Eberhardy v. Circuit Court for Wood County

307 N.W.2d 881, 102 Wis. 2d 539, 1981 Wisc. LEXIS 2777

• Court: Wisconsin Supreme Court
• Decided: June 30, 1981
• Docket: 78-661
• Status: Published

Opinions

HEFFERNAN, J.

This is a review of a court of appeals decision¹ affirming an order of the circuit court for Wood county which dismissed the guardians’ petition seeking the court’s approval for their consent to the surgical sterilization of a severely retarded adult daughter.

The question in this case is whether the circuit court has jurisdiction to authorize the duly appointed guardians of an adult mentally retarded female ward to give their consent to surgical procedures which will result in the permanent sterilization of the ward when such sterilization is for contraceptive and therapeutic purposes, and whether, if the court has jurisdiction, it is appropriate for the court to exercise it for this purpose. We conclude that the requested action falls within the plenary constitutional jurisdiction of the circuit court; but we also conclude that, because of the complexities of the public policy considerations involved, opportunity should be given to the legislature to conduct appropriate hearings and to undertake factfinding which could lead to the declaration of public policy and legislative guidelines for the exercise of the court’s plenary jurisdiction.

Accordingly, we affirm the decision of the court of appeals which upheld the circuit court’s judgment declining to permit the guardians to give consent to the ward’s sterilization.

Quintín and Mary Eberhardy, as parents and guardians, petitioned the circuit court for Wood county for authority to consent to the surgical sterilization of Joan, their twenty-two-year-old mentally retarded daughter. This petition was precipitated by Joan’s attendance at St. Coletta’s summer camp conducted for mentally retarded persons of both sexes and of all ages. Following return from this camp, Joan missed her menstrual periods for three months. Although the record is not clear, apparently there was some reason for her parents to believe that Joan had sexual contact with a male camper. Her menses thereafter resumed, but nevertheless the Eberhardys were deeply concerned over the harmful effect that a possible pregnancy would have upon Joan’s physical and mental health.

The Eberhardys received counseling from Dr. Thomas Rice of the Marshfield Clinic, and also from Dr. Louis J. Ptacek, a pediatric neurologist at the Clinic. Both of these physicians had known and treated Joan for many years. Dr. Ptacek recommended that, because of Joan’s developmental disability and because of her low intellectual endowment, she be sterilized by a tubal ligation procedure. Dr. Ptacek concluded that, because Joan was again intending to go to the camp, something should be done to prevent the possibility of her becoming pregnant. He felt that she would be unable to care for a child and the chances of a child being severely handicapped were considerable.² Nevertheless, Dr. Rice originally considered that the placement of an IUD (intrauterine device) would be appropriate, and the fitting of an IUD was contemplated and a consent was given by Mary Eberhardy for that procedure. Subsequently, Joan’s mother reconsidered her decision to prevent pregnancy by having Joan use an IUD and instead sought court approval of sterilization by tubal ligation.

Dr. Rice submitted the question of the propriety of sterilizing Joan to the medical ethics committee of St. Joseph’s Hospital. The ethics committee gave its approval. On June 21,1978, the Eberhardys were appointed guardians of Joan’s person and estate; and on July 27 of the same year, they petitioned the circuit court for authorization to sign a medical consent to her sterilization.

Attorney William Dehn was appointed Joan’s guardian ad litem. A notice of hearing was served upon Joan personally. At the hearing, the medical record of Joan was introduced, which traced her mental and physical development from the age of two weeks until the time just prior to the hearing. So far as the medical record reveals, the first characterization of Joan as mentally retarded appears to have been when she was about six years old.³ The record also appears to indicate that in her early childhood she sat up, spoke, and walked at a normal age. An examination when she was fifteen indicated that her reading ability was comparable to the performance of a second grader, and she was able to spell at the performance level of a second or third-grade pupil. She was able to count objects correctly and to give the names of any numerals presented to her. Her addition and subtraction skills were, however, markedly below normal. Although she could respond to questions in short, well-articulated sentences, her communications skills were considered to be substantially subnormal. At the age of fifteen, the neurological evaluation characterized her as being of moderate mental retardation.

A perusal of the entire medical record might lead to the conclusion that Joan’s mental ability regressed between the time of this psychological examination in 1971 and the time the petition for sterilization was heard in September of 1978. There is no doubt, from the medical record, that appropriate and careful medical and psychological testing after the age of six consistently showed her to be substantially retarded.

The evidence adduced at hearing was consistent with the medical record. Her father testified that, although Joan, now twenty-two years old, was able to feed herself, she was unable to cut her food, and she could not properly dress herself. Although she could bathe herself, she could not safely regulate the temperature of her bath. If left by herself, she was unable to find her way home. Accordingly, she was never left alone. Eber-hardy stated that he had consulted with physicians and that they favored sterilization to prevent the trauma of a pregnancy, He was satisfied that Joan could not care for a child, and he concluded that it would be in Joan’s best interest if she were sterilized. He said he was sixty-five and that his wife was sixty-two. He said he did not know who would be able to take care of things if they were not there to attend to Joan.

Joan’s mother confirmed her husband’s testimony and stated that Joan had little judgmental ability, was unaware of the dangers of moving traffic, and was incapable of explaining the nature of any pain or discomfort, and concluded that this would be a problem in the event of Joan’s pregnancy.

Dr. Ptacek also testified. He stated that, at the time of the hearing, Joan was physically well and moderately severely retarded. He explained this to mean that she had a mental age of two to three years and that her capabilities in the area of judgment, decision, memory, or communication were very slight. He stated that Joan had the same sexual proclivities as a normal person and possibly could become pregnant if not under total and complete supervision at all times. He said that she was an extremely lovable and happy person, was friendly, but had such extremely low mental endowments that she would not be able to resist sexual advance. He stated that she would not be able to care for herself nutritionally if she became pregnant, that labor and delivery would be physically and psychologically traumatic, and that she could not possibly care for a child adequately. He felt tubal ligation would be in Joan’s best interests. He said there was no possibility of Joan’s condition improving and that, in all likelihood, there would be further deterioration.

Following the hearing, the court directed that further physical and psychiatric examinations be made. Dr. Ptacek in his report reiterated the statements made at the hearing. A psychiatrist also reported that Joan was retarded to the extent that she could not understand the implications of sexual behavior, that she could easily be sexually exploited, and that her pregnancy would be tragic. He found no psychiatric counter-indication to tubal ligation, and in fact would encourage it.

The attorneys for the guardian-parents urged, on the basis of the reports and facts adduced at the hearing, that the evidence showed clearly and without contradiction that sterilization was in the best interests of Joan.

The guardian ad litem in a detailed, well-reasoned report argued that the circuit court had the authority and the jurisdiction to authorize the guardian-parents to give their consent to the sterilization proceedings. He also argued that the right to bear children or not to was a fundamental civil right and that to deprive Joan of treatment necessary to her well being* guaranteed to others because she was incompetent to give consent would raise a question of the denial of the equal protection of the law.

The circuit judge, however, for reasons that were not explained, concluded that the benefit to Joan that would inure from sterilization was “questionable.”

