Colorado § 25.5-10-231 - Sterilization rights - legislative intent.

§ 25.5-10-231. Sterilization rights - legislative intent.

(1) It is the intent of the general assembly that the consent required in subsection (2) of this section applies to any person with an intellectual and developmental disability when sterilization is being considered for the primary purpose of rendering the person incapable of reproduction.

(2) A person with an intellectual and developmental disability who has decision-making capacity shall not be sterilized in the absence of the person's informed consent. A person with an intellectual and developmental disability who lacks decision-making capacity shall not be sterilized in the absence of the person's informed consent except in circumstances where the decision is made in accordance with a process, requirements, or limitations set forth in article 14 of title 15 or any other applicable law or court order.

Source: L. 2013: Entire article added with relocations, (HB 13-1314), ch. 323, p. 1777, § 1, effective March 1, 2014. L. 2026: Entire section amended, (HB 26-1040), ch. 27, p. 124, § 1, effective August 12.

Editor's note: This section is similar to former § 27-10.5-128 as it existed prior to 2013.

ANNOTATION

Law reviews. For article, "Involuntary Sterilization of Retarded Minors in Colorado", see 11 Colo. Law. 421 (1982). For article, "Cruzan: The Right to Die, Parts I and II", see 19 Colo. Law. 2055 and 2237 (1990). For article, "In re Romero: Sterilization and Competency", see 68 Den. U. L. Rev. 105 (1991).

Annotator's note. Since § 25.5-10-231 is similar to § 27-10.5-128 as it existed prior to the 2013 amendment to parts 1, 4, and 5 of article 10.5 of title 27, which resulted in the relocation of provisions, a relevant case construing that provision has been included in the annotations to this section.

Constitutional rights extend to incompetents. The constitutionally-protected procreative alternatives available to competent adults must also extend where possible to individuals who are not mentally competent to make the choice for themselves. In re A.W., 637 P.2d 366 (Colo. 1981).

Sterilization sections not limited to competent adults. The general assembly did not intend §§ 27-10.5-128 through 27-10.5-132 to limit sterilizations to competently consenting adults. In re A.W., 637 P.2d 366 (Colo. 1981).

Court's power to act in absence of statutory authorization. A district court acting in its probate capacity has the power in the absence of statutory authorization to act on a petition for sterilization of a mentally retarded minor. In re A.W., 637 P.2d 366 (Colo. 1981).

A court's inherent parens patriae jurisdiction over incompetents may extend to decisions involving irrevocable consequences for the incompetent individual. In re A.W., 637 P.2d 366 (Colo. 1981).

Since statutory provisions concerning sterilization of mentally retarded persons do not address the issue of sterilization of a minor, it is within the district court's inherent authority to consider a petition for sterilization of a minor, and, in the absence of legislative pronouncement, it is proper and necessary for the supreme court to promulgate standards for determining the circumstances under which such a procedure may be performed. In re A.W., 637 P.2d 366 (Colo. 1981).

Preliminary determinations court must make. In considering a petition to sterilize a mentally retarded minor, the district court must make the following preliminary determinations. First, while the mentally retarded person need not testify or be present at the proceedings if the person's presence would serve no useful purpose, the trial judge should talk with the person and observe the person's physical and mental condition. The wishes of the person, although not conclusive, are relevant, and a strong indication that the person does not wish to be sterilized must weigh heavily against authorizing the procedure. Second, the district court must determine that the person's capacity to make a decision about sterilization is unlikely to improve in the future. Third, the person for whom sterilization is requested must be proven capable of reproduction. In re A.W., 637 P.2d 366 (Colo. 1981).

Sterilization of mentally retarded minor must be medically necessary. Once a district court determines preliminary matters relating to a petition to sterilize a mentally retarded minor, it must find by clear and convincing evidence that the sterilization is medically essential. A sterilization is medically essential if clearly necessary, in the opinion of experts, to preserve the life or physical or mental health of the mentally retarded person. In re A.W., 637 P.2d 366 (Colo. 1981).

For legislative history of provisions relating to sterilization, see In re A.W., 637 P.2d 366 (Colo. 1981).