In 1936, Ann Cooper Hewitt filed a lawsuit against her mother — and with good reason. At the age of 20, her mother Ann had sterilized her against her will. Having succeeded in classifying her as having an intellectual disability, Ann’s mother was legally allowed to authorize the operation over Ann’s objections. Her mother’s lawyer responded by claiming that Ann’s sterilization had been “for society’s sake” due to the girl’s “erotic tendencies.”

Even in the age of the eugenics movement, where tens of thousands were involuntarily sterilized by state governments who sought to breed “better” human beings by removing disability from the gene pool, the Hewitt case attracted nationwide attention. Could a diagnosis of disability allow parents to control their child’s reproductive future against his or her will?

Ann believed it could not, summarizing her fate matter-of-factly. “I had no dolls when I was little, and I'll have no children when I'm old,” she said. “That’s all there is to it.”

We’ve come a long way since the age of the eugenics movement, particularly when it comes to matters of reproductive choice and bodily autonomy. And yet, state laws still allow people with disabilities to be sterilized without their consent. Today the state of Washington is considering a proposal that the ACLU believes could expand the use of sterilization for individuals under guardianship.  Guardianship is a surprisingly common legal arrangement where a third-party is authorized to make virtually all decisions for a person with a disability.

Currently, state law fortunately prohibits guardians from authorizing sterilization without court approval — but the state judicial system is currently considering a proposal to create a form to more clearly articulate how guardians can request permission for this procedure. While the proposal is designed to clarify existing law, advocates with disabilities and the ACLU believe that creating this form will streamline the process and increase the number of guardians requesting the sterilization of those under their power.

Ivanova Smith, a new mother with a developmental disability, has written beautifully in the ACLU of Washington’s blog about how people with disabilities can become loving, responsible parents, if they so choose. People with disabilities should not be denied this choice. Given the unfortunate history of involuntary sterilization of people with disabilities across the country, states must take extra caution to avoid imposing sterilization against those who, for whatever reason, do not freely choose it. It is vital that we leave behind the days in which people with disabilities lacked reproductive choice.

Whether it comes from parents, the court system, or anyone else, sterilization should never be imposed on a person without their consent.

For those who do choose it for themselves, sterilization can be an appropriate medical procedure. But the presence of guardianship seriously complicates the issue. Guardianship entails loss of legal adulthood, meaning that an individual lacks capacity in the eyes of the law to make their own decisions or express their own will and preference on how they should be treated. Measures to make it easier for guardians to permanently sterilize people with disabilities should be viewed as suspect. The Hewitt case is only one example in a long line of disagreements over who gets to make choices about medical procedures applied to people with intellectual disabilities.

Such decisions are often treated as family choices rather than questions of individual autonomy, which should require an expression of preference on the part of the person receiving the procedure. Some guardians cite fears of sexual assault in choosing to sterilize people with disabilities — yet sterilization in no way prevents the sexual assault of people with developmental disabilities, an all too common occurrence. Instead, it can merely hide evidence of it. As such, there are credible concerns that guardians may seek sterilization as a means of lessening the complications emerging from abuse, rather than taking the measures necessary to stop it.

The state of Washington should decline to streamline the process for guardian-imposed sterilization. The state can ensure that individuals who require decision-making support have a clear process by which they — rather than their guardian — can request such a procedure (if it is truly their choice to do so). Guardianship, with its total loss of decision-making authority by the individual, is not the appropriate mechanism for this. Instead, the state should consider joining Texas, Delaware, and jurisdictions around the world in implementing supported decision-making, a new legal arrangement that allows people with disabilities to choose trusted advisors to help them with their choices without surrendering final decision-making authority.

Control over one’s own body is one of the most fundamental civil liberties. Everyone deserves the right to have the final say about what happens to their own body. People with disabilities are no different.

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Ivanova Smith

Thank you Ari!

Anonymous

During the Jim Crow era, the 1960's Congress and the U.S. Supreme Court created an often forgotten constitutional precedent in regards to the 10th Amendment rights of states:

Congress and the Supreme Court in the 1960's essentially ruled that: the 10th Amendment cannot be used to violate individual
constitutional rights of any person within their jurisdictions. This applies to federal, state and local officials. Basically the 10th Amendment cannot be construed by any official to supersede the 9th Amendment or Article VI.

