Wentzel v. Montgomery General Hospital, Inc.

447 A.2d 1244, 293 Md. 685

• Court: Court of Appeals of Maryland
• Decided: August 16, 1982
• Docket: [No. 74, September Term, 1981.]
• Status: Published

Opinions

Murphy, C. J.,

delivered the opinion of the Court. Smith and Digges, JJ., concur in part and dissent in part. Davidson, J., dissents. Smith, J., filed an opinion at page 705 infra, concurring in part and dissenting in part. Digges, J., filed an opinion at page 718 infra, concurring in part and dissenting in part. Davidson, J., filed a dissenting opinion at page 718. infra.

This case presents the question whether a trial court of general jurisdiction is empowered to grant a guardian’s petition to sterilize an incompetent minor through the performance of a subtotal hysterectomy.

I

The child who is the subject of this litigation, Sonya Star Flanary, is a severely retarded 13-year-old with an I.Q. of about 25 to 30 (the equivalent of a mental age of 1 to 2 years), blind and with pronounced neurological problems. Sonya was born a normal child. At the age of 5 months, she was severely injured in an automobile accident, suffering brain and other physical damage. After an initial paralysis, Sonya’s physical condition greatly improved but her mental development was seriously retarded. Unable to cope with the event, Sonya’s mother took her to live with her grandmother, Nancy Wentzel, who is now 61 years old. Sonya, her two sisters, and Gail Sheppard, Sonya’s aunt, have been living with Mrs. Wentzel since shortly after the accident. This case began when Mrs. Wentzel and Gail Sheppard, who together provide Sonya’s principal care, sought the performance of a hysterectomy upon Sonya, which would terminate her menstrual cycle and result in her sterilization. The medical staff of Montgomery General Hospital refused to perform the operation without a court order authorizing the procedure. Consequently, Mrs. Wentzel and Ms. Sheppard filed a petition in the Circuit Court for Montgomery County, seeking appointment as Sonya’s guardians with authority to consent to the proposed surgical procedure. The petition recited that Sonya "is currently in need of additional medical care (hysterectomy) and that the medical staff and petitioners request an Order of Court approving said medical procedure for therapeutic reasons.”

Pursuant to Maryland Rule R76, the court appointed an attorney to represent Sonya and conducted an evidentiary hearing. The evidence disclosed that Sonya regularly attended a special school, although missing many sessions because of illness. It was established that Sonya had reached puberty and was experiencing pain connected with menstruation. It was shown that Sonya could not care for her most basic hygienic needs, that she would not wear sanitary napkins and was irritable and disoriented during the menstruation process. There was evidence showing that the guardianship petition was motivated by a sincere desire to free Sonya of the pain and other consequences suffered by her during menstruation and because of genuine concern that Sonya was an easy subject for rape and resulting pregnancy. Sonya’s mother testified in support of the guardianship petition, stating that sterilization was in Sonya’s best interest.

The petitioners produced testimony of a child psychiatrist who, although he had never treated Sonya and had only seen her twice, said that a subtotal hysterectomy would be in Sonya’s best interest. The psychiatrist was unable to say, however, that such a procedure was necessary for Sonya’s physical or mental health. On cross-examination, the witness admitted that Sonya would not be in any medical danger if the operation were not performed, and he also agreed that some pain and irritation connected with the menstrual cycle is normal. The psychiatrist agreed that no life threatening consequences would occur if Sonya were to have offspring and further that Sonya was perfectly capable of having a normal baby. The evidence disclosed that there was no reasonable expectation that Sonya’s mental condition would improve.

It was argued that Maryland Code (1974, 1981 Cum. Supp.), § 13-708 of the Estates and Trusts Article empowered the court to grant the guardianship petition and to authorize the guardians to consent to the operation. Section 13-708, insofar as pertinent, provides:

"(a) The court may grant to a guardian of a person only those powers necessary to provide for the demonstrated need of the disabled person.

