Sterilization and public policy




REPRINTED by the FAMILY LIFE BUREAU
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with permission of the author. Originally published in 1963 as

Chapter Four of the book entitled LIFE, DEATH AND THE
LAW.

March 1965

(



Sterilization
and Public Policy

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Reverend Harry A. Echle
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Patrick A. O’Boyle

Archbishop of Washington

February 3, 1965

Reprinted in its present form

by the FAMILY LIFE BUREAU, NCWC
March 1965

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Human Sterilization

Sterilization of human beings is a surgical operation which deprives

a man or woman of the ability to procreate. Unlike castration it in

no way desexes the individual, nor does it preclude participation in

sexual intercourse. Its one indubitable physiological effect is to pre-

vent the conception of children. Various sterilizing techniques have

been developed by medical science, but those most commonly em-

ployed are salpingectomy for the female, and vasectomy for the male.

Salpingectomy prevents conception by cutting or tying the Fallopian

tubes between the ovaries and the womb. Vasectomy is an even

simpler operation, which by ligating and resecting a small portion

of the vas deferens, cuts off a portion of the seminal fluid and

renders it sterile. Reversal is a theoretical possibility, but in practice

it cannot always be brought about . 1 Other methods of sterilization

such as oophorectomy (removal of the ovaries), of hysterectomy

(removal of the womb), are irreversible in all cases.

Sterilization may be employed for a number of purposes. Thera-

peutic sterilization is performed for health reasons, the most com-

mon subjects being women for whom a further pregnancy would
prove dangerous. Eugenic sterilization is performed as a means of

racial improvement, to prevent the birth of physically deformed or

mentally abnormal children. Sterilization has also been employed as

a punitive measure in connection with sexual offenders. Its use may

be purely contraceptive when an individual or couple for reasons of

personal convenience wish to avoid conception of children. Finally,

sterilization may be indirect, when it results unintentionally from an

operation performed to preserve life or health for other reasons.

As an organized movement, sterilization has been closely con-

nected with eugenics, a science founded by Sir Francis Galton in the

latter part of the nineteenth century to study the influences that

1 See V. J. O’Connor, Journal of the American Medical Association 136:162

(1948), who reports a successful reversal rate of only 35-40 per cent.

3



improve the inborn qualities of a race, and those which develop

them to the greatest advantage. The United States has taken the

lead in developing sterilization techniques and their implementation

by the law. Vasectomy was perfected in 1889 by Harry C. Sharpe of

the Indiana State Reformatory, and after unsuccessful attempts to

pass sterilization statutes in Michigan and Pennsylvania, the first

act became law in Indiana in 1907. Since that date thirty-three

States at different times have had sterilization statutes in force. In

1926 the Human Betterment Foundation was established in New
York with a principal purpose of furthering eugenic sterilization.

In Nazi Germany a comprehensive sterilization statute was passed

in 1933, and in its first year of operation 56,244 sterilizations were

ordered. 1 In England, a departmental committee was appointed in

June 1932, “to examine and report on the information already

available regarding the hereditary transmission and other causes of

mental disorder and deficiency: to consider the value of sterilization

as a preventive measure, having regard to its physical, psychological

and social effects and to the experience of legislation in other coun-

tries permitting it: and to suggest what further enquiries might

usefully be undertaken in this connection”. The Committee in its

Report, presented in 1934, recommended the legalizing of volun-

tary sterilization.
2 This recommendation has not been implemented.

STERILIZATION AT COMMON LAW
In the absence of statutory authorization, compulsory sterilization

is clearly a criminal offence at common law. Is voluntary steriliza-

tion a crime? Therapeutic sterilization, performed to save a patient’s

life or to benefit his health, is legally unobjectionable. In 1934 the

Supreme Court of Minnesota affirmed that such an operation is not

against public policy and that medical necessity constituted ade-

quate grounds for its performance. 3 A similar decision was arrived

1 Eugenics Review, 29:9 (1937-8).
2
1934. Cmd. 4485. The Report is known from the name of its chairman as

“The Brock Report”.
3 Christensen v. Thornby, 255 N.W. 620 (Minn. 1934). The plaintiff’s wife

having been advised that her life would be endangered by bearing another child,

her husband agreed to the performance of a vasectomy upon himself. The wife
later became pregnant and the doctor was sued for failure to secure sterility.

4



at in a Californian case of 1952, where a doctor in the course of an

operation discovered that his patient’s Fallopian tubes were in-

fected and removed the diseased portions. Judgment for the doctor

was upheld on appeal. 1

Where sterilization is carried out for eugenic or contraceptive

purposes the common law position is obscure. It is well established

that no one has the right to consent to the infliction of bodily harm

on himself amounting to a maim, unless he has a just cause or ex-

cuse. Thus Lord Coke records a case at Leicester in 1604 where a

“young strong and lustie rogue, to make himselfe impotent, thereby

to have the more colour to begge or to be relieved without putting

himself to any labour, caused his companion to strike off his left

hand”. 2 Both were found guilty of a criminal offence and fined. Is

sterilization a maim? Castration was explicitly held to be a maim3

and if it is equated with sterilization the question is answered. Dr

Glanville Williams denies that sterilization is a maim, pointing out

that the essence of a maim was that it lessened a person’s ability to

fight, and the belief that castration had this effect led to its classifi-

cation under this heading. 4 Sterilization has no such effect and there-

fore should not be held a maim. Another jurist has pointed out that

the law of maim did not apply to women and would still be in-
applicable today. 6

Even if sterilization is not a maim the question is not disposed of,

for sterilization might well be classified as an assault and battery,

and here again consent without a justifying cause is no defence.

In Bravery v. Bravery
,
a Court of Appeal case of 1954, Lord

Justice Denning stated obiter that sterilization came within this

A demurrer to the complaint was sustained. The wife survived the pregnancy.
For a discussion of what constitutes “medical necessity” see James V. Campbell,

Western Journal of Surgery, 58:371 (1950).
1 Danielson v. Roche et al. 241 Pac. 2d. 1028 (Calif. App. 1952).
2 Co. Litt. 127a and 127b: 1 Hawk. P.C. 108.
3
I Hawk. P.C. 107.

4 The Sanctity of Life and the Criminal Law, p. 104.
5 See L. Minty, Medico-Legal Journal

, 24:54 (1956). Stephen in his Digest

defines a maim as “bodily harm whereby a man is deprived of the use of any
member of his body or of any sense which he can use in fighting, or by the loss
of which he is generally and permanently weakened, but a bodily injury is not

a maim merely because it is a disfigurement”. See Article 290 (7th ed., London
1926).

5



definition. “Take a case where a sterilization operation is done so as

to enable a man to have the pleasure of sexual intercourse without
shouldering the responsibilities attaching to it,” said Lord Denning.

“The operation then is plainly injurious to the public interest. It is

degrading to the man himself. It is injurious to his wife and to any
woman he may marry, to say nothing of the way it opens to licen-
tiousness; and unlike contraceptives, it allows no room for a change

of mind on either side. It is illegal, even though the man consents to
it . . T 1 No judicial statement has been made on the validity of a
consent given for a sterilization operation on eugenic grounds, apart

from a remark made obiter by Lord Denning in Bravery v. Bravery
,

that sterilization to prevent transmission of an hereditary disease

would be lawful. 2 Dr Glanville Williams also opines that voluntary
eugenical sterilization is legitimate. 3 The Brock Committee, on the

other hand, concluded that eugenic sterilization of mental defectives

was legal but not that of normal persons. The position at common
law would seem to be that therapeutic sterilization is lawful, contra-

ceptive sterilization is unlawful, and the position of eugenic steriliza-

tion is doubtful. If the patient dies as a result of an unlawful

sterilization operation, the physician is guilty of manslaughter.

Consent may be irrelevant to the criminal liability of the surgeon,

but it is of importance in any civil litigation. If both spouses con-

sent to the operation, no tort action will lie on the principle of

volenti nonfit iniuria. If, on the other hand, only one spouse consents

and there are no grave medical reasons for the operation, then the

physician is in danger of a suit from the other spouse for inter-

ference with marital rights. There is no case directly in point, but in

Murray v. McMurchy
,

a Canadian case of 1949, 3,000 dollars

1 Bravery v. Bravery
, 1954, 3 All E.R. 59, at p. 68. The other two judges

left the question open.
2 The lawfulness of eugenical sterilization of mental defectives at common

law is supported by the Baltimore case, Ex parte Eaton (Baltimore City Circuit
Court, 1954). Baltimore has no sterilization statute but a decree was issued

ordering the sterilization of Georgia Eaton on petition of her husband, relatives,

and Incompetent Committee. Two Catholic lawyers intervened as amici curiae
to procure rescinding of the decree on grounds of public policy but their applica-

tion was denied.
3 Op. cit., p. 106. Cf. For an opposite opinion Wharton, Criminal Law,

1 2th edition, sec. 182. “Consent cannot cure such operations on women as
prevent them from having children.”

6



damages were awarded to a woman, whose surgeon performed a

sterilization during a caesarian operation . 1 The husband had con-

sented to the operation and “any further surgical procedure found

necessary by the attending physician”. On the facts, the Court held
that such a drastic operation without express consent was not

justifiable. Sterilization by one spouse without the consent of the

other and without serious medical cause would be a ground for

dissolution of marriage, and could be equated with cruelty or

treated as constructive desertion . 2

Many States in the United States have sterilization statutes
providing for the compulsory sterilization of mental defectives and

others, and the existence of such statutes may affect public policy, so

that it would favour voluntary sterilization, at any rate on eugenic

grounds. Some of the statutes contain a provision stating that nothing

in the statute shall prevent a sterilization being performed for thera-

peutic reasons . 3 Other States, while allowing a defence of medical

necessity, forbid any form of sterilization other than that authorized

by the statute, under pain of fine and imprisonment . 4

1 British Columbia Supreme Court (1949), Dom. L.R. 442, vol. 2. In England
the medical defence unions decline to indemnify surgeons for performing

sterilization operations. For full discussion, see H. W. Smith, “Antecedent
Grounds of Liability in the Practice of Surgery”. Rocky Mt. L. R. 14:233 at

276-84 (1942), also Richard C. Donnelly, “Liability of Physicians for Steriliza-

tion in Virginia”, Virg. Med. Monthly, 78:25 (January 1951).
2 For cruelty, see remarks of Sir Raymond Evershed and Lord Justice

Hodson in Bravery v. Bravery
,
at p. 61. See also Kreyling v. Kreyling, 23 Atl. 2d.

800 (1942). For desertion, see H.R.H. “Sterilization as ground for the dissolu-

tion of marriage”, South African Law Journal, 72:198 (May 1955). “Since the
act in itself is evidence of an intention to put an end to the normal marital

relationship, it is submitted that the other spouse would be entitled to a divorce

on the ground of constructive desertion”, at p. 201. See also Cackett v. Cackett

(1950), p. 253.

3 E.g. Arizona, Mississippi. See Appendix V for these and others.
4 Connecticut, Kansas, and Utah statutes contain such provisions. See

Appendix V. In those States forbidding birth control, contraceptive sterilization

would presumably be against public policy. In 1938 a New York Court refused
to grant a licence to exhibit a film dealing (unfavourably) with sterilization, the

judge describing it as “an illegal practice, which is, as a matter of common
knowledge, immoral and reprehensible according to the standards of a very

large part of the citizenry of the State”. The decision was reached by a majority
of 3 to 2. Foy v. Graves, 3 N.Y.S. 2d. 573 (1938).

7



STERILIZATION STATUTES

No sterilization statute exists in England, but in twenty-eight of the
American States sterilization statutes are in force. Sterilization is

not dealt with directly by federal law. All these statutes have a

eugenic purpose and are designed to restrict the spread of insanity,

mental deficiency, feeble mindedness, epilepsy etc., through pre-

venting the birth of children from parents suffering from these

afflictions. Some declare that their purpose is also to benefit the

health and well being of the sterilized person, both directly and by

enabling him to be released from his institution. Vasectomy for

males and salpingectomy for females are the operations most

generally authorized or recommended, although other techniques

such as the irradiation of the gonads may be employed. Castration is

expressly excluded in one State, West Virginia, and authorized in

another, Nebraska. The Nebraska provision applies to male inmates

of certain named institutions who have been committed for rape,

incest, and crimes against nature . 1 It is the only example in the

sterilization statutes of an obviously punitive provision.

In twenty-three States sterilization is compulsory and the consent

of the defective person is not required. In two, it is voluntary and the

consent of the person, his spouse or guardian, is a necessary con-

dition of performing the operation. Three States provide both

voluntary and compulsory procedures. In fourteen States the com-

pulsory provisions are mandatory and in twelve permissive. Appli-

cation of the laws is limited to the inmates of designated insti-

tutions in twenty States, but in eight they also cover defectives and

others who are at large. Six distinct classes of persons who may be

sterilized are covered by the statutes. The feeble minded are in-

cluded in all statutes and the insane in the majority. Two-thirds of

the statutes designate epileptics as subjects for sterilization, and

over one-third include criminals. Moral degenerates and sexual

perverts are mentioned in one quarter of the statutes, and one State,

Georgia, provides for sterilization of those suffering from physical

disease.

1 See Appendix V.
2 For a complete chart of this and other classifications, see Appendix IV.

8



In most States the sterilization procedure is set in motion by the

head of the institution where the person is confined. Administrative

boards rather than judicial tribunals make the decisions to sterilize.

In six States special eugenic boards have been set up. In most States

the person to be sterilized must be served with notice of the proposal

and is entitled to appear at the hearing where he has a right to be

heard. 1 Appeal to the courts is provided for in the majority of States. 2

STERILIZATION AND CONSTITUTIONAL
RIGHTS

Until 1925 all sterilization statutes challenged in the courts were

held unconstitutional, but in that year the Supreme Court of Michi-

gan upheld the State statute, although the sterilization order was

vacated.

