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Abstract

Pursuant to the Due Process in Sterilization Act of 1982, Maine courts may hear petitions for sterilization of the mentally retarded. In In re Debra B., a mother petitioned to have her mentally retarded daughter sterilized. The Maine Supreme Judicial Court, sitting as the Law Court, vacated the order granting the petition. In a unanimous opinion, the court held that a finding of procreative capability is a sine qua non for determining whether sterilization is in an incompetent person's best interest. Through its holding, the court thereby extended the statute's clear and convincing standard of proof to a factor not expressly described in the statute's best interest section. The Law Court then held that sterilization was not in Debra's best interest because her mother failed to present clear and convincing evidence establishing Debra's procreative capability. The purpose of Maine's sterilization statute is "to prevent indiscriminate and unnecessary sterilization and to assure equal access to desired medical procedures for all Maine citizens." The statute expressly provides two best interest guidelines that control a court's decision whether to grant a petition for sterilization. These guidelines are necessary to protect an incompetent person's fundamental rights. Both state and federal constitutions provide basic protection of a person's privacy rights, whether that person is mentally competent or not. Among the privacy rights receiving constitutional protection are both the right to procreate and the right to choose not to procreate. In addition, Maine's common law doctrine of informed consent generally protects a person's right to control his medical care. Because some mentally retarded individuals are not competent to choose between sterilization and procreation, the state has an interest not only in attempting to make a decision in their best interest, but also in safeguarding their rights from third party interference. The Maine Legislature in the Due Process in Sterilization Act of 1982 required Maine courts to apply a best interest standard in determining whether to order sterilization of an incompetent person. Pursuant to the statute, such a determination involves evaluating whether the petitioner has established the facts relevant to the two statutory best interest guidelines by clear and convincing evidence. The statute also directs a court's inquiry to a number of subfactors raised by the petition for sterilization, by evidence of the mental and physical effects of sterilization on the individual, and by "[a]ny other relevant evidence concerning the mental and physical condition of the person being considered for sterilization." If the court finds clear and convincing evidence "that sterilization is in the best interest of the [individual], the court shall order that sterilization may be performed."

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