"(b) Subject to subsection (a) of this section, the rights, duties, and powers which the court may order include, but are not limited to:

(1) The same right's, powers, and duties that a parent has with respect to an unemancipated minor child .. .;

(2) ....

(3) The duty to provide for care, comfort, and maintenance, including social, recreational, and friendship requirements, and, if appropriate, for training and education of the disabled person;

(4) ....

(5) ....

(6) If a guardian of the estate has been appointed, the duty to control the custody and care of the disabled person,. . .;

(7) ....

(8) The power to give necessary consent or approval for medical or other professional care, counsel, treatment, or service, except that the court must authorize any medical procedure that involves a substantial risk to life.”

The trial judge (Bell, J.) found from the evidence that Sonya was totally lacking in capacity to consent to the operation; that "Sonya cannot care for herself, let alone a baby”; and that "Sonya’s menstruation further burdens an already over-burdened family.” The court noted the sincerity of the family’s belief that the operation was in Sonya’s best interest, and it also recognized the possibility that Sonya could become pregnant if sexually abused. The court observed that the psychiatrist did not testify that the operation was necessary for Sonya’s medical health or that refusal to authorize it would cause such a mental hardship as would justify the surgery for therapeutic reasons. The court concluded that § 13-708 of the Estates and Trusts Article "could not be interpreted to provide a hysterectomy in a case such as Sonya’s.” It noted that "the alternative to the hysterectomy is not life threatening.” The court said:

"In the absence of such statutory authority and guide lines, this Court cannot find that it has the authority to grant the relief sought.”

The court appointed the petitioners as co-guardians of the person and property of Sonya but denied permission to consent to the hysterectomy. The guardians appealed to the Court of Special Appeals. We granted certiorari prior to decision by the intermediate appellate court to consider the profound issues raised in the case.

II

The guardians claim that the lower court erroneously denied the petition on the ground that it was not empowered, absent express statutory authorization, to order sterilization unless for therapeutic reasons. They maintain that under § 13-708 of the Estates and Trusts Article the court, upon a showing of "demonstrated need,” is authorized to approve the sterilization of a minor incompetent for nontherapeutic reasons. The guardians suggest that they have a duty under the statute to plan for the preservation and maintenance of the future well-being of their ward. The evidence in this case, they argue, substantiates the existence of a demonstrated need for the operation because Sonya is mentally and physically unable to care for her own physical needs due to her severe state of mental retardation. It is additionally argued that the medical evidence supports the conclusion that Sonya’s sterilization "will preclude future negative trauma both physically and mentally, given the severity of Sonya’s mental retardation and her low functioning levels and eliminate the possibility of pregnancy.”

The guardians contend that Code (1980 Repl. Yol.) § 1-501 of the Courts and Judicial Proceedings Article confers upon a circuit court full equity powers in civil cases — powers which are not limited by the provisions of § 13-708 of the Estates and Trusts Article. Sterilization would be in Sonya’s best interests, the guardians say, because Sonya is unable to communicate effectively with others; to understand or handle her own bodily functions; to know the difference between sexes, much less the needs of a potential child; and to understand the menstrual cycle or pregnancy. Moreover, the guardians point out that they are presently 61 and 33 years old, respectively, and that Sonya’s life expectancy far exceeds their own. In these circumstances, it is contended that it is in the best interests of Sonya and those who assume responsibility for her care, both in the present and in the future, that Sonya be sterilized. The guardians maintain that acting under the parens patriae doctrine, equity courts have traditionally exercised their powers in the best interests of incompetent minors, and that accordingly the lower court should have granted their petition in order to preserve Sonya’s physical and mental well-being. It is emphasized that should Sonya have a child, both she and the child will become wards of the State, if her family cannot care for both. It is argued that this will place a financial burden on the State, and it therefore has a compelling interest justifying granting the guardians’ petition authorizing the giving of consent to Sonya’s sterilization.

