In re Grady: The Mentally Retarded Individual's Right to Choose Sterilization

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Abstract
In the case of In re Grady, the New Jersey Superior Court addressed important issues concerning the propriety of a court's exercise of parens patriae jurisdiction to ratify parents’ substituted consent to the sterilization of their mentally retarded child. This Note discusses the genesis of the fundamental right to choose sterilization, its application to mentally retarded individuals, and the adequacy of the procedural framework enunciated in Grady to assure that substituted consent by the parents is exercised solely in the mentally retarded individual's “best interests.” This Note concludes that, while the Grady court properly exercised its parens patriae jurisdiction, the procedural framework enunciated is inadequate. The Note proposes a model that would implement the procedural elements the Note determines are essential to a “best interests” inquiry. The proposal requires: (1) that the individual be adjudicated incompetent; (2) that a guardian ad litem be appointed and required to argue that sterilization is not in the incompetent's “best interests”; and (3) that the court determine, as a question of fact, whether the parents’ exercise of substituted consent is in the incompetent's “best interests.” The Note also suggests criteria which can be used in making the “best interests” determination, and recommends that “clear and convincing” evidence be required to support the “best interests” standard.

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