3

In the same year, the Virginia Supreme Court of Appeals,

upheld the validity of the Virginia sterilization statute in the case of

Buck v. Bell* The point was taken to the Supreme Court of the

United States and the judgment affirmed by Justice Oliver Wendell

Holmes in 1927. 5 From that date until 1942 judicial policy favoured
sterilization statutes, but in that year the Supreme Court in Skinner

v. Oklahoma held that the Oklahoma statute violated the equal

protection clause of the 14th amendment. Since the decision in that

case the constitutionality of all the sterilization statutes has been in

some doubt. 6

I. The Police Power

The first question which must be answered is whether sterilization

for eugenic purposes is wrong in principle and violates the funda-

mental rights to life, liberty and the pursuit of happiness enunciated

in the Declaration of Independence. Or, to put the question the other

1 States without such provisions include Alabama, Connecticut, Delaware,

Maine and Oregon. In Maine and Oregon, rights of appeal are granted. In
Wisconsin, notice of the finding of the Board must be given but there is no right
to appear at the hearing. See Appendix V.

2 Alabama, Connecticut, Delaware and Wisconsin confer no right of appeal.

See Appendix V.
3 Smith v. Command. ( Wayne), 231 Mich. 409, 204 N.W. 140 (1925).
4
143 Va. 310 (1925).

5
274 U.S. 200 (1927).

6
316 U.S. 535 (1942).

9



way round, is a State sterilization statute a valid exercise of the police

power entrusted to the different States of the union? In 1918 the

Supreme Court, Albany County, New York, held that the State
sterilization statute was not a proper exercise of the police power,

since it was designed to save expense in operating eleemosynary

institutions. 1 Smith v. Command
,

as has been seen, upheld the

constitutionality of the Michigan sterilization statute, but a vigorous

dissent attacked the whole principle of sterilization as being un-

constitutional. “The inherent right of mankind,” declared the

judge, “to pass through life without mutilation of organs or glands

of generation needs no declaration in constitutions, for the right

existed long before constitutions of government, was not lost or

surrendered to legislative control in the creation of government and

is beyond the reach of the governmental agency known as the police

power.” 2

The decision in Buck v. Bell, however, made it plain that eugenic

sterilization, even if compulsory, is not in principle unconstitutional.

In that case, Carrie Buck, an eighteen year old feeble minded white

woman, the daughter of a feeble minded mother, and the mother

herself of an illegitimate feeble minded child, was ordered to be

sterilized by the Virginia courts. She appealed to the Supreme Court.

“We have seen,” declared Justice Holmes, “more than once that the
public welfare may call upon its best citizens for their lives. It would

be strange if it could not call upon those who already sap the

strength of the State for these lesser sacrifices, often not felt to be

such by those concerned, in order to prevent our being swamped

with incompetents. It is better for all the world, if instead of waiting

to execute degenerate offspring for crime, or to let them starve

1 In re Thomson
, 103 Misc. Rep. 23; 169 N.Y. Supp 638 (1918). Osborn v.

Thomson
, 185 App. Div. 902; 171 N.Y. Supp. 1094 (1918).

2 231 Mich, at 436, 204 N.W. at p. 149. With this may be compared the major-
ity judgment. “What are the legal rights of the class of citizens as to the procrea-
tion of children? It is true that the right to beget children is a natural and con-

stitutional right, but it is equally true that no citizen has any rights superior

to the common welfare: measured by its injurious effect upon society, what right
has any class of citizen to beget children with an inherited tendency to crime,

feeble mindedness, idiocy or imbecility. . . . Under the circumstances it was

not only its (the legislature’s) right but its duty to enact some legislation that

would protect the people and preserve the race from the known effects of the
procreation of children by the feeble-minded, the idiots, and the imbeciles.”

10



for their imbecility, society can prevent those who are manifestly un-

fit from continuing their kind. The principle that sustains compul-

sory vaccination is broad enough to cover cutting the Fallopian tubes.

(
Jacobson v. Massachusetts

, 197 U.S. 11.) Three generations of im-

beciles are enough.”

Justice Holmes made it plain that in cases involving sterilization

of defectives, personal rights must be subordinated to the general

welfare of the community and this principle has been followed in

subsequent cases. Thus in State v. Schaffer
,
a Kansas decision of

1928, Judge Burch declared: “The interest of the individual in-

vaded by the statute is of the highest order, and the invasion can be

justified only as a necessary protection to some more important

interest. Reducing this problem of'reconciliation of personal liberty

and governmental restraint to its lowest possible biological terms,

the two functions indispensable to the continued existence of human

life are nutrition and reproduction. Without nutrition, the individual

dies; without reproduction, the race dies. Procreation of defective and

feeble minded children with criminal tendencies does not advantage,

but patently disadvantages, the race. Reproduction turns adversary

and thwarts the ultimate end and purpose of reproduction. The race

may ensure its own perpetuation and such progency may be pre-

vented in the interest of the higher general welfare.” 1

II. Equal Protection

The fourteenth amendment to the American Constitution provides

that no State shall “deny to any person within its jurisdiction the

equal protection of the laws”. 2 This amendment does not auto-

matically forbid all statutes which apply to one class only, and they

may be held valid if the class has a reasonable and not an arbitrary

basis, and the law applies alike to all persons similarly situated. 3 In

the first decision rendered on the validity of a State sterilization sta-

1 270 Pac. 604. (Kansas) (1928). See also Clayton v. Board of Examiners,

120 Nebr. 680, 234 N.W. 630 (1931). “We think it is within the police power of
the State to provide for the sterilization of feeble minded persons as a condition

pre-requisite to release from a State institution”, at p. 632. Cf. Board ofEugenics

v. Troutman, 50 Idaho 673, 299 Pac. 668 (1931).
2 Proposed June 16, 1866, declared ratified July 21, 1868.
3 See Hayes v. Missouri, 120 U.S. 68, 7 Sup. Ct. 350 (1887); Lindlsey v.

Natural Carbonic Gas Co., 220 U.S. 61, 31 Sup. Ct. 337 (1910).

11



tute, Smith v. Board ofExaminers, in 1913, the New Jersey Act was
held invalid as failing to furnish equal protection of the law. 1 It ap-

plied only to the inmates of institutions and not to the population at

large. The New York statute was held invalid on similar grounds in
19 1 8.

2 Michigan followed suit in the same year. 3

Justice Holmes departed from this line of reasoning in Buck v.

Bell (1927), rejecting the contention that the statute failed because

it applied only to inmates of named institutions and not to the multi-

tudes outside as “the last resort of constitutional arguments”. The

answer to the argument, he declared, is that “the law does all that

is needed when it does all that it can, indicates a policy, applies it

to all within the lines, and seeks to bring within the lines all similarly

situated so far and so fast as its means allow. Of course, so far as the
operations enable those who otherwise must be kept confined to be

returned to the world, and thus open the asylum to others, the

equality aimed at will be more nearly reached.” State courts followed

the Buck v. Bell ruling until 1942. 4

In 1942 the Supreme Court was called upon for a second time to

consider the validity of a sterilization statute. 5 Acting unanimously,

the court invalidated an Oklahoma statute authorizing the com-

pulsory sterilization of habitual criminals convicted of “felonies in-

volving moral turpitude”. A criminal, Skinner, who had been con-
victed of three felonies, two robberies with firearms and one offence

of chicken stealing, was ordered to be sterilized by the Supreme

Court of Oklahoma. He appealed to the United States Supreme
Court claiming that the statute violated the fourteenth amendment.

Justice Douglas declared that the statute failed to meet the equal

protection clause of the amendment, pointing out that embessle-

ment could not be visited with sterilization but larceny could. “When
the law lays an unequal hand on those who have committed in-

trinsically the same quality of offence and sterilizes one and not the

1
85 N.J.L. 46, 88 A. 963 (1913).

2 In re Thomson, 103 Misc. Rep. 23, 169 N.Y. Supp. 638 (1918). Osborn v.

Thomson

,

185 App. Div. 902, 171 N.Y. Supp. 1094 (1918).
3 Haynes v. Lapeer, 201 Mich. 138, 166 N.W. 938 (1918).
4 Davis v. Walton, 74 Utah 80, 276 P. 921 (1929). State v. Schaffer, 126 Kans.

607, 270 P. 604 (1928). State v. Troutman

,

50 Idaho 673, 299 P. 668 (1931).

See also In re Salloum

,

236 Mich. 478, 210 N.W. 498 (1926).
5 Skinner v. Oklahoma, 316 U.S. 535 (1942).

12



other, it has made as invidious a discrimination as if it had selected a

particular race or nationality for oppressive treatment.” 1

III. Due Process

No State, declares the fourteenth amendment, shall “deprive any
person of life, liberty, or property, without due process of law”. In

substantive law, due process is a standard of reasonableness, and thus

constitutes a limitation on the exercise of the police power. In

procedural law, it requires that those threatened with deprivation of

rights should have both notice of this intention and opportunity to be

heard. Here we are concerned with due process in its second and

procedural sense.

In 1914, the Iowa sterilization statute was held invalid for failing

to provide the plaintiff with a hearing. 2 “In the case at the bar^*

said the judge, “the hearing was a private hearing, and the prisoner

first knew of it when advised of the order. Due process of law means
that every person must have his day in court, and this is as old as

Magna Charta; that some time in the proceedings he must be con-

fronted by his accuser and given a public hearing.” 3 In 1933 the

North Carolina statute was struck down for failing to provide a

hearing upon notice for the individual to be sterilized. Human
rights, declared the courts, as well as property rights, require a forum

with notice and hearing. 4 Skinner v. Oklahoma, as has been seen,

nullified the sterilization statute for failing to afford equal protection,

but the due process point was also raised and stressed by Chief

Justice Stone. The erection of a class condemned to an invasion of
personal liberty, with no opportunity for individuals to show that

they were not members of the class, was a violation of due process.

“And so,” said Chief Justice Stone, “while the State may protect it-

self from the demonstrably inheritable tendencies of the individual

which are injurious to society, the most elementary notions of due

process would seem to require it to take appropriate steps to safe-

st p. 541.
2 Davis v. Berry

,
216 F. 413 (1914). The Court also stated that the law

amounted to a Bill of Attainder which it defined as “a legislative act which
inflicts punishment without a jury trial”.

3 This reasoning was applied and the case quoted with approval in Williams v.

Smith
,
190 Ind. 526, 131 N.E. 2 (1921).

4 Brewer v. Valk, 204 N.C. 186, 167 S.E. 638 (1933).

13



guard the liberty of the individual by affording him before he is con-

demned to an irreparable injury in his person, some opportunity to

show that he is without such inheritable tendencies.”

Where such an opportunity has been afforded, the statutes have

been upheld, and the argument that they violated the “due process”

provision rejected. Thus in Smith v. Command (Michigan 1925), the
court upheld the statute, pointing out that the law required notice

of the time and place of the hearing to be served on the individual

concerned, as well as affording him a judicial enquiry and oppor-

tunities for defence and appeal. “Nothing further,” said the court,

“is required by the ‘due process of law’ clause of the constitution.” 1

In Buck v. Bell
,
Justice Holmes carefully reviewed the procedure

laid down by the Virginia statute and declared: “There can be no

doubt that so far as procedure is concerned the rights of the patient

are most carefully considered, and as every step in this case was

taken in scrupulous compliance with the statute and after months of

observation, there is no doubt that in that respect the plaintiff in

error has had due process of law.” 2

The validity of each statute when challenged under “due process”

is thus a matter of individual construction of the act concerned. The

minimum requirements for compliance with the fourteenth amend-
ment would seem to be a hearing on reasonable notice before a duly

constituted tribunal where the person to be sterilized has a right to

appear. If this tribunal is not in itself a court then a right to appeal to

a court for judicial review must be included. The model Bill drafted

by the Human Betterment Association includes these safeguards and
detailed provisions of the form they should take.

IV. Cruel and Unusual Punishment

The eighth amendment to the American Constitution forbids the

infliction of any “cruel and unusual punishment”, and sterilization

statutes have been challenged as violating this provision. 3 Most

1 For a later Michigan case, adhering to this ruling, see in re Salloum, 236

Mich. 478, 210 N.W. 498 (1926).
2 Other cases reaching similar conclusions and approving Buck v. Bell are:

State v. Schaffer, 126 Kans. 607, 270 P. 604 (1928). State v. Troutman, 50 Idaho

673, 299 P. 668 (1931). In re Main, 162 Okla. 65, 19 P. (2d.) 153 (1933).
3 The first ten amendments were proposed by Congress on September 25,

1789, and ratified by the requisite number of States by December 15, 1791.

14



State constitutions embody similar prohibitions. 1 In Davis v. Berry
,

an Iowa statute of 1913, which ordered the sterilization of any in-

mate of a penal institution, twice convicted of felony, was in-

validated. 2 Having reviewed the history of castration as a punish-

ment for crime, the court equated it with sterilization. A similar
decision was reached in Mickle v. Henrichs

,
where a vasectomy per-

formed on a man convicted of statutory rape was held to be ignomi-

nious and degrading, involving mutilation of the human body and

destruction of its normal functions. 3 The court in Thomson's case

(New York 1918) distinguished between sterilization as a punish-

ment and as a eugenic measure. Its application to defectives was

held to be non-punitive, and the validity of its application to cri-

minals left an open question. 4 In Smith v. Command
,
sterilization of

defectives was again held to be non-punitive. “The only purpose of

this constitutional provision,” said the court, “is to place a limita-

tion on the power of the legislature in fixing punishment for crime.

There is no element of punishment involved in the sterilization of

feeble minded persons. In this respect it is analagous to compulsory

vaccination. Both are non-punitive. It is therefore plainly apparent

that the constitutional inhibition against cruel or unusual punish-

ment has no application to the surgical treatment of feeble minded

persons. It has reference only to punishment inflicted after con-

victions of crimes.” 5

The validity of sterilization statutes in relation to the eighth

amendment seems then to be first a matter of construction. Provided

their language is not punitive, the validity of their application to non-

criminal groups is clear. If their intent is unambiguously eugenic,

statutes applying to criminals should on principle be equally valid,

but of this there is considerable doubt. When adjudicating on
statutes containing sections applicable to both criminals and defec-

1 Not Connecticut, Illinois and Vermont.
2 216 F. 413 (1914).
3 262 Fed. 687 (D. Nev. 1918). However, in State v. Feilen, 70 Wash. 65,

126 P. 75 (1912) a contrary decision was reached.
4 Cf. Haynes v. Lapeer, 201 Mich. 138, 166 N.W. 938 (1918).
6 231 Mich. 409, 204 N.W. 140 (1925). Cf. Buck v. Bell, 143 Va. 310, 130 S.E.

