Los Angeles, California, United States. June 23, 2021: #FreeBritney rally at LA Downtown Grand Park during a conservatorship hearing for Britney Spears.

How Adult Guardianship Law Fails to Protect Contraceptive Decision-Making Rights

By Kaitlynn Milvert

After Britney Spears testified this past summer about her struggle to have her intrauterine device (IUD) removed while under conservatorship, many commentators posed a simple, but critical question: Can conservators (or guardians) make contraceptive decisions for those under their care?

Attempting to answer that question reveals an area of state guardianship law where guardians’ authority is particularly murky and ill-defined. Reform is needed to address the restrictions on reproductive decision-making rights that adults under guardianship currently face.

The Status Quo: Sterilization Exceptionalism

State guardianship statutes often provide few parameters for when and if a guardian can make decisions about contraception for an adult under guardianship.

Despite varying approaches across states, overall, these statutes fail to provide clear guidance to guardians or clear safeguards for the rights of adults under guardianship.

Primarily, state guardianship statutes address reproductive decision-making rights in the context of sterilization. Some states entirely bar guardians from consenting to sterilization, except in cases of serious medical necessity. Others establish procedures for guardians to petition the court to authorize sterilization.

These necessary safeguards surrounding sterilization do not go far enough to protect the rights of adults under guardianship to make decisions about other types of contraception. While other forms of contraception — such as IUDs, implants, injections, patches, and birth control pills — may be less permanent and intrusive than sterilization, they still implicate fundamental reproductive decision-making rights.

In some states, adult guardianship statutes are silent on the question of contraception. In such cases, guardians who have general medical decision-making authority are often presumed to have authority to make decisions about at least some forms of contraception — even though deciding whether to take birth control pills implicates fundamentally different rights than, for example, deciding whether to take medication for high blood pressure.

In other states, guardianship laws reference birth control in their provisions on sterilization. Such provisions require courts to consider the availability and feasibility of nonpermanent forms of contraception when ruling on petitions for sterilization. However, these provisions do not address whether or to what extent guardians themselves have the authority to make decisions about these other, nonpermanent forms of contraception.

A final approach that some state guardianship statutes take is to require court authorization for guardians to consent to at least some categories of contraceptives. For example, Wyoming requires guardians to petition the court to consent to “long-term or permanent contraception.” Even so, the statute does not define what falls within this category of long-term or permanent contraception, nor does it address guardians’ authority to make decisions about forms of contraception that fall outside this category.

These varied and often confusing approaches to contraceptive decision-making under existing guardianship statutes offer little clarity on the rights of adults under guardianship and provide few clear limits for guardians.

Toward Expanded Rights Protections

States need to provide greater affirmative safeguards for the reproductive rights of adults who are subject to guardianship, going beyond the context of sterilization to address broader contraceptive decision-making rights. Several possible options for statutory reform could clarify and meaningfully expand the rights of adults under guardianship in the realm of contraceptive decision-making.

One option would be for state guardianship statutes to allow guardians to consent to contraception only when a guardianship order expressly authorizes the guardian to do so. If the guardianship order is silent on the question of contraceptive decision-making authority, the adult under guardianship would retain full rights to make their own decisions in that area.

This possibility is consistent with existing approaches to other areas of fundamental decision-making rights in some state guardianship statutes. For example, some state statutes only authorize a guardian to make certain decisions about where an adult under guardianship will live or who they can visit with if the guardianship order expressly includes such an authorization. This statutory approach could translate directly into the context of contraceptive decision-making.

Another, related possibility grows out of the recommendations of the recent Fourth National Guardianship Summit — a nationwide convening of judges, lawyers, guardians, advocates, and other stakeholders in the adult guardianship system. One of the Summit’s landmark recommendations was that “States should eliminate plenary guardianship, allowing people to retain the maximum of rights, and if guardianship is imposed, require tailored guardianship orders in all cases.”

Under this recommendation, courts could not give guardians general, broad authority over all areas of decision-making in the way that courts often do currently by granting “full” or “plenary” guardianships. Instead, courts would have to provide more individualized guardianship orders that spell out the specific scope of a guardian’s authority. Requiring these types of limited guardianship orders in all cases would provide an important tool for preventing unnecessary intrusions on individuals’ contraceptive decision-making rights.

To be clear, statutory changes alone are in no way enough to address the significant restrictions on reproductive decision-making rights that adults under guardianship routinely face. Other, more holistic efforts — such as expanding access to sex education, improving the quality of reproductive healthcare for adults with disabilities, and supporting recognition of less restrictive alternatives to guardianship — are equally essential in addressing such restrictions.

However, statutory shifts could go a long way in providing greater clarity for guardians and healthcare providers alike in the area of contraceptive decision-making rights for adults under guardianship. More importantly, such changes would provide improved safeguards for the rights of adults with disabilities to make fundamental reproductive decisions — independent of their guardianship status.

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