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ties. The next few months of readjustment in our relief
policies will do much to determine where they will fall.



In and Out of School

By ADELAIDE NICHOLS BAKER



WHAT part should the school play in "the efforts of
the young to find places in the modern world?"
The Commission on Youth Problems, seeking an
mswer to this question, broke with educational tradition
ind, instead of starting with the school and looking out,
Segan with the young people themselves and the world to
which they must adjust themselves. The result of their
study, Youth Education Today, though it is the 1938 year-
look of the American Association of School Administrators,
ranges far into a future which it contrives, against great
>dds, to illuminate with hope. [Youth Education Today.
16th Yearbook, American Association of School Adminis-
Tators. 509 pp. Price $2 postpaid of Survey Midmonthly.]
When the authors lift their curtain on The Realities of
the Social Scene, the drama unfolds in a stirring atmosphere
>f frankness, intelligence and courage.

The chief actors are of course twenty million young
icople between the ages of sixteen and twenty-four. They
^re found to be predominantly of native white parents. And
>0 percent, at least, come from homes which are "below
jtandards of health and decency." So, at the outset, the
(urvey faces the challenge of grim and discouraging facts
tnd raises the question of their significance to educators.
..Vhat does the home background mean to the curriculum?
iVhat are the roles of personal relationships? What is the
chool's part in guiding the recreational life and even fol-
owing the child through school doors to see how his train-
ng actually fits him for the stage just beyond?

The difficulty of youth in finding a first job and in keep-
ng those already found is not laid simply to the economic
islocation of the present day. It is typical of the spirit of
he book that it accepts the responsibility of education for
his state of affairs and prepares gallantly to deal with the
acts as a challenge to the school.

The authors look to the curriculum and guidance facili-
ies of modern schools for a contribution to the coordination
f school and life beyond it. Curriculum must be "life-
entered." Guidance must be given by properly prepared
nd carefully chosen counsellors and must be developed with
eference to local situations, not "handed down from
bove." In both these fields the yearbook stimulates new
epartures instead of setting up formulae. It is clear that the



commission had confidence that the body of superintendents
for whom they wrote could take this tool and carve out for
themselves structures determined by needs and inspiration.

It is in the chapter on Creative Citizenship that the goal
of the whole study becomes evident. Education is not to be
content with a curriculum which gives training and knowl-
edge, and guidance which may link it to the needs of a
vividly-realized social scene. It must develop within the
child himself "an active interest and concern for the pro-
gressive development of the democratic ideal." "This goal
is probably the most difficult of all to achieve and yet if
achieved it should give a more accurate measure of the dy-
namic nature of school's attainment in citizenship than any
others that have been mentioned." Talking of democracy,
celebrating our forefathers' struggles for it or honoring its
heroes, tried and true methods of the old education, are not
enough. Knowledge and speech must turn to action, the
patterns of life within the school must be so genuinely
democratic that the character formed in daily practice will
stand the test of democratic citizenship. Self-government
that is sham, choice of leaders influenced by pressure or
propaganda, imitation of the corruptions of democracy, are
realistically attacked. True patterns of democratic life with-
in the schools are given new importance by their bearing on
the future.

And when it comes to linking this practice in democracy
with the real concerns of citizenship, the best bridge is the
leadership of teachers who are actively interested in public
affairs. Far from feeling that teachers should be neutrals in
matters of public controversy, the commission holds that:
"When more teachers discover and create effective channels
of political and social action for themselves we may expect
that pupils will more easily discover ways to transfer their
citizenship training into life."

With leadership accepted as the one essential element in
education they examine the requisites of that, too, from the
point of view of youth. What causes young people to turn
to leaders, and the kind of leadership developed outside the
school, are studied for their contribution to the choice and
training of teachers.

Here is defined a task in which the schools, lay leaders,
and all of us must be integral factors in a mighty endeavor.






UNE 1938



201



Sterilization in Practice

By PAUL POPENOE

General Director, Institute of Family Relations, Los Angeles, Calif.