516 (1925), Davis v. Walton, 74 Utah. 80, 276 P. 921 (1929), State v. Troutman,
50 Idaho 673, 299 P. 668 (1931). In re Clayton, 120 Nebr. 680, 234 N.W. 630
(1931). In re Main, 162 Okla. 65, 19 P. (2d.) 153 (1933).

15



tives, judges have been careful to limit their remarks to the sections

dealing with defectives. A typical case is Clayton v. Board ofExamin-
ersA The Nebraska statute applied not only to insane persons and
the feeble-minded, but also to habitual criminals and sexual perverts.

The court throughout the opinion referred only to the feeble minded

and drew attention to the “pointed observation” of the trial court

that “the only part thereof that could or should be held consti-

tutional would be the part relating to the sterilization of feeble

minded persons”.

The Constitutional Position Today

By careful drafting, statutes can escape the perils presented by the

necessity of equal protection, procedural due process, and the

prohibition of cruel and unusual punishments. Buck v. Bell appeared

to have ensured the validity of sterilization in principle but this

judgment must now be considered in the light of the second Supreme

Court decision of Skinner v. Oklahoma . As has been seen, the statute

was struck down principally for its violation of the equal protection

clause but the remarks of the judges indicate a change in judicial

policy with regard to the sterilization principle. Thus Justice

Douglas declared procreation to be “one of the basic rights of man”,

and warned that the power to sterilize if exercised, “may have subtle,

far-reaching and devastating effects. In evil or in reckless hands it

can cause races or types which are inimical to the dominant group

to wither and disappear. There is no redemption for the indi-

vidual whom the lawvtouches. Any experiment which the State
conducts is his irreparable injury. He is forever deprived of a basic
liberty.” Chief Justice Stone stressed the necessity of provisions to

safeguard individual rights. Justice Jackson went even further, de-

claring that: “There are limits to the extent to which a legislatively

represented majority may conduct biological experiments at the

expense of the dignity and personality and natural powers of a

minority—even those who have been guilty of what the majority
define as crimes.” 2

1 120 Nebr. 680, 234 N.W. 630 (1931).
2 For an opinion that sterilization statutes are now of doubtful constitutional

validity, see H. Kalven: “A Special Corner of Civil Liberties”, in a symposium,
“Morals, Medicine and the Law”, N. Y.U. Lam Review, 31:1157 (1956), p. 1234.

16



THE PRACTICE OF STERILIZATION—ITS EXTENT

No figures are available for voluntary sterilization in either the
United Kingdom or the United States. In the United Kingdom,

therapeutic and indirect sterilization apart, it would seem to be

comparatively rare, and compulsory sterilization is unknown.

Sterilization figures are available for the United States, the majority

being compulsory, but a small proportion, coming from those States

which provide voluntary procedures, are voluntary. The total

number of sterilizations reported since the enactment of the first

American sterilization law in 1907 up to January 1, 1958, is 60,166, of

which 24,008 are male and 36,158 are female. Mental deficients

account for 31,038 of these, those suffering from mental illness for

26,922, the remaining 2,206 being made up of epileptics, criminals

etc. California has carried out by far the highest number of steriliza-

tions, with a grand total amounting to 19,998. Virginia ranks next

with 6,811, and two other southern States have higher than average

figures, North Carolina (4,777) and Georgia (2,578). Other States

with high figures are Indiana (2,354), Iowa (1,738), Kansas (3,025),
Michigan (3,597), Minnesota (2,325), Oregon (2,200) and Wisconsin

(1,799). Figures for the eastern States are uniformly low. All figures

represent a very small percentage of the total population.

In the past fifteen years the number of sterilizations reported has

steadily declined. Thus in the five year period from Janurary 1941 to

January 1946, 9,200 sterilizations were reported; for the following

period from 1946 to 1951, this had dropped to 7,100; and in the next

five years from 1951-6 it had fallen to 6, 100. 2 The figures for 1957
show a further decline. Of the thirty States listed in Appendix I,
three statutes had been declared unconstitutional and hence no

sterilizations were reported. Seven other States where the steriliza-

tion statutes are still theoretically in force made no use of them;

eight States carried out less than ten sterilizations in the year; four

less than twenty; and five less than fifty. Only three States, Georgia,

North Carolina, and Virginia carried out sterilizations numbering

2 See James B. O’Hara and T. Howland Sanks: “Eugenic Sterilization”,
Georgia L.J 45:20 (1956).

17



above ioo. These represented 7 • 09, 6 • 78, and 3 • 37 sterilizations per

100,000 of the population, respectively. In California the percentage

had fallen to *09. The grand total of sterilizations for all States was

909 in 1956 and 973 in 1957.

Psychological, social, and religious reasons account for this flight

from sterilization. Both sexes have deep seated fears about steriliza-

tion and these are stronger in men than in women. Moya Woodside
reports that of seventy-four welfare institutions in North Carolina

which answered a question on this point, fifty-four stated that the

resistance of men was greater than women. 1 The use of sterilization
in Nazi Germany as a means of race extermination has immensely

increased this revulsion from sterilization, and re-inforced the

arguments of Roman Catholic and certain Protestant theologians
against its employment. The medical profession has been tradi-

tionally reluctant to employ sterilization, and this conservative view

has been strengthened by recent researches showing the uncertainty

of many principles of heredity which had hitherto been accepted as

axiomatic. Shortage of hospital beds, doctors and nurses, has also

contributed to the reduction in sterilizations. A further reduction in
numbers of sterilizations seems likely in the future.

COMPULSORY EUGENIC STERILIZATION
—ITS UTILITY

“I think,” wrote Justice Holmes, “that the sacredness of human life

is a purely municipal ideal of no validity outside the jurisdiction. I

believe that force mitigated so far as may be by good manners, is the

ultimate ratio.” 2 Such an approach to law excludes all question of

fundamental, inalienable rights, inhering in human beings, and

simplifies the approach to compulsory sterilization by prescinding

from any consideration of a right to bodily integrity. Sterilization

statutes must be judged solely on their utility, by a consideration of

their results. In essence there is no distinction between animal

breeding and human breeding, and just as one has been improved

by the development of scientific techniques, so should the other.

“There is a striking contrast,” notes Dr Glanville Williams re-
1
Sterilization in North Carolina, Chapel Hill: University of North Carolina

Press, 1950, p. 66.
2 The Common Law

,
supra note 5 at 36.

18



gretfully, “between human fecklessness in our own reproduction and

the careful scientific improvement of other forms of life under man’s

control. No rose-grower, pigeon-fancier or cattle-breeder would be-
have as men do in their own breeding habits.” 1

The primary benefit claimed to result from schemes of com-

pulsory sterilization is racial improvement. Insanity, feeble-minded-

ness, epilepsy, sexual perversion and certain forms of criminality,

runs the argument, are on the increase. They are all heritable

characteristics, and since defectives propagate at a higher rate than

normal persons, the danger of being “swamped by incompetents” is

a real and growing one. State resources are limited, and the econ-

omic burden of maintaining an ever increasing number of defectives

in institutions is not one that can be permanently sustained. Con-

sideration of the common good apart, sterilization benefits the indi-

vidual concerned. It prevents the birth of children who will pass

through life permanently handicapped and is beneficial or at least

harmless to the health of those upon whom it is performed. Finally
it enlarges individual freedom by enabling those who would other-

wise have to be confined in institutions to be released. These claims

must be further examined.

No evidence exists to support the contention that insanity and
mental defect are increasing . 2 The numbers in mental homes and

hospitals have certainly grown in recent years, but the growth is

explicable on quite other grounds. Diagnosis of mental diseases has

greatly improved, medical knowledge of the mental causes of physical

disease has increased, and standards of medical care are higher.

Many who were in need of mental treatment and could not obtain it,
now have facilities at their disposal. The contention that defectives

breed faster than normal people is equally baseless, despite its con-

stant repetition .
3 The Brock Committee reported that neither their

own enquiry nor the statistics made available on the size of families

1 The Sanctity ofLife and the Criminal Law, p. 82. <
2 See Abraham Myerson: “Certain Medical and Legal Phases of Eugenic

Sterilization”, Annals on Internal Medicine

,

18:580 (1943). See also Report of

the American Neurological Association on Sterilization (1936).
3 Thus J. P. Hinton and J. E. Calcutt in their work Sterilization: A Christian

Approach, London 1935, cite an isolated table from the Brock Report to support
their claim that defective families are larger than normal families, ignoring the

Report’s rejection of the conclusion, p. 18.

19



of known defectives showed a higher birth-rate. “The supposed ab-

normal fertility of defectives is, in our view, largely mythical and

results from the accident that from time to time distressing excep-

tions to the general rule find their way into the Courts and are

noticed in the Press.” 1 In fact mental defectives have a lower mar-

riage rate and a higher divorce rate than normal people. Their death-

rate is higher and their birth-rate lower than the average, and their

sexual drives are also reduced. 2 Offspring of defectives have con-

siderably less chance of survival than those of normal parents. The

Brock Report records an investigation into 3,733 cases where the

mother was defective in 3,247 and the father in 486. These marriages

produced 8,841 children ofwhich 22 • 5 per cent died before reaching

the age of seven. 3

Sterilization would undoubtedly enable a certain number of

mental defectives to be released from institutions, but the proportion

would not be high since only those capable of looking after them-

selves could be set at liberty. The Brock Committee estimated that

between 3 and 5 per cent of the institutional defectives in England

could be released. 4 Furthermore, the benefit to the individual might

well be counterbalanced by an increase in promiscuity and hence of

venereal disease. Sterilized defectives, no longer deterred by fears of

pregnancy, and no longer presenting this threat to others, could

easily be exploited for the basest purposes. After-care, even if

available, would only be a limited answer to this problem.

Whether sterilization
,
is beneficial to health is still an open

question. A number of case studies have been carried out, but the
evidence is not conclusive. Popenoe reported a series of cases of

vasectomy in 1929. Of thirty-six persons suffering from mental

diseases and vasectomized, twenty-two declared that they noticed no

change in their sexual life: nine reported an increase in sexual activity

and five a decrease. Only two of another sixty-five persons who had

undergone a vasectomy experienced any decrease in virility. 5

1 Cmd. 4485 of 1934, p. 18.
2 See Abraham Myerson, “Certain Medical and Legal Phases of Eugenic

Sterilization”, Yale Law Journal, 52:618-33 (1943).
3 Pp. 16-17. 4 The Report, p. 31.
6 P. Popenoe, “Effect of Vasectomy on the Sexual Life”, Journal ofAbnormal

and Social Psychology, 24:251-68 (1929). Amongst those interviewed, the time

elapsed since the operation varied between three months and twenty years.

20
V



Popenoe also investigated the effect of salpingectomy on women. Of

108 psychotic women sterilized, seventy-eight experienced no change

in their sexual lives, twenty-two greater satisfaction, and eight less. 1

None of the men experienced any deterioration in their general
health. Some thought it had improved.

Moya Woodside’s researches also indicate that sterilization has no

serious physical or psychological effects in the majority of cases. A
follow-up study of forty-eight married women, not mental defectives,

who had undergone a therapeutic sterilization, showed that the

health of twenty-four had improved, twenty-one were unchanged,

and three were worse. Thirty-three reported no change in libido,

six an increase, and eight a decrease. In one case no data was avail-

able. Interviews took place on an average about one and a half years

after the operation. “It was in the psychological sphere,” reports

Moya Woodside, “that the greatest difference had been wrought
through removal of fear of pregnancy. Freed from recurrent anxiety,

sexual and marital relationships were felt to be improved, and

women individually were much happier. Of equal importance was
the physical relief from constant child-bearing and the alleviation of

economic worry. Husbands were said to approve the operation in

three-quarters of the cases. In the few instances where unfavourable

results were observed, they were associated with neurotic personality

and maladjustment in the life situation. To the group as a whole,
sterilization had conferred great practical and psychological ad-

vantage and could have been even more constructive if earlier under-

taken in a number of cases.” 2 The Brock Committee also concluded

that vasectomy and salpingectomy had no harmful results when

performed on normal persons or mental deficients, although it

expressed a doubt where operations on those suffering from mental

diseases were concerned. 3

Whatever the effects on the individual may be, the utility of

1 P. Popenoe, “Effects of Sterilization on the Sexual Life”, Eugenics, 1:9-15

(1928). See also by same author, “Menstruation and Salpingectomy among the
Feeble Minded”, Pedagogical Seminary and Journal of Genetic Psychology,
35 : 3°3

~
I1[ (1928). For other cases showing that sterilization has few physio-

logical effects, see J. H. Landman, Human Sterilization, New York 1932, pp.
230-1

.

2 Sterilization in North Carolina
,
Chapel Hill 1950, pp. 115-49.

8 The Report
, p. 29.

21



eugenic sterilization must principally depend on medical knowledge

of heredity. The whole sterilization movement has been based on the
belief that insanity, feeble mindedness, mental defect and criminality

are hereditary. The validity of these assumptions must be carefully

investigated.

Criminality

Criminality as such is not a biological concept but a social and legal

construct. Lombroso put forward a biological theory of crime,

claiming that criminals as a class were marked by a certain stigmata

of degeneration and claimed to have discovered a significantly higher

proportion of vestigial and atavistic characters amongst criminals

than were displayed by the normal population, but his work is now

generally agreed to lack an adequate scientific basis . 1 In the absence

of a satisfactory biological theory of criminality, the suggestion that

it can be inherited falls to the ground. Accordingly there can be no

justification on eugenic grounds for sterilizing criminals . 2 “Most

writers agree,” concludes the sterilization committee ofthe American

Neurological Association, “that while there may be a constitution

which in its reaction to the milieu appears as criminal conduct, the

effort to breed it out by any eugenical measures is, in the present

state of our knowledge, not to be recommended and that more fruit-

ful approaches to crime are to be found in social measures of one

type or another.” 3

Mental Disease: Mental Defect: Feeble Mindedness

Mental disease on the one hand, and mental defect and feeble

mindedness on the other, are distinct clinical entities, although an

agreed medical terminology is lacking. Mental disease is a generic

term covering all the disorders affecting the mind, which before the

onset of the disorder has been functioning normally. Mental defect

is a state of mental retardation or incomplete development. The

1 Lombroso still has some followers, e.g. Professor E. A. Hooton, see The

American Criminal: An Anthropological Study, Harvard U.P. 1939.
2 See M. F. Montagu, “The Biologist Looks at Crime”, Annals ofthe Ameri-

can Academy of Political and Social Science, 217:46 (1941), and P. Popenoe,

“Sterilization and Criminality”, American Bar Association R. 53:575 (1928).
3 The Report (1936), p. 152.

