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Reference is made to your inquiry of November 26. You state in part as follows:
"At the request of the State Board of Mental Health, I am writing to obtain an interpretation of Section 5438 of the Public Laws which refers to the voluntary sterilization procedure. The point in question concerns whether a mentally defective person over twenty‐one years of age who has sufficient comprehension to understand the purposes of the sterilization operation can legally request an operation and sign the certificate against the opposition of parents or relatives. The following situation has arisen: we have a boy age twenty‐three who has now completed his training at the Brandon State School. He is definitely feeble‐minded with the intelligence on the level of an imbecile. He thoroughly understands the purposes and nature of the operation and that it will prevent him from having children. He has requested that such operation be performed but we have hesitated to do so because his father who is an ignorant feeble‐minded person has objected in writing.
In view of the fact that the boy is over twenty‐one and therefore legally responsible for his actions, we felt that it was not necessary to consider the wishes of his father who has never assumed and responsibility for his care. Incidentally there are three other feeble‐minded children also in this school and we feel that it would definitely be a menace to society if this boy was discharged without having the operation performed.
The steps which must be taken before this operation can lie performed are set forth in detail in Sections 5439 and 5440 of the Public Laws. For your convenience, these are quoted at length
"SEC. 5439. Examination amid certificate. When two physicians and surgeons legally
qualified to practice in the state, examine a person resident of the state, and decide:
I. That such person is an idiot, imbecile, feeble‐minded or insane person likely to procreate idiots, imbeciles, feeble‐minded or insane persons if not sexually sterilized
II. That the health and physical condition of such person will not be injured by the operation of vasectomy, if a male, or the operation of salpingectomy, if a female
III. That the welfare of such person amid the public welfare will he improved if such person is sterilized as aforesaid and
IV.Whether such person is or is not of sufficient intelligence to understand that he or she cannot beget children after such operation is performed and they make and sign duplicate certificates setting forth those facts avid make oath thereto before a justice of the peace or notary public.
"SEC. 5440; Same: operation. It shall he lawful for any other
physician and surgeon, legally qualified to practice in the state, when presented with such
certificate, to perform such operation. provided:
I. If he decides that the welfare of such person and the public welfare will be improved by such operation;
II. That such person has requested in writing, on such certificates, that such operation be performed, if the certificates show that such person is of sufficient intelligence to understand that he or she cannot beget children after such operation is performed; or
III. When the natural or legal guardian of such person has requested in writing on such certificates that such operation be performed, if the certificates show that such person is not of sufficient intelligence to understand that he or she cannot beget children after such operation is performed; and
IV. If such person voluntarily submits to such operation."
The steps to be taken I think logically fall in two categories. First, the subject must be examined by two physicians and surgeons, as mentioned in Section 5439, and from their examination, they must certify as provided in that section. The second step would be the operation which shall he performed by "any other physician and surgeon" who, on his part, must make certain findings, as mentioned in Section 5440. If he decides that the welfare of the subject and the public welfare will be improved by this operation, as mentioned in Subdivision I of Section 5440, and further has a request in writing from the subject, and the certificates show that the subject is of sufficient intelligence to understand the nature of the operation, then this other doctor may thereupon perform such operation.
It is only in case of the lack of sufficient intelligence on the part of the subject to understand the nature of the operation that the consent or request of a natural or legal guardian is required.
I call your attention particularly to the fact that Subdivisions II and III of Section 5440 are in the alternative, Subdivision II to apply in the event the subject is of sufficient intelligence to understand the nature of the operation, and Subdivision III if he does not have such level of intelligence.
Assuming that the subject of whom you write does have the requisite degree of intelligence and the other provisions of the statute are complied with, the fact that the subject's father has registered an objection to this operation is no legal impediment for having the same performed.