As the record shows, Joan did not testify, nor is there anything in the record to show that she was ever asked or consulted about the proposed surgical procedures. The court found, however, that she would not understand the nature of the operation nor have the capacity to consent. The trial judge stated that:

“[i]f the court has the authority to authorize the sterilization . . . Joan Eberhardy, given the facts stated . . . is a proper subject for sterilization. Her inability to care for herself and the medical testimony of her inability to care for a child are sufficient to convince the court on that point.”

Although the trial judge failed to use the terminology that sterilization would be in Joan’s “best interests,” such is the tenor of his decision. He, however, denied the petition because of the total absence of any statutory authority to authorize sterilization. He observed that the only sterilization statute which had ever existed in Wisconsin authorized the sterilization of persons confined to institutions and then only following the administrative procedures by the Department of Health and Social Services. Moreover, this sole legislative sanction for sterilization had been repealed in 1977. He also concluded that the authority given to a guardian of a person “to secure necessary care, services or appropriate protective placement on behalf of the ward” (sec. 880.38 (2), Stats.) did not authorize sterilization. He did not assert that the court lacked “jurisdiction” to act, only that he found no authorization in the statutes. He emphasized that the right to bear children is a basic right, which cannot be denied without a compelling reason. He found that the statutes did not set forth any compelling reason or public policy declaration that would authorize the court to act on the petition; and, accordingly, it was dismissed.

Upon appeal by the Eberhardys as guardians, the court of appeals affirmed the order of dismissal, concluding that neither the statutes nor the constitution authorized or conferred jurisdiction upon Wisconsin courts to authorize a consent to the sterilization of incompetent persons.

Because this case is one of initial impression in this state and because of its possible potential social and legal consequences, we have granted the petition of Joan’s parents and the petition of the guardian ad litem to review the decision of the court of appeals.

The trial court appeared to equate its lack of statutory authority with lack of jurisdiction, and the court of appeals specifically found that the proposed sterilization order was beyond the jurisdiction of the circuit court. Accordingly, it is essential that we consider that question first.

After taking evidence and evaluating the arguments of the guardian ad litem, the trial court concluded that it was “without power to approve the operation and that there is no such power in this court.” The court of appeals, in affirming the circuit court’s order, expressly stated:

“[U] nless and until the legislature confers express power on Wisconsin courts to authorize the sterilization of incompetent persons under stated circumstances, the courts are without jurisdiction to consider the same.” 97 Wis.2d at 668.

This view of jurisdiction, founded solely upon statutory authorization, is too narrow and does not comport with the precedents of this court. We conclude that, under the Constitution of the State of Wisconsin, the circuit court had the jurisdiction to approve of the proposed tubal ligation; and, additionally, we conclude that the statutes acknowledge the plenary jurisdiction of Wisconsin circuit courts. The Wisconsin Constitution, art. VII, sec. 8, declares:

“Except as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state . . . .”

This grant of jurisdiction is extremely broad. In State ex rel. Attorney General v. Portage City Water Co., 107 Wis. 441, 447, 83 N.W. 697 (1900), this court said:

“The scope of this general grant of authority was said in Putnam v. Sweet, 2 Pin. 302, and also in Att’y Gen. v. Railroad Cos., 35 Wis. 531, to include greater power than was probably ever before, in a free government, delegated to any one tribunal, — the united powers of the English kings bench, common pleas, exchequer, and chancery.” See also State ex rel. Pierce v. Kundert, 4 Wis.2d 392, 394, 90 N.W.2d 628 (1958).

Justice Roujet D. Marshall in his monumental opinion, Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909 (1904), said:

“. . . standing where we will and looking where we may, judicial power is present to prevent and redress wrongs. We take a view to the very horizon of our mental perception within the scope of human capacity to violate obligations other than those of a purely moral nature, and the jurisdiction of our circuit courts, except as specially restricted by statute within legislative power to do so or by the constitution itself — those exceptions not, however, affecting the matter in hand — is found to occupy the whole field with instrumentalities designed, and as well adapted as human wisdom has been capable of making them, to execute its function to completeness .... How vast that is in its chancery field can best be appreciated by applying thereto the standard of measurement which the distinguished men who have been significant in the development of our system have taught us must be used to span it: ‘Equity will not suffer a wrong to go without a remedy.’ . . .

“In the foregoing the term ‘jurisdiction’ is used in its broad, general sense, — that of judicial power. A court may have jurisdiction of a particular subject matter, but by settled judicial policy ought not to exercise it. . . .

“The circuit courts of this state have, under the constitution, succeeded to all the jurisdiction formerly exercised by courts of law and courts of chancery as well . . . .” pp.227-31)

The circuit courts of Wisconsin are constitutional courts and, unlike special courts which may be created from time to time by the legislature, under art. VII, sec. 2, are courts of plenary jurisdiction. They “do not depend solely upon statute for their powers.” Stevenson v. Milwaukee County, 140 Wis. 14, 17, 121 N.W. 654 (1907). Unlike the relationship between the Congress and the federal courts, under which the Congress may grant or withhold jurisdiction as it pleases, in Wisconsin the jurisdiction and the power of the circuit court is conferred not by act of the legislature, but by the Constitution itself. Jelke Co. v. Beck, 208 Wis. 650, 660, 242 N.W. 576 (1932). Circuit court jurisdiction is general and extends to all matters civil and criminal. Mack v. State, 93 Wis.2d 287, 294, 286 N.W.2d 563 (1980) ; State ex rel. First National Bank v. M & I People’s Bank of Coloma, 95 Wis.2d 303, 308 n. 4, 290 N.W.2d 321 (1980).

The language of art. VII, sec. 8, as it now appears in the constitution is that adopted by the amendment of April 1977. That language provides that the jurisdiction of the circuit court shall extend to all matters within the state “ [ejxcept as otherwise provided by law.” Prior to that amendment, the limitation granted jurisdiction “not excepted in this constitution, and not hereafter prohibited by law.” This change, however, is not substantive. It has previously been pointed out that this language only allows for a legislative reallocation of jurisdiction from the circuit court to another court. It does not permit the legislature to divest the constitutional grant of jurisdiction from the unified court system; and under the unified system created by the amendment of 1977, original jurisdiction is vested wholly in the circuit court.⁴ Under the superintending powers of the supreme court, the practical exercise of that power may be allocated to different branches of the circuit court. This allocation, however, does not affect the jurisdiction of any of the circuit courts. The legislative allocation of jurisdiction under the constitution as it existed prior to 1977 was discussed in Hallows & DeWitt, The Need for Court Organization, 1954 Wis. Law Rev. 377, 387 n. 54. It was pointed out therein that the legislative authority — to reallocate judicial power and to transfer it from one court to another — could not abrogate the court system’s powers. Rather, as was said in State v. Wimberly, 55 Wis.2d 437, 441, 198 N.W.2d 360 (1972), quoting Callanan v. Judd, 23 Wis. 343 (1868), the language was designed:

“. . . to enable the legislature to distribute the jurisdiction in both matters at law and in equity, as between the circuit courts and the other courts in the state . . . .”

Because the jurisdiction conferred by the constitution in 1977 upon circuit courts is plenary in respect to all matters at law or in chancery, jurisdiction, in the sense of judicial power to act, is not dependent upon legislative authorization.⁵ Circuit courts of the State of Wisconsin have the constitutional jurisdiction to consider and rule on petitions for sterilization of incompetents.