22



Brock Report defines it as “arrested development of mind, whether

congenital or induced by injury or disease before development is

complete. It is in almost all cases a permanent condition and in the

present state of knowledge is beyond real cure, though much bene-

fit may result from skilled training.” 1

The degree to which mental disease and defect are inherited is a

matter of continuing dispute amongst doctors, and the layman may

be excused a certain bewilderment as he ploughs his way through the

welter of conflicting theories and conclusions reached by the medical

profession. The science of heredity is still in its infancy and the areas

of ignorance remain disconcertingly wide. Mendel’s laws, although

modified in certain aspects, are still the basis of contemporary in-

vestigation. Mendel’s first law, that of dominance, demonstrated

that when two pure bred plants with contrasting characters are

cross bred, all the offspring of this first mating will show only one of

two characters. The character apparent in the offspring is dominant,

that which is hidden, recessive. His second law declared that the

characters which appear in the original organism are transmitted to

the offspring without being changed or lost. Finally he established

that a hidden recessive character in a hybrid offspring may re-appear

in a later generation. From the mating of two hybrids, the distri-
bution of any unit character will be pure dominant 25 per cent:

hybrid 50 per cent: pure recessive 25 per cent. The ratio is thus

1:2:1, and this is the same for later generations of hybrids. 2

Corresponding to every inherited character, claimed Mendel, are

certain determiners or genes. The early students of heredity, by
assuming that a defective mind corresponded with a single defective

gene, greatly oversimplified the problem. Later research has shown

that there are a multiplicity of genes, whose absence or combination

may result in defect or disease. The relevance of Mendel’s dis-

coveries to sterilization procedures are obvious. To eradicate mental
defect it would be necessary to sterilize not only the defectives but

also all “carriers”, who themselves are normal but whose organism
contains recessive genes, which will appear as defect in later genera-

tions. Carriers far outnumber defectives, so that the amount of

1 At p. 7.
2 For an account of Mendel’s theories see Encyclopaedia Britannica, XI: 484

(1954) and Collier's Encyclopaedia, XIIF385 (1953).

23



disease and deficiency which can be eradicated by the present

sterilization measures is extremely small.

Carriers apart, the problem of eradicating mental disease and

defect by sterilization is made practically insoluble by ignorance of

the genesis, physiological basis and pathology of mental defect

and many diseases, and the non-hereditary quality of others. No
hereditary factor is discoverable in arterio-sclerotic dementia, senile

dementia, general paresis, or in alcoholism. 1 The pathology and
physiology of schizophrenia and manic-depression are still un-

certain, although prevailing opinion is that they are constitutional

and hereditary. 2 Epilepsy is thought to be hereditary but research

is at too elementary a stage to establish this beyond doubt. 3

Similar ignorance surrounds mental defect and feeble-mindedness,

although a prima facie case has been made out that these are caused

by genetic factors. Here again “carriers” complicate the problem.

Robert Hatton having fully discussed the medical evidence con-

cludes that 50 per cent of feeble-mindedness is inherited, but of that

50 per cent, only 11 per cent is inherited from feeble-minded

parents, 89 per cent from parents who appear normal but are in fact

carriers. Thus the proportion of the feeble-minded inheriting their

deficiency from feeble-minded parents is only 5.5 per cent.
4

The Brock Report concludes that heredity plays “a large part” in

mental disorders, but immediately goes on to say that except in the

case of Huntington’s chorea and myclonus epilepsy, both rare

1 See Abraham Myerson: “Sterilization”, Atlantic Monthly, 186:52 (1940,
II, 5).

2 Ibid. See also J. H. Landman, Human Sterilization

,

New York 1932, p. 164.
While stating that a number of mental diseases are hereditary according to the

preponderance of medical opinion, he points out that the study of the causes

of the diseases and of mental deficiency has been practically “fruitless”. See

also Walter Wheeler Cook, “Eugenics or Euthenics”, Illinois Law Review

,

37:287-332 (1943) for a discussion of the medical evidence; Myerson, “Certain

Medical and Legal Phases ofEugenic Sterilization”, Annals on Internal Medicine,

18:580 (1943), also Yale Law Journal, 52:618 (1943). L. J. Doshay concludes:
“The possibility of the inheritance of mental diseases is practically nil.”
“Evolution disproves heredity in the Mental Diseases”, Medical Journal and

Record, 131:143-8, 194-7, 248-50 (1930).
3 See above articles and Kentucky Law Journal, 23:523 (1935).
4 Ibid., p. 525. Cf. Estimate given by Fisher, “Elimination of Mental Defect”,

Journal of Heredity, 18:529 (1927), where he concludes that 89 per cent of all

feeble-minded children come from normal parentage. See also Myerson,

American Journal of Medical Jurisprudence, 1:253 (1938).

24



diseases, there is no conclusive evidence that inheritance follows

mendelian ratios, and the part played by heredity varies widely

between different types . 1 “It is impossible,” states the Report, “in

the present state of our knowledge about the causation of mental

defect to forecast with certainty whether a child of any given union

will exhibit mental abnormalities. It can, however, be shown that,

whether the cause be bad heredity or adverse environmental con-

ditions, or both, the children of parents one or both of whom are
mentally defective are, on the average, below the normal, and our

enquiry shows that nearly one third of such children as survive are

likely to be defective, and more than two fifths must be expected to

exhibit some degree of mental abnormality.” 2

Moral Degeneracy and Perversion

A quarter of the American sterilization statutes provide for the
sterilization of moral degenerates and' perverts. Whatever these

terms may mean, and they are nowhere defined, no evidence exists

that they are inheritable characteristics. Medical opinion in-

creasingly favours environmental explanations of homosexuality and

the congenital theories once widely held are now discredited save in

relation to a tiny minority. Sterilization of such people might con-

ceivably be justified on punitive grounds but not on those of

eugenics.

Conclusions

The case for compulsory sterilization can only be sustained on
utilitarian grounds if it can be clearly shown that mental defect and

disease are hereditary. As Dr Landman has put it, “the human

sterilization movement is as strong as our scientific knowledge con-

cerning the inheritance of human qualities. Logically, therefore,

those socially inadequate persons in our midst, the heredity of whose

undesirabilities is doubtful, should not be subjected to sterilization

until we are more certain as to which are inherited.” 3 As has been

1 The Report, p. 27.
2 Ibid., p. 21. For views that mental deficiency is heritable, see Clarence

Gamble, American Journal of Mental Deficiency, 57:123 (1952), Walter E.
Southwick, Journal ofMental Science, 85:707 (1939), B. S. Johnson, American

Journal ofMental Deficiency, 50:437 (1946).
3 Op. cit., p. 247.

25



seen, medical knowledge is so fragmentary in this sphere, and the

dispute over the nature of the hereditary processes so fundamental,

that scientific knowledge cannot be said to have reached the degree

of certainty requisite to justify a policy of compulsory sterilization.

It is even doubtful whether the vast majority of the sterilization

statutes satisfy the requirements of substantial due process, which

requires their provisions to bear a reasonable relationship to existing

medical knowledge of heredity. It may of course be argued that the
statutes are justified on environmental rather than hereditary

grounds, for if they do not eradicate hereditary defect, they do

prevent children being brought up in unsuitable homes and by

inadequate parents. Construed as they are written, most of the

statutes could not be upheld on this ground, and even in those that

lay down “social” reasons for sterilization, the avoidance of en-

vironmental hardship would probably not be considered a sufficient

justification for such a drastic step as sterilization.

This conclusion has been reached by several authoritative com-

mittees. Thus the Brock Report states: “We assume that the Legis-
lature would not feel justified in compelling any persons to sub-

mit to sterilization, unless it could be shown beyond reasonable

doubt that some at least of their offspring would either be mentally

defective or would develop mental disorder. In the present state of

knowledge no such proof can be produced.” 1 A special committee
appointed by the British Medical Association on November 12, 1930,
reached a substantially similar conclusion. Sterilization, it decided,

might be advisable for a small number ofmental defectives who were

not in need of institutional care, provided they were carefully

selected and adequate supervision exercised to prevent promiscuous

intercourse and the spread of venereal disease. 2 The American

Neurological Association has also recommended the abandonment

of a compulsory sterilization programme. Genetics, stressed the

Report, is still an experimental science, and no thorough-going appli-

cation of its laws to the mental and personality diseases is possible.

“We do not believe that society needs to hurry into a programme
based on fear and propaganda. Although the problem of mental

1 At p. 37.
2 See The British Medical Journal Supplement, June 25, 1932, where the

Report is printed.

26



disease and defectiveness is enormous, there exists no new social or

biological emergency.” 1 The danger of cutting off the assets as well

as the liabilities that may be transmitted to posterity must also be

born in mind . 2 What is needed now is an institute to carry out a long

range programme into the nature of human heredity.

With compulsory sterilization laws ruled out, the alternative of

voluntary sterilization remains. The Brock Report justified this by

laying down the principle that “no person, unless conscience bids,

ought to be forced to choose between the alternative of complete

abstinence from sexual activity or of risking bringing into the world

children whose disabilities will make them a burden to themselves

and society”. 3 Voluntary sterilization would accordingly be available

only for eugenic and not for contraceptive reasons. The Brock

Report suggests three classes of people for whom voluntary steriliza-
tion should be available:

(a) Those who are mentally defective or have suffered from mental

disorder;

(b) Those who suffer from, or are believed to be carriers of grave

physical disorders which have been shown to be transmissible;

(c) Those who are believed to be likely to transmit mental disorder

or defect. To carry out this operation the authorization of the
Ministry of Health would be required as well as the support of two

medical practitioners. A small advisory medical committee should be
set up to advise on doubtful cases . 4 A major difficulty in the way of
establishing such a programme would be to show that it was indeed

voluntary. Many defectives would be quite incapable of giving a
true consent, since they would be unable to grasp all the impli-

cations of a sterilizing operation. The opportunity of exercising un-

1 The Report of the American Neurological Association (1936), p. 183. For

Summary of the Report see American Journal ofMedicalJurisprudence, 1:253-7

(1938).
2 See Myerson, “Sterilization”, Atlantic Monthly, 186:52, p. 55. Referring

to an investigation in Massachusetts he writes: “In many groups we found
feeble mindedness for one or two generations, but we also found collaterals who
reached distinction and were respected in the community. On the other hand,
we found no family tree, however distinguished, which did not have hanging
from its branches, the mentally sick, the defective, the alcoholic, the failure,

the ne’er-do-well, and the social misfit”, p. 55.
3 Op. cit., p. 90.
4 The Report

, p. 57.

27



due influence would be great and it would be difficult to provide

safeguards against its employment. Any voluntary sterilization
statute would have to tackle this problem, which cannot be dis-

missed in the words of the Brock Report as “mere casuistry”. 1

STERILIZATION—THE TRADITIONAL
CHRISTIAN VIEW

Traditionally, Christian theology has condemned all forms of direct

sterilization, whether compulsory or voluntary. This condem-

nation derives from the Christian view of the creatureliness of man.

Man is not absolutely master ofhis own body: he has no “dominium”
over it, but holds it in trust to use for God’s purposes as shown in

the design of nature. Man’s procreative faculty is one of his most

important endowments and he cannot do away with it at will.

Steriliaztion is more than a mutilation of the body, it involves the

deprivation of a major faculty and its gravity is to be measured more

by its effect than by the actual surgical operation, which today can

be of the simplest. The Christian view can be traced back to the

teaching of the Church Fathers. In the early Church, certain zealots,

misinterpreting the gospel passage “there be eunuchs which have

made themselves eunuchs for the kingdom of heaven’s sake” (Mat-

thew XIX, 12), castrated themselves. These practices were con-

demned in both canon law and the writings of the Fathers . 2 The

body, they taught, could only be mutilated if a portion were diseased

and it was essential for the welfare of the body as a whole that the

diseased portion be severed. Self-castration in order to preserve

chastity failed in its object and was also contrary to Christian doctrine

since it posited the body as intrinsically evil and denied the use of

man’s free will.

These arguments were developed in the Middle Ages by St

Thomas Aquinas and other ecclesiastical writers. A man who mutil-
ates his body without cause sins in three ways: he violates the natural

law of self-preservation and proper self-love; he offends against the

community of which he is a part; and he commits an offence against

God. The motive of curbing unchastity may be laudable but the

1 The Report, p. 42.
2 See Cone. Nic., Can I: Apost. Can. 21-4, Chrys., Horn. Ixii in Matt.

28



method is both ineffective and disproportionate. Control of evil

thoughts, not mutilation, is the remedy. To this law there is only one
exception. “If, however, the member be decayed and therefore a

source ofcorruption to the whole body, then it is lawful with the con-

sent of the owner of the member, to cut away the member for the

welfare of the whole body, since each one is entrusted with the care

of his own welfare. The same applies if it be done with the consent

of the person whose business it is to care for the welfare of the

person who has a decayed member; otherwise it is altogether un-

lawful to maim anyone.” 1

The traditional teaching was re-affirmed by Pius XI in his enycli-

cal on “Christian Marriage” when he declared: “Christian teaching

establishes, and the light of human reason makes it most clear, that

private individuals have no other power over the members of their

bodies than that which pertains to their natural ends; and they are

not free to destroy or mutilate their members, or in any other way

render themselves unfit for their natural functions, except when no

other provision can be made for the good of the whole body.” 2 Pius

XII confirmed his predecessor’s teaching. 3 The Church of England

Moral Welfare Council stated the same underlying principle in

1951: “Man does not belong to himself. He was created by God and
for God, and therefore belongs to God. Consequently he has not an

unqualified right to dispose of himself as he wishes; his right is

limited by the laws of his Creator (which are also the laws of his

own nature), and by the nature of his destiny.” 4 All direct steriliza-

tion was forbidden by a decree of the Holy Office of February 21,

1 940.
5

1 Summa Theologies London 1929, II—II lxv.
2 Casti Connubii

,
New York 1931, p. 33.

