## Facts

- Mary Moe, a 32-year-old woman with serious mental illness (including schizophrenia/schizoaffective disorder and bipolar mood disorder), was under the care of the Massachusetts Department of Mental Health (DMH).
- DMH petitioned the Probate and Family Court to appoint Moe’s parents as temporary guardians to consent to an abortion.
- Moe had two prior pregnancies: she previously had an abortion and later gave birth to a son who was in her parents’ custody; she experienced a psychotic break and repeated hospitalizations after the earlier abortion.
- At the hearing, Moe denied being pregnant and made delusional and false assertions about her history; the judge found her incompetent to decide whether to terminate the pregnancy.
- The court appointed a guardian ad litem (GAL) to investigate substituted judgment and authorized funding for an expert report on the necessity of an abortion, but no later evidentiary hearing occurred and no expert testimony or report was received.
- The GAL reported that Moe was two to three months pregnant and concluded that, if competent, Moe likely would not choose an abortion, citing her prior statements and religious opposition.
- The probate judge nevertheless authorized guardianship to consent to an abortion and, without a request in the petition or notice to the parties, ordered Moe sterilized at the time of the abortion.
- The order issued weeks after the pregnancy was identified, resulting in authorization of termination at approximately twenty-one weeks’ gestation.

## Issues

1. Whether the court applied Massachusetts substituted-judgment doctrine and procedures correctly when authorizing guardianship to consent to an abortion for an incompetent adult.
2. Whether the court could order sterilization sua sponte without pleadings, notice, evidentiary support, and findings required for an irreversible procedure affecting the fundamental right to procreate.

## Decision

- The Massachusetts Appeals Court reversed in part, vacated in part, and remanded.
- The sterilization portion of the order was vacated because it was imposed without request, notice, evidence, or required findings.
- The abortion-related guardianship authorization was reversed and remanded because the substituted-judgment determination was not supported by an adequate evidentiary record or specific findings, particularly in light of the GAL’s contrary conclusion and the lack of a subsequent hearing.

## Legal Principles

- For major medical decisions affecting an incompetent adult, Massachusetts courts must apply substituted judgment—what the person would choose if competent—rather than a pure best-interests analysis.
- A substituted-judgment determination must be based on evidence and specific findings, including the person’s expressed preferences, religious convictions, prior decisions and values, and the effects on close family relationships.
- Sterilization implicates a fundamental right and requires heightened procedural protections, including proper pleadings, notice, an evidentiary hearing, and detailed findings addressing risks, benefits, and the ward’s likely choice under substituted judgment.
- A court may not add unrequested extraordinary relief affecting bodily integrity and reproductive rights without due process and a developed evidentiary record.

## Conclusion

The appeals court required strict compliance with substituted-judgment procedures before authorizing an abortion for an incompetent adult and held that a probate judge cannot order sterilization sua sponte without notice, evidence, and the rigorous findings demanded for an irreversible procedure.


In re Guardianship of Moe, 960 N.E.2d 350 (Mass. App. Ct. 2012)