In their new book, excerpted below, Martha A. Field and Valerie A. Sanchez present their views of American legal doctrine and social policies that have influenced and still govern procreation and parenting by persons with retardation. The authors’ central thesis is that persons with retardation should have the same legal authority to make their own decisions as the rest of the population in all sexual and reproductive matters, including sterilization, abortion, and contraception.
Currently society allows all adults, except those with mental retardation, to make these reproductive decisions for themselves. While treating persons with retardation the same as others in this regard would considerably alter the law in every state, Field and Sanchez argue that such a change is feasible and is the only fair and respectful treatment of persons with mental retardation.
“For the moment at least, society has made the judgment that anyone who can have a baby can presumptively parent and that a baby or child will be removed from the biological parent only in extreme circumstances. It has also adopted processes very protective of biological parents, evaluating them, if at all, one parent at a time, without dismissing them because of their category — be it unwed fathers or gay men and lesbians or persons with mental illness. The only argument that persons with retardation need in order substantially to better their legal position and increase their legal rights is that they must be treated the same way others are. Accordingly, parents with retardation will sometimes lose their children, but when they do, it will be for the same reasons other persons do: because they have been adjudicated on an individual basis to be unfit; they will not be eliminated because of presumptions against them simply because of retardation. And while some parents with retardation will lose their child or children, others will raise children successfully, as some are already doing. . . .
If procreation and parenting choices are permitted to persons who have retardation — women and men — on the same basis as they are to others, it is not clear how greatly results will change, or how quickly. But the success of the change does not depend on how many babies women with retardation decide to have or keep. The reform will have achieved its aim if persons with retardation are more fully respected, are allowed to participate, and are given some power in determining the direction of their own lives.”
Reprinted by permission of the publisher from Equal Rights for People with Mental Retardation by Martha A. Field and Valerie A. Sanchez, Cambridge, Mass.: Harvard University Press, ©1999 by Martha A. Field and Valerie A. Sanchez.
Martha A. Field is the Langdell Professor of Law at HLS and a constitutional law scholar. She also has served on the Massachusetts Governor’s Commission on Mental Retardation. Valerie A. Sanchez is a former lecturer at the School and an academic practitioner in American civil liberties law and alternative dispute resolution.