SINCE the first sterilization statute of any kind in the
United States was adopted by Indiana in 1907, more
than 28,000 patients have been sterilized and sterili-
zation laws written into the statute books of twenty-nine
states and one territory (Puerto Rico). Except in Alabama
and South Dakota, existing state laws apply both to certain
mental defectives and to certain mentally-diseased wards
of the state.

During thirty years, administrative experience in regard
to sterilization has been accumulating. Public opinion has
been generated as the result of bills introduced and debated
in state legislatures and attention given to cases in the
courts for litigation. Today, certain conspicuous trends may
be clearly discerned.

Sterilization is being applied more and more on social
rather than on eugenic indications. At first it was taken for
granted that the purpose of this operation which prevents
parenthood without changing the patient's sexual life in any
other way was to decrease the number of defective chil-
dren born; "to cut off lines of defective germ plasm." But
the revision of the South Dakota law in 1935 makes no
mention of eugenics, of bad heredity, or of probably handi-
capped offspring. It merely sets forth that "the person
named in the complaint is believed to be feebleminded and of
such an age as to be capable of procreation ; that by reason
of feeblemindedness said person would not be capable of
properly performing the duties of parenthood."

In the same spirit the Nebraska law (1935) says:

The words "feebleminded person" shall be construed to
mean any person afflicted with mental defectiveness from birth
or from an early age, so pronounced that he is incapable of
managing himself and his affairs and of subsisting by his own
efforts, or of being taught to do so, or that he requires super-
vision, control, and care for his own welfare, or for the wel-
fare of others, or for the welfare of the community, and who
cannot be classified as an "insane person."

Here again no mention is made of the transmission of
defects to posterity. The state is concerned with persons
who cannot look out for themselves and who are a burden
or a menace to the community. It is a question not of
eugenics but of economics and social welfare.

Even today, writers continue to use up reams of paper
with warnings that science cannot predict infallibly the kind
of children a patient will produce; but meanwhile practice
has calmly ignored this question and proceeded along other
lines.

How does it happen that such a change has been made in
the practice of sterilization?

It began a long time ago, with the patients themselves.
Suppose the case were that of a feebleminded girl. Her de-
ficiency might have been caused by some disease in early
childhood. So far as anyone could tell, she might bear chil-
dren who would be intellectually normal. If this objection
to sterilization were urged upon her parents, probably they
would reply, "So much the worse ! She is incapable of taking
care of any kind of children."

Perhaps a woman might seek sterilization on her own
account. The superintendent of the psychopathic hospital



would explain to her conscientiously, "If you had another
child, Mrs. Blank, it might be entirely normal." She would
retort indignantly: "You know perfectly well, doctor, be-
cause you told me so, that the strain of another pregnancy
will probably mean another nervous breakdown for me and
that I'll have to come back to the hospital. Do you think I
want to bear another child, when it means that the children
I already have will lose their mother? What is my husband
going to do with them? It isn't a question of eugenics; it's a
question of common sense."

Thus the attitude 'of patients and their relatives rapidly
broke down the theory that only those were to be sterilized
who were reasonably certain to produce defective offspring.
By way of "adjusting themselves to reality," authorities fell
into line.

THE case was well put by Dr. Harvey M/Watkins,
superintendent of the Polk, Pa. State School, in a report
in 1930 to the American Association for the Study of the
Feebleminded. Announcing the result of a questionnaire
sent to the 317 members of the association, which showed
overwhelming support for "selective sterilization," Dr.
Watkins went on to say:

We sometimes wander far afield in search of biological or
eugenic reasons for sterilization when the greatest social
reasons are at hand. . . . Regardless of our theories of heredity,
the mentally defective in a large measure tend to maintain
inferior homes in inferior environments, and to rear their
children in an inferior manner. ... I have yet to see the
mentally defective boy or girl for whom parenthood can be
recommended.