Ill

A number of jurisdictions hold that in the absence of express legislative authorization, courts are totally devoid of subject matter jurisdiction to consider petitions seeking sterilization of incompetent minors. See, e.g., Hudson v. Hudson, 373 So.2d 310 (Ala. 1979); Guardianship of Tulley, 83 Cal. App. 3d 698, 146 Cal. Rptr. 266 (1978), cert. denied, 440 U.S. 967, 99 S. Ct. 1519, 59 L. Ed. 2d 783 (1979); Matter of S.C.E., 378 A.2d 144 (Del. Ch. 1977); A.L. v. G.R.H., 163 Ind. App. 636, 325 N.E.2d 501 (1975); Holmes v. Powers, 439 S.W.2d 579 (Ky. 1968); In Interest of M.K.R., 515 S.W.2d 467 (Mo. 1974) (en banc); Frazier v. Levi, 440 S.W.2d 393 (Tex. Civ. App. 1969). These cases variously involve evidence of verifiable medical necessity and therapeutic need; likelihood of psychiatric harm absent sterilization; already existing retarded or illegitimate offspring; propensity to, or actually having engaged in sexual relations; and high probability of transmitting disabilities to any offspring. Regardless of the asserted need, these courts have denied sterilization, deferring on jurisdictional grounds to what they consider to be exclusively a legislative prerogative.

Other cases hold that trial courts of general jurisdiction, either by statute, the exercise of inherent equity powers, including application of the parens patriae doctrine, or the doctrine of substituted consent, have subject matter jurisdiction to grant petitions authorizing sterilization of incompetent persons in appropriate cases. Some of these cases, independent of statute, impose strict procedural and substantive safeguards upon the determination of such petitions. For example, in Matter of C.D.M., 627 P.2d 607 (Alas. 1981), the parents of a 19-year-old mildly retarded female with Down’s Syndrome filed a petition for her sterilization. By statute, guardians were authorized to "give any consents ... that may be necessary to enable the ward to receive medical or other professional care.” 627 P.2d at 612. The evidence showed a high probability that the child’s offspring, if any, would be born with Down’s Syndrome. Relying upon the equity powers vested in trial courts of general jurisdiction, which encompassed the parens patriae power over incompetents, the court concluded that the trial judge, contrary to his holding, had subject matter jurisdiction to act on the petition. However, it withheld approval of the operation because adequate safeguards had not been observed in the proceedings below. The court established the following minimum standards to govern the determination of a petition for sterilization of incompetent persons:

(1) Those advocating sterilization bear the heavy burden of proving by clear and convincing evidence that sterilization is in the best interests of the incompetent;

(2) The incompetent must be afforded a full judicial hearing at which medical testimony is presented and the incompetent, through a guardian ad litem, is allowed to present proof and cross-examine witnesses;

(3) The trial judge must be assured that a comprehensive medical, psychological, and social evaluation is made of the incompetent;

(4) The trial court must determine that the individual is legally incompetent to make a decision whether to be sterilized and that this incapacity is in all likelihood permanent;

(5) The incompetent must be capable of reproduction and unable to care for the offspring;

(6) Sterilization must be the only practicable means of contraception;

(7) The proposed operation must be the least restrictive alternative available;

(8) To the extent possible, the trial court must hear testimony from the incompetent concerning his or her understanding and desire, if any, for the proposed operation and its consequences, and finally,

(9) The court must examine the motivation behind the petition. Id. at 612-13.

