State Codes and Statutes

State Codes and Statutes

Statutes > California > Prob > 1950-1969

PROBATE CODE
SECTION 1950-1969



1950.  The Legislature recognizes that the right to exercise choice
over matters of procreation is fundamental and may not be denied to
an individual on the basis of disability. This chapter is enacted for
the benefit of those persons with developmental disabilities who,
despite those disabilities, are capable of engaging in sexual
activity yet who, because of those disabilities, are unable to give
the informed, voluntary consent necessary to their fully exercising
the right to procreative choice, which includes the right to choose
sterilization.
   However, the Legislature further recognizes that the power to
sterilize is subject to abuse and, historically, has been abused. It
is the intent of the Legislature that no individual shall be
sterilized solely by reason of a developmental disability and that no
individual who knowingly opposes sterilization be sterilized
involuntarily. It is further the intent of the Legislature that this
chapter shall be applied in accord with the overall intent of
Division 4.5 (commencing with Section 4500) of the Welfare and
Institutions Code that persons with developmental disabilities be
provided with those services needed to enable them to live more
normal, independent, and productive lives, including assistance and
training that might obviate the need for sterilization.



1951.  (a) No person who has the ability to consent to his or her
sterilization shall be sterilized pursuant to this chapter.
   (b) For the purposes of this chapter, the following terms have the
meanings given:
   (1) "Consent to sterilization" means making a voluntary decision
to undergo sterilization after being fully informed about, and after
fully understanding the nature and consequences of, sterilization.
   (2) "Voluntary" means performed while competent to make the
decision, and as a matter of free choice and will and not in response
to coercion, duress, or undue influence.
   (3) "Fully understanding the nature and consequences of
sterilization," includes, but is not limited to, the ability to
understand each of the following:
   (A) That the individual is free to withhold or withdraw consent to
the procedure at any time before the sterilization without affecting
the right to future care or treatment and without loss or withdrawal
of any publicly funded program benefits to which the individual
might be otherwise entitled.
   (B) Available alternative methods of family planning and birth
control.
   (C) That the sterilization procedure is considered to be
irreversible.
   (D) The specific sterilization procedure to be performed.
   (E) The discomforts and risks that may accompany or follow the
performing of the procedure, including an explanation of the type and
possible effects of any anesthetic to be used.
   (F) The benefits or advantages that may be expected as a result of
the sterilization.
   (G) The approximate length of the hospital stay.
   (H) The approximate length of time for recovery.
   (c) The court shall appoint a facilitator or interpreter if such a
person's assistance would enable the person named in the petition to
understand any of these factors.



1952.  The conservator of an adult, or any person authorized to file
a petition for the appointment of a conservator under paragraphs (2)
to (5), inclusive, of subdivision (a) of Section 1820, may file a
petition under this chapter for appointment of a limited conservator
authorized to consent to the sterilization of an adult with a
developmental disability. The content of the petition under this
chapter shall conform to the provisions of Section 1821 and in
addition allege that the person for whom sterilization is proposed
has a developmental disability as defined in Section 1420 and shall
allege specific reasons why court-authorized sterilization is deemed
necessary. A petition under this chapter shall be considered
separately from any contemporaneous petition for appointment of a
conservator under this division.



1953.  At least 90 days before the hearing on the petition under
this chapter, notice of the time and place of the hearing and a copy
of the petition shall be served on the person named in the petition
and, if the petitioner is not the conservator of the person, on the
conservator, if any. Service shall be made in the manner provided in
Section 415.10 or Section 415.30 of the Code of Civil Procedure or in
such manner as may be authorized by the court.



1954.  In any proceeding under this chapter, if the person named in
the petition for court authorization to consent to sterilization has
not retained legal counsel and does not plan to retain legal counsel,
the court shall immediately appoint the public defender or private
counsel to represent the individual for whom sterilization is
proposed. Counsel shall undertake the representation with the
presumption that the individual opposes the petition.



1954.5.  (a) The court shall appoint a facilitator for the person
named in the petition, who shall assist the person named in the
petition to do all of the following:
   (1) Understand the nature of the proceedings.
   (2) Understand the evaluation process required by Section 1955.
   (3) Communicate his or her views.
   (4) Participate as fully as possible in the proceedings.
   (b) All of the following factors shall be considered by the court
in appointing a facilitator:
   (1) The preference of the person named in the petition.
   (2) The proposed facilitator's personal knowledge of the person
named in the petition.
   (3) The proposed facilitator's ability to communicate with the
person named in the petition, when that person is nonverbal, has
limited verbal skills, or relies on alternative modes of
communication.
   (4) The proposed facilitator's knowledge of the developmental
disabilities service system.
   (c) The petitioner may not be appointed as the facilitator.



