Call To See How I Can Help You 781-433-8665


Substituted Judgment Part II — Reproductive Rights and the Incapacited Person in Massachusetts

Posted by Sasha Golden | Feb 06, 2012 | 0 Comments

My last posting concerned the background of how Massachusetts law deals with medical decision-making for incapacitated persons who need potentially invasive treatment that can have profound and permanent consequences. I noted that unlike many states, where the decisions may be left to a guardian to decide what is in a person's best interest, Massachusetts law requires a judge to step into the shoes of the incapacitated person and determine as best as possible what the incapacitated person would want if he were competent and able to voice an opinion. The law says an incapacitated person may be competent to make some decisions but not others. By law, the court is supposed to consider such variables as the likely outcomes with or without treatment, risk and benefit of the proposed treatment, whether the person has a supportive family and the impact on the person's family which may be caused by the proposed treatment if the person were competent, the person's religious beliefs and whether those beliefs would influence the person's decision-making if competent. The judge does not have to agree with the person's likely decision in order to make the substituted judgment — after all, even persons of great intelligence and competency can make bad decisions about their health care — but if the evidence points to a conclusion that the person would take a certain action if competent, then that's what the judge is supposed to order.

There is a long, sad history of forced sterilization being imposed in all fifty states on people without a hearing or any evidence presented other than the assumptions and prejudices of people with power. (A good example of this situation occurred in North Carolina, which is only now being settled.) While I am not aware of any statistics concerning the number of cases heard in the Probate Court concerning requests for sterilization and abortions for persons who are legally incapacitated, my sense based on discussions with colleagues who have a substantial guardianship practice suggests that these proceedings are now quite rare. (In 16 years of guardianship practice, I have only had one such case — and the guardian decided not to go forward.)

In 1982, the Supreme Judicial Court extended the substituted judgment doctrine to reproduction, noting that “the personal decision whether to bear or beget a child is a right so fundamental that it must be extended to all persons, including those who are incompetent.” The person potentially subject to such an order must be given adequate notice of the proceedings, an opportunity to be heard concerning whether whether she has the ability to give informed consent, a determination of substituted judgment if there is no such ability, and the right to appeal. The person is appointed specially-trained legal counsel to be sure that their constitutional rights are fully protected, and may receive funds from the court to hire an expert to advise on the necessity of the proposed procedure and provide testimony about the medical benefits and risks. A Guardian ad Litem is usually appointed to conduct an independent investigation of the facts and submit a written report. The judge is hold a hearing, weigh the evidence and make a detailed decision describing all the relevant facts, the substituted judgment criteria, and apply the facts to the law to determine if the person would want to be sterilized or have an abortion if they could make an informed decision.

Next Entry:  The Mary Moe Case

About the Author

Sasha Golden

Alexandra “Sasha” Golden received her undergraduate and law degrees from Boston College, and has been practicing law in Massachusetts since 1994. Attorney Golden is a long-standing member of the Massachusetts chapter of the National Academy of Elder Law Attorneys (NAELA) and of the Probate and So...


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Contact Golden Law Center Today

Golden Law Center is committed to answering your questions about elder law and estate planning issues in Massachusettes.

I'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.

Golden Law Center
(781) 465-6078 (fax)
Mon: 09:00am - 05:00pm
Tue: 09:00am - 05:00pm
Wed: 09:00am - 05:00pm
Thu: 09:00am - 05:00pm
Fri: 09:00am - 02:00pm

Disclaimer: The materials appearing on this website are provided for informational use only and are in no way intended to constitute legal advice or the opinions of this law firm or any of its attorneys. You should never hire an attorney without first meeting with the lawyer, reviewing her qualifications, and carefully reading the fee agreement. The use of the material on this website does not create an attorney-client relationship, and you should not rely upon the information provided here without seeking the advice of an attorney. We also cannot guarantee that the materials appearing on this website are not guaranteed to be correct, complete, or up-to-date since the law is always changing.

This website must be labeled “advertising” according to the rules of professional responsibility established by the Massachusetts Supreme Judicial Court. This website may not meet the applicable laws or ethical rules in other states. Golden Law Center does not wish to represent persons living in those states who seek our representation as a result of viewing this website.

Links that may appear on this site are intended to provide additional sources of information and are not to be construed as being endorsements by the Golden Law Center or indications of affiliation. We do not imply that we are legally authorized to use any trade name, registered trademark, symbol, logo, or seal that may be reflected in any of these links.