§560:5-608 Criteria. (a) The ward may be sterilized if the court finds by clear and convincing evidence that the ward is functionally capable of giving and withholding informed assent to the proposed sterilization and has given informed assent to the proposed sterilization, or that the ward is functionally incapable of giving or withholding informed assent but sterilization is in the best interests of the ward.

(b) The ward assents to sterilization if the ward manifests an uncoerced willingness to undergo sterilization after being fully informed of the nature, risks, consequences, and alternatives to the procedure. A ward who lacks the capacity to understand the nature, risks, consequences, and alternatives to the procedure, or who lacks the capacity to manifest an uncoerced willingness or unwillingness to sterilization cannot assent to the procedure. To determine whether the ward is capable of giving informed assent, the court shall consider whether the ward understands and appreciates:

(1) The causal relationship between sexual intercourse and pregnancy or parenthood;

(2) The causal relationship between sterilization and the impossibility of pregnancy or parenthood;

(3) The nature of the sterilization operation including the pain, discomfort, and risks of the procedure;

(4) The probable permanency and irreversibility of the sterilization procedure;

(5) All medically approved alternatives to sterilization;

(6) The consequences of initiating pregnancy or becoming pregnant, mothering or fathering a child, and becoming a parent; and

(7) The power to change one's mind about being sterilized at any time before the procedure is performed.

To assure the adequacy of the ward's informed assent, evidence shall be presented showing that the ward received appropriate counseling from the physician who will perform the sterilization and at least one other qualified independent counselor such as a social worker with a master's degree, a clinical nurse specialist, or a licensed psychologist or psychiatrist. The counseling shall cover the benefits or advantages to sterilization and conversely the losses and disadvantages of sterilization including the feelings, values, and lifestyle changes attendant with sterilization.

Persons who attest in court as to the soundness of informed assent shall comment on and assess the ward's understanding of each issue and shall comment on and assess the degree to which the prospective patient expresses an uncoerced willingness to accept each risk and consequence. Any reservations or resistance expressed or otherwise evidenced by the prospective patient shall be disclosed to the court.

(c) The ward may be sterilized if the court finds by clear and convincing evidence that:

(1) The ward is functionally incapable of giving or withholding informed assent and that the incapacity is not likely to change in the foreseeable future; and

(2) Sterilization is in the best interest of the ward.

(d) To determine whether sterilization is in the best interest of the ward the court shall consider:

(1) Whether the ward is likely to be fertile. Fertility may be presumed if the medical evidence indicates normal development of the sexual organs, and the evidence does not otherwise raise doubts about fertility;

(2) Whether the ward will suffer severe physical or psychological harm if the ward were to parent a child and, conversely, whether the ward will suffer severe physical or psychological harm from the sterilization;

(3) The likelihood that the ward will engage in sexual intercourse;

(4) The feasibility and medical advisability of less restrictive alternatives to sterilization both at the present time and under foreseeable future circumstances;

(5) Whether scientific or medical advances may occur within the foreseeable future which will make possible the improvement of the ward's condition or result in less drastic contraceptive measures; and

(6) Whether the petitioners are seeking sterilization in good faith, their primary concern being for the best interest of the ward rather than their own or the public's convenience. [L 1986, c 81, pt of §2]