The Supreme Court of Washington reached similar conclusions in Matter of Guardianship of Hayes, 93 Wash. 228, 608 P.2d 635 (1980) (en banc). It reversed the judgment of the trial court which had declined to authorize the sterilization of a 16-year-old severely retarded female on the ground of lack of subject matter jurisdiction. In that case, it was shown that the relevant guardianship statute neither authorized nor prohibited sterilization procedures at a guardian’s request. The child’s mother had petitioned for sterilization because she believed that her daughter was sexually active and because she was concerned about the long-term effects of conventional birth control methods. The court in Hayes decried the refusal of other courts to decide this type of case due to an alleged lack of jurisdiction, terming these holdings an "abdication of the judicial function.” Id. at 637. It held that a statute was not required to empower the trial court to exercise its jurisdiction, because that power was vested in the court under the state’s constitution. The court was unwilling, however, to sua sponte approve an order of sterilization absent compliance with most of the safeguards outlined in Matter of C.D.M., supra, to which it added a requirement that it be shown by clear, cogent, and convincing evidence that the current state of scientific and medical knowledge does not suggest either (a) that a reversible procedure or other less drastic contraceptive method will shortly be available, or (b) that science is on the threshold of an advance in treatment of the individual’s disability. Id. at 641. Furthermore, the court stated that the heavy presumption against sterilization will be even more difficult to overcome in the case of an incompetent minor, whose youth may "make it difficult or impossible to prove by clear and convincing evidence that he or she will never be capable of making an informed judgment about sterilization or of caring for a child.” Id. The court expressed the belief that only in rare cases would sterilization be in the best interests of the retarded person.

In the case of In Re Grady, 85 N.J. 235, 426 A.2d 467 (1981), the parents of 19-year-old Lee Ann, a mentally retarded woman with Down’s Syndrome, sought a court order authorizing the performance of a tubal ligation. Lee Ann had been taking birth control pills for four years but her parents wanted her to become less dependent on their supervision. The court attempted to reconcile the conflict between Lee Ann’s diverse privacy rights — her right to bodily integrity and to be free from sterilization on the one hand, and on the other, her "right” to be sterilized, id. at 471-73, citing Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972); Carey v. Population Services Int’l, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977); Planned Parenthood of Missouri v. Danforth, 428 , 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976); Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). Stating that courts which decline to assume jurisdiction do not reflect "adequate sensitivity to the constitutional rights of the incompetent person,” the New Jersey court resolved the conflict in favor of Lee Ann’s "right” to be sterilized, premising its decision on the doctrines of parens patriae and substituted consent, citing In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976) (court authorized parents of a comatose 22-year-old to consent to removal of extraordinary artificial life support apparatus). As in Matter of C.D.M. and Hayes, the court enumerated a myriad of factors to be considered in determining whether sterilization was in the best interest of the incompetent person.

In yet another case, In re Penny N., 120 N.H. 269, 414 A.2d 541 (1980), the court held that the trial judge had jurisdiction to consider a petition for sterilization, but it refused to order the procedure because sufficient safeguards had not been utilized. There, parents of a 14-year-old girl suffering from Down’s Syndrome, severe psychomoter retardation and impaired hearing sought a court order authorizing a hysterectomy. The child had the intelligence level of a 2-year-old, was unable to speak, clothe, or feed herself, and was not toilet trained. In addition, Penny’s doctors believed that she was suffering from severe psychological problems which would be aggravated if she began menstruation. In holding that the probate court had jurisdiction to authorize the sterilization, the Supreme Court of New Hampshire relied on a statute that prohibited a guardian from giving "consent for . . . sterilization .. . unless the procedure is first approved by order of the probate court.” Id. at 542. The court, however, remanded the case for further proceedings and the adoption of standards similar to those outlined in In Re Grady, supra, stating:

"a probate judge may permit a sterilization after making specific written findings from clear and convincing evidence, that it is in the best interests of the incapacitated ward, rather than the parents’ or the public’s convenience, to do so.” Id. at 543.

