Equal Treatment for People with Mental Retardation

Martha A. Field is Langdell Professor of Law at Harvard University. Valerie A. Sanchez is Assistant Professor of Law and Associate Director of the Institute for Dispute Resolution at the University of Florida Fredric G. Levin College of Law. She was formerly Lecturer on Law at Harvard Law School.

• Preface Acknowledgments PART I: INTRODUCTION Some Families Public Policy, Past and Present Changing Policies toward Mental Retardation The Current Policy Dilemma concerning Parents with Retardation Who Are Called "Retarded"? Causes of Mental Retardation Defining and Classifying Mental Retardation A History of Intelligence Testing Evolving Definitions of IQ IQ Testing Today PART II: PROCREATION Procreative Choice--But Whose? Different Legal Approaches Discrimination against Persons Who Have Retardation The Patient as the Appropriate Decisionmaker Benefits and Costs of Protective Measures Resolving the Problem Evolution of Policies toward Sterilization Procedural Protections The Need for Substantive Reforms Judicial Decisionmaking in a Legislative Void Ambivalence toward Eugenics Current Policy Issues concerning Sterilization Strict Prohibition of Nonconsensual Sterilization Retreat from Strict Prohibition Judicial Supervision of Third-Party Consent to Sterilization What Should the Standards for Sterilization Be? Substituted Judgment or Best Interests? Standards for Who Can Be Sterilized and When Disagreement about the Reasons for Sterilization Sex and Contraception Constitutional Law concerning Minors' Access to Sex Constitutional Law concerning Adults' Access to Sex Access to Sex for Persons with Retardation The Importance of Sex Education Preferring Contraception over Sterilization Contraception: Practice and Law Different Legal Treatment of Sterilization and Other Contraceptive Measures Distinguishing Sterilization from Other Contraception The Legal Status of Persons with Mental Retardation Conpared with that of Children The Limited Impact of Guardianship Four Scenarios Imprecise Rules about When Guardianship Is Appropriate Interactions between Guardian and Ward The Peculiar Problem of Abortion Two Differing Legal Approaches Does Practice Accord with the Law? Standards for Abortion Resistance from the Patient PART III: A PROPOSAL FOR SELF-DETERMINATION Self-Determination Explained and Evaluated The Necessity for Self-Determination Respecting a Patient's Resistance Four Scenarios Critique: Danger and Unworkability How the Proposed System Would Work The Best Available Solution Necessary Limitations on Self-Determination Nonexpressive Persons Minors The Possibility of Varying the Rule The Glen Ridge Rape Case Should Sterilization Be Available Only with Actual Informed Consent? PART IV: PARENTING Some Underlying Rules and Issues Standards for Evaluating Parents: Adoption, Neglect and Abuse, and Custody Proceedings Comparing the Standards The Difficulty and Subjectivity of Defining Unfitness Use and Misuse of Sociological Studies Written Law concerning Parenting: Important Issues for Parents with Retardation Historical Perspective: Per se Disqualification The Unconstitutionality of Disqualifying Parents Because of Unfitness of Their Group Evolution of the Standard Toward an Appropriate Legal Standard, Applicable to All Parents The Social Welfare System in Practice The Process for Parents in General Applying the Procedures to Parents Who Have Retardation Reforming the System Some Difficult Policy Issues Applying Procedural Protections to Removal Proceedings Adjusting the Interval between Removal and Termination More Flexible Kinds of Adoption Providing Assistance Devising Solutions Hope for the Future Some Key Suggested Reforms Conclusion Notes Bibliography Cases Index

A comprehensive examination of the reproductive and parental rights of mentally retarded citizens. After presenting an overview of mental retardation and of relevant public policy and case law, the authors detail current debates about procreation and parenting among the mentally retarded and put forth proposals to reform the existing system...An important resource for legal and medical professionals, care givers, educators, and social service providers.