The State of Washington recently confronted a similar problem, In the Matter of the Guardianship of Hayes, 93 Wash.2d 228, 608 P.2d 635 (1980). The State of Washington’s constitution, like Wisconsin’s, grants original jurisdiction to its trial courts in all cases in which the jurisdiction is not vested by the constitution in some other court. There is no legislative authorization for the trial courts of Washington to entertain and rule on petitions for sterilization of incompetents. Nevertheless, the Supreme Court of Washington held:

“Under this broad grant of jurisdiction the superior court may entertain and act upon a petition from the parent or guardian of a mentally incompetent person for a medical procedure such as sterilization. No statutory authorization is required. . . .

“We therefore hold that Washington Const, art. 4, sec. 6 gives the superior courts of this state the jurisdiction to entertain and act upon a request for an order authorizing sterilization of a mentally incompetent person.” Hayes, swpra, 608 P.2d at 638-39.

The Wisconsin statutes specifically acknowledge the broad constitutional grant of jurisdiction to the Wisconsin court system. Although sec. 801.04, Stats., recites that a court may entertain a civil action only when it has the power to hear the kind of action brought, it refers to this power as “jurisdiction of the subject matter” and further recites:

“Jurisdiction of the subject matter is conferred by the constitution and statutes of this state and by statutes of the United States . . . .”

It is apparent, therefore, that the legislature has specifically acknowledged the grant of subject matter jurisdiction to the Wisconsin courts by the Constitution. The general jurisdictional statute referring to circuit courts, sec. 753.03, Stats., recognizes the allocative powers of the legislature to distribute constitutionally granted jurisdiction to various courts of the state, but acknowledges, “The circuit courts have the general jurisdiction prescribed for them by the constitution . . .” That section further provides that:

“The circuit courts have power to hear and determine, within their respective circuits, all civil and criminal actions and proceedings unless exclusive jurisdiction is given to some other court; and they have all the powers, according to the usages of courts of law and equity, necessary to the full and complete jurisdiction of the causes and parties and the full and complete administration of justice . . . subject to review by the court of appeals or the supreme court as provided by law.”

It is thus apparent that the legislature by this statute has given express and broad recognition to the fact that the basis of circuit court jurisdiction is constitutional; and, because the circuit court is the only trial court recognized by the constitution, its jurisdiction is all-encompassing, subject only to the appellate and supervisory powers reserved by the constitution to the court of appeals and the supreme court. We have previously described this statute as the legislative acknowledgment of the broad constitutional jurisdiction of the circuit court. See State ex rel. Di Salvo v. Washington County Court, 79 Wis.2d 27, 37, 255 N.W.2d 459 (1977).

The recent United States Supreme Court case of Stump v. Sparkman, 435 U.S. 349 (1978), reh. den. 436 U.S. 951 (1978), dealt with the question of whether an Indiana judge was immune from damages under the Federal Civil Rights Act in a suit brought by a retarded woman whose sterilization the judge had ordered upon a mother’s petition when the plaintiff was a minor. The United States Supreme Court held that the judge was immune from liability. It did so on the basis of an Indiana statute similar to sec. 753.03, Stats., which conferred upon the Indiana circuit court original jurisdiction “in all cases at law and in equity whatsoever.” (p. 357)

While the Sparkman record is replete with evidence of abuse of power by the judge of the Indiana court because no notice had been given to the minor and, in fact, it reveals that she was fraudulently induced to undergo the sterilization when it was represented to her that she was to have an appendectomy, the Supreme Court’s decision clearly stands for the proposition that a state trial court which is vested with statutory jurisdiction “in all cases at law and in equity” acts within its jurisdiction when it orders the sterilization. It is noteworthy, moreover, that jurisdiction in Sparkman was upheld although the only statutory reference to sterilization was in respect to the sterilization of institutionalized persons under special circumstances, and although the Supreme Court concluded that the Indiana court acted erroneously in ordering the sterilization and in its failure to require minimum standards of fairness and due process.

As the court of appeals appropriately recognized, Sparkman is not controlling on Wisconsin courts, because the issue in Sparkman was judicial immunity, where for policy reasons a judge’s authority traditionally has been construed broadly. Also, the United States Supreme Court’s interpretation of another state’s law does not bind this court in respect to interpreting its own law. Nevertheless, the essential reasoning of the United States Supreme Court that a broad statutory grant of jurisdiction is sufficient to support jurisdiction to consider sterilization petitions is persuasive. In Wisconsin there is, in addition to and even more fundamental than the broad statutory acknowledgment of circuit court jurisdiction, the express and plenary grant of jurisdiction by the constitution.

The Supreme Court in Sparkman also considered the question whether the express statutory authorization for the sterilization of certain institutionalized persons was tantamount to a legislative restriction or a definition of the limits on the otherwise full grant of jurisdiction conferred elsewhere in the Indiana statutes. It held it was not.

A similar issue is posed in the instant case and arises out of heretofore existing statutory policy authorizing the sterilization of some of the institutionalized mentally retarded . The Wisconsin statute was originally enacted as ch. 693 of the Laws of 1913, and (after being renumbered to sec. 46.12, Stats., by ch. 328, sec. 19, Laws of 1919) it remained a part of the Wisconsin statutory law, largely unchanged, until repealed by ch. 428, sec. 4, Laws of 1977.⁶ As an argument against the authority of the Wisconsin circuit court to permit a consent to the sterilization of an incompetent, it is urged that the Wisconsin statute passed in 1913 constituted a public-policy declaration that certain types of persons could be ordered sterilized and that, when that statute was repealed in 1977, the proper interpretation to be placed upon that repealer was that it was a public-policy declaration that no persons were to be sterilized.

The history of the 1913 legislation on the question of sterilization leads us to the conclusion that it is irrelevant to the problem posed by this case. The 1913 statute came as a consequence of a flurry of academic and social activity founded upon the theory that problems which society had with the mentally ill, the retarded, the epileptic, the criminal, and the pauper could be eliminated by the sterilization of persons so characterized.

A reading of the literature advocating such eugenic sterilization indicates that it was founded upon the re-articulation of the Mendelian theories of inheritance, coupled with the development of simple, surgical techniques for sterilization. See, e.g., Ferster, Eliminating the Unfit — Is Sterilization the Answer? 27 Ohio St. L. J. 591, 591-94 (1966). During this period, well informed, humane, and progressive social reformers advocated eugenic sterilization in such laudatory terms that it was conceived by many to be a panacea for most of the troubles that had been created by “misfits” in our society. This is not an appropriate place to evaluate the correctness of those theories, nor is a court a properly equipped forum — either from the viewpoint of scientific expertise or complete awareness of public-policy considerations — to make such an evaluation. Suffice it to say, the initial enthusiasm for laws requiring eugenic sterilization has waned, and many of them have been repealed.

The Wisconsin law as enacted in 1913 related “to the prevention of criminality, insanity, feeble-mindedness and epilepsy.”⁷ The provision, as it appeared in the statutes, bore the less grandiose title of “Sterilization of defectives.” Sec. 46.12, Stats. 1975. The 1913 statute applied only to criminal, insane, feeble-minded, and epileptic persons who were confined to a public institution; and, even though there were large numbers of noninsti-tutionalized persons who fitted into the categories which were subject to sterilization, the law was not applicable to them.

It is noteworthy also that the legislative authorization was given to the State Board of Control (later the Department of Health and Social Services), which was given the power to appoint a surgeon and an alienist to periodically examine institutionalized persons. Under the law, if there were unanimous agreement by the examining physicians and the superintendent of the inmate’s institution, the State Board of Control could order an operation for the prevention of procreation.