8 See address to Italian Midwives (A.A.S. 18:43): “Direct sterilization, that

which aims at making procreation impossible as both means and end, is a grave
violation ofthe moral law, and therefore illicit.” Cf. Statement to Italian Urology

Society. (VOsservatore Romano, October 10, 1953).
4 Human Sterilization: Some Principles of Christian Ethics, published for the

Church of England Moral Welfare Council by the Church Information Board

( I95 I )» P- 3 -
5 See Decree of February 1940, A.AS. 32:73. Cf. 1951 A.AS. 43:844.

29



STERILIZATION AND THE STATE

St Thomas Aquinas discusses the right of the State to use steriliza-

tion as a punitive measure. He concludes quite simply that since
the State may take the life of a guilty person for the good of the
community, a fortiori

,
it may impose the lesser penalty of mutila-

tion.
1 Whatever the soundness of this view in principle, humani-

tarian sentiments would prevent any Christian from putting it for-

ward as a just and appropriate penalty today. Moral theologians

reject sterilization as a punishment for sexual offences on the grounds

that it is unreasonable. It might well not be a punishment for the

type of individual concerned, and since the sexual urge is not

diminished it does not protect society.

May the State enforce a compulsory eugenic sterilization policy?
Applying the principles just outlined, the conclusion must be

negative. A man’s right to bodily integrity is only invasible if he
cuts himself off from the community by the commission of a grave

crime. Mental and physical defect are misfortunes but they are

neither crimes nor sins. Public authority has no right to prescribe

sterilization, declared Pius XII, “or to have it carried out to the

harm of the innocent”.

2

Similarly, the committee on the family at

the Lambeth Conference of 1958 stated that all were agreed that

“any government policy of compulsory sterilization as a means of

population control is unacceptable to the Christian conscience, at

least in our present state of knowledge and understanding; some in-

deed felt that such a policy could never be justified”.

It has been argued by Justice Holmes, amongst others, that just as

the State has the right to call on its citizens for the sacrifice of their

lives in war, so it may require a surrender of their reproductive

functions from those who would harm society by procreation. The

analogy with wrar does not hold good on the Christian view, for

while ever}7 citizen is under a duty to defend the State against un-

just aggression, there is no moral duty to submit to sterilization in

1 Surnrna Theologica
,
II—II lxv.

2 A.A.S. 18:443. See also decree of Holy Office of March 21, 1931, issued
with approval of Pius XI condemning eugenic sterilization.

30



order to improve the national stock . 1 There may be a moral duty to

abstain from intercourse if one knows one is likely to transmit a

serious defect, but that is another matter. The analogy with vaccina-

tion is also erroneous since vaccination does not deprive the indi-

vidual of any important faculty and protects the community not by

mutilating the individual but by protecting him. The compulsory

sterilization argument is based on the assumption that only the strong

and the fit have a right to live a human life in the full sense of living

it unmaimed. It is only a short step from this assumption to the

further conclusion that such people have no right to life at all. Such

an approach is profoundly un-Christian for it substitutes for the

Christian attitude of loving care for the physically and mentally

unfortunate, one of calculating utility which would eliminate them

in “the national interest”.

In the past, Catholic writers have advocated compulsory steriliza-

tion by the State . 2 They have justified sterilization on grounds of

necessity in order to protect the community from inundation by

criminals and defectives. For their arguments to apply, two con-

ditions of fact would have to be fulfilled. First, the threat to the

State from defectives would have to be so serious as to threaten its

survival: second, segregation would have to be ruled out as a practical

possibility. Neither of these conditions pertain today. This view

appears irreconcilable with a condemnation of sterilization as evil in

itself.
3

1 The mere power to procreate cannot be in itself an attack on the State as is
the assault of an enemy. Thus the analogy breaks down on a second point. Nor
does the State in war intend the killing of its citizens or itself carry it out.

2 For a discussion of these writers and their views, see Joseph B. Lehane,

The Morality of American Civil Legislation concerning Eugenical Sterilization,

Washington D.C. 1944. See also S. M. Donovan, The Ecclesiastical Review,
42:271 (1910). Other Catholic writers supporting this view have been Fr. J. A.

Ryan, Dr Mayer and Dr Bruehl. Such views would not be tenable by Catholics
today.

3 A further difficulty is raised by the custom of castrating singing boys of the
Sistine Choir to preserve their treble voices. St. Alphonsus records two contrary

opinions on this point, one condemning it and the other justifying it as being

for the common good. ( Theol. Mor. Ill n.374). Benedict XIV condemned the
practice but provided that such persons were not to be expelled from the choir.

{De Synodo Diocesena, XI, cap. 7, n.4). See E. J. Mahoney “Sterilization—

A

Difficulty”, The Clergy Review, 4:71.

31



Voluntary Sterilization

Christian opinion is less unanimous when voluntary instead of com-

pulsory sterilization is considered. Both the Roman Catholic and
Anglican Churches recognize the validity of therapeutic sterilization

as morally justified if it is the only means of securing the welfare of

the body as a whole. Thus if vasectomy and salpingectomy are the

only means of curing a disease, their use is legitimate. Their employ-

ment would fall within the exception mentioned by St Thomas

Aquinas in connection with mutilation. Neither communion, on the

other hand, countenances the use of sterilization where a woman’s

health would be gravely endangered by a further pregnancy. Dr
Glanville Williams finds such a view “astonishing” but it is not un-

reasonable . 1 Sexual intercourse is not a necessity and the woman can
adequately safeguard her future either by abstention, or in the view

of many Anglicans by the use of contraceptives. Such sterilization

is not strictly speaking therapeutic but contraceptive. In the case of

subnormal couples, incapable of handling contraceptives efficiently,

the case for employment of sterilization is stronger, but only of

course amongst those who regard the use of contraceptives as
legitimate. The latter might extend sterilization as a legitimate

procedure from defectives in danger of physical injury through

pregnancy, to defectives who would be placed under overwhelming

strain through further child-bearing. As the Church of England

Moral Welfare Council points out, this conclusion may prove

difficult even for those who approve of contraception. Sterilization

might well be considered too grave a course to employ save directly

for the cure of a disease. Furthermore, while in sterilization of a

defective wife whose health would be threatened by pregnancy, and

where intercourse can be regarded as inevitable, the causal con-

nection between the operation and the result aimed at is very close;

in the second case, where the burden of looking after children is the

main concern, the connection is remote. A further complication in
this latter case is that there is no indication which of the parents

should be sterilized . 2

A second form of sterilization recognized as lawful by both Com-
munions, may conveniently be called “incidental” or “indirect”.

1 Op. cit., p. ioo.
2 See Human Sterilization (1951), pp. 7-9 and 15.

32



The category is created by applying the principle of double effect . 1

The principle, familiar to students of moral theology, states that an

action, not in itself intrinsically evil, followed by both a good and a

bad result, may be performed, provided that the good and not the

evil effect is directly intended, that the good effect is not produced

by means of the evil effect, and a grave reason exists for permitting

the evil to occur. The distinction between “direct” and “indirect”

intention, is that between foreseeing a consequence and desiring it,

and merely foreseeing it while desiring some other consequence. An
example will make the working of the rule clearer. It can justify

the performance of hysterectomy. The consequence directly in-

tended by the removal of a diseased womb is the saving of a woman’s
life, that indirectly intended is her sterilization. All the conditions of

the principle of double effect are fulfilled so the operation is legitimate.

Voluntary sterilization for. eugenic reasons is not countenanced by

the Roman Catholic Church. The Church of England Committee
puts forward the argument that a normal couple who know that one

partner is a carrier of defect may regard the sexual organ as “dis-

eased”, in that the genes it secretes are defective, and given circum-

stances of “necessity”, may resort to sterilization. This argument is

answered by pointing out that the organ is not diseased in relation

to the parental body but only to the hypothetical child. What consti-

tutes “necessity”? Here the couple have two alternatives; they can

abstain or they can use contraceptives. Accordingly sterilization

would not be justified in their case . 2

One is then faced, once more, with the problem of the sub-

normal couple, incapable of using contraceptives efficiently or of

abstaining from intercourse. Here the Commission expresses doubt

whether any genuine voluntary sterilization can arise and points to

the uncertainty of all the children being defective. The final con-

clusion is so subtly phrased that for fear of misleading it must be

quoted in full. “With a mentally normal couple who decide that the

risk of handing on a disease to children is so grave that there must be

no children, but that contraceptives are not sufficiently infallible to

1 See J. T. Mangan, S.J., “An Historical Analysis of the Principle of Double
Effect”, Theological Studies, 10:41. St. Thomas Aquinas, Summa Theologica,
II—II lxiv. For a further discussion of the principle see E. Healey, Medical

Ethics
,
Chicago 1956, and A. Bonnar, The Catholic Doctor, New York 1950.

2 Human Sterilization
, pp. 11-12.

33



make avoidance of the risk absolutely certain: some would say they

may resort to sterilization, others would say that a decision can only
be arrived at after distinguishing between a certainty and a proba-

bility that the disability would affect someone in the family.” 1

Curiously enough the Report makes no mention of segregation as an

alternative solution to the problems raised by mental defect.

The Lambeth Conference of 1958 formulated a somewhat obscure
statement on voluntary sterilization. The Committee appears to have
been greatly influenced by the present irreversibility of sterilization

in declaring it an abdication ofan important area of responsible free-

dom and “a violation of the human body”. 2 Presumably this judge-
ment would be revised if sterilization could be reversed. The Com-
mittee evidently concluded that in some circumstances sterilization

is justifiable for it recommends “prayerful and serious consideration”

before a decision to be sterilized is taken. The circumstances are not

specified.

STERILIZATION AND THE LAW
—CHRISTIAN VIEW

A State policy of compulsory sterilization conflicts radically with
Christian morals and social policy. It violates the fundamental rights

of the human person, and confers powers on the State to which it has

no claim. The maintenance of State authority is in no way incom-

patible with the presence within the community of unsterilized

mental defectives and others. As has been established, the un-

certainty shrouding the whole hereditary process, the ignorance of

the pathology of mental diseases and defect, and the high proportion

of the population who would have to be sterilized for a eugenic policy

to have substantial effect, must result in the rejection of compulsory

sterilization on the level of practical ethics. Christians, accordingly,

have not only a right but a duty to resist the legislative sponsoring of

such projects, and to work for their repeal where they have been

enacted. The experience ofNazi Germany has convinced many of the

validity of the Christian contention that once sterilization powers

have been conferred on the State, the danger of their ruthless

1 Human Sterilization
, pp. 15-16.

2 The Lambeth Conference, 1958, 2:149.

34



exploitation is a real one. A Christian campaign on this issue could
accordingly expect general public support. It is a little surprising

to observe that the Catholics of Connecticut who have fought so

fiercely for the retention on the statute book of a birth control statute

which invades the privacy of the home, should have acquiesced for

all practical purposes in the presence of sterilization provisions in the

State Code which can be invoked without hearing or appeal.

Segregation is sometimes put forward as an alternative to steriliza-

tion to check the increase of mental defect. Here again, the paucity

of medical knowledge would be a powerful inhibiting factor, but

even assuming the predictability of transmission of defect, grave

objections are raised by the Christian conscience. The State has the

right to impose restrictions on the individual person only when they

are proportionately necessary for the preservation of the common

good. Since deprivation of liberty is in many ways a more fundamental

deprivation of fundamental human rights than sterilization, it could

only be justified if the community was in danger of innundation by

defectives, and of this no evidence exists. Segregation for the eugenic

benefit of the State alone must be ruled out, but if it can be shown

that those concerned are a danger to others, or else a danger to

themselves because of their irresponsibility, it is legitimate. What

of those who do not come within these categories? No person has a
moral right to procreate if he has no reasonable assurance that he can

beget healthy offspring and make reasonable provision for them.

The State may accordingly forbid the marriage of such persons in

defence of the common good. Some American States already forbid

the marriage of habitual criminals or drunkards : 1 others deny it to

insane and feeble-minded individuals who may pass the condition on

to their children .
2 Nearly all the States require evidence of freedom

from communicable syphilis before a marriage may be contracted.

As to procreation by such persons outside of marriage, this could be

restricted by the criminal law.

1 E.g. Virginia, Washington, Delaware and Ohio.
2 E.g. Michigan, Nebraska and South Dakota. No system for the registration

of the insane and feeble minded exists and the provisions are easily evaded. See

Glanville Williams, op. cit., p. 95. This, however, could be remedied. For a

discussion of Catholic principles involved, see J. P. O’Brien, The Right of the

State to make disease an impediment to marriage
,
Catholic University of America

Press, 1952.

35



Yet another alternative to compulsory sterilization is a voluntary

procedure. Those who regard sterilization as wrong in itself would

clearly oppose any campaign for its extension conducted by official

authority. Even those who do not subscribe to this judgment might

well conclude that until further medical research has been carried

out on both the mechanism of heredity and the effects of steriliza-

tion, such a campaign would be premature. Does the Christian con-

science require all sterilization to be forbidden by law? Many would
agree with Pius XII that public authority has no right to permit

sterilization “under the pretext of any ‘indication’ whatsoever”, and

that apart from the established exceptions of therapeutic and in-

direct sterilization, it should be legally banned. This, however, is not

the only conclusion compatible with Christian belief.

