Sterilization for Retarded Woman Denied

A state appellate panel in San Jose has refused to permit the sterilization of a retarded woman whose case led the California Supreme Court to strike down a state law that had banned the operations for retarded people.

The appeal court ruled that the parents of Valerie Nieto, 31, a victim of Down’s syndrome with an IQ of 30, could not have her undergo a tubal ligation. There was insufficient evidence that other methods of birth control had been considered and a lack of medical testimony that sterilization was the only effective means of preventing pregnancy, the court said.

“The record does not reveal whether more than one formulation of birth control pill was tried, or whether alternative methods of administering these contraceptive drugs are available and were considered,” Appellate Justice Nat Agliano wrote for the three-judge panel in an opinion issued Tuesday.

Rights of the Retarded

The case has drawn wide attention as a test of the rights of the retarded. Nieto’s parents have sought her sterilization for several years, saying that their daughter could not care for children if she became pregnant. Birth control pills had made her ill and she refused to take them, they said.

In its October, 1985, ruling, the state Supreme Court said the law prohibiting sterilization of the retarded violated their right to privacy. But the justices also set down strict requirements to be met before sterilization could be approved--including the absence of feasible alternatives.

Meanwhile, a new state law this year requires proof beyond reasonable doubt that sterilization is necessary and requires parents who seek the surgery for a retarded child to pay for a lawyer to represent her and for the costs of obtaining expert medical testimony.

May Try Again

Allen H. Fleishman of San Jose, attorney for Nieto’s parents, expressed disappointment with the appellate court ruling. But he said the parents may renew an application for sterilization under the new law and, if rejected, ask the state Supreme Court to overturn that ruling.

“We believe that the new law simply does what the old law was struck down for,” Fleishman said. “It is so restrictive that it virtually makes it impossible to obtain a sterilization.”

Deputy state public defender Michael Pescetta, who opposed sterilization for Nieto, said that the ruling appeared to leave open a number of complex questions.