From the time of its enactment in 1913 to the time of its repeal in 1977, the statute remained virtually unchanged. However, epileptics were deleted from the sweep of the statute by chs. 457 and 534 of the Laws of 1955. The Wisconsin eugenic sterilization statute was one of the first enacted, but because of questions in respect to the constitutionality of compulsory sterilization statutes, many state legislatures withheld their approval until the landmark case of Buck v. Bell, 274 U.S. 200 (1927). In that opinion, Justice Holmes stated:

“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. . . . Three generations of imbeciles are enough.” (p. 207)⁸

Within ten years of Buck v. Bell, 20 states passed eugenic sterilization statutes. Buck v. Bell represented the high point of enthusiasm for eugenic sterilization.

Both the scientific validity of eugenic sterilization and the constitutionality of such laws have been called into question in recent years. The scientific aspects are. discussed generally in Ferster, Eliminating the Unfit — Is Sterilization the Answer? 27 Ohio St. L. J. 591, 602-04; Bligh, Sterilization and Mental Retardation, 51 A.B.A. Journal 1059 (1965); and Note, Eugenic Sterilization— a Scientific Analysis, 46 Denver L. J. 631 (1969). And from a constitutional viewpoint, in 1942, in Skinner v. Oklahoma, 316 U.S. 535 (1942), the United States Supreme Court recognized procreative decisional choices as being encompassed within a fundamental constitutional right. See also Developments in the Law: The Constitution and the Family, 93 Harv. L. Rev. 1159, 1296-1308 (1980) ; Comment, Eugenic Sterilization Statutes: A Constitutional Re-Evaluation, 14 J. Fam. L. 280 (1975).

It should be emphasized, however, that the sterilization sought by the Eberhardys for their daughter, Joan, was not for eugenic purposes, but was rather for contraceptive and therapeutic purposes to protect the physical and mental well being of Joan. The only reference to the question of hereditary defectives in the record is the statement of Dr. Ptacek that there was a 25 percent chance that any child of Joan’s would be mentally retarded.⁹ This statement, however, is irrelevant, because there was no assertion the purpose of the proposed sterilization was to avoid the birth of a defective child. It was sought only to accommodate the best interests of Joan herself, and no societal benefits were urged.

The only public-policy meaning that can be ascribed to the repeal of the eugenic sterilization law passed in 1913 is immaterial to Joan’s situation. All that can be concluded from its repeal is that the legislature became disenchanted with either the efficacy of eugenic sterilization of institutionalized persons or became concerned with the constitutionality of mandatory sterilization without due-process procedures and the consent of the person to be sterilized.¹⁰

The 1913 legislation was, moreover, a grant of power to a state administrative agency, the Board of Control. It did not purport to either limit, expand, or re~allocate a circuit court’s common law jurisdiction. The repeal of the statute left court jurisdiction untouched. It withdrew from an administrative agency the power previously conferred.

The repeal of the mandatory eugenic sterilization law is irrelevant to public policy or the court’s jurisdiction in respect to nonmandatory therapeutic or contraceptive sterilization procedures of uninstitutionalized incompetent persons. We conclude, therefore, that the legislative history of the 1913 sterilization law neither sanctions nor precludes sterilization under the circumstances posed in this case.¹¹

Our history shows that the Attorney General, in formal opinions during the life of the eugenic sterilization law, ruled frequently on the question of whether voluntary and consented-to therapeutic or contraceptive sterilizations could be performed without violating the laws of criminal mayhem. Originally the Attorney General ruled that sterilizations performed on noninstitutional-ized incompetent persons under the administrative authority of the superintendent of' the Wisconsin State Hospital would violate the criminal laws. 17 Op. Atty. Gen. 524 (1928). The attorney general handed down a similarly restrictive ruling in 1932 in 21 Op. Atty. Gen. 940 (1932), stating that a competent adult’s purported consent to contraceptive sterilization might not immunize the performing physician from criminal liability. However, six years later, the attorney general, in a formal opinion, concluded that a voluntary vasectomy of a competent noninstitutionalized person when such vasectomy was necessary to preserve health would not constitute criminal mayhem. 27 Op. Atty. Gen. 416 (1938), and in 1968, in 57 Op. Atty. Gen. 191, the attorney general concluded that a contraceptive sterilization performed by a physician at a voluntary and rational request of a patient did not constitute mayhem or any other crime.

Thus, by 1968, it had been determined by the Attorney General that neither therapeutic nor contraceptive sterilizations when voluntarily consented to implicated any aspect of the criminal law. They were personal decisional choices.

Although this court has never had occasion to rule on the subjects decided by the Attorney General, the position of that office is consistent with that of the United States Supreme Court in its recognition of the fundamental decisional right of a citizen to procreate or not. Skinner v. Oklahoma, supra, struck down an Oklahoma statute on equal-protection grounds, because it authorized the sterilization of some criminals but not other criminals. Justice Douglas, speaking for the court in that case, said, “Marriage and procreation are fundamental to the very existence and survival of the race.” 316 U.S. at 541.

Later, in Griswold v. Connecticut, 381 U.S. 479 (1965), the court struck down a Connecticut statute which criminalized the use of contraceptives. This law was challenged by a married couple, and the court held that the Connecticut statute infringed the fundamental right of marital privacy. In 1972, in Eisenstadt v. Baird, 405 U.S. 438 (1972), it was held that the rationale of Griswold extended to unmarried persons and that contrary state laws violated equal protection guarantees. The court held:

“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (p. 453)

In Carey v. Population Services International, 431 U.S. 678 (1977), Justice Brennan, again invoking the right of personal privacy without unjustified governmental interference, stated:

“The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices. . . . regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.” (pp. 685-86)

What emerges from these cases is consistent with the opinions of the Wisconsin Attorney General — that sterilization implicates a protected personal procreative de-cisional choice.

While the United States Supreme Court has never specifically addressed sterilization except in equal-protection terms, the rationale of the cases referred to and the conclusion that the right to procreate or to prevent procreation is a protected, fundamental personal deci-sional choice appears to be clearly relevant to the case before us.¹² Starting with the explicit ruling of the Attorney General of the State of Wisconsin that no criminal law of the State of Wisconsin is violated and the implicit assumption of the United States Supreme Court that sterilization sought by a competent person for a therapeutic or contraceptive purpose is probably within the ambit of a protected constitutional right when the subject can give a voluntary and informed consent, the question posed is whether this court has a constitutional duty to authorize a guardian of an incompetent to consent to the sterilization of the incompetent when sterilization is for a therapeutic or contraceptive purpose and is in the best interests of the ward. If a competent person has the right to sterilization, can that right be withheld from an incompetent?

The New Jersey Supreme Court very recently answered “no” to that question. In re Grady, 85 N.J. 235, 426 A.2d 467 (1981). In reaching that conclusion, the New Jersey Supreme Court considered the requested sterilization of a nineteen-year-old mentally-impaired woman seriously afflicted with Down’s Syndrome. The facts considered by the New Jersey court are strikingly similar to those presented in the Wisconsin circuit court in regard to Joan. The New Jersey court stated: court is her own choice. But it is a genuine choice nevertheless — one designed to further the same interests she might pursue had she the ability to decide herself.” 426 A.2d at 480.