Most Christians would agree that a contraceptive sterilization

undertaken solely for reasons of personal convenience should not

be tolerated by the law. At common law this is probably the present
legal position. The justification for such a prohibition is that

sterilization directly injures the common good when it deprives the
community ofpotentially healthy stock. Again contraceptive steriliza-

tion by removing fear of pregnancy might well increase immorality

and the consequent spread of venereal disease. Furthermore, those

who wish to avoid children may resort to contraceptives, and

even those Christians who condemn contraception would rather see

their employment than the greater evil of sterilization.

When voluntary sterilization for eugenic purposes is considered,
different considerations arise. If those who have good reason to

think that they will transmit disease or mental defect are permitted

to sterilize themselves it is difficult to see how the common good
suffers. The possibility of loss to the community is at least balanced

by that of possible gain. A law which permitted such sterilization
provided that competent medical authority certified that it was

being employed for well founded eugenic reasons would not ipso

facto be unacceptable to Christians. The decision whether to employ

it would be left to the individual taking into account the tenets

of his particular denomination. The alternative choices of abstention

from sexual intercourse or the use of contraceptives would still be

available. The State would in no way be approving of sterilization

but would merely be stating that in the restricted circumstances out-

36



lined the final decision should be left to the individual rather than

the State.

Some, however, would oppose even this concession on the grounds

that it would only be the thin end of the wedge, and would lead to

legalizing other forms of sterilization . 1 They might also raise the

objection that in countries where there is a government health

service, the State would be promoting an immoral practice. This

difficulty could be surmounted by excluding the facilities from the

service.

SPECIFIC CATHOLIC PROBLEMS

Sterilization in Catholic hospitals

In both England and the United States the Roman Catholic Church
is responsible for the administration and staffing of a number of

hospitals. Although they perform a public service, these hospitals are

essentially private institutions, and apply the religious principles

already discussed in the treatment of their patients. Practice in

Catholic hospitals is conveniently summed up in a recent publica-
tion Ethical and Religious Directives for Catholic Hospitals. 2 Proce-

dures that induce either permanent or temporary sterility may only

be employed when:

“(a) they are immediately directed to the cure, diminution, or

prevention of a serious pathological condition;

(b) a simpler treatment is not reasonably available; and

(c) the sterility itself is an unintended and, in the circumstances,

an unavoidable effect.” These principles allow the performance of

the routine vasectomy carried out in many hospitals after certain

operations, but Father Gerald Kelly points out that in patients of the

younger age group, it should only be employed where there is a

special reason for its use. 3 The development of the anti-biotic drugs

may soon render this routine vasectomy unnecessary.

The above conditions, based on ethical considerations, are not

1 Thus the Italian Penal Code (art. 552) prohibits acts directed to render a
person impotent to procreate.

* Published by the Catholic Hospital Association, St. Louis, Missouri (1955).
8 See Gerald Kelly, “Vasectomy with Prostatectomy”, Medico-Moral

Problems
,
IL35, St. Louis 1956.

37



open to objection in a pluralist society. They are not imposed on

patients against their will, for Catholic practice is of reasonably

common knowledge, and the average patient expects certain ethical
limitations to medical procedure when he enters a Catholic hospital.

Ifhe wishes he can always transfer to another hospital where steriliza-

tion operations may be more readily available. Every patient certainly

has the moral right to be informed if an operation beneficial to his

health cannot be performed for ethical reasons. He clearly cannot
compel the doctor to perform an operation to which the latter

morally objects, but the decision not to employ it should be shared

by the patient so that he may have an opportunity of exercising

responsible assent. The information will create a liberty in practice

to go elsewhere, but its exercise need not be the primary purpose of

the communication. Knowledge may be a dangerous thing but the

patient has a right to it. Whether the physician has an obligation

to inform the patient where the operation can be carried out is more

open to question and must be decided by the individual doctor con-

sidering all the circumstances of the case . 1

Catholic doctors
,
nurses

,
etc., in non-Catholic hospitals

Catholic doctors or officials in charge of hospitals may not “formally”

co-operate in sterilization operations. Formal co-operation, according

to Catholic theologians, occurs when one acts with another in

performing an external act which is wrong in itself with or without

internal assent, or where assistance is given to one performing an im-

moral act by an act in itself indifferent but with the intention of

promoting the evil action . 2 Material co-operation is the performance

of an indifferent act helping another’s evil act but with no intention

of forwarding it. Material co-operation is licit provided a grave

reason exists for co-operating. Loss of employment by a nurse or

doctor would constitute such a reason. Thus it would never be lawful

for a Catholic doctor to perform a sterilization operation under any

1
1 would say that such an obligation does exist. The doctor is primarily

concerned with the health of the body and not of the soul. In informing his

patient of the availability of alternative facilities he is in no way advocating their

employment but discharging his duty of making all relevant information avail-

able without which the patient cannot come to a considered decision.
2 Performance of an act wrong in itself with no internal assent is sometimes

separately classified as “immediate” co-operation.

38



circumstances, but an anaesthetist might give the anaesthetic before

such an operation, if his refusal would cause grave inconvenience,

without violating his conscience. An elaborate casuistry has been
built up in the literature on the subject, but few difficulties arise in

practice, since most non-Catholic hospitals are careful to defer to the

scruples of their Catholic medical staff, and excuse them from opera-

tions to which they morally object . 1

Catholicjudges

Catholic judges, like any others, are bound to uphold the law of the

country, but they, like their medical colleagues, may find themselves

in difficulty when dealing with an application for sterilization. It is

arguable that the judge is not responsible for the state of the law, that

he only administers it and takes it as he finds it. He neither approves
nor disapproves of particular provisions but applies them in accor-

dance with the instructions of the legislature. There is a sphere of

judicial discretion, but it is limited, and a judge who consistently en-

forced the dictates of his own conscience rather than the law would

be guilty of betraying his office. Thus the correct attitude for a

Catholic judge when faced with a sterilization application would be

to set his own pre-possessions aside, and in a case which fell clearly

within the relevant statute, to apply the law.

Against this it may be said that a judge may never oblige anyone

to commit what he considers an intrinsically immoral act, for in

doing so he becomes a “material” co-operator. Such is the con-

clusion ofFather Davis in his book, The Moral Obligations ofCatholic

Civil Judges. “The judge in such cases,” he writes, “cannot throw

responsibility from his shoulders, nor can he render a decision

obliging a person to commit an act intrinsically evil. Therefore the

Catholic judge can never in his judicial action render a decision

putting the law ofeugenical sterilization into effect.” 2 Since the judge

is obliged by his position to enforce the law, he is left with no alterna-

tive save that of arranging not to hear the case, or if this proves

impossible, to resign from office. The withdrawal of Catholic judges

1 See A. Bonnar, op. cit., pp. 50-1, Edwin Healey, op. cit., pp. 103-6, and

J. B. Lehane, The Morality of American Civil Legislation concerning Eugenical

Sterilization, Washington 1944, pp. 96-7.
2 Washington 1953, p. 147.

39



from office would doubtless be considered an evil, from the Church’s

point of view, but the avoidance of this evil would not be considered

a justification for taking part in an intrinsically evil act.

LIBERAL CHRISTIAN VIEW AND THE LAW
Not all Christian denominations accept the traditional Christian

view on sterilization, but owing to the paucity of the literature on the

subject and the custom among the sects of leaving such matters to be

decided by the individual conscience, it is almost impossible to

formulate their views precisely. In 1954 a questionnaire was circulated

in the United States among some thirty-six denominations of which

thirty replied. 1 Roman Catholics and Moslems were the only
denominations to condemn sterilization in general, twenty denomina-

tions had not defined their attitude on medical and voluntary

eugenical sterilization, and twenty-two took no stand on sterilization

for social or economic reasons. Seven approved eugenical steriliza-

tion and one disapproved. Judaism’s general position seems clear.

Sterilization is prohibited. 2

Joseph Fletcher in his book, Morals and Medicine
,
commends the

legalizing of voluntary sterilization. He agrees with the authors of
Sterilization—a Christian approach

,

3 that the foremost concern of

Christianity is personality, and that divine rights and duties are not

expressed through natural or physical necessities but only through

personal human experience and decision. To them it is blasphemy to
say that God wills that stunted and defective children should be
born. They emphatically reject the view that to exist without taint is

better than not to exist at all. When there is a reasonable cause to elim-
inate the possibility of reproduction, then the Christian has not only

a right but a responsibility to do so. Like the utilitarians, this group

would welcome the legalizing of voluntary eugenic sterilization.

1 See Theodore W. Adams, “Thoughts on the Control of Postpartum Steri-
lization: Presidential Address”, Western Journal of Surgery, 62:101 (1954).

2 See Emanuel Rackman, “A Jewish View” in Symposium on Morals, Medi-
cine and the Law, New York U. Law Review

, 31:1211 (1956).
s By J. P. Hinton and J. E. Calcutt, London 1935.

40



APPENDIX V

STERILIZATIONS REPORTED IN THE
U.S.A.

From date of enactment of first sterilization law (Indiana 1907) to

January 1, 1958.
1

Grand Total

State 1957 1956 Total Male Female

Alabama2 224 129 95
Arizona 8 30 10 20

California 13 23 19,998 10,132 9,866

Connecticut 2 7 544 46 498

Delaware 8 12 879 45 i 428

Georgia 268 268 2,758 1,205 i ,553

Idaho 33 8 25

Indiana 29 34 2,354 i,i 57 i,i97

Iowa 48 69 i ,738 498 1,240

Kansas 3,025 1.763 1,262

Maine 5 1 310 45 265

Michigan 47 27 3,597 958 2,639

Minnesota 12 19 2,325 518 1,807

Mississippi 6 602 154 448

Montana 256 72 184

Nebraska 5 8 857 401 456

New Hampshire 8 8 678 152 526
New York2 42 I 4i
North Carolina 305 216 4,777 989 3,788

North Dakota 14 14 975 359 616

Oklahoma 556 122 434
Oregon 23 38 2,200 848 i ,352
South Carolina 34 43 235 18 217

South Dakota 4 2 783 281 502

1 Compiled from figures published by the various States.
2 Not reported. Alabama law inoperative since 1935. New York law declared
unconsitutional in 1912. Washington ibid. 1942.

41



Grand Total

State 1957 1956 Total Male Female

Utah 12 15 744 340 404
Vermont 1 253 83 170

Virginia 128 87 6,811 2,678 4>i33

Washington1 685 184 501

West Virginia 3 98 15 83
Wisconsin 7 1 1 >779 39 1 1,408

Totals 973 909 60,166 24,008 36,158

1 Washington law declared unconstitutional in 1942.



APPENDIX VI

STERILIZATIONS REPORTED IN THE U.S.A.

(Per 100,000 population) (1957)

Based on latest U.S. Dept, of Commerce, Bureau of the Census, Popu-

lation Estimate.

Georgia 7-09 Minnesota •36

N. Carolina 6*78 Nebraska *34

Virginia 3*37 Vermont •27

N. Dakota 2* 17 Wisconsin • 18

Delaware 1-82 California •09

Iowa i* 7 i Connecticut •09

S. Carolina i ‘43 Arizona 0*

New Hampshire i *4 Idaho o-
Utah i '4 Kansas 0*

Oregon i *3 Mississippi O'

Indiana •64 Montana O'

Michigan •61 Oklahoma O'

South Dakota *57 West Virginia O'

Maine *53

43



APPENDIX VII

YEARS IN WHICH STERILIZATION STATUTES
FIRST PASSED IN THE U.S.A.

Alabama 1919

Arizona 1929

California 1909

Connecticut 1909

Delaware 1923

Georgia 1937

Idaho 1925

Indiana 1907

Iowa 1911

Kansas 1913

Maine 1925
Michigan 1913

Minnesota i 925
Mississippi 1928

Montana 1923
Nebraska 1915

New Hampshire 1917
North Carolina 1919

North Dakota 1913

Oklahoma 1931
Oregon 1917

South Carolina 1935

South Dakota 1917

Utah 1925

Vermont 1931

Virginia 1924

West Virginia 1929

Wisconsin 1913

44



APPENDIX VIII

TYPES OF STATE STERILIZATION STATUTES
IN THE U.S.A.

State Voluntary1 Compulsory2 Voluntary3

and

Alabama

Arizona

California

Connecticut

Delaware

Georgia

Idaho

Indiana

Iowa

Kansas

Maine

Michigan

Minnesota x

Mississippi

Montana

Nebraska

New Hampshire
North Carolina

North Dakota

Oklahoma

Oregon

South Carolina

South Dakota

Utah

Vermont x

Virginia

West Virginia

Wisconsin

Compulsory

x

x

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

Extra

4

Eugenics?

Mural Board

x

x

X X

X X

X

X

X X

X X

X

X

1 Consent of defective person, spouse or guardian required.
2 Consent of defective person not required.
3 Law contains provision for either voluntary or compulsory.
4 Law contains provision for individuals outside of institutions.
5
Authorization agency for sterilization operation. (Other States: operations

passed on by designated State agencies.)

45



APPENDIX IX

SUMMARY OF UNITED STATES STERILIZATION
STATUTES

I. Alabama. (Code of Alabama, 1940, Title 45, Sec. 243. (1476).)

Compulsory and mandatory.

Persons covered: Inmates ofPartlow State School for Mental Defectives.

Grounds: None stated.

Initiation: Asst. Superintendent of school consults with Super-

intendent of school.

Authority making

order: Asst. Superintendent and Superintendent of school.

II. Arizona. (Arizona Code Annotated 1939, Vol. I, Art 4, Secs. 8-401

through 8-406.) (Laws 1929, Ch. 44, Secs. 1-6.)

Compulsory and permissive.

Persons covered: Any person confined in a State hospital for the insane

who is afflicted with an hereditary form of insanity

that is recurrent, idiocy, imbecility, feeble mindedness

or epilepsy.

Grounds: Hereditary and social.

Initiation: Superintendent of hospital petitions State Board of

Medical Examiners.

Authority making

order: State Board of Medical Examiners.

Note: Inmate has right to counsel and to appeal to the courts.

“Nothing in this act shall be construed so as to pre-

vent the medical or surgical treatment for sound

therapeutic reasons of any person in this State, by

a physician or surgeon licensed by this State, which

treatment may incidentally involve the nullification

or destruction of the reproductive functions.”