Strong additional support was given to this position by
Dr. Stanley P. Davies in his book, Social Control of the
Mentally Deficient (1930), where he remarks that sterili-
zation may sometimes be desirable for eugenic reasons and
goes on to say:

Also, from a case work point of view, family situation
doubtless arise from time to time, where aside from all con-
siderations of heredity, a given mentally deficient couple, al-
though otherwise fit to remain in the community, would obvi-
ously make such socially inadequate parents that sterilization
would appear justifiable.

This point of view was adopted by Dr. Abraham Myer-
son's committee of the American Neurological Association
in its report on sterilization (1935), particularly with rela-
tion to epilepsy where it thought sterilization justified in
most instances, "mainly on the ground of the social situa-
tion rather than on its biology."

Thus, as a result of experience, the eugenic basis for
sterilization has become more and more secondary. Eugenic
defect is often associated with social inadequacy ; but even
if it is not, the prevention of parenthood has come to be
regarded widely as justifiable on social grounds alone.

The second trend, a logical extension of the first, is the
tendency to tie sterilization more closely to marriage.

Iowa adopted a law some years ago providing that a list
of all persons in the state known to be feebleminded should
be furnished quarterly to the district courts. "No clerk shall



202



SURVEY MIDMONTHLY



issue any marriage license to any applicant without first
satisfying himself that the name of neither party to the
marriage is contained in the latest list furnished by the
Board of Control." The intention was excellent, but critics
at once pointed out that denial of a marriage license to
mental defectives would not necessarily prevent their repro-
duction.

South Dakota and Nebraska have taken the next step by
establishing registers of the feebleminded, and declaring
that no persons on the list may marry unless they show proof
that one of the applicants for the license has been sterilized.
If such measures are to be enforced, the states will have
to provide sterilization at public expense. In that event, the
legal and administrative situation would be much the same
as that provided by the present German law.

A third tendency, seen conspicuously in the laws of the
two states just mentioned, is to make sterilization applicable
to any mentally defective or mentally diseased person in
the entire state, instead of to the inmates of institutions
alone.

Almost all of the earlier laws applied only to those who
had been legally committed to a state institution for the
insane or feebleminded. One reason for this restriction was
that most of the early bills were put through the legislatures
by institution officials who were thinking mainly of their
own needs. However it was also considered a safeguard for
the public. Critics alleged that if a sterilization law applied
to the whole population, political pressure might lead to the
"railroading" of victims who perhaps belonged to the fac-
tion that was not in power. If the application of the law
were limited to those already adjudged insane or feeble-
minded by the courts in another connection, and who were
already wards of the state, there could be little chance
of abuse.

THIS attempted safeguard, however, was attacked by
opponents of sterilization in a number of states, and
several laws (New Jersey, Indiana, Iowa, Michigan, New
York, Oregon) were invalidated by state courts on the
ground of discrimination. It was said that these laws sub-
jected feebleminded individuals in state institutions to an
operation from which individuals with an equal degree of
deficiency but not in institutions were protected. This claim
of "class legislation" was finally carried to the Supreme
Court of the United States in the Virginia case (Buck vs.
Bell, 1927) when Justice Oliver Wendell Holmes made
short work of it:

It is the usual last resort of constitutional arguments to
point out shortcomings of this sort. But the answer is that the
law does all that is needed when it does all that it can, indi-
cates a policy, applies it to all within the lines, and seeks to
bring within the lines all similarly situated so far and so fast
as its means allow.

All the justices concurred in upholding the constitution-
ality of compulsory eugenic sterilization, with the exception
of the one Roman Catholic member who dissented but did
not file a minority opinion.

While there is no legal compulsion to embrace the whole
population in the scope of the law, there are obvious social
advantages in doing so. In Canada and most of the United
States the law still applies only to those legally committed
to institutions ; but in foreign countries Norway, Sweden,
Denmark, Finland, Esthonia, Germany, Switzerland
(Vaud) and Danzig and in Delaware, Idaho, Iowa,
Michigan, North Carolina, South Carolina, Oregon, South



Dakota and Vermont it contemplates application to the
whole population. The report of Dr. Myerson's committee
for the American Neurological Association strongly ap-
proved this extension.

