Substituted Judgment and Best Interests Analysis: Protecting the Procreative Medical Rights of the Mentally Incompetent In Texas


In the United States, every person has a constitutional right to reproductive autonomy and medical decisionmaking. However, when mentally disabled individuals lack the capacity to give informed consent for procedures like abortion and sterilization, their constitutional rights are jeopardized.

This Comment addresses the issue of medical treatment for the mentally incompetent in Texas, specifically focusing on sterilization and abortion—procedures that affect a person’s fundamental procreative rights. Unfortunately, Texas law fails to adequately protect the rights of its mentally incompetent citizens. Texas statutory law is absent or unclear in many areas related to sterilization and abortion for mentally incompetent individuals, and Texas case law, including Frazier v. Levi, effectively prohibits Texas courts from authorizing reproductive medical procedures for mentally incompetent individuals. As a result, abortion and sterilization are unavailable to the mentally incompetent in Texas, regardless of how beneficial or desired the procedure may be.

Ideally, the Texas legislature should solve this problem by enacting statutes that clearly define how a mentally incompetent person can obtain an abortion or sterilization in Texas. In the absence of legislative action, Texas courts can solve the problem by adopting a hybrid test that combines the “substituted judgment” and “best interests” tests used by courts in other states. The “substituted judgment” component would require courts to act according to the mentally incompetent individual’s wishes, if known, which would ensure that the incompetent individual retains autonomy to the greatest extent possible. When the individual’s wishes are unknown, the “best interests” component of the suggested hybrid test would require courts to choose the option that furthers the best interests of the mentally incompetent individual, which ensures that no court’s decision will be detrimental to the incompetent person. This hybrid approach allows mentally incompetent individuals in Texas to exercise their constitutionally protected rights while still protecting them from abuse.