Claudette-Jean Girard, Attorney at Law
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Guardianship: appeals court stops abortion, sterilization order

A Massachusetts appeals court has balked at a probate judge's order directing a mentally ill woman to have an abortion and to undergo forced sterilization. The 32-year-old woman suffers from schizophrenia and bipolar mood disorder. Pregnant on two previous occasions, the woman had an abortion the first time and gave birth to a baby boy on the second occasion. The boy is being raised by the woman's parents. In December, the Massachusetts Department of Mental Health (DMH) requested that the parents be granted a temporary guardianship for the purpose of consenting to an abortion on the woman's behalf.

Despite the fact that the woman said she opposed the abortion, the probate court not only granted the guardianship, but also directed that the woman could be misled in order to get her admitted to a hospital for the purpose of an abortion. The court also expressly directed that the woman be sterilized during the hospital stay in order to avoid any future pregnancies. While the DMH had requested the guardianship, it did not request that the court order an abortion or sterilization.

While these types of family law matters are normally sealed, the record became public when the woman's attorney filed an appeal of the judge's order. The Massachusetts appeals court reversed the sterilization directive and set aside the abortion order. The appeals court mandated that a determination concerning the abortion order must be expeditiously referred to a different judge for hearing and determination.

While it remains to be seen what the final outcome of these proceedings will be, the case underscores the legal difficulties that can arise in guardianship proceedings. Some argue that a woman alone should have the right to deny or consent to medical procedures concerning her own body. The DHM was quick to point out that it took no position concerning the abortion or sterilization and never requested those measures. And yet still others point out that a woman suffering from serious mental illness may be harmful not only to herself but to potential offspring. Situations like this one are rarely easy on anyone involved. Seeking advice from an experienced legal professional about your rights as a guardian may be helpful.

Source: MSNBC, "Forced abortion for a mentally ill woman? No way says Mass. Appeals court," James Eng, Jan. 19, 2012

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