By Charles Krauthammer Copyright Washington Post Writers Group
St Louis Post-Dispatch (MO)
Dr. Henry Foster, in a 1974 report, wrote, "Recently, I have begun to use hysterectomy in patients with severe mental retardation." There was nothing wrong with the uteruses of these women. But because there was a lot wrong with their brains, Foster performed major surgery on them for the sole purpose of preventing them from having children or menstrual periods.
Foster's intentions were no doubt good. The women might be incapable of caring for children. And eliminating their periods would make keeping up their hygiene easier. But was it ethical to perform surgery on and sterilize women in no position to give consent?
If a doctor wants to do so today he must first go to court, get a court-appointed guardian to agree that sterilization is in the woman's best interest and get the judge to order it. There is no indication that Foster took these steps. I asked the Department of Health and Human Services what kind of consent Foster had for these hysterectomies. They could not tell me.
It is an important question. It is the crucial question the Senate needs to ask the surgeon general-designate. Because without these safeguards of proxy consent and judicial review, sterilizing the retarded, however well-intentioned, is unethical medical conduct.
The White House argues that standards of medical conduct have changed since the '70s and that what Foster did was within "the mainstream of medicine" as practiced at that time.
Was it? Was it just recently that these elaborate judicial safeguards against involuntary sterilization were established?
Hardly. Foster's announcement that he had "begun" to do sterilizations was first published in January 1976 based on an oral report he had given in early August 1974. But on Feb. 6, 1974 - six months before his oral report and fully two years before its publication - the federal government published regulations banning the use of federal funds to involuntarily sterilize the mentally incompetent unless (1) an independent review committee approved and (2) "a court of competent jurisdiction has determined that the proposed sterilization is in the best interest of the patient."
These safeguards are essentially the same ones we have today. Moreover, the old Department of Health, Education and Welfare had published similar preliminary regulations in September 1973 - nearly a year before Foster's first report. …