Matter of A. W., Colo., 637 P.2d 366 (1981) (en banc), involved a severely mentally retarded 15-year-old female whose parents had petitioned the district court (a court of general jurisdiction) to authorize a hysterectomy. The parents were concerned over the child’s fear and fright of the menstrual process and also because of the possibility that she could become pregnant. The evidence showed that the child was physiologically normal and therefore perfectly capable of conceiving a child. The child’s physician recommended a hysterectomy to avoid pregnancy and to discontinue the menstrual cycle. The trial court granted the petition on the basis of a Colorado statute generally empowering parents to request medical or surgical care for their child. The Supreme Court of Colorado reversed, concluding "that sterilization of a mentally retarded minor is a special case not covered by the general parental consent statute.” 637 P.2d at 368. The court further concluded that a Colorado statute authorizing sterilization of mentally retarded adults, but which was silent as to minors, did not limit the district court’s jurisdiction to order sterilization of mentally retarded minors. It held that the district court’s broad grant of constitutional authority to determine all civil cases vested it with inherent, nonstatutory powers of adjudication, including the power to consider petitions for sterilization of retarded minors under the parens patriae doctrine. The court said:

"Inherent parens patriae jurisdiction over incompetents may extend to decisions involving irrevocable consequences for the incompetent individual. Courts have accepted responsibility for deciding whether to authorize a kidney transplant from an incompetent to his gravely ill brother, Strunk v. Strunk, 445 S.W.2d 145 (Ky. App. 1969); whether to consent on behalf of the incompetent to shock treatment, Price v. Sheppard, 307 Minn. 250, 239 (1976); whether to administer chemotherapy treatment, Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 738, 370 N.E.2d 417 (1977); and whether to discontinue artificial life support mechanisms, In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. den. 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976).” Id. at 374.

In determining the merits of the sterilization petition, the Colorado court adopted standards to guide the discretion of the trial judge similar to those adopted in Matter of C.D.M., Hayes, and Grady, all supra. Another standard required the trial judge to find by clear and convincing evidence that the sterilization was "medically essential,” as to which the court said:

"A sterilization is medically essential if clearly necessary, in the opinion of experts, to preserve the life or physical or mental health of the mentally retarded person. The term 'medically essential’ is reasonably precise and provides protection from abuses prevalent in this area in the past. The term also avoids confusion as to whose interests are to be considered. It is not the welfare of society, or the convenience or peace of mind of parents or guardians that these standards are intended to protect. The purpose of the standards is to protect the health of the minor retarded person, and to prevent that person’s fundamental procreative rights from being abridged. In some circumstances, the possibility of pregnancy, if supported by sufficient evidence that it would threaten the physical or mental health of the person and that no less intrusive means of birth control would prove safe and effective, could justify granting a petition for sterilization as medically essential.” Id. at 375-76.

Another view of the problem was taken in Matter of Guardianship of Eberhardy, 102 Wis.2d 539, 307 N.W.2d 881 (1981). That case involved a petition for sterilization by the guardians/parents of Joan, a 22-year-old mentally retarded woman. The petition was motivated by Joan’s parents’ belief that she had engaged in sexual activity at a summer camp for the mentally retarded and because Joan’s physician recommended sterilization as "she would be unable to care for a child and the chances of a child being severely handicapped were considerable.” Id. at 883. Joan’s parents rejected her usage of an I.U.D. and sought court approval of a tubal ligation, jn reversing the judgment of the circuit court that no jurisdiction existed to act on the petition, the Supreme Court of Wisconsin held that the state constitution vested in such courts "jurisdiction in all matters civil and criminal.” Id. at 885. After an extensive account of Wisconsin’s experience with a now repealed eugenic sterilization statute, the court reviewed the dangers and pitfalls involved in a nonstatutory, judicial determination of the merits of a petition for sterilization, i.e., the often subjective nature of the decision, the irreversibility of errors of judgment, the conflicting rights of the parties involved and the inability of courts to deal with the necessary medical technology. Taking all these factors into consideration, the court, although acknowledging the jurisdiction of circuit courts in such cases, concluded that they were not the appropriate forum to resolve such delicate issues of public policy. The court nevertheless stated that if the legislature did not act to develop guidelines and standards for sterilization of incompetents, it would not continue to exercise judicial restraint. Id. at 899.

