Chapter 7.A (or 5.A) -- A Right to Procreate?


For an epilogue to the Buck v. Bell decision, see the historical materials stored at (last visited July 20, 2006).

Notes: The Right to Procreate


Note 3. Sterilization of Incompetent Persons


Note 3 suggests that certain types of state-sanctioned sterilization programs might implicate disability-discrimination statutes. Title II of the Americans with Disabilities Act prohibits disability-based discrimination in the provision of public services.  42 U.S.C.A. §§12131-12165 (2004).  Some  rulings by the U.S. Supreme Court have raised doubts about whether Title II could be applied to secure monetary damages from states without running afoul of the sovereign immunity provisions of the Eleventh Amendment to the U.S. Constitution.  In Tennessee v. Lane, 124 S.Ct. 1978 (2004), the Court held that Title II could be applied in cases involving a valid exercise of Congressional power to enforce the Fourteenth Amendment. The Court applied the test developed in City of Boerne v. Flores, 521 U.S. 507, to determine whether a Congressional enactment is a valid effort to enforce the Fourteen Amendment. The Title II claim was upheld in Lane because the contested state action affected the fundamental right of access to the courts.  The reasoning suggests that claimants might be able to use Title II of the ADA to contest state efforts to bar reproduction by persons with disabilities because these policies might be viewed as impairing the fundamental right to procreate. Cf. Lane, 125 S.Ct. at 1989 n. 8 (noting that state policies preventing marriage of persons with disabilities provided part of basis for enactment of Title II).


For a rare report of a case involving a male, see Laura May, Parents’ Fight to Have Son Sterilized, Press Association Limited, May 31, 2005 (available on LexisNexis).


Note 4. “Temporary Mandatory Sterilization” or Mandatory Birth Control.


For a recent update on the restriction of reproduction as a condition of probation, see A. Felecia Epps, Unacceptable Collateral Damage: The Danger of Probation Conditions Restricting the Right to Have Children, 38 Creighton L. Rev. 611 (2005).


Note 7. Tort Implications of Voluntary Sterilization.


A Louisiana Court found that a husband was authorized to consent to his wife’s hysterectomy in an “emergent situation” but not for the purposes of sterilization. Thibodeaux v. Jurgelsky, 898 So.2d 299 (La. 2005), rehearing denied, 904 So.2d 707 (La. 2005).


Problem: Chemical or Surgical Castration of Male Sex Offenders.  See also Houston v. State, 852 So. 2d 425 (Fla. App. 2003) (trial court failed to follow requirements of chemical castration statute); Bruno v. State, 837 So. 2d 521 (Fla. App. 2003) (surgical castration not authorized for violation of statute at issue in case; illegal sentence resulting from negotiated plea agreement must be set aside).