Equal Treatment for People with Mental Retardation: Having and Raising Children
460
Equal Treatment for People with Mental Retardation: Having and Raising Children
460eBook
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Overview
Engaging in sex, becoming parents, raising children: these are among the most personal decisions we make, and for people with mental retardation, these decisions are consistently challenged, regulated, and outlawed. This book is a comprehensive study of the American legal doctrines and social policies, past and present, that have governed procreation and parenting by persons with mental retardation. It argues persuasively that people with retardation should have legal authority to make their own decisions.
Despite the progress of the normalization movement, which has moved so many people with mental retardation into the mainstream since the 1960s, negative myths about reproduction and child rearing among this population persist. Martha Field and Valerie Sanchez trace these prejudices to the eugenics movement of the late nineteenth and early twentieth centuries. They show how misperceptions have led to inconsistent and discriminatory outcomes when third parties seek to make birth control or parenting decisions for people with mental retardation. They also explore the effect of these decisions on those they purport to protect. Detailed, thorough, and just, their book is a sustained argument for reform of the legal practices and social policies it describes.
Product Details
| ISBN-13: | 9780674036840 |
|---|---|
| Publisher: | Harvard University Press |
| Publication date: | 07/01/2009 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 460 |
| File size: | 1 MB |
About the Author
Valerie A. Sanchez is Assistant Professor of Law and Associate Director of the Institute for Dispute Resolution at the University of Florida Fredric G. Levin College of Law. She was formerly Lecturer on Law at Harvard Law School.
Table of Contents
Preface
Acknowledgments
PART I: INTRODUCTION
Some Families
Public Policy, Past and Present
Changing Policies toward Mental Retardation
The Current Policy Dilemma concerning Parents with Retardation
Who Are Called "Retarded"?
Causes of Mental Retardation
Defining and Classifying Mental Retardation
A History of Intelligence Testing
Evolving Definitions of IQ
IQ Testing Today
PART II: PROCREATION
Procreative Choice—But Whose?
Different Legal Approaches
Discrimination against Persons Who Have Retardation
The Patient as the Appropriate Decisionmaker
Benefits and Costs of Protective Measures
Resolving the Problem
Evolution of Policies toward Sterilization
Procedural Protections
The Need for Substantive Reforms
Judicial Decisionmaking in a Legislative Void
Ambivalence toward Eugenics
Current Policy Issues concerning Sterilization
Strict Prohibition of Nonconsensual Sterilization
Retreat from Strict Prohibition
Judicial Supervision of Third-Party Consent to Sterilization
What Should the Standards for Sterilization Be?
Substituted Judgment or Best Interests?
Standards for Who Can Be Sterilized and When
Disagreement about the Reasons for Sterilization
Sex and Contraception
Constitutional Law concerning Minors' Access to Sex
Constitutional Law concerning Adults' Access to Sex
Access to Sex for Persons with Retardation
The Importance of Sex Education
Preferring Contraception over Sterilization
Contraception: Practice and Law
Different Legal Treatment of Sterilization and Other Contraceptive Measures
Distinguishing Sterilization from Other Contraception
The Legal Status of Persons with Mental Retardation Conpared with that of Children
The Limited Impact of Guardianship
Four Scenarios
Imprecise Rules about When Guardianship Is Appropriate
Interactions between Guardian and Ward
The Peculiar Problem of Abortion
Two Differing Legal Approaches
Does Practice Accord with the Law?
Standards for Abortion
Resistance from the Patient
PART III: A PROPOSAL FOR SELF-DETERMINATION
Self-Determination Explained and Evaluated
The Necessity for Self-Determination
Respecting a Patient's Resistance
Four Scenarios
Critique: Danger and Unworkability
How the Proposed System Would Work
The Best Available Solution
Necessary Limitations on Self-Determination
Nonexpressive Persons
Minors
The Possibility of Varying the Rule
The Glen Ridge Rape Case
Should Sterilization Be Available Only with Actual Informed Consent?
PART IV: PARENTING
Some Underlying Rules and Issues
Standards for Evaluating Parents: Adoption, Neglect and Abuse, and Custody Proceedings
Comparing the Standards
The Difficulty and Subjectivity of Defining Unfitness
Use and Misuse of Sociological Studies
Written Law concerning Parenting: Important Issues for Parents with Retardation
Historical Perspective: Per se Disqualification
The Unconstitutionality of Disqualifying Parents Because of Unfitness of Their Group
Evolution of the Standard
Toward an Appropriate Legal Standard, Applicable to All Parents
The Social Welfare System in Practice
The Process for Parents in General
Applying the Procedures to Parents Who Have Retardation
Reforming the System
Some Difficult Policy Issues
Applying Procedural Protections to Removal Proceedings
Adjusting the Interval between Removal and Termination
More Flexible Kinds of Adoption
Providing Assistance
Devising Solutions
Hope for the Future
Some Key Suggested Reforms
Conclusion
Notes
Bibliography
Cases
Index