“Lee Ann Grady has the same constitutional right of privacy as anyone else to choose whether or not to undergo sterilization. Unfortunately, she lacks the ability to make that choice for herself. We do not pretend that the choice of her parents, her guardian ad litem, or a

The jurisprudential background upon which the New Jersey court decided Grady is substantially different than that in which we view the present case. Although the New Jersey court went through a careful analysis to determine whether the sterilization of Lee Ann Grady was in her best interests, its decision was substantially based upon the case of In re Quinlan, 70 N.J. 10, 855 A. 2d 647, cert. den. 429 U.S. 922 (1976), decided five years earlier. In Quinlan, the New Jersey court authorized the substituted consent by the parents of a comatose twenty-two-year-old woman to discontinue use of extraordinary artificial life support apparatus. In Grady, referring to Quinlan, the New Jersey court said:

“We exercised our equitable powers there although we believed that our decision would probably lead to the natural death of the patient. Our decision took into consideration the interests of the public and the belief of our society in the supreme value of life. We were well aware of the risks of exercising powers directly affecting the opportunity of another human to live or die. But ultimately we decided that the patient’s constitutional right of privacy outweighed the public interest in preserving her life and presented a compelling case for judicial intervention. Similar compelling considerations exist in the present case [for the sterilization of Lee Ann Grady].” 426 A.2d at 480.

Having made the decision in Quinlan to allow the woman in that case to “choose” to die as the exercise of her right of privacy, it was a short leap indeed for the New Jersey Supreme Court to authorize the sterilization of Lee Ann Grady on the same constitutional ground. Our jurisprudence, however, reveals a substantial void in respect to cases of this kind.¹³ We do not fault the New Jersey court for either of its decisions on either humanitarian or jurisprudential grounds. Both opinions are carefully reasoned and are rationally justifiable. But we find it somewhat too facile when discussing the right of privacy, which by definition necessarily refers to the person involved, to find that there is a genuine choice when that choice cannot be personally exercisable. It is indeed true that in Grady there was a decision, but it was not the decision of Lee Ann Grady pursuant to her right of privacy. We believe it somewhat inconsistent for the New Jersey court to equate in a single breath “the choice made in her behalf” and “providing her with a choice.” 426 A.2d at 481.

The fault we find in the New Jersey case is the ratio decidendi of first concluding, correctly we believe, that the right to sterilization is a personal choice, but then equating a decision made by others with the choice of the person to be sterilized. It clearly is not a personal choice, and no amount of legal legerdemain can make it so. That, however, does not mean we conclude that, in either the circumstances presented in Grady or presented in this case involving Joan Eberhardy, there cannot be some well thought out procedure by which the decision to sterilize can be made and implemented.

We conclude that the question is not choice because it is sophistry to refer to it as such, but rather the question is whether there is a method by which others, acting in behalf of the person’s best interests and in the interests, such as they may be, of the state, can exercise the decision. Any govemmentally sanctioned (or ordered) procedure to sterilize a person who is incapable of giving consent must be denominated for what it is, that is, the state’s intrusion into the determination of whether or not a person who makes no choice shall be allowed to procreate. The public policy of the state is inevitably involved. If this court were to conclude that, under the facts of this case, Joan Eberhardy should be sterilized, we would be deciding more than the best interests of a particular person in a particular situation. We would be deciding that it is appropriate and not contrary to public policy to order the sterilization of a person when a court decides it is in the best interests of that person to do so.

This case was taken on review for the specific purpose of determining whether the courts of Wisconsin had jurisdiction to authorize sterilizations of incompetents who could not give their consent. But our conclusion that the circuit court has jurisdiction is not dispositive of whether that jurisdiction should be exercised in the unguided discretion of the judge. As Justice Marshall said in Harrigan v. Gilchrist, supra, 121 Wis. at 227-28, “A court may have jurisdiction of a particular subject matter, but by settled judicial policy ought not to exercise it.”

Under the present state of the law, the only guideline available to circuit courts faced with this problem appears to be the “best interests” of the person to be sterilized. This is a test that has been used for a number of years in this jurisdiction and elsewhere in the determination of the custody of children and their placement — in some circumstances placement in a controlled environment. See, e.g., sec. 48.01(2), Stats. No one who has dealt with this standard has expressed complete satisfaction with it.¹⁴ It is not an objective test, and it is not intended to be. The substantial workability of the test rests upon the informed factfinding and the wise exercise of discretion by trial courts engendered by long experience with the standard. Importantly, however, most determinations made in the best interests of a child or of an incompetent person are not irreversible; and although a wrong decision may be damaging indeed, there is an opportunity for a certain amount of empiricism in the correction of errors of discretion. Errors of judgment or revisions of decisions by courts and social workers can, in part at least, be rectified when new facts or second thoughts prevail. And, of course, alleged errors of discretion in exercising the “best interest” standard are subject to appellate review. Sterilization as it is now understood by medical science is, however, substantially irreversible. A recent report stated:

“Though it is now possible to ‘reverse’ (surgically restore continuity in) as many as 70% of vasectomies and 30 % of tubal ligations, whether full-term pregnancy will routinely result from such restorations remains to be documented. In other words, persons undergoing these procedures should regard them as being permanent and should not expect reversibility.” G. T. Johnson and S. E. Goldfinger, The Harvard Medical School Health Letter Boole 188 (1981).

A similar conclusion is reached by R. Shane and C. Powerstein in Fertility Control, Biologic and Behavioral Aspects 115 (1980).

Thus, the tubal ligation of Joan Eberhardy or any other woman pursuant to an order in the exercise of judicial discretion must be considered irreversible. The judicial process could afford no method for correcting an error in the exercise of this discretion. The vague, although frequently useful, “best interest” analysis appears to be inadequate unless there is an authoritative declaration, of public policy to guide the exercise of that irreversible discretionary act.¹⁵

In the instant case, scant consideration was given to the possibilities of contraception by means short of sterilization. Although the medical records show that the placement of an IUD was considered, the court record fails to show whether or not this method of contraception was practicable under the circumstances. Moreover, recent publications indicate continued research in contraceptive technology. The possibility that some new or improved method, perhaps suitable for use by retarded persons, might shortly become available without the drawbacks of irreversibility, militates for restraint. See Journal of the American Medical Association, April 25, 1980, Vol. 243, No. 16, p. 1617. Such alternative less intrusive methods of alleviating Joan’s plight might, as a matter of public policy, require exploration in depth before the alternative of sterilization is ordered.

What these facts demonstrate is that courts, even by taking judicial notice of medical treatises, know very little of the techniques or efficacy of contraceptive methods or of thwarting the ability to procreate by methods short of sterilization. While courts are always dependent upon the opinions of expert witnesses, it would appear that the exercise of judicial discretion unguided by well thought-out policy determinations reflecting the interest of society, as well as of the person to be sterilized, are hazardous indeed. Moreover, all seriously mentally retarded persons may not ipso facto be incapable of giving birth without serious trauma, and some may be good parents. Also, there has been a discernible and laudable tendency to “mainstream” the developmentally disabled and retarded. A properly thought out public policy on sterilization or alternative contraceptive methods could well facilitate the entry of these persons into a more nearly normal relationship with society. But again this is a problem that ought to be addressed by the legislature on the basis of factfinding and the opinions of experts.

