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You will please be so kind as to pardon my excusable delay in answering your letter of June 18th concerning No. 174 of the Acts of 1931 entitled, "AN ACT FOR HUMAN BETTERMENT BY VOLUNTARY STERILIZATION." Homicide cases and other criminal matters have kept me fairly busy.
In answer to your first question, it is my opinion and I so advise, that the request of the natural or legal guardian of any minor must be obtained in writing on such required certificate, that such operation be performed.
Please bear in mind that Section 3635 of the General Laws, as amended by No. 84 of the
Acts of 1921 provides:
"The father and mother of a legitimate minor child shall, if competent be joint guardians of
such child. The surviving parent shall, if competent, become the sole guardian."
I, therefore, advise that the written request of both the father and mother of a minor child is necessary, provided there is no legal guardian. If there is a legal guardian, then, of course, his consent alone is all that the law requires.
In answer to your second question, please be advised that the Commissioner of Public Welfare as such, does not have the legal right to act as guardian of persons committed to State Institutions for the purposes of this Act.
In answer to your third question, I beg to state that, in my opinion, there is no civil or criminal liability on the part of Dr. Allen, or any operating surgeon, provided that this law is carried out in all particulars. It should always be remembered that a person at any time, even on the operating table, may change their mind and decide not to submit to such operation. The operation can only be performed, provided that all the requirements of the law are carried out and that the person VOLUNTARILY SUBMITS TO IT.
Your last question I answer by again advising that the request in writing of both the father and the mother of a minor child that such operation be performed is necessary, if there is no legal guardian. If one of the parents consents to the operation and the other objects, then I advise you not to permit the operation to be performed. In that case, I would suggest that a legal guardian be appointed and his request be obtained.
I trust this answers your inquiry and I have the honor to be