Sterilization of Retarded Woman, 30, Faces a Test

SAN JOSE —  A public defender will return to court here this week to try to block the sterilization of a severely retarded woman, while the woman’s mother prepares her daughter for what would be the first state-approved sterilization in 17 years.

Deputy State Public Defender Ezra Hendon will take his case to a court of appeal in San Jose, after failing to persuade a Superior Court judge to revoke his order allowing the operation on Valerie Nieto, 30, who has Down’s Syndrome.

“What this is supposedly all about,” Hendon said in an interview, “is what would people like Valerie want if people like Valerie could articulate. It is not what we think is best for Valerie. All the indications are that if Valerie could say what she wanted, she wouldn’t have this surgery.”

Hendon entered the case after a group of retarded people and their advocates demonstrated at the Santa Clara County courthouse two weeks ago. The protest was over Judge John A. Flaherty’s order allowing the operation to occur any time after May 19 and the refusal of Valerie’s first lawyer to appeal the order.

Concern About Impact

“The concern is great that the floodgates are open,” said Bob Rosenberg, a consultant to Capitol People First, the Sacramento group of retarded people that demonstrated. “People who are as vulnerable as the retarded have cause to worry.”

Even as the appellate court considered the emotional case, Mildred Gedney was preparing to take her daughter to a hospital where doctors were going to perform a tubal ligation this week.

Gedney, who lives in Santa Clara, has cared for Valerie since birth and is her conservator. She is indignant over criticism of her difficult decision. She believes sterilization is the only birth control that will work for Valerie, and had thought her six-year legal fight to have it performed was over.

“Can these people take care of my daughter for the rest of her life?” Gedney said in an interview. “It is real easy to give advice, especially when you don’t know all the facts.”

As Gedney sees it, she has no choice but to have the operation done if Valerie, who has an IQ of 30, is ever going to live a more normal life and have relations with men.

‘She Is So Pure’

“I look at her and feel bad,” Gedney said. “She is so pure and innocent. She is my baby . . . I hate it, but I have to do it.”

Valerie’s case attracted attention last October when the state Supreme Court by a 4-3 vote declared unconstitutional a 1980 statute banning sterilization of mentally incompetent people.

The Legislature imposed the ban because of past abuses. In 1909 lawmakers passed a law allowing the operations in a futile hope to end maladies like Down’s Syndrome by eugenic sterilization.

By the time the practice fell into disrepute, 20,000 people had been sterilized in California. The last state-approved sterilization of a mentally incompetent person took place in 1969, said a spokeswoman for the state Department of Developmental Services.

Striking down the 1980 ban, the Supreme Court said that while Valerie would never be able to decide on her own whether to be sterilized, “she has a constitutional right to have these decisions made for her.”

But the court, trying to ensure that sterilization is used only as a last resort, ordered that trial judges find by “clear, cogent and convincing evidence” that the woman can become pregnant, will be likely to have sex and that no other birth control method will work.

Valerie’s case was then returned to Flaherty’s courtroom. Critics say there was no proof at the hearing that Valerie could become pregnant or that less drastic birth control measures might suffice. The judge nonetheless issued the order.

“I can’t give an opinion as to whether sterilization is appropriate in Valerie’s case. The real issue is whether criteria established by the Supreme Court was met,” said Eric Gelber of Protection and Advocacy, a legal aid group that works on behalf of mentally incompetent people.

Gelber noted, for example, that there was no current information about whether Valerie could tolerate birth control pills or other forms of birth control.

One Witness Called

At the hearing, Valerie’s lawyer asked few questions of Gedney and called only a single witness--Valerie. She was able to state her name but could not say what day of the week it was. There was no indication she understood why she was there.

Hendon, who urged the Supreme Court to leave the 1980 ban intact for fear that such operations would be commonplace once more, called it “a sham of a hearing.”

“It is a very bad sign,” Hendon said. “It means that . . . when parents come in and seem attractive and sincere and the ward seems less than capable, these things will be stamped out in a routine manner.”

Valerie has never had sex, but her mother hopes Valerie can one day have a relationship with a man. Gedney is convinced that Valerie would suffer severe trauma if she became pregnant.

“If she had a baby I would never be able to give it up. I’m 55. I don’t know how long I could care for it. If that is selfish, so be it,” Gedney said.

Adverse Reaction to Pill

Valerie took two different types of birth control pills in 1970 and 1971, but suffered a significant physical reaction. Her physician has not prescribed birth control pills since.

Gedney said Valerie cannot be trusted to take birth control pills or even complain about potential pain that might signal an infection associated with an intrauterine device.

Valerie has never allowed a pelvic exam that might help doctors determine if she can become pregnant. The doctor who will perform the surgery planned to anesthetize Valerie so he could examine her. If the doctor concludes she could become pregnant, he will operate while the anesthetic is in effect.

Gedney’s lawyer, Allen Fleishman, said that because of Valerie’s low level of functioning, she was “a good test case” for having the 1980 law thrown out, and for winning Flaherty’s approval to have her sterilized.

“If she were a high functioning person there would have been different testimony,” the San Jose attorney added.

Decision Backed

Valerie’s first lawyer, John Horning, a deputy public defender in Santa Clara County, agreed that the judge’s decision was appropriate.

“She has little ability to care for herself and no ability to care for an infant. She is able to toilet herself, sometimes. I’m sure she could not change diapers for a baby. How could you expect someone with an IQ of 30 to know about nutrition, illness, the psychological factors involved in parenthood?”

Assemblyman Johan Klehs (D-San Leandro) is sponsoring a bill backed by the Assn. of Retarded Citizens that would create standards for deciding when to perform such operations.

“It is not clear what Valerie’s case portends for future cases. What it does suggest is that there is a need for additional safeguards,” said Rand Martin, lobbyist for the Assn. for Retarded Citizens of California.