Court cases, at least until their precedential effects are felt by the public, are little noticed, even by those who are potentially concerned. Although the case of Joan Eberhardy ran the gamut of three levels of court proceedings, none of the numerous groups that represent the interests of retarded or incompetent persons appeared or filed amicus briefs to assist the court. Although the record was well bandied by the trial court, and the guardian ad litem, and the attorney for the guardians gave cogent reasons why sterilization should be allowed, no one played the “devil’s advocate” to inform the court why sterilization might be improper in respect to Joan Eber-hardy and, particularly, in respect to retarded persons generally, or at least in respect to some who fall within that class.

This case demonstrates that a court is not an appropriate forum for making policy in such a sensitive area. Moreover, irrespective of how well tried a case may be —and we consider the instant one to have been well presented and carefully considered — there are inherent limitations in the factual posture of any case which make the extrapolation of judicially made policy to an entire area of such a sensitive nature as this risky indeed. The legislature is far better able, by the hearing process, to consider a broad range of possible factual situations.¹⁶ It can marshal informed persons to give an in-depth study to the entire problem and can secure the advice of experts in the field of psychology, psychiatry, sociology, and medicine, as well as in the field of law, to explore the ramifications of the adoption of a general public policy which will give specific imprimatur to the courts to order sterilization in well defined circumstances.

Justice Frankfurter in Sherrer v. Sherrer, 334 U.S. 343, 365 (1948) (dissenting opinion), said:

“Courts are not equipped to pursue the paths for discovering wise policy. A court is confined within the bounds of a particular record, and it cannot even shape the record. Only fragments of a social problem are seen through the narrow windows of a litigation. Had we innate or acquired understanding of a social problem in its entirety, we would not have at our disposal adequate means for constructive solution. The answer to so tangled a problem ... is not to be achieved by . . . judicial resources ...”

As stated before, the question before this court is not one of power. Rather, it is the prudential use of power —the exercise of judicial restraint. Although Benjamin Cardozo was considered a judicial activist and believed it important for courts to blaze trails where necessary to protect human rights, nevertheless he said:

“The judge, even when he is free, is still not wholly free. Hé is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.” Cardozo, The Method of Sociology. The Judge as a Legislator, The Nature of the Judicial Process, p. 141.

Elsewhere in the same essay, he said, speaking of judges:

“They have the power, though not the right, to travel beyond the walls of the interstices [of statutes], the bounds set to judicial innovation by precedent and custom.” Id. at 129.

Having said that prudence counsels caution in the exercise of unquestioned jurisdiction in this troublesome area, the question remains whether a court, which has the obligations under a constitution which mandates the personal right to free choice of whether to procreate or not and which requires equal protection, can properly decline to exercise its jurisdiction. We believe it can and should.

We are dealing with a special class of persons — the severely mentally retarded who cannot, on an informed and voluntary basis, give their consent to an irreversible procedure. And the irrevocability of sterilization in itself places it in a different classification from usual situations where the United States Supreme Court has considered the choice to procreate or not. The choices thus far considered by the Supreme Court are not irreversible, for they involve only a. decision affecting a present choice. They do not preclude a different choice at a later time. Sterilization does. The question is, therefore, one of both substantive due process and of classification.

The United States Supreme Court has recognized that, although in many areas minors have the same constitutional rights as adults, because they are a class of special concern to the state, the uninhibited exercise of those rights may be hedged about with restrictions that reflect the public policy of protecting persons of a distinct class. For example, the United States Supreme Court in Bellotti v. Baird, 443 U.S. 622 (1979), recognized that the decisional choice of abortion which it had previously recognized for adults (and had held that, as to minors, the choice could not be flatly proscribed by an absolute state or third-party veto, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976)) could nonetheless be circumscribed by appropriate action requiring a special showing of maturity or “best interests” to make such an important decision without parental involvement, and that such a requirement could be imposed by legislative action. It has also been made clear that a state may constitutionally require a physician to notify, if possible, an unemancipated, dependent, and non-mature minor’s parents before consenting to perform an abortion. H. L. v. Matheson, - U.S. -, 101 S. Ct. 1164, 67 L. Ed. 2d 388 (1981). Such a law serves, among other state interests, the “important” one of “protecting adolescents.”

The mentally retarded, like minors, would appear to fall within a class subject to the special protections of the state. Many (though doubtless, not all) of the mentally retarded are not competent to exercise a free choice. While the Constitution would generally mandate a free choice for sui juris adults, a free choice is an empty option for those who cannot exercise it. Moreover, it is by no means certain who should speak for the best interests of the retarded, and those who purport to may have conflicting interests which may well skew the decisions of even the best intentioned. Those who normally would speak for the incompetent — parents, guardians, or even social workers — may in actuality speak, consciously or unconsciously, in their own interests: Diminished worry, convenience, a wish to be relieved of responsibility for close supervision, or frustration at their inability to deal with a most difficult problem. These very considerations may be, indeed, in the interests of the incompetent, but are not necessarily so. See Meisel, The “Exceptions” to the Informed Consent Doctrine: Striking a Balance Between Competing Values in Medical Decisionmaking, 1979 Wis. L. Rev. 413, 473, 478-81.

It is clear then that incompetents must be considered, for the purpose of sterilization, a distinct class to whom the state owes a special concern. The state’s interest in affording them protection is great indeed.¹⁷ Because of this special interest and the factor of irreversibility, it is necessary that standards of statewide application reflective of public policy as to both individual and societal interests be adopted. In cases considering sterilization there is little leeway for the development of common law standards based upon the usual judicial procedure of incrementally and eventually developing what is appropriate as a statewide standard. Such an approach would no doubt be even more violative of the interests of incompetents than to set guidelines for discretion based on judicial fiat which, as we have pointed out, would be based on too narrow an opportunity to appreciate the broad social implications of the consequences of sterilization.

Restraint is appropriate even in the instant case. While the record amply demonstrates the undesirable consequences of Joan’s pregnancy, this consequence is contingent, not certain. The inevitability of the consequences of not acting judicially in this case does not approach the degree that might force a choice if the question were one of invoking state power to order treatment for one who would die without it. The problem of Joan’s pregnancy is at the most a probability, while state action to authorize sterilization constitutes an irreversible certainty. It would permanently and irrevocably deprive Joan of her procreative capability. If we view the record most favorably to the relief sought, it is apparent that, for Joan, sterilization would not, in all probability, constitute a burden in fact. But as a matter of law in a situation such as this, a greater burden is inflicted by a judicial decision to act than a decision to withhold action for the present. We would recoil from a generalized rule of law that it is in the best interests of any mentally incompetent to be sterilized. Because we speak precedentially for the entire state, a decision of this court to authorize consent to sterilization is likely to be taken as an enunciation of a generalized rule: It is within the discretion of the trial judge to order sterilization if there is a finding that it is in the best interests of the incompetent. Alternatively, we could establish guidelines that are so restrictive as to substantially eliminate the right of sterilization in most cases, even where appropriate, or guidelines that would be so generalized that they would not reflect adequately social and medical knowledge, and would not reflect a considered and well defined public policy. We reject these alternatives.

We accordingly conclude that it would be inappropriate to either permit the sterilization of Joan Eberhardy where there has been no determination by the legislature of the state’s public policy defining -what is in Joan’s (and others’) best interests, or to attempt to set forth at length guidelines when we know that a court is not the preferred branch of government to enunciate general rules of public policy. This task should initially be the legislature’s.