III. California. (Senate Bill No. 730 passed Senate April 12, 1951;

passed Assembly May 8, 1951; signed by Governor May 23, 1951.)
Compulsory and permissive.

46



Persons covered:

Grounds:

Initiation:

Authority making

order:

Note:

Any person who has been lawfully committed or

admitted to any State hospital or State home and who

is afflicted with or suffers from any of the following

conditions:

(a) mental disease, which may have been inherited and

is likely to be transmitted to descendants.

(b) mental deficiency in any of its various grades.

(c) marked departure from normal mentality.

Hereditary for the insane; none are stated for mental

deficients.

Superintendent of hospital or home gives certification

to the Directors of Mental Hygiene.

Director of Mental Hygiene.

Inmate has right of appeal.

IV. Connecticut. (General Statutes of Connecticut, Revision of 1949, Vol.

II, Secs. 4182-4183.)

Compulsory and mandatory.

Persons covered: Inmates by whom procreation would be inadvisable
who are confined in the State Prison, State Hospitals

for Mental Illness at Middletown, Newton and

Norwich, Mansfield State Training School and Hospi-

tal and Southbury Training School.

Grounds: Hereditary or medical. “If . .
.
procreation by any such

person would produce children with an inherited

tendency to crime, mental illness, feeble mindedness,

idiocy or imbecility and there is no probability that

the condition of any such person so examined will

improve to such an extent as to render procreation

by any such person advisable, or if the physical or

mental condition of any such person will be sub-

stantially improved thereby.”

Initiation: The warden, superintendent or doctor in charge of

each institution named, reports to a special board of

each institution.

Authority making The responsible body is a special board at each
order: institution which is composed of two skilled surgeons

and the doctor in charge of the institution.

Note: “Section 2684. Penalty for unlawful operation. Except

as authorized by section 2683, any person who shall

47



perform, encourage, assist in or otherwise promote the

performance of either of the operations described in

said section, for the purpose of destroying the power

to procreate in the human species, or any person who
shall knowingly permit either of such operations to

be performed upon such person, unless the same shall

be a medical necessity shall be fined not more than

one thousand dollars or imprisoned in the State

Prison not more than five years, or both.”

V. Delaware. (Revised Code of Delaware 1953, volume 4. Titles 16-32.)

Compulsory and permissive.

Persons covered: (a) All persons legally confined in any State or county

institution which has charge of insane, feeble

minded or epileptic persons.

(b) any feeble minded, epileptic, chronically or re-

currently insane person confined in any insti-

tution within the State, supported in whole or

part by the State or any county thereof, or any

such person at large.

(c) habitual or confined criminals who have been

convicted of at least three felonies by any courts of

this State or of any other State of the United

States.

Grounds: For those in category (a) above, where procreation is

inadvisable; none stated for category (b); for those in

category (c) above, that the criminality is caused by

mental abnormality or mental disease.

Initiation: Board or commission controlling appropriate insti-

tution makes application to the State Department of

Public Welfare.

Authority making Special panels appointed by the State Department of

order: Public Welfare.

VI. Georgia. (Code of Georgia Annotated, Book 28, Title 99, Ch. 99-13.)

Compulsory and mandatory.

Persons covered: Patients or inmates of any State home or hospital for

mental or physical disease; any State colony or insti-

tution for the care of the mentally or physically

defective, deficient, or diseased; any State prison or

penitentiary, correction school or reformatory, deten-

tion home or camp.

48



Grounds: Hereditary.

Initiation: Superintendent, manager or director of the insti-

tution in which the patient or inmate is confined sub-

mits recommendation to the State Board of Eugenics.

Authority making State Board of Eugenics, composed of Chairman of

order: State Board of Control, Director of State Board of

Health and Superintendent of Milledgeville State

Hospital.

Note: Right of inmate to receive notice and to appeal to

courts.

VII. Idaho. (Laws of Idaho Title 66, Ch. 8. 66-801 through 66-812. Also

1955 S. B. No. 82 amending section 39-101.)

Compulsory and mandatory.

Persons covered: All feeble minded, insane, epileptic, habitually crimi-

nal, morally degenerate and sexually perverted per-

sons who are, or are likely to become a menace to

society.

Grounds: Hereditary and social.

Initiation: Superintendents or Warden of appropriate insti-

tution report quarterly to the State Board of Health:

Eugenics Section.

Authority making

order: State Board of Health: Eugenics Section.

Note: Right of appeal, etc.

VIII. Indiana. (Burns Indiana Statues, Annotated [1950 Replacement]

Vol. 5, part 2, Title 22, Ch. 16, Secs. 22-1601 through 22-1618.)

Compulsory and permissive.

Persons covered: (a) Any person afflicted with hereditary forms of
insanity that are recurrent, epilepsy or incurable

primary or secondary types of feeble mindedness,

who is an inmate of any hospital or other State or

county institution which has the care or custody

of insane, feeble minded or epileptic persons.

(b) any person afflicted with idiocy, imbecility, or

feeble mindendess for whom application for com-
mitment to an institution for the feeble minded

has been filed in a court of competent jurisdiction.

(c) any person afflicted with insanity for whom appli-
cation for commitment to an institution for the

I

49



insane has been filed in a court of competent

jurisdiction.

Grounds: Hereditary for the insane; social for all categories.

Initiation: For (a) the superintendent of the institution in which

the patient is confined petitions the Commissioner of

Mental Health. For those in (b) and (c) above, certifi-

cation is made by examining doctors appointed by

court.

Authority making For (a) the Commissioner ofMental Health. For (b) and

order: (c) the court in which the application for commitment

is filed.

Note: Provisions for appeal.

IX. Iowa. (Iowa Code Annotated: Vol. 9, Ch. 145.)
Compulsory and mandatory.

Persons covered: All persons living in the State who are feeble minded,

insane, syphilitic, habitual criminals, moral degener-

ates or sexual perverts and who are a menace to society.

Grounds: Hereditary and social.

Initiation: Each member of the State Board of Eugenics, etc.,

submit names in quarterly reports to the State Board

of Eugenics.

Authority making

order: State Board of Eugenics.

Note: Provisions for notice and appeal to courts.

X. Kansas. (General Statutes, Annotated 135, Ch. 76, Art. 1.)

Compulsory and mandatory.

Persons covered: Any inmate of State Penitentiary, Hutchinson Re-

formatory, State hospitals for the insane, State

Hospital for Epileptics, State Training School or State

Industrial School for Girls.

Grounds: Hereditary and medical.

Initiation: Warden or superintendents of appropriate institutions.

Authority making The chief medical officer of any institution, the

order: governing board of such institution and the Secretary

of the State Board of Health constitute the Board of

Examiners which makes the order.

Note: Section 76-155. “Penalty for unlawful operations

except as authorized by this act, every person who

shall perform, encourage, assist in or otherwise promote

50



the performance of either of the operations described

in this act, for the purpose of destroying the power to

procreate the human species, unless the same shall be

a medical necessity, shall be fined not less than ioo

dollars nor more than 500 dollars, and imprisoned in

the county jail not less than six months nor exceeding

one year.”

XI. Maine. (Revised Statutes of Maine [1944], Vol. I, Ch. 23.)

Voluntary and compulsory and mandatory.

Persons covered: (a) Any feeble minded person or person afflicted with

mental disease who is. at large.

(b) inmates of any State institution which has the care

or custody of feeble minded persons.

Grounds: Hereditary or medical for those at large; hereditary

only for those confined in State institutions as defined

above.

Initiation: (a) For those designated in (a) above, the operation is

recommended, upon consent of the person or his

nearest relative or guardian, by a doctor who may call

council of two doctors to examine patient. For those

designated in (b) above, the recommendation is made in

writing by the medical staff or institution physician

and is accompanied by the sworn statement of the

superintendent.

Authority making Operation voluntary for those at large. For those in

order: institutions as defined above the Commissioner of

Institutional Service is responsible.

Note: Provisions for appeal.

XII. Michigan. (Compiled Laws of the State of Michigan 1948, Vol. IV,

Ch. 720.)

Compulsory and mandatory.

Persons covered: (a) Inmates of thirteen named institutions and any

other hospital, training school, farm colony,

prison or public institution maintained in whole

or in part by the State of Michigan.

(b) mentally defective persons at large.

Grounds: Hereditary and social.

Initiation: (a) Superintendent of appropriate institutions.

(b) Petition to probate court by relatives or one of list

of officials.

51



Authority making Probate Court which appoints first two doctors to

order: make investigation.

Note: Provisions for hearing and appeal.

XIII. Minnesota. (Minnesota Statutes Annotated, Vol. 17, Ch. 256, Secs.

256.07 through 256.10.)

Voluntary only.

Persons covered: (a) All persons lawfully committed as mentally

deficient to the guardianship of the Director of

Social Welfare.

(b) All persons committed as insane to the custody of

the superintendent of a State hospital for the in-

sane in which they have been confined for at least

six consecutive months.

Grounds: None stated.

Initiation: Director of Public Institutions after consultations.

Authority making

order: The Director of Public Institutions.

XIV. Mississippi. (Mississippi Code 1942 Annotated, Vol. 5, Title 25,
Ch. 3, Art. 10, Secs. 6957 through 6964.)

Compulsory and permissive.

Persons covered: Patients or inmates of the Mississippi State Insane

Hospital, East Mississippi Insane Hospital or Missis-

sippi School and Colony for the Feeble minded.

Grounds: Hereditary and social.

Initiation: The superintendent of the institution in which the

patient is confined petitions the Board of Trustees or

the directors of such institutions.

Authority making The local Board of Trustees or the Directors of the

order: Institution.

Note: Provisions for appeal.

Nothing in this statute shall be construed so as to

prevent the medical or surgical treatment for sound

therapeutic reasons of any person in this State by

a physician or surgeon licensed by this State, which

treatment may incidentally involve the nullification

or destruction of the reproductive functions.

XV. Montana. (Revised Codes of Montana 1947, Vol. 3, Ch. 6, Secs. 38-

601 through 38-608.)

Compulsory and mandatory.

52



Persons covered: Idiots, feeble minded, insane or epileptic persons who

are inmates of State custodial institutions.

Grounds: Hereditary or medical.

Initiation: Chief physician of inmate’s institution submits

certificate to the State Board of Eugenics.

Authority making The State Board of Eugenics approves certificate by

order: endorsement.

Note: Provision for appeal.

XVI. Nebraska. (Revised Statutes of Nebraska 1943, Vol. IV, Ch. 83,
Art. 5, Secs. 83-501 through 83-509.)

Compulsory and mandatory.

Persons covered: Feeble minded, insane, habitually criminal, morally

degenerate and sexually perverted patients or inmates

who are subject to parole or discharge from the

Institution for the Feeble minded, hospitals for the

insane, Reformatory for Women, Industrial Home,
industrial schools and the Penitentiary.

Grounds: Hereditary and social.

Initiation: Superintendents of appropriate institutions to Board

of Examiners in quarterly reports.

Authority making

The Board of Examiners.

Provisions for appeal.

“If it shall appear from the warrant of commitment

that any male inmate shall have been convicted for

rape, incest, any crime against nature or for viola-

tion of section 28-901, then it shall be the duty of the

board of examiners, if ordered by the court, to perform

or cause to be performed an operation for the castra-

tion of such male inmate; Provided, however, if

such operation of castration is performed, the inmate

shall be eligible to apply for a commutation of sentence

within one year after said operation.” (Sec. 83-504).

XVII. New Hampshire. (Revised Laws of New Hampshire 1943, Vol. I,
Title XV, Ch. 160, Secs. 1 through 14.)

Compulsory and permissive.

Persons covered: Inmates of any State or county institution who are

afflicted with hereditary forms of insanity that are

recurrent, idiocy, imbecility, feeble mindedness or

epilepsy.

order:

Note:

53



Grounds: Hereditary and social.

Initiation: Petition of superintendent of institution is presented

to Board of County Commissioners or governing body

of appropriate institution.

Authority making Either County Commissioners or governing body of

order: appropriate institution.

Note: Provisions for appeal.

“Nothing herein shall be construed so as to prevent

medical or surgical treatment for sound therapeutic

reasons of any person in this State, whether such

treatment involves the nullification or destruction ofthe

reproductive functions or otherwise.” (1929, 138: 12)

XVIII. North Carolina. (General statutes of 1943, Vol. 2, Ch. 35, Secs.

35-6 through 35-57.)

Voluntary and compulsory and mandatory.

Persons covered: (a) Any mentally diseased, feeble minded or epileptic
inmate or patient of any penal or charitable insti-

tution which is supported wholly or in part by

the State or any subdivision thereof.

(b) any such person at large.

Grounds: Hereditary, social, or medical.

Initiation: The head of the institution or County Superintendent

of Public Welfare petitions the Eugenics Board of

North Carolina.

Authority making

order: Eugenics Board of North Carolina.

Note: Provisions for hearing and appeal.

“Nothing contained in this article shall be construed

so as to prevent the medical or surgical treatment for

sound therapeutic reasons of any person in this State

by a physician or surgeon licensed in this State, which

treatment may incidentally involve the nullification or

destruction of the reproductive functions. (1933, c.

224, s. 17).

XIX. North Dakota. (North Dakota Revised Code 1943, Vol. 2, Title 23,
Ch. 23-08, Secs. 23-0801 through 23-0815.)

Compulsory and mandatory.

Persons covered: Feeble minded, insane, epileptic, habitually criminal,

morally degenerate and sexually perverted inmates

(who are potential producers of offspring and who,

54



Grounds:

Initiation:

Authority making

order:

Note:

because of the inheritance of inferior or anti-social

traits, probably would become social menaces or wards

of the State), confined in the State Penitentiary,

State Hospital for the Insane, State Training School

and the Grafton State School. Criminals covered by

the act are those moral degenerates and sexual per-

verts who are addicted to the practice of sodomy, the

crime against nature or other gross, bestial and per-

verted sexual habits and practices prohibited by

statute.

Hereditary and medical.

Warden, superintendent etc., of named institutions

in quarterly reports.

Board ofExaminers.

Provisions for appeal.

