Cross references. Commitment and treatment of mentally retarded persons, see 8820 et seq. of this title. Protective services for mentally retarded persons, see 8601 et seq. of Title 83.

Purpose. The chapter was not limited in purpose to preventing the birth of a new generation of persons mentally defective on account of genetically transmissible impairments; its reference to “the welfare of those persons likely to procreate” showed that it was concerned with the welfare of the person whose sterilization was contemplated. In re Marcia R. (1978) 186 Vt. 47, 383 A.2d 630.

2. Application. The chapter was applicable whenever sterilization of the mentally detective and mentally ill was to be undertaken. In re Marcia U. (1978) 136 Vt 47. 383 A.2d 630. Mentally retarded persons were within the concern of this chapter. Id.

(a) It is the policy of the state of Vermont to allow voluntary and involuntary sterilizations of mentally retarded adults under circumstances which will ensure that the best interests and rights of such persons are fully protected. In accordance with this policy, no mentally retarded person, as defined by section 7101(12) of this title, may be sterilized without his or her consent unless there is a prior hearing in the superior court as provided in this chapter. No mentally retarded person under the age of eighteen may be sterilized.

(b) Sterilization is defined to mean a surgical procedure, the purpose of which is to render an individual incapable of procreating.—Added 1981, No. 142 (Adj. Sess.), 1.

Any mentally retarded person over the age of eighteen, who does not have either a guardian or protective services worker with the power to consent to nonemergency surgery, may obtain a voluntary sterilization subject to all of the following preconditions: (1) the mentally retarded person has freely, voluntarily and without coercion, personally requested a physician to perform a sterilization; and (2) the mentally retarded person has given informed consent to the sterilization in that: (A) the physician has provided a complete explanation concerning: (i) the nature and irreversible consequences of a sterilization procedure, and (ii) the availability of alternative contraceptive measures; (B) the physician is satisfied that the consent is based upon an understanding of that information and that before the operation is undertaken the physician personally obtains evidence of the person’s retention of that understanding, not less than 10 days following the original explanation; ) the consent is in writing and signed by the mentally retarded person; (3) the mentally retarded person has been informed and is aware that his consent may be withdrawn at any time prior to the operation; (4) the physician has reviewed medical records and psychological assessments of the mentally retarded person.—Added 1981, No. 142 (Adj. Sess.), 1.

(a)(l) If the physician from whom the sterilization has been sought refuses to perform the sterilization because he is not satisfied that the mentally retarded person has the ability to give the informed consent required by section 8706 of this title, the mentally retarded person may file a petition in superior court for a determination of the person’s competency to consent to the sterilization. (2) The petition shall set forth the information required by section 8709(b)(l)‐(5) of this title. (3) Upon filing of the petition the court shall appoint a qualified mental retardation professional as defined in section 8821(8) of this title to examine the mentally retarded person and present evidence to the court as to that person’s ability to give informed consent.The hearing shall be limited to a determination of the mentally retarded person’s competency to consent to a sterilization, and shall be conducted in accordance with sections 8709(c), 8710, and 8711(a) and (b) of this title. (b)(l) If, after the hearing, the court determines on the basis of clear and convincing proof that the mentally retarded person is competent to consent and has given the required consent, it shall order that a voluntary sterilization may be performed. (2) If the court determines that the mentally retarded person is not competent to give consent it shall inform the person that he has the right to petition the court for an involuntary sterilization pursuant to the requirements of section 8708 of this title.—Added 1981, No. 142 (Adj. Sess.), 1.

(a) Any sterilization sought on behalf of a mentally retarded person or requested by any person denied a voluntary sterilization by section 8707 of this title shall be considered an involuntary sterilization. (b) Involuntary sterilizations may be performed only after a hearing in the superior court pursuant to sections 8709—8712 of this title. For the purposes of involuntary sterilization proceedings under this chapter, the mentally retarded person subject to a petition for sterilization shall be defined as the respondent.—Added 1981, No. 142 (Adj. Sess.), 1.

(a) Any mentally retarded adult, his or her parent, private guardian, near relative, as defined in section 8821 of this title, or physician, may file a petition in the superior court alleging that the person is mentally retarded and in need of sterilization. (b) The petition shall set forth: (1) the name, age and residence of the person to be sterilized; (2) the names and addresses of the petitioner and parents, guardians, spouse and nearest relative of said person; (3) the mental condition of said person; (4) a statement of said person’s ability to give informed consent to the sterilization; (5) said person’s ability to pay for legal counsel; (6) the relation of said person to the petitioner; (7) the reasons and supporting facts why sterilization is in the best interest of said person. (c) Upon filing of the petition the court shall fix a time and place for the hearing not more than 45 days from the receipt of the petition. Not less than 20 days prior to the date set for the hearing, the court shall cause petitioner to serve respondent with the petition and notice of hearing. The court shall also mail a copy of the petition and notice of hearing to respondent’s counsel, his legal guardian and nearest relative.—Added 1981, No. 142 (Adj. Sess.), 1.