We have frequently recognized that we may have jurisdiction to act but nevertheless refrain from doing so. Recently, in Slawek v, Stroh, 62 Wis.2d 295, 215 N.W.2d 9 (1974), we concluded that, as a result of our common law and constitutional authority, we could probably , recognize the tort of wrongful birth, but we said in deciding to not recognize the tort:

“[It] would have vast social ramifications and the creation of such a cause of action is the type of public policy decision that should be made by the people of this state or their elected legislative representatives.” (pp. 317-18)

Even in respect to a modification of the rules of comparative negligence, this court refrained from exercising its clear common law authority in order to give the legislature an opportunity to consider the problem.. Reiter v. Dyken, 95 Wis.2d 461, 290 N.W.2d 510 (1980) ; Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Const. Corp., 96 Wis.2d 314, 291 N.W.2d 825 (1980).

The social and personal ramifications of authorizing judicial approval of sterilization of incompetents would appear to be considerably more “vast” and sensitive than the recognition of a new tort.

Some state supreme courts have promulgated standards to be used by trial courts in considering petitions for the sterilization of incompetents. In re Grady, 85 , 426 A.2d 467 (1981) ; Matter of Guardianship of Hayes, 93 Wash.2d 228, 608 P.2d 635, 639-42 (1980) ; In re Penny N., 414 A.2d 541 (N.H. 1980). These guidelines appear to be useful aids to the exercise of judicial discretion, but they reflect, accurately, we assume, the public policy of those states and not of Wisconsin. As we pointed out in discussing Grady, supra, the New Jersey Supreme Court, wrote not on a clean slate, as we would be required to do, but after considerable experience with similar problems.

Although the courts of this state have plenary jurisdiction, prudence requires that we refuse to permit its exercise in this case.

The point was well expressed in dissent by Justice Stafford of the Washington Supreme Court in Guardianship of Hayes, supra, a case which authorized state courts to consent to the performance of sterilization of incompetents. He said:

“Possession of such power, however, neither requires that it be exercised nor necessarily supports the wisdom of its exercise under all circumstances.

“In this case we are concerned with the permanent and irreversible loss of a fundamental personal right. Those who seek to invade this right do so in the name of ‘social need’, ‘social good’ and even ‘personal well-being’ . . . . In my view, however, there are not only deep-seated medical, sociological, personal and legal issues, but a fundamental issue of public policy involved. What power, then, should society have in this regard; what personal rights should be protected from society; to what extent should they be protected; and in what manner?

“It seems to me that having clearly declared the judiciary’s power to act, wisdom dictates we should defer articulation of this complex public policy to the legislature. Such deferral, done with a clear declaration of judicial power, is not an abdication of that power. Rather, it is a recognition that the declared power can be rationally coupled with a conscious choice not to exercise it.”

Because we conclude it inappropriate under the present circumstances for circuit courts to exercise their jurisdiction, we direct them, pursuant to our supervisory authority, to refrain from ordering the sterilization of incompetents or of others who are unable to give an informed and voluntary consent to the procedure.

Because we so direct, however, it should not be concluded that this court abrogates its own authority and jurisdiction to act on this subject at a future time if it becomes apparent that the legislature is unable or unwilling to act. Unlike sterilization procedures, our decisions are reversible. In an appropriate case at an appropriate time, this court, if it becomes necessary, could permit the invocation of its original jurisdiction for the further consideration and resolution of this problem. Although the judicial system is not well adapted to the task of examining and evaluating social and medical facts from the viewpoint of public policy, it occasionally becomes necessary to do so. It is not powerless in that respect. By remand to a referee for factfinding, by the process of taking judicial notice of important facts of a legislative nature, and by the exercise of its own discretion (or referral to a trial court for such exercise, which could then be scrutinized on appellate review), the problem posed in this case could be addressed.

The preferred forum, however, is the legislature, and it is there that the public policy issues which arise in a case of this nature should be determined.

We hold that the circuit courts of the State of Wisconsin have constitutional and statutory jurisdiction to consider and decide petitions seeking court authorization for a guardian to give consent to the sterilization of an incompetent ward; but pursuant to our supervisory authority we direct such jurisdiction shall not be exercised until the state’s policy to do so is set forth by appropriate legislation or until further order of this court.

By the Court. — Decision affirmed.

1 In the Matter of Guardianship of Eberhardy, 97 Wis.2d 654, 294 N.W.2d 540 (Ct. App. 1980).

2 Dr. Ptaeek predicted that the chances were one out of four that a child born to Joan would be retarded. The record does not otherwise, however, disclose whether Joan’s retardation has any genetic or hereditary characteristics.

3 It is possible, of course, that developmental abnormalities may-have been present (and diagnosed) earlier. The medical record, however — otherwise fairly extensive in describing the medical care provided for various childhood maladies — does not so indicate.

4 Subject, of course, to appellate jurisdiction and the constitutional authority of the supreme court to exercise original jurisdiction in certain cases. Wis. Const., art. VII, sec. 3(2).

5 Because the problem does not arise in the context of this case, we do not consider circumstances under which certain conditions precedent must occur prior to the exercise of jurisdiction. See Lees v. ILHR Dept., 49 Wis.2d 491, 497, 182 N.W.2d 245 (1971), and cases cited therein.

6 In its final version, sec. 46.12, Stats. 1975, provided in its entirety:

“46.12 Sterilization of defectives. (1) The department may appoint a surgeon and a psychiatrist, of recognized ability, as experts, who (in conjunction with the superintendents of the state and county institutions who have charge of criminal, mentally ill and mentally deficient persons) shall examine inmates and patients of such institutions as to their mental and physical condition.

“(2) The department may submit to the experts and to the superintendent the name of inmates or patients they desire examined, and the experts and the superintendent shall meet, take evidence and examine into the mental and physical condition of the named inmates or patients and report thereof to the department.

“(3) If the experts and superintendent unanimously find that procreation is inadvisable the department may authorize an operation for the prevention of procreation.

“(4) Before such operation, the department shall give at least 30 days’ notice in writing to the husband or wife, parent or guardian of the inmate or patient, if known, and if unknown, to the person with whom such inmate or patient last resided.

“(5) The experts shall receive as compensation $10 per day and expenses for the days consumed in the performance of their duties.

“(6) The record made upon the examination shall be filed in the department; and semiannually after the operation, the superintendent of the institution where such inmate or patient is confined shall report to the department his condition.

“(7) The department shall state in its biennial report the number of operations performed under this section and the result of the operations.”

7 For an excellent — and disturbing — account of how and why eugenic sterilization was embraced by Wisconsin Progressives, and a discussion of the legislative history and enactment of sec. 46.12, Stats., see R. Vecoli, Sterilization: A Progressive Measure? in Wisconsin Magazine of History, Spring 1960, p. 190.

8 Justice Holmes’ ringing declaration of confidence in the state of eugenic knowledge as it existed in 1927 has frequently been criticized, particularly when it became known at a later date that the child born to Carrie Buck, the subject of sterilization in Buck v. Bell, had previously given birth to a child who was “very bright.” Murdock, Sterilization of the Retarded: A Problem or a Solution? 62 Cal. Law Rev. 917, 921 n. 22 (1974).

