Woman With Down’s Syndrome Is Sterilized After Court Approves

SAN JOSE —  A 31-year-old Milpitas woman with Down’s syndrome has been sterilized in what is believed to be the first such court-sanctioned surgery in California in 17 years, it was learned Friday.

Anne June Espiritu underwent tubal ligation surgery in May after her parents, who are her legal guardians, won approval for the operation from Santa Clara County Superior Court Judge John A. Flaherty.

The woman was the first and so far the only retarded person to undergo sterilization since last October, when the California Supreme Court, in a separate case, overturned as unconstitutional a state law that had banned such surgery since 1969.

“We took the request for sterilization to the court only after our daughter’s physician advised us that the procedure of tubal ligation was appropriate,” Espiritu’s parents, Ben and Modesta Espiritu, said in a statement read by their lawyer, Allen H. Fleishman of Santa Clara.

“We continue to believe that we have acted in our daughter’s best interest. She is so retarded that if she became pregnant she would not understand her body’s physical changes, and if she gave birth she could not care for the child, even with close supervision.”

Another Patient

Down’s syndrome is a birth defect that occurs in about one in every 600 to 650 births and is marked by mental retardation and some physical impairment.

The Espiritu case is similar to that of another Down’s syndrome patient, Valerie Nieto, whose mother and stepfather are seeking court approval to have their daughter sterilized. Nieto’s mother and stepfather, Mildred and Douglas Gedney, also are represented by Fleishman. It was that case in which the state Supreme Court declared unconstitutional a state statute banning sterilization of the mentally incompetent.

The high court sent Nieto’s case back to the Santa Clara County Superior Court, where Flaherty, the judge who heard Espiritu’s case, approved the procedure for Nieto early this year. Flaherty’s ruling has been appealed and Nieto’s operation postponed.

California was one of the first states to allow sterilization in the early 1900s when it was believed that the operations would end retardation. By the time the practice was halted in 1969, 20,000 people in this state had undergone the operations.

In Sacramento, meanwhile, a bill affecting sterilization is awaiting a vote in the Senate. If the bill had been law, Espiritu’s surgery most likely would have been postponed, because it would require that sterilization cases be brought automatically to a state court of appeal, according to Assemblyman Johan Klehs (D-San Leandro), the bill’s author.

‘Very Workable’

But while Klehs said the legislation would create safeguards, he predicted that the process proposed by the bill would be “very workable” and would allow about 30 operations a year of severely handicapped people.

“Before a step like sterilization takes place, we want to be sure that every remedy has been exhausted and that it is the correct decision,” Klehs said.

Santa Clara County Deputy Public Defender John C. Horning, who represented both Nieto and Espiritu in the separate hearings before Flaherty, said he did not appeal either case because he believed that the operations were warranted.

“What do you do if you are a parent of a 30-year-old woman who is this retarded and she plays with boys? You have to have someone with them 24 hours a day,” Horning said.

Nieto’s case re-entered the appellate court system only after the state public defender’s office intervened in June and appealed Flaherty’s order.

Appeals Urged

Nieto’s case is pending before the Court of Appeal in San Jose, where the state public defender is urging the justices to require that lawyers who are appointed to represent mentally incompetent people file appeals whenever a sterilization order is made.

“Essentially, (without an appeal) there is no check on the trial court, or the public defender or the (parent’s) lawyer,” Deputy State Public Defender Michael Pescetta said.

In both the Nieto and Espiritu cases, the parents are legal guardians and sought court approval for the operations, a requirement of the high court’s October ruling. Lawyers and other people involved in the cases agreed that neither woman, described in court papers as being severely retarded, could care for a child.

Both sets of parents said in court papers that other types of birth control would not work for their children because the women could not be relied upon to take or use contraceptives. The parents said that while their daughters have never had sex, both are interested in the opposite sex.

Doctors said in statements to Flaherty that the women probably could become pregnant, even though neither had ever allowed a pelvic examination. The doctors said they planned to anesthetize the women, perform the examination and complete the operation if it appeared that they could become pregnant.