable. Such report shall include the reasons and factual information as to why such person should be subject to this Code section and the reasons, if any, why such person would not be subject to this Code section. If the examining team determines that such person is subject to this Code section, then the team shall include in its report some of the less permanent methods of preventing conception and shall report on the feasibility of each such method for that person. The person alleged to be subject to this Code section, the applicant, the parents of the person, the guardian ad litem, and the attorney representing the person shall receive a copy of the report not later than five days prior to the hearing and, upon a timely request by any party to the probate court proceedings, each author of that report shall be subject to cross-examination either by testimony in court or by deposition;
    3. Prior to the hearing on the application, evidence shall be presented to the court that a sterilization procedure has been approved for the person alleged to be subject to this Code section by a committee of the medical staff of the accredited hospital in which the operation is to be performed. Such committee shall be one established and maintained in accordance with the standards promulgated by a nationally recognized health care accreditation body, and its approval must be by a majority vote of a membership of not less than three members of the hospital staff, the physician proposing to perform the sterilization procedure not being counted as a member of the committee for this purpose. The approval of such committee as above specified shall be based upon a finding that the condition of the person alleged to be subject to this Code section is irreversible and incurable in the opinion of the majority of the committee as above specified. The person alleged to be subject to this Code section, the applicant, the parents of the person, the guardian ad litem, and the attorney representing the person shall receive a copy of the consolidated report not later than five days prior to the hearing and, upon a timely request by any party to the probate court proceeding, each author of that finding shall be subject to cross-examination either by testimony in court or by deposition;
    4. If the person alleged to be subject to this Code section requests that the hearing be closed to the public, the judge shall close the hearing to the public unless an overriding or compelling reason can be shown as to why such hearing should not be closed to the public. The ruling by the judge whether to open the hearing to the public or not shall be in writing. Notice of the date, time, and location of the hearing shall be provided to the person alleged to be subject to this Code section and the attorney for the person alleged to be subject to this Code section at least ten days prior to the hearing;
    5. After the hearing, if the judge of the probate court shall find by clear and convincing evidence, from the evidence above specified, that the person alleged to be subject to this Code section is a person subject to this Code section and that the condition of such person is irreversible and incurable, he shall enter an order and judgment authorizing the physician to perform such sterilization procedure in accordance with subsection (d) of this Code section;
    6. Except as provided in Article 6 of Chapter 9 of Title 15, an appeal to the superior court may be had by the applicant or person alleged to be subject to this Code section or by any other interested party on such judgment in the probate court as provided in other cases by the laws of this state. The proceedings before the superior court shall constitute a trial de novo and upon application of either party shall be heard before a jury. If the person alleged to be subject to this Code section requests that the trial be closed to the public, the judge shall close the trial to the public unless an overriding or compelling reason can be shown as to why such trial should not be closed to the public. The ruling by the judge whether to open the trial to the public or not shall be in writing. Any decision of the superior court in such cases may be appealed to the higher courts of this state as in other civil cases. The cost of appeal, if any, to the superior and higher courts shall be taxed as in other civil cases. The pendency of any appeal shall stay the proceedings in the probate court until the appeal is finally determined. Affidavits in forma pauperis regarding court costs and costs of appeal may be filed as in other cases made and provided by the laws of this state; and
    7. The person alleged to be subject to this Code section shall have the right to counsel at all stages of the proceedings provided for in this Code section.
  4. Performance of sterilization procedure. After judgment of the court in accordance with the preceding subsections of this Code section shall have become final to the effect that such sterilization shall be performed upon such person subject to this Code section, a sterilization procedure may be performed in an accredited hospital by a physician upon such person subject to this Code section.

(Ga. L. 1970, p. 683, § 3; Ga. L. 1971, p. 869, § 1; Ga. L. 1985, p. 1134, § 1; Ga. L. 1986, p. 982, § 10; Ga. L. 1992, p. 6, § 31; Ga. L. 2009, p. 453, § 3-7/HB 228; Ga. L. 2012, p. 337, § 8/SB 361.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, "developmental disabilities" was substituted for "a developmental disability" in the first sentence of paragraph (c)(2).

Editor's notes.

- Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986.

JUDICIAL DECISIONS

Procreation is a fundamental right. Motes v. Hall County Dep't of Family & Children Servs., 251 Ga. 373, 306 S.E.2d 260 (1983).

Code section unconstitutional prior to 1985 amendment.

- Seriousness of an individual's interest at stake in a state initiated sterilization proceeding is such that due process requires "clear and convincing evidence" to authorize the sterilization of an individual. The standard of a "legal preponderance" set by paragraph (c)(4) in O.C.G.A. § 31-20-3 does not meet constitutional requirements. Motes v. Hall County Dep't of Family & Children Servs., 251 Ga. 373, 306 S.E.2d 260 (1983) (decided prior to 1985 amendment, which substituted a "clear and convincing" standard).

OPINIONS OF THE ATTORNEY GENERAL

Mental incompetent's right to counsel in sterilization proceeding.

- In proceedings for sterilization of mental incompetent, incompetent has a right to counsel; if indigent, the incompetent has a right to appointed counsel. 1971 Op. Att'y Gen. No. U71-29.

Representation of person alleged to be subject to section.

- Functions of court-appointed defense attorney and guardian ad litem may not be performed by the same person in involuntary sterilization procedures. 1987 Op. Att'y Gen. No. U87-4.

Hospitals operated exclusively by federal government exempt from state accreditation.

- United States Army hospital in federal enclave not accredited or subject to accreditation under Georgia law; accreditation by state Department of Human Resources is not extended to hospitals operated exclusively by federal government. 1973 Op. Att'y Gen. No. U73-45.

Payment of cost of examining teams and hospital committees.

- Fees and expenses of medical examining teams and hospital committees mandated by O.C.G.A. § 31-20-3 are a proper charge on the county treasury upon court order. 1987 Op. Att'y Gen No. U87-4.

RESEARCH REFERENCES

Am. Jur. 2d.

- 59 Am. Jur. 2d, Parent and Child, § 65. 61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers, § 262.

Proof of Qualification for Sterilization of a Person with a Mental Disability, 49 POF3d 101.

C.J.S.

- 16B C.J.S., Constitutional Law, § 1217 et seq. 16D C.J.S., Constitutional Law, § 2055 et seq. 39A C.J.S., Health and Environment, §§ 61, 72, 81 et seq. 56 C.J.S., Mental Health, § 6 et seq. 67A C.J.S., Parent and Child, §§ 38, 40, 41, 46 et seq. 70 C.J.S., Physicians, Surgeons, and Other Health Care Providers, § 49 et seq.

ALR.

- Legality of voluntary nontherapeutic sterilization, 35 A.L.R.3d 1444.

Validity of statutes authorizing asexualization or sterilization of criminals or mental defectives, 53 A.L.R.3d 960.

Jurisdiction of court to permit sterilization of mentally defective person in absence of specific statutory authority, 74 A.L.R.3d 1210.

Power of parent to have mentally defective child sterilized, 74 A.L.R.3d 1224.


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