The most recent case on the subject, In the Matter of Mary Moe, 385 Mass. 555, 432 N.E.2d 712, decided March 16, 1982, involved a petition to sterilize a severely retarded adult woman. The Supreme Judicial Court of Massachusetts concluded that the trial court — a court of general equity jurisdiction — possessed inherent equitable power to grant a petition for sterilization, shown to be in the best interest of the mentally incompetent ward. In so holding, the court said "that the [trial] court is to determine whether to authorize sterilization when requested by the parents or guardian by finding the incompetent would so choose if competent.” Slip op. at 17. It indicated that medical necessity was but one relevant factor to be assessed in evaluating whether sterilization was in the best interests of the disabled ward. As to this factor, the court indicated that medical necessity would be demonstrated by proof that pregnancy would threaten the physical or mental health of the incompetent person, with the weight given this factor being dependent upon the facts of the case and the degree of medical necessity. The Massachusetts court concluded that, in applying the standards, the trial judge must

"exercise the utmost care in reviewing all the evidence presented and in determining whether the ward would consent to sterilization if competent to make such a decision. Id. at 885-886. The judge must enter detailed written findings indicating those persuasive factors that determine the outcome. We are persuaded that a conscientious judge, being mindful of adverse mental and social consequence which might follow the authorization or not of a sterilization operation, will give serious and heedful attention at all stages of the proceeding.”

Slip op. at 25-26.

IV

There is no Maryland statute explicitly authorizing courts to approve petitions for the sterilization of any person. Title 13 of the Estates and Trusts Article entitled "Protection of Minors and Disabled Persons” provides in § 13-105 that circuit courts have jurisdiction over guardianship "of the person of a minor and over protective proceedings for minors .. . land] for disabled persons.” As originally enacted by ch. 11 of the Acts of 1974, Title 13 defined a "disabled person” in § 13-101 (c) as "a person other than a minor*’ adjudged by a court to be unable to manage his property because of various enumerated physical, mental and other disabilities. (Emphasis supplied.)¹ A "minor” was defined in § 13-101 (i) as a person under the age of 18 years. Chapter 11 of the Acts of 1974 also enacted Subtitle 7 of Title 13, which was entitled "Guardian of the Person”; the new subtitle encompassed §§ 13-701 through 13-704. Section 13-702, captioned "Court appointment of guardian of a minor” simply provided that "the court may appoint a guardian of the person of an unmarried minor.” Section 13-704 entitled "Court appointment of guardian of the person of a disabled person” provided that the court may "superintend and direct the care of a disabled person,” appoint a guardian therefor and pass orders "directing the disabled person to be sent to a hospital.” Neither section delineated with specificity the powers and duties of the guardian.

Title 13 was extensively amended by ch. 768 of the Acts of 1977, which was entitled "An Act Concerning Adult Protective Services.” The definition of a "disabled person” was broadened to include a person adjudged by a court "to be unable to provide for his daily needs sufficient to protect his health or safety” because of mental incapacity. The 1977 amendatory act divided the provisions of Subtitle 7 into two parts, the first entitled, "Part I. Minors,” which was applicable only to §§ 13-701 through 13-703. The general provision in § 13-702 that the court was empowered to appoint a guardian of the person of an unmarried minor remained unchanged by the amendatory act. Part II of Subtitle 7 was entitled, "Disabled Persons.” Included within this Part were new sections — § 13-705, which authorized appointment of a guardian for a "disabled person,” and § 13-708, which enumerated the guardian’s rights, duties and powers. As earlier indicated, § 13-708 authorizes the court to grant to guardians only those powers necessary to provide for the "demonstrated need” of the "disabled person” including, but not limited to, the same authority that a parent has with respect to an unemancipated minor child; the care, comfort, training, education and maintenance of the disabled ward; and the power to give necessary consent for medical or other professional care or treatment with the qualification, however, that the guardian must seek court approval before consenting to any medical procedure that involves a substantial risk to life.