1955.  (a) The court shall request the director of the appropriate
regional center for the developmentally disabled to coordinate an
investigation and prepare and file a written report thereon. The
appropriate regional center for purposes of this section is (1) the
regional center of which the person named in the petition is a
client, (2) if the individual named in the petition is not a client
of any regional center, the regional center responsible for the area
in which the individual is then living, or (3) such other regional
center as may be in the best interests of the individual. The report
shall be based upon comprehensive medical, psychological, and
sociosexual evaluations of the individual conducted pursuant to
subdivisions (b) and (c), and shall address, but shall not be limited
to, each of the factors listed in Section 1958. A copy of the report
shall be provided to each of the parties at least 15 days prior to
the hearing.
   (b) Prior to the hearing on the issue of sterilization, the person
who is proposed to be sterilized shall be personally examined by two
physicians, one of whom shall be a surgeon competent to perform the
procedure, and one psychologist or clinical social worker, each of
whom has been mutually agreed to by the petitioner and counsel for
the person named in the petition or, if agreement is not reached,
appointed by the court from a panel of qualified professionals. At
the request of counsel for the person named in the petition, the
court shall appoint one additional psychologist, clinical social
worker, or physician named by counsel. Any psychologist or clinical
social worker and, to the extent feasible, any physicians conducting
an examination shall have had experience with persons who have
developmental disabilities. To the extent feasible, each of the
examiners shall also have knowledge and experience relating to
sociosexual skills and behavior. The examinations shall be at county
expense subject to Section 1963.
   (c) The examiners shall consider all available alternatives to
sterilization and shall recommend sterilization only if no suitable
alternative is available. Each examiner shall prepare a written,
comprehensive report containing all relevant aspects of the person's
medical, psychological, family, and sociosexual conditions. Each
examiner shall address those factors specified in Section 1958
related to his or her particular area of expertise. In considering
the factors in subdivision (a) of, and paragraph (1) of subdivision
(d) of, Section 1958, each examiner shall include information
regarding the intensity, extent, and recentness of the person's
education and training, if any, regarding human sexuality, including
birth control methods and parenting skills, and in addition, shall
consider whether the individual would benefit from training provided
by persons competent in education and training of persons with
comparable intellectual impairments. If an examiner recommends
against sterilization, the examiner shall set forth in his or her
report available alternatives, including, as warranted,
recommendations for sex education, parent training, or training in
the use of alternative methods of contraception. Copies of each
report shall be furnished at least 30 days prior to the hearing on
the petition to the person or persons who filed the petition, the
conservator, if any, and counsel for the person proposed to be
sterilized, the regional center responsible for the investigation and
report required under this section, and such other persons as the
court may direct. The court may receive these reports in evidence.
   (d) The contents of the reports prepared pursuant to this section
shall be confidential. Upon judgment in the action or the proceeding
becoming final, the court shall order the contents of the reports
sealed.
   (e) Regional centers for the developmentally disabled shall
compile and maintain lists of persons competent to perform the
examinations required by this section. These lists shall be provided
to the court. If the person named in the petition resides at a state
hospital or other residential care facility, no person conducting an
examination pursuant to subdivision (b) shall be an employee of the
facility.
   (f) Any party to the proceedings has the right to submit
additional reports from qualified experts.
   (g) Any person who has written a report received in evidence may
be subpoenaed and questioned by any party to the proceedings or by
the court and when so called is subject to all rules of evidence
including those of legal objections as to the qualification of expert
witnesses.
   (h) No regional center or person acting in his or her capacity as
a regional center employee may file a petition under Section 1952.



1956.  The person to whom the petition applies shall be present at
the hearing except for reason of medical inability. Emotional or
psychological instability is not good cause for the absence of the
proposed conservatee from the hearing unless, by reason of the
instability, attendance at the hearing is likely to cause serious and
immediate physiological damage to the proposed conservatee.



1957.  To the greatest extent possible, the court shall elicit and
take into account the views of the individual for whom sterilization
is proposed in determining whether sterilization is to be authorized.



1958.  The court may authorize the conservator of a person proposed
to be sterilized to consent to the sterilization of that person only
if the court finds that the petitioner has established all of the
following beyond a reasonable doubt:
   (a) The person named in the petition is incapable of giving
consent to sterilization, as defined in Section 1951, and the
incapacity is in all likelihood permanent.
   (b) Based on reasonable medical evidence, the individual is
fertile and capable of procreation.
   (c) The individual is capable of engaging in, and is likely to
engage in sexual activity at the present or in the near future under
circumstances likely to result in pregnancy.
   (d) Either of the following:
   (1) The nature and extent of the individual's disability as
determined by empirical evidence and not solely on the basis of any
standardized test, renders him or her permanently incapable of caring
for a child, even with appropriate training and reasonable
assistance.
   (2) Due to a medical condition, pregnancy or childbirth would pose
a substantially elevated risk to the life of the individual to such
a degree that, in the absence of other appropriate methods of
contraception, sterilization would be deemed medically necessary for
an otherwise nondisabled woman under similar circumstances.
   (e) All less invasive contraceptive methods including supervision
are unworkable even with training and assistance, inapplicable, or
medically contraindicated. Isolation and segregation shall not be
considered as less invasive means of contraception.
   (f) The proposed method of sterilization entails the least
invasion of the body of the individual.
   (g) The current state of scientific and medical knowledge does not
suggest either (1) that a reversible sterilization procedure or
other less drastic contraceptive method will shortly be available, or
(2) that science is on the threshold of an advance in the treatment
of the individual's disability.
   (h) The person named in the petition has not made a knowing
objection to his or her sterilization. For purposes of this
subdivision, an individual may be found to have knowingly objected to
his or her sterilization notwithstanding his or her inability to
give consent to sterilization as defined in Section 1951. In the case
of persons who are nonverbal, have limited verbal ability to
communicate, or who rely on alternative modes of communication, the
court shall ensure that adequate effort has been made to elicit the
actual views of the individual by the facilitator appointed pursuant
to Section 1954.5, or by any other person with experience in
communicating with developmentally disabled persons who communicate
using similar means.



