The works of the Devil -- by Virginia and other states -- practicing Eugenics and mutilating innocent disabled children prior to 1989.

Until recently, involuntary sterilization was used as a weapon of the state in the war against mental deficiency. Under eugenic sterilization laws in effect in many states, retarded persons were routinely sterilized without their consent or knowledge. * Associate Professor and Director, Center for the Study of Children and the Law, University of Virginia School of Law. J.D. 1977, University of Virginia. My interest in the impact of the sterilization reform laws on families arose out of my association with the Forensic Psychiatry Clinic at the University of Virginia, an interdisciplinary clinic associ- ated with the Law School and Medical School. This clinic has frequently conducted psychological evaluations of mentally disabled persons whose parents sought sterilization under Virginia's reform law. My observation of these individuals and their families has influenced my thinking on these issues. Several examples in this article are taken from Forensic Psychiatry Clinic cases. I would like to thank my colleagues Kenneth Abraham, Richard Bonnie, Nancy Ehrenreich, Gary Melton, John Monahan, Gary Peller, and Walter Wadlington for their helpful comments on earlier drafts of this article. Special thanks are due to Robert Scott. I also thank Cathy Basham, John D'Amico, Margaret Rice, and Amy Nickell for research assistance. The infertile couple may have no other means to exercise a decision to have a child except through some noncoital arrangement. This argument is only compelling, however, if the couple desires a child to rear. No one argues that the surrogate mother is exercising her right to procreate by becoming pregnant through a surrogate arrangement. Artificial insemination by a donor (AID) is characterized not as an exercise of the donor's reproductive rights, but as a means of providing the mother with a child. However, biological parents who cannot or will not fulfill their responsibilities as parents lose the legal protection created by their status. For example, abandonment of a child is grounds for termination of pa- rental rights in every state. 80 Similarly, parental neglect or abuse that is not remediable and that results in intolerably poor child care will also result in state intervention to remove the child and limit or extinguish the natural parent's legal interest in the child."' Historically, it was commonly believed that mentally retarded per- sons were per se unable to fulfill their responsibilities as parents. Even today, many child protection statutes list mental retardation as a factor supporting a finding of unfitness. The Georgia law upheld in Parham required independent review by the medical director of the facility of the appropriateness of the admission. What the Court rejected was the need for formal adversary hearings, which the Court characterized as "time-consuming procedural minuets." Libertarian support for family privacy is the extension to the family unit of a belief in the primacy of the individual under the due process clause of the fourteenth amendment. Within the family, parents are the natural decisionmakers for their minor children. For an analysis of parental authority to make medical decisions for children, see Goldstein, Medical Care for the Child at Risk- On State Supervention of Parental Authority, The utilitarian position emphasizes not so much the inviolability of the parents' liberty interest as it does the insubstantial quality of the state interest that justifies intervention. The proposition that children are generally better off if the state does not interfere with the family is supported by three arguments. First, it is uncertain when parental conduct will harm children. Second, the intervention may be harmful because it disrupts the child's life and family ties. Finally, the alternative placement offered by the state may be harmful to the child because it is unclear that children benefit from foster-care placements. In sum, family privacy should receive legal support because parens patriae intervention may do more harm than good. Compared with the libertarian, the utilitarian more readily accepts increased state intervention if it is demonstrably beneficial to children.