In other words, a state or local government is not a "constitution-free zone" or lawless little fiefdom. Local officials are not allowed to violate the individual constitutional rights of any person - whether that person is African-American, Jewish, undocumented immigrant, LGBT or mentally handicapped.

The ACLU should request the federal courts to declare these state laws unconstitutional, states and localities have no such authority under the U.S. Constitution to violate any person's constitutional rights.

Anonymous

As a person who suffers from depression and have the majority of my life. I do believe that there are some mentally handicapped people who should not reproduce. Not for the reason being sterilization. Many times, undiagnosed that they may be , there could be a family history or genetic predisposition to a certain form of mental illness. I was told once after my son was born that i was selfish going through my pregnancy and giving birth and wanting to keep him b/c i was on disability and wouldn't be able to give him the life he deserved. It was my right and as such i have done the best i could. He has wanted for somethings but material things doesn't a relationship make.

Anonymous

American government was never intended to be a European style "Nanny State" - where government officials perceive themselves acting as a "paternal" authority over us lowly peasants.

The Framers of The Constitution created a system of "self-government" where us peasants supervise government officials. We hire them, fire them and manage them - not the other way around.

The government's primary constitutional role is to protect our constitutional rights from other people, powerful corporations, oligarchs and foreign enemies NOT to be our nanny!

Anonymous

Not everyone with a disability can make a realistic decision on whether they are capable of taking care of a baby. Not everyone with a disability is capable of becoming a parent. For example, last summer a 13 year old girl used to come over and play with my daughter who was 7. I would guess that she was functioning slightly below my daughter just from talking to her and seeing her play in groups of 5-7 year Olds. Anyway, she also sometimes hung out with the other "special ed" kids from her middle school whose behavior problems were a factor in their being in "special ed". The middle schoolers in that group were having sex (one was pregnant) so the odds are that she did too. She's old enough to get pregnant but her ability to assess whether she could parent would be worse than my 7year olds. She could choose to be a good parent but she acts and thinks like a 7 year old and 7 year olds can't even be trusted to feed the dogs twice a day.
There was also a mostly non-verbal woman with autism living in my neighborhood up until a couple of years ago. She knew my dogs names and could say a few words when prompted. If she got pregnant I doubt it would be consenual and I can't bring myself to type more on that. However, she won't be able to talk things through with anyone because her vocabulary is limited to the names of neighborhood dogs, "hi", "bye", "mom", "dad", and "thank you". Would she want to be a parent? She flat out ignores babies and young children so I doubt it. She really only pays attention to people when she wants to pet their dogs. Would she make a good parent? Since she completely ignores kids I'd say "no". Would she even understand being pregnant or that the baby is hers? I really don't think so which means she'd have to go through all the pain and discomfort of pregnancy to have a baby that she's probably not going to understand is her child and doesn't care to haveanything to do with.

Most people with disabilities can make reproductive decisions for themselves or participate in some degree but their functioning level needs to be taken into account. If you wouldn't expect a 7 year old to make a good decision about a situation then why would you expect someone whose functioning at about that level to make better decisions (although in the case of the 13 year old less temporary birth control may be more appropriate as she will mature a bit more). Some individuals just are more severely disabled and won't even be able to understand what's going on if they get pregnant so it would be cruel to make them go through it. The nonverbal woman is in her 30's so she's functioning at about the level she will be in until menopause.

I am aware of the history of the eugenics movement and all the people who were sterilized because of their ethnicity or sociology economic status (including nondisabled adults) so, yes, I think its vital to ensure it never gets abused again but sometimes the reality is that a person just isn't functioning at a level where they can make a realistic decision, or any decision, on whether they can parent a child.

Kp

The ability to have someone completely unable to make those decisions alone is still there.
That’s not the point. The point is should it be made EASIER to have it done and risk making it easier for people who shouldn’t be sterilized tonhave that choice taken from them.

Anonymous

They may have made the paper work easier but a judge still has to decide and, since neither the laws nor the Constitution have changed, making the paperwork easier shouldn't., affect the verdict.