1959.  The fact that, due to the nature or severity of his or her
disability, a person for whom an authorization to consent to
sterilization is sought may be vulnerable to sexual conduct by others
that would be deemed unlawful, shall not be considered by the court
in determining whether sterilization is to be authorized under this
chapter.



1960.  If the person named in the petition already has a
conservator, the court may authorize that person to consent to
sterilization or may appoint another person as limited conservator
under the provisions of this chapter. The court shall ensure that the
person or agency designated as conservator under this chapter is
capable of adequately representing and safeguarding the interests of
the conservatee.



1961.  A sterilization procedure authorized under this chapter shall
not include hysterectomy or castration. However, if the report
prepared under Section 1955 indicates that hysterectomy or castration
is a medically necessary treatment, regardless of the need for
sterilization, the court shall proceed pursuant to Section 2357.




1962.  (a) Any court order granting a petition under this chapter
shall be accompanied by a written statement of decision pursuant to
Section 632 of the Code of Civil Procedure detailing the factual and
legal bases for the court's determination on each of the findings
required under Section 1958.
   (b) When a judgment authorizing the conservator of a person to
consent to the sterilization is rendered, an appeal is automatically
taken by the person proposed to be sterilized without any action by
that person, or by his or her counsel. The Judicial Council shall
provide by rule for notice of and procedure for the appeal. The
appeal shall have precedence over other cases in the court in which
the appeal is pending.



1963.  (a) At the conclusion of the hearing, the court, after
inquiring into financial ability, may make an order based upon their
ability that any one or more of the following persons pay court costs
and fees in whole or in part as in the opinion of the court is
proper and in any installments and manner which is both reasonable
and compatible with ability to pay:
   (1) The person to whom the petition applies.
   (2) The petitioner.
   (3) Any person liable for the support and maintenance of the
person to whom the petition applies.
   (b) An order under subdivision (a) may be enforced in the same
manner as a money judgment.
   (c) For the purposes of this section, court costs and fees include
the costs of any examination or investigation ordered by the court,
expert witnesses' fees, and the costs and fees of the court-appointed
public defender or private counsel representing the person to whom
the petition applies.
   (d) Any fees and costs not ordered to be paid by persons under
subdivision (a) are a charge against and paid out of the treasury of
the county on order of the court.



1964.  An order of the court authorizing a conservator to consent to
sterilization which is upheld on appeal automatically expires in one
year from the final determination on appeal unless earlier
terminated by the court. A conservatorship established for the sole
purpose of authorizing a conservator to consent to sterilization
under this chapter shall automatically terminate upon completion of
the sterilization procedure or upon expiration of the court's order
authorizing the conservator to consent to sterilization, whichever
occurs first. If, upon the expiration of the court's order under this
chapter, the person named as conservator determines that the
conservatorship is still required for the purpose of this chapter, he
or she may petition the court for reappointment as conservator for a
succeeding six-month period upon a showing of good cause as to why
any sterilization authorized by the court has not been completed.



1965.  Any court order made pursuant to this chapter granting
authority to consent to sterilization shall be stayed pending a final
determination on appeal.


1966.  After the filing of a first petition for sterilization
pursuant to this chapter and a determination by the court that any
one or more of the conditions required in Section 1958 has not been
proven beyond a reasonable doubt, and that therefore authorization
for the proposed sterilization should not be given by the court, a
subsequent petition may be filed only on the showing of a material
change in circumstances.



1967.  (a) The sterilization of a person in accordance with this
chapter does not render the petitioner or any person participating in
the conservatorship proceedings or sterilization liable, either
civilly or criminally, except for any injury caused by negligent or
willful misconduct in the performance of the sterilization.
   (b) Notwithstanding the provisions of subdivision (a), any
individual who petitions for authorization to consent to
sterilization knowing that the person to whom the petition relates is
capable of giving consent to sterilization as defined in Section
1951 is guilty of a misdemeanor, and may be civilly liable to the
person concerning whom sterilization was sought.



1968.  This chapter does not prohibit medical treatment or surgery
required for other medical reasons and in which sterilization is an
unavoidable or medically probable consequence, but is not the object
of the treatment or surgery.


1969.  Nothing in this chapter shall infringe on the right of
persons with developmental disabilities who are capable of giving
consent to sterilization to give that consent without the necessity
of a court order or substitute decisionmaker.