A fourth tendency, at least the beginnings of which are
visible, is closely associated with the one just mentioned. It
is to exempt from the action of the law certain persons who
have religious scruples.

This applies primarily, of course, to Roman Catholics,
the papal encyclical Casti connubii of December 31, 1931
having declared eugenic sterilization not allowable. (The
wording apparently does not forbid therapeutic or punitive
sterilization.)

The German sterilization law, which went into effect
on January 1, 1934, made no exceptions but was supple-
mented by several administrative orders allowing segrega-
tion as an alternative to sterilization. Any Catholic in Ger-
many, therefore, who would otherwise be sterilized under
the law, may avoid this by internment in an institution
where he will be maintained in effective segregation by his
co-religionists, at their own expense. Such a provision has
not yet found a place in any American statute, but it was
included in sterilization bills presented to the legislatures
in Wisconsin and New Jersey, and in each instance defeated.

Finally, the status of voluntary sterilization is important.

OTERILIZATION began in this country as a wholly
*J voluntary undertaking, when Dr. Harry C. Sharp, phy-
sician of the Jeffersonville (Ind.) reformatory, in 1899
performed a vasectomy on one of the young men in the insti-
tution and during the succeeding eight years on some hun-
dreds of others. When legislation began, it seems to have
been taken for granted that a compulsory provision was
needed. At present only two states, Vermont and Minne-
sota, and the Canadian provinces of Alberta and British
Columbia have statutes that provide only for voluntary
sterilization with no compulsion in any case.

Nevertheless, most of the operations performed in Ameri-
can institutions are in effect voluntary, since the written
consent of the patient's nearest relatives is obtained. This
custom has been widely adopted, mainly to make friends
for the procedure and to avoid possible litigation. Since the
patient himself is legally either insane or feebleminded, he
cannot give a consent which has any legal value.

The history of legislation suggests that provision for both
types of operation, compulsory and voluntary, is valuable.
Several states, Iowa, Maine, Nebraska, New Hampshire,
and North Carolina, which started with laws providing
only for voluntary sterilization, amended them after some
experience to add a compulsory provision. On the other
hand, Michigan, Oregon and South Dakota, which had
wholly compulsory laws, later amended them by adding a
voluntary clause. No state has ever abandoned the power
of compulsion in favor of a purely voluntary statute.

What of operations outside state institutions?

Connecticut, Kansas and Utah, in adopting sterilization
laws, provided that any sterilization performed otherwise
than in accordance with the terms of the law should be
illegal. This means that in private practice in those states,
any sterilization operation for eugenic or social reasons is
illegal. In the other forty-five states there is no law dealing
with the subject and the legal status of surgeons and others
concerned with sterilization is uncertain. The question can
be examined only by asking whether such an operation
would be prohibited by common law, or whether, if a case



JUNE 1938



203



were taken into the courts, they would be likely to hold
that it is contrary to public policy.

The nearest approach to a decision on the subject is per-
haps a Minnesota case considered in 1934 by the Supreme
Court of that state. A husband, Christensen, had himself
vasectomized for the protection of his wife who, it was
thought, would be injured by another pregnancy. The oper-
ation was unsuccessful ; sometime later the wife was deliv-
ered of a healthy baby. The husband thereupon sued his
surgeon, Thornby, for damages because of the anxiety ex-
perienced by both himself and wife during pregnancy, and
for the costs of medical and hospital care entailed by the
birth of the child.

As a defense, the surgeon set up the somewhat surprising
plea that the performance of a sterilization operation on
a healthy man was contrary to public policy and therefore
illegal ; and that a contract based on an illegal action could
not be made the ground for such a damage suit.

The court found against the plaintiff on general grounds
but among other things said :

Aside from the statutes in the few states that have pro-
hibited it, we find no judicial or legislative announcement of
public policy against the practice of sterilization. Plaintiff was
married, and presumably would remain married, to his present
wife, who had been competently advised of the danger of fur-
ther pregnancy. Rather than subjecting the wife to a major