The respondent shall be represented by counsel throughout the proceeding. Upon filing of the petition the court shall notify the respondent that he shall be afforded the right to counsel. If the petition states that the respondent is unable to pay for counsel, the court shall appoint counsel to be paid by the state or set a hearing for a determination of respondent’s ability to pay for counsel. The court may also require appointment of a guardian ad litem to represent the interest of the respondent. Counsel shall receive copies of the comprehensive evaluations required by section 8711(d) of this title and such other documents as may be received and issued by the court.—Added 1981, No. 142 (Adj. Sess.), 1.

(a) The respondent, the petitioner and all other persons to whom notice has been sent may attend the hearing, testify, present evidence and subpoena, present and cross‐examine witnesses, including those who prepared the comprehensive evaluation. The court may exclude any person not necessary for the conduct of the hearing. (b) The hearing shall be conducted according to the rules of evidence applicable in civil actions in the superior courts of the state and to an extent not inconsistent with this chapter, the rules of civil procedure of the state shall be applicable. c) The court shall determine the following: (1) whether the respondent is mentally retarded; (2) whether the respondent is competent to give informed consent as defined in section 8706 of this title; and (3) if the court determines that the respondent is not competent to give informed consent, whether a sterilization is in the best interests of the respondent by considering the following factors: (A) that the respondent is physically capable of conceiving a child; (B) that the respondent is likely to engage in sexual activity at present or in the near future under circumstances which may result in pregnancy; (C) that the nature of the respondent’s disability renders the respondent incapable now or in the future of caring for a child; (D) that the respondent’s disability is not likely to improve, nor does medical knowledge exist to establish that an advance in treatment of the disability is likely; and (E) that no effective, less drastic alternative to sterilization is medically indicated which will meet the needs of the respondent. (d) The court shall order the commissioner of mental health to arrange for the preparation of a comprehensive medical, psychological and social evaluation of the person through community mental health agencies affiliated with the department. The comprehensive evaluation shall be completed within thirty days of the receipt of the petition. The medical report shall be prepared by a physician and shall describe the physical condition of the respondent and the availability of effective alternative contraceptive measures to meet the needs of the person. The psychological report shall include a diagnosis of the person’s intellectual ability and social functioning. The social report shall be prepared by a qualified mental retardation professional, and shall describe the respondent’s developmental and social functioning. (e) The petitioner shall have the burden of proving the elements of the petition by clear and convincing evidence. (f) The evaluation shall be received into evidence, if the persons who prepared the evaluation are available for the hearing or subject to service of subpoena. However, the court shall not be bound by the evidence contained in the evaluation, but shall make its determination upon the entire record.—Added 1981, No. 142 (Adj. Sess.), 1.

(a) The court shall prepare written findings of fact and state separately its conclusions of law in all cases. (b) If upon completion of the hearing and consideration of the record the court finds that the mentally retarded person is competent to give informed consent and no such consent has been given, no sterilization may be ordered. If upon completion of the hearing and consideration of the record the court finds that the person is incompetent to consent and that the sterilization is in the best interests of the person, it shall order that an involuntary sterilization may be performed.—Added 1981, No. 142 (Adj. Sess.), 1.

All proceedings under this chapter shall be closed to the public, and the records shall be sealed unless requested to be opened by the respondent.—Added 1981, No. 142 (Adj. Sess.), 1.

(a) Any party to the proceeding shall have the right to appeal from a judgment issued pursuant to this chapter within 30 days of the judgment pursuant to the Vermont rules of appellate procedure. (b) If the court has issued a judgment allowing sterilization, the judgment shall not become final for thirty days. An appeal of such a judgment shall operate as a stay of the order during the pendency of the appeal or during the pendency of any further appeal to the United States Supreme Court.—Added 1981, No. 142 (Adj. Sess.), 1.

(a) Sterilizations performed pursuant to this chapter shall be legal and no person shall be civilly or criminally liable for performing a sterilization pursuant to such order of the court; provided, however, that the provisions of this chapter shall not affect any liability which may be incurred as a consequence of the manner in which such sterilization operation is performed. (b) The cost of evaluations required by sections 8707 and 8709 of this title shall be paid for out of appropriations of the department of mental health.—Added 1981, No. 142 (Adj. Sess.), 1.

The superior court shall have exclusive original jurisdiction over all proceedings brought under this chapter. Proceedings under this chapter shall be commenced in the superior court of the county in which the mentally retarded person resides.—Added 1981, No. 142 (Adj. Sess.), 1.