9 The medical record introduced at the hearing does not disclose the etiology of Joan’s disability. It characterizes Joan’s retardation, at different times in her life, variously in terms such as “non-specific,” “due to generalized cerebral dysfunction of uncertain etiology,” compatible with “diffuse moderately severe encephalopathy,” etc.

10 An amendment proposed in 1967 would have limited the potential institutionalized subjects to “hereditary mental defici-ents” (emphasis supplied), deleting the criminal and mentally ill, and would have added other procedural safeguards. The bill died in committee in its house of origin. See No. 873, A. (1967).

By 1964, it appears that the statute was no longer being used by the Department of Health and Social Services. See Fiscal Note to S.B. 761 (1971). Repeal efforts began in 1969 (A.B. 784), were repeated in 1971 (S.B. 761), and succeeded in 1977 (A.B. 898, ch. 428, sec. 4, Laws of 1977).

For a review of sterilizations performed under sec. 46.12, Stats., from 1913 to 1947, see Odegard, Operation of Sterilization Statutes in Wisconsin Outlined, Public Welfare May 1947 (p. 15). For other commentaries on the operation of the law, See Ferster, Eliminating the Unfit, supra, Appendix C at 633; Richmond, Sterilization in Wisconsin, 25 J. Crim. L. & Criminology 586 (1934); Beier, The Operation of the Wisconsin Sterilization Law, Minn. Bd. of Control Q., May 1920, p. 7.

11 Although we have concluded that the history of the 1913 legislation is irrelevant to the problem in this case, other rejected legislative proposals merit brief comment. Bill No. 682, A. (1935), inter alia,, would, as amended, have authorized a spouse, parent, or legal personal guardian of a person who is “in such mental condition that he can not understand the effect of the treatment” to petition the county court for sterilization. The legislation provided that the court “shall” approve the sterilization if certain conditions were met. Under the bill, sterilization was to be appropriate if such a subject were old enough to conceive; had either an inheritable form of feeble-mindedness or “an incurable disease or defect such that pregnancy will probably cause her death or serious permanent illness or injury” (emphasis supplied); and that the sterilization could be performed with safety to the subject. See also Nos. 376, S. (1935) and 437, A. (1937). A somewhat similar bill, No. 436, A. (1939) (as amended), was also rejected. While we should not read much into the legislature’s rejection or non-action on a bill, particularly where the legislation contains other provisions which could also explain the bill’s demise, it is at least significant that there have been rejections of proposed legislation where a major concern of the legislation was not eugenic but concern for the incompetent’s well being.

12 Discussing the constitutional protection afforded to sterilization decisions of competent persons, see In re Grady, 85 N.J. 235, 426 A.2d 467 (1981), and cases discussed therein; Developments — The Family, supra, 93 Harv. L. Rev. at 1307-08; Comment, A Constitutional Evaluation of Statutory and Administrative Impediments to Voluntary Sterilization, 14 J. Fam. L. 67 (1975).

13 The parties and the courts below referred to the case of In re Guardianship of Pescinski, 67 Wis.2d 4, 226 N.W.2d 180 (1975). The court of appeals, in particular, appears to have read Peseinski as supporting its conclusion that a Wisconsin circuit court is without judicial power to authorize a sterilization sueh as the one proposed in this case.

In Pescinski, the guardian of an institutionalized schizophrenic petitioned the county court for authorization for the transplant of a kidney to a sister whose kidneys had been removed and whose condition was deteriorating. No other family members were available as donors. No “real” consent for the procedure was obtained from the incompetent prospective donor, nor any from his guardian ad litem. There was “absolutely no evidence . . . that any interests of the ward will be served by the transplant.” Id. at 7. This court ruled that, absent real consent by the ward, there was no power in the county court to approve the operation. It stated that, “There is no statutory authority given the county court to authorize a kidney transplant or any other surgical procedure on a living person,” and expressly declined to adopt the substituted judgment doctrine in Wisconsin. Id. at 7-8. The last paragraph of the opinion emphasized the importance of not taking advantage of incompetents' and stated that, absent “real” consent and in a situation where no benefit to the ward has been shown, the county court (and this court) have no authority to approve the operation.

As our discussion, supra, on the plenary constitutional jurisdiction of Wisconsin circuit courts indicates, Peseinski, despite some of its broad language, should not be read as a ruling of want of jurisdiction. Rather, like the present case, Peseinski represents the exercise of judicial restraint under particular circumstances. Those circumstances included the lack of consent of the guardian ad litem, no showing of benefit to the ward, and an absence of legislative guidance. Peseinski should not be read as a ruling of want of jurisdiction, and, insofar as it may, we disavow that conclusion.

14 Goldstein, Freud & Solnit, Beyond the Best Interests of the Child (1978).

15 For similar reasons, we do not construe sec. 880.38(2), Stats., as providing sufficient guidance. That section provides that, “A guardian of the person shall endeavor to secure necessary care, services or appropriate protective placement on behalf of the ward.” A brief review of legislative history shows that this section was enacted as part of legislation establishing protective services for certain disabled and incompetent persons. See ch. 284, sec. 31, Laws of 1973, amended by ch. 393, sec, 39, Laws of 1975. We need not and do not decide the scope of meaning of the terms, “necessary care” and “services,” in this case, for such unelaborated terms are clearly inadequate to serve as substantive or procedural safeguards of the many sensitive inquiries which would have to be made before a sterilization could, with propriety, be judicially authorized. Cf., In re Grady, 85 N.J. 235, 426 A.2d 467 (1981); Matter of Guardianship of Hayes, 93 Wash.2d 228, 608 P.2d 635, 639-42 (1980).

16 We note, for example, that nowhere in the present litigation is there any reference to the considerations which might be involved in the contraceptive or therapeutic sterilization of male incompetent persons. The limited factual posture of this case dictates this narrowed scope of inquiry. We imply no conclusion as to whether the sterilization of a male incompetent would involve the same or different considerations of public policy, individual rights, and “best interests” assessment as for a female incompetent person. We note only that a wider vision than that available to us in the context of this case would be necessary to address such questions.

17 Indeed, the only expressed existing public policy on the question does reveal differential treatment, and suggests that the state discourages the sterilization of incompetent persons. Wisconsin, like the federal government, funds voluntary sterilizations of competent adults under the family planning provisions of the Medicaid (medical assistance) program. 4 Wis. Adm. Code ch. HSS, secs. 101.03(170) (p. 25); 104.01(7) (p. 51); 107.06(2) (zk) (p.229); 107.21(1) (b)3g, (c)4, (2) (pp. 286-89). However, these rules — like those of the federal government, 42 C.F.R. secs. 441.250-441.259 (1979) — expressly exclude state financial coverage for sterilization of incompetent persons (as well as of persons under age 21 and of institutionalized persons). 4 Wis. Adm. Code ch. HHS secs. 101.03(168), (169) (p. 25); 105.36(1) (d) (p. 170); 107.06(2) (zk) (p. 229); 107.21(3) (p. 289). We recognize that this is an administrative policy judgment rather than a legislative one, and indeed, that it may in reality be a “compelled” policy undertaken by the State Department of Health and Social Services to comply with federal policy in order to ensure federal funding. Nonetheless, it rather clearly connotes the state’s concern, as a matter of public policy, over the complex questions of consent and possible abuse which may arise in connection with the sterilization of incompetent persons.