From the aforegoing it is evident that § 13-708 does not apply to guardianship of the person of a minor. Thus, the provisions of this section, which permit a guardian of a "disabled person” to consent to a medical procedure where a "demonstrated need” therefor is shown, are not applicable in this case. We think, however, that the statutory formulation of § 13-708 essentially parallels and is declaratory of the common law parens patriae powers of circuit courts over incompetent minors. In enacting § 13-702, expressly recognizing the authority of circuit courts to appoint a guardian of the person of a minor, but without delineating the guardian’s powers and duties, the legislature intended that circuit courts would exercise their inherent equitable jurisdiction over guardianship matters pertaining to minors, adopting standards with respect thereto as would be consistent with and in furtherance of the incompetent ward’s best interests. See § 1-501 of the Courts Article which, in implementation of the provisions of Article IV, § 20 of the Constitution of Maryland,² specifies that circuit courts

"are the highest common-law and equity courts of record exercising original jurisdiction within the State . .. [with] full common-law and equity powers and jurisdiction in all civil and criminal cases within [their] count! íes], and all the additional powers and jurisdiction conferred by the Constitution and by law, except where by law jurisdiction has been limited or conferred exclusively upon another tribunal.”

The parens patriae jurisdiction of circuit courts in this State is well established. The words ’’parens pa triae, ” meaning "father of the country,” refer to the State’s sovereign power of guardianship over minors and other persons under disability. See 67A C.J.S. Parens Patriae, at 159 (1978); Black’s Law Dictionary 1003 (5th ed. 1979). It is a fundamental common law concept that the jurisdiction of courts of equity over such persons is plenary so as to afford whatever relief may be necessary to protect the individual’s best interests. See 27 Am. Jur. 2d Equity § 69 (1966); 39 Am. Jur. 2d Guardian and Ward §§ 9, 61 (1968); 59 Am. Jur. 2d Parent and Child § 9 (1971). Maryland cases are generally in accord. See Taylor v. Taylor, 246 Md. 616, 229 A.2d 131 (1967); Thistlewood v. Ocean City, 236 Md. 548, 204 A.2d 688 (1964); Stirn v. Stirn, 183 Md. 59, 36 A.2d 695 (1944); Barnard v. Godfrey, 157 Md. 264, 145 A. 614 (1929); Jenkins v. Whyte, 62 Md. 427 (1884); Ellis v. Ellis, 19 Md. App. 361, 311 A. 2d 428 (1973). Indeed, as we pointed out in Kircherer v. Kircherer, 285 Md. 114, 400 A.2d 1097 (1979):

"[A] court of equity assumes jurisdiction in guardianship matters to protect those who, because of illness or other disability, are unable to care for themselves. In reality the court is the guardian; an individual who is given that title is merely an agent or arm of that tribunal in carrying out its sacred responsibility.”

We conclude, therefore, that as to incompetent minors circuit courts, acting in pursuance of their inherent parens patriae authority, have subject matter jurisdiction to consider a petition for an order authorizing a guardian to consent to the sterilization of an incompetent minor. See Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978).

V

In determining whether a petition to authorize a guardian to consent to sterilization of an incompetent minor is in the minor’s best interest, it is essential that the circuit court take into account and be guided by the following minimal standards, which we adopt today in order to safeguard and secure the rights of the ward.

First, the court must appoint an independent guardian ad litem to act on the disabled ward’s behalf, with full opportunity to meet with the ward and to present evidence and cross-examine witnesses at a full judicial hearing. See Maryland Rule R78. Second, the court must receive independent medical, psychological and social evaluations by competent professionals and may, if deemed advisable, appoint its own experts to assist in the evaluation of the ward’s best interests. Third, the court should personally meet with the minor ward to obtain its own impression of the individual’s competency, affording the ward a full opportunity to express his or her personal views or desires with respect to the judicial proceedings and the prospect of sterilization. Fourth, the trial judge must find, by clear and convincing evidence, that the individual lacks competency to make a decision about sterilization and, further, that the incapacity is not likely to change in the foreseeable future. Fifth, the court must be satisfied by clear and convincing evidence that sterilization is in the best interests of the incompetent minor. This determination involves a number of factors, including whether the incompetent minor is capable of reproduction, the child’s age and circumstances at the time of the petition, the extent of the child’s exposure to sexual contact that could result in pregnancy, the feasibility of utilizing effective contraceptive procedures in lieu of sterilization, the availability of alternative and less intrusive sterilization procedures, and the possibility that scientific advances may occur in the foreseeable future, which could result in improvement of the ward’s mental condition. In addition to these factors, the trial court, before authorizing sterilization as being in the best interests of the incompetent minor, must find by clear and convincing evidence that the requested operative procedure is medically necessary to preserve the life or physical or mental health of the incompetent minor. See Matter of A.M., supra.