XX. Oklahoma. (Oklahoma Statutes 1941, Title 35, Ch. 2, Secs. 141-146.)
Compulsory and permissive.

Persons covered: Male patients under sixty-five and female patients

under forty-seven about to be discharged from the

Hospital for the Insane at Norman, the Hospital at

Supply, Hospital for the Insane at Vinita, Institute

for the Feeble minded at Enid, State Penitentiary at

McAlester, State Reformatory at Granite, any other

penal institution existing or to be created or any other

such institution supported in whole or in part from

public funds.

Grounds: Hereditary and social.

Initiation: Superintendent or warden petitions State Board of

Affairs.

Authority making

order: State Board of Affairs.

Note: Provisions for service and appeal.

XXI. Oregon. (Oregon Compiled Laws Annotated, Vol. 8, Title 127, Ch. 8,
Secs. 127-801 through 127-811.)

Compulsory and mandatory.

Persons covered: All persons who are feeble minded, insane, epileptic,

habitual criminals, incurable syphilitics, moral degener-

ates or sexual perverts; any person convicted of

55



the crime of rape, incest, sodomy, contributing to

the delinquency of a minor by sexual act or act of

sexual perversion, the crime against nature or any

other crime specified in section 23-910 of the laws; or

any person convicted of attempting to commit any of

said crimes.

Grounds: Hereditary or social.

Initiation: Quarterly reports to the State Board of Eugenics are

made by the Superintendents of the Oregon State

Hospital and other named institutions.

Authority making

order: State Board ofEugenics.

Note: Provisions for appeal.

XXII. South Carolina. (Code of Laws of South Carolina 1942, Vol. 3,
Sec. 5009.)

Compulsory and permissive.

Persons covered. Any inmate of State penal or charitable institutions
who is afflicted with any hereditary form of insanity

that is recurrent, idiocy, imbecility, feeble mindedness

or epilepsy.

Grounds: Hereditary and social.

Initiation: Superintendent of institution petitions the Executive

Committee of the State Board of Health.

Authority making

order: Executive Committee of State Board of Health.

Note: Provisions for appeal.

XXIII. South Dakota. (South Dakota Code of 1939, Vol. 1, Title 30,
Ch. 20.05, Secs. 30.0501, through 30.0514.)

Voluntary and compulsory and mandatory.

Persons covered: A: Any feeble minded person and those feeble minded

inmates about to be discharged from the State School

and Home for the Feeble minded.
Grounds: That such feeble minded person is of such an age as to

be capable of procreation and, by reason of his feeble

mindedness, would not be capable of properly per-

forming the duties of parenthood.

Initiation: Any State resident’s complaint, asking that order and
commitment be made. Filed with Chairman of

county’s commission for feeble minded.

56



(Laws of 1943 [Ch. 112-H.B. 206—approved March 8, 1943])
Persons covered: Any person committed to the Yakton State Hospital

and about to be discharged who is afflicted with or

suffering from

(a) mental disease which may have been inherited and

is liable to be transmitted to descendants,

(b) perversion or marked departure from normal

mentality,

(c) disease of a syphilitic nature.

Grounds: That such person is capable of procreation and that

procreation would be probable.

Initiation: At least ten days before the operation, the Super-

intendent ofthe hospital notified in writing the inmate,

etc.

Authority making Superintendent of Yankton State Hospital, supported

order: by majority of medical staff.

Note: Provisions for appeal.

XXIV. Utah. (Uta Code Annotated 1943, Vol. 5, Title 89, Secs. 89-0-1

through 89-0-12. Supplement, Secs. 89-0-1 through 89-0-8

amended; Secs. 89-0-13 and 89-0-14 added. Amended by L.1945,

H.B. 87, Approved February 27, 1945.)
Compulsory and permissive.

Persons covered: Any inmate (whether voluntary or committed) con-

fined in the Utah State Hospital, Utah State Training

School, State Industrial School or State Prison; or

any person adjudged to be insane, an idiot, an im-

becile, feeble minded, epileptic or who is afflicted with
habitual degenerate sexual criminal tendencies.

Grounds: Hereditary and social.

Initiation: Superintendent or Warden petitions board of insti-

tution.

Board of particular institution to which petition is

directed.

Provisions for hearing and appeal. “Except as

authorized by this title, every person who performs,

encourages, assists in or otherwise promotes the

performance of any of the operations described in

this title for the purpose of destroying the power to

procreate the human species, unless the same shall

be a medical necessity, is guilty of a felony.”

Authority making

order:

Note:

57



XXV. Vermont. (Vermont Statutes, Revision of 1947, Ch. 425, Secs. 10,
027 through 10,030.)

Voluntary only.

Persons covered: Any mentally defective or insane resident of State who
is likely to procreate mentally defective or insane

persons, if not sterilized.

Grounds: Hereditary and social.

Initiation: When such person is confined in a State institution,
the Commissioner of Institutions and Corrections is

authorized with the consent of the inmate and his

natural or legal guardian, to contract for examination

and certification under oath by two physicians and

surgeons not employed by the State. In all other cases,

two physicians and surgeons, legally qualified to

practice in the State, make the examination and

certification under oath. The consent of the inmate or

his legal or natural guardian is required.

Authority making

order: None—no order is made.

XXVI. Virginia. (Code of Virginia 1950, Vol. 6, Title 37, Secs. 37-231
through 37-245. 1950 Cum. Supp. Secs. 37-231 and 37-241.)

Compulsory and permissive.

Persons covered: Any inmate, afflicted with hereditary forms of mental

illness that are recurrent, mental deficiency or epilepsy,

who is confined in Western State Hospital, Eastern

State Hospital, Southwestern State Hospital, Central

State Hospital, Lynchburg State Colony or Peters-

burg State Colony.

Grounds: Hereditary and social.

Initiation: Hospital or colony superintendent petitions State

Hospital Board.

Authority making State Hospital Board or member or members thereof

order: designated by such Board.

Note: Provisions for Appeal. Reservation re therapeutic

sterilization. “Nothing in this chapter shall be con-

strued so as to prevent the medical or surgical treat-

ment for sound therapeutic reasons of any person in

this State, by a physician or surgeon licensed by this

State, which treatment may incidentally involve the

58



nullification or destruction of the reproductive

functions.”

XXVII. West Virginia. (West Virginia Code of 1949 Annotated, Ch.

16 Art. 10, Secs. 1394-1400.)

Compulsory and permissive.

Persons covered: Any inmate, afflicted with any hereditary form of
insanity that is recurrent, idiocy, imbecility, feeble

mindedness or epilepsy, who is confined in Weston

State Hospital, Huntington State Hospital, Spencer

State Hospital, Lakin State Hospital, West Virginia

Industrial School for Boys, Industrial Home for
Girls, Industrial School for Coloured Boys or In-

dustrial Home for Coloured Girls.
Grounds: Hereditary and social.

Initiation: Superintendent of institution in which patient is

confined petitions in writing the State Public Health

Council.

Authority making

Public Health Council.

Provisions for appeal. Reservation re medical steriliza-

tion. “Nothing in this article shall be construed to

authorize the operation of castration nor the removal

of sound organs from the body, but this provision

shall not be construed so as to prevent the medical or

surgical treatment for sound therapeutic reasons of

any person in this State, by a physician or surgeon

licensed by this State, in such a way as may incidentally

involve the nullification or destruction of the re-

productive functions.”

XXVIII. Wisconsin. (Wisconsin Statutes 1949, Title VII, Sec. 46.12.)

Compulsory and permissive.

Persons covered: Inmates and patients of institutions having charge of

criminal, mentally ill, mentally deficient and epileptic

persons.

Grounds: Procreation is inadvisable.

Initiation: Department of Public Welfare submits names to

special Board.

Authority making Department of Public Welfare, upon unanimous

order: finding of experts and superintendents.

order:

Note:

59



APPENDIX XV

A SELECT BIBLIOGRAPHY
Adams, Theodore W., “Thoughts on the Control of Postpartum Steriliza-

tion; Presidential Address”, Western Journal of Surgery, 62: 101 (1954).

Bonnar, A., The Catholic Doctor
,
New York 1950.

Boulware, T. M., Howe, C. D. and Simpson, S. T., “A Discussion of
Postpartum Sterilization”, American Journal of Obstetrics and Gynae-

cology
,
68: 1124 (1954).

Donnelly, Richard C., “Liability of Physicians for Sterilization in

Virginia”, Virginia Medical Monthly, 78: 25 (January 1951).

Gest, John B., “Eugenic Sterilization: Justice Holmes v. Natural Law”,

Temple Bar Quarterly, 23: 306 (1950).

Hatton, Robert E., “Is Compulsory Sterilization the Long Sought

Solution for the Problem of our Mental Incompetents?”, Kentucky Law

Journal
, 23: 517 (1934).

Healy, E., Medical Ethics
,
Chicago 1956.

Hinton, J. P. and Calcutt, J. F., Sterilization: A Christian Approach

,

London 1935.

Hughes, James E., “Eugenic Sterilization in the United States”, Public

Health Reports (1940) Supp. No. 162.

Human Sterilization: Some Principles of Christian Ethics (Church of
England Moral Welfare Council), London 1951.
Kelly, Gerald, Medico-Moral Problems

,
St Louis 1956.

Lambeth Conference 1958, The, The Encyclical Letter from the Bishops,

together with the Resolutions and Reports, London 1958.
Landman,

J. H., Human Sterilization , New York 1932.
Lehane,

J. B., The Morality of American Civil Legislation Concerning

Eugenical Sterilization
,
Washington 1944.

Miller, Justin and Dean, Gordon, “Liability of Physicians for Steriliza-

tion Operations”, American Bar Association Journal
,
16: 158 (1930).

Montagu, M. F., “The Biologist looks at Crime”, Annals ofthe American

Academy of Political and Social Science , 217: 46 (1941).
Myerson, Abraham, “Certain Medical and Legal Phases of Eugenic

Sterilization”, Yale Law Journal, 52: 618 (1943).
“Certain Medical and Legal Phases of Eugenic Sterilization”,

Annals on Internal Medicine
, 18: 580 (1943).

“Sterilization”, Atlantic Monthly, 186: 52 (1940, II, 5).

“Summary of the Report of the American Neurological Associa-

tion Committee for the Investigation of Sterilization”, American Journal

of Medical Jurisprudence 1: 253 (1938).

O’Brien, J. P., The Right of the State to make Disease an Impediment to

Marriage, Washington 1952.

60



O’Hara, James B. and Sanks, T. Howland, “Eugenic Sterilization”,

Georgia Law Journal, 45: 20 (1956).
Pearse, Harry A. and Ott, Harold A., “Hospital Control of Sterilization

and Therapeutic Abortion”, American Journal of Obstetrics and Gynae-

cology, 60: 285 (1950).

Pearse, Harry A. and Trisler, J. David, “Administrative Aspects of

Sexual Sterilization”, Western Journal of Surgery, 63: 545 (1955).

Pius XI, On Christian Marriage, New York 1931.
Report ofDepartmental Committee on Sterilization, “The Brock Report”,

1934 Cmd. 4485.
Report of American Neurological Association on Sterilization (1936).

Report of the Family in Contemporary Society (Church of England),

London 1958.
Symposium on Morals, Medicine and the Law, New York Law Review,

31: 1157 (1956).

Schiffer, Robert R., “Constitutionality of Sterilization Statutes”,

Marquette Law Review, 27: 99 (1943).
Smith, Hubert Winston, “Antecedent Grounds of Liability in the

Practice of Surgery”, Rocky Mountain Law Review, 14: 233 at 276-84

(1942).

Williams, Glanville, The Sanctity of Life and the Criminal Law, New
York 1957.

Woodside, Moya, Sterilization in North Carolina, Chapel Hill 1950.

PUBLICATION OF HUMAN BETTERMENT ASSOCIATIONS OF AMERICA

1. Legal Bibliography on Sterilization. Compiled by Samuel Highleyman

under the supervision of Richard C. Donnelly, New York 1957.
2. Sterilizations reported in the United States, New York 1958.
3. Suggested Sterilization Bill.

61



-



s





TITLES IN THE FAMILY LIFE BUREAU, NCWC, REPRINT SERIES

In Leaflet Form

PLANNING FAMILY FINANCES
from Royal Bank of Canada Monthly Letter, May 1962
(five cents per copy; four dollars per hundred

)

THE PARENT IS THE PRIMARY TEACHER by Rev. George Hagmaier, C.S.P.
from The Catholic World, April 1962

(five cents per copy; four dollars per hundred)

PURPOSE OF CFM by Rev. William F. Nerin
from Apostolate, Fall 1962

(five cents per copy; four dollars per hundred)

ABORTION AND THE RIGHT TO LIFE
based on Model Penal Code on Abortion and

Kansas State Senate Bill No. 343 of 1963

(five cents per copy; four dollars per hundred)

LOVE, O LOVE, O CAREFUL LOVE by Jane Hanover Adams
from AMERICA, October 26, 1963
(five cents per copy; four dollars per hundred)

CHRISTIAN UNITY AND CHRISTIAN MARRIAGE by Gerald Kelly, S.J.
from Theology Digest, Winter 1963

(ten cents per copy; seven dollars per hundred)

AS CHRIST LOVED THE CHURCH by Rev. Thomas W. Burke
from The Way, April 1964

(ten cents per copy; seven dollars per hundred)

ANTI-MISCEGENATION LAWS by Larry D. Barnett
from The Family Life Coordinator, October 1964

(five cents per copy; four dollars per hundred)

In Book Form

CONTRACEPTION AND MARITAL LOVE by Paul M. Quay, S.J.
revised from Theological Studies, March 1961
(thirty-five cents per copy)

JUSTIFIABLE ABORTION: MEDICAL AND LEGAL FOUNDATIONS by Eugene
Quay
from The Georgetown Law Journal, Winter 1960 and Spring 1961
(two dollars and fifty cents per copy)

BIRTH CONTROL AND PUBLIC POLICY by Norman St. John-Stevas
originally issued by the Center for the Study of Democratic Institutions

(fifty cents per copy)

STERILIZATION AND PUBLIC POLICY by Norman St. John-Stevas
originally published as Chapter Four of the book entitled “Life, Death and the Law

”

(fifty cents per copy)