K C

A lack of speech has nothing to do with a lack of intelligence. The assumption that someone who only articulates 3 or 4 words is incapable of parenting is akin to saying a deaf parent shouldn't have children because they won't hear their child cry or fall down - or because they don't speak as I personally know deaf people who don't. Both of those contentions are equally ludicrous and ableist.

There are numerous ways to communicate that do not involve making specific sounds across one's vocal cords and using the oral musculature to facilitate speech.

It is telling that the assumption that a 13 yr old must be having sex because other middle schoolers are means that a disabled person of the same age is as well.

Furthermore, I would be hard pressed to allow someone with such misinformed views on disability to control or suggest what might be appropriate for the civil and human rights of another whether that role is as a parent or guardian.

Unfortunately, there are parents that are so fearful of autonomy and facilitating autonomy that their protection agenda tramples the rights of a youth transitioning into adulthood.

Also realize that our society has many people that think a person should not be a parent without meeting their preconceived notions of acceptability that have nothing to do with disability.

At the risk of being perceived as relying on Pop Culture to reinforce a point, I doubt there was a heavy discussion at the end of Forrest Gump about his ability to parent his son. The argument might be "he had money" or "he had support" or some other classist argument. Supports for disabled people are necessary for life. This includes actual sex education and not infantilizing a disabled person because they cannot make utterances in a manner conducive to you.

Being autistic doesn't mean you are incompetent as a parent. Like any neurotypical person, the Autist has strengths and weaknesses. It is quite likely the Autistic parent may be better equipped to understand concerns and respect their child's autonomy moreso than a parent that has never had their autonomy so overtly discussed and road blocked their entire life.

The number of parents being diagnosed later in life is rising. The diagnostic tools have improved. More children are being diagnosed and as a result more of their parents are as well. Would it be recommended that if you are diagnosed in your 30's or 40's or later that your children are removed because of your disability? You were always autistic. What has changed beyond a paper that states disabled with a scarlet letter for others to use against you. Even if it was a non-issue pre-diagnosis. Are those parents now no longer capable? Hogwash.

Please rethink your biases. Put yourself in the shoes of someone who has just been told.... "I'm sorry, but since you can't speak unless on command, and only a few words, you are now too dumb, and thus not eligible for human rights, so I'm going to have your reproductive organs mutilated because it makes me more confortable."

Only a disabled person can tell you how using a babysitter could be used against you as evidence of being an incompetent parent. Or that when you don't use one and get overwhelmed for a moment then yell, that is also a mark against you. Or stepping outside for 30 seconds to calm down so you don't act out of anger. Or closing the bathroom door for a minute. Or "imprisoning" yoir child in a play yard or high chair while starting laundry to keep them from chemicals. Things that are considered perfectly "normal" and socially acceptable for a non-disabled person. They are all used as ammunition or inspiration porn for others. Not as people being people. Besides, "it takes a village", right? Or only if you are neurotypical and make x dollars per year.

Anonymous

I know several non-verbal autistic who are quite intelligent and capable people. Some of whom are much more fond of pets than people and will tend to ignore the latter when possible (except the rare few they like well enough to be friends with). And several are parents, some are even grandparents. Being non-verbal or semi-verbal is not a measure of intellect nor wisdom. Nor is being autistic.
Anthony Hopkins, Daryl Hannah, Dan Akroyd, and Eminem are all on the autistic spectrum. Einstein is suspected and N. Tesla is as certain as one can be of a person who lived before the diagnosis existed.
There is even a non-verbal gal who is doing interviews like a talk show host and has had a few big names on her small show and been on one of the bigger ones herself twice.
This sort of thing (involuntary permanent sterilzation of people) should be as difficult as possible, like the death penalty. You cannot undo it a mistake happens. There should be significant evaluation, from at least two independent qualified sources, not just a 'guardians' decision. And even then permanent solutions are not really needed. There are reversible procedures for both genders, though the male one is only likely reversible.

Anonymous

It does sound like some kids of people with developmental disabilities will face a lot of challenges, but does that justify stripping their parents of their reproductive capacity and opportunity to parent based on their disability? People are born into adverse circumstances all the time, but typically only particularly neglectful and/or abusive parents lose their right to care for their kids. Forced sterilization does not sit well with me.

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