VI

In refusing to authorize sterilization in this case, the trial judge concluded from the evidence that sterilization by hysterectomy to terminate Sonya’s menstrual cycle and to prevent her pregnancy was not, within the contemplation of § 13-708’s "demonstrated need” formulation, necessary to preserve her life or physical or mental health. While the court noted the absence of any statutory authority or guidance other than that contained in § 13-708, it did not, as we read its opinion, find an absence of subject matter jurisdiction to determine the merits of the petition; it simply found, in light of the evidence in the case, a lack of justification for granting the petition, i.e., that no "demonstrated need” was established.'

As we have indicated, § 13-708 has no application to guardianship of the person of an incompetent minor. Consequently, the trial court was wrong in applying the provisions of that section in this case, although the ultimate issue which it considered was for all practical purposes virtually identical to that involved in determining the merits of a petition to sterilize an incompetent minor under common law equitable principles, i.e., whether, in view of the evidence presented, sterilization was shown to be in the best interests of the incompetent minor. We think the trial judge properly concluded that Sonya lacked the mental capacity to herself consent to the operation. Moreover, we think the trial judge was correct in determining that the evidence failed to disclose that sterilization by hysterectomy was in Sonya’s best interest as being necessary for her medical or mental health. Manifestly, the fact that Sonya experiences pain and irritation during her menstrual cycle, which she does not understand and with which she has difficulty in coping, does not in itself provide any basis for authorizing a hysterectomy. Nor does the mere fact that Sonya could become pregnant and give birth to a child, for whom she could not care, provide justification to authorize the operation. Indeed, in considering the best interests of an incompetent minor, the welfare of society or the convenience or peace of mind of the ward’s parents or guardian plays no part.

Considering Sonya’s age and present circumstances, the absence of any evidence, much less clear and convincing evidence, of any medical necessity for the sterilization procedure at this time, no useful purpose would be served by remanding the case to the trial court for further proceedings in light of today’s opinion.³

We recognize, of course, that declaration of the public policy of this State is normally a function of the legislative branch of government. Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981). In view of the profound and recurring nature of the issue here involved, and its obvious importance to the public, the legislature may deem it appropriate at this time to declare the law of the State by enacting a statute governing the granting of consent for sterilization of mentally incompetent minors.

Judgment affirmed, with costs.

1 . As originally introduced, 8 13-101 (c) provided that a "disabled person ... may not be a minor.”

2 . This section of the Maryland Constitution provides:

"A Court shall be held in each County of the State to be styled the Circuit Court for the County, in which it may be held. The said Circuit Courts shall have and exercise, in the respective counties, all the power, authority and jurisdiction, original and appellate, which the present Circuit Courts of this State now have and exercise, or which may hereafter be prescribed by law.”

3 . Maryland Code (1980 Repl. Vol.), Art. 43. § 135 (a) (2) provides that a minor has the same capacity to consent to medical treatment as an adult if, inter alia, "Itjhe minor seeks treatment or advice concerning venereal disease, pregnancy or contraception not amounting to sterilization." (Emphasis supplied.) This section prevents a minor, acting alone, from consenting to sterilization; it does not, however, preempt the power of the court, acting within its parens patriae jurisdiction, from authorizing the guardian of the person of an incompetent minor to consent to sterilization where it is shown, by clear and convincing evidence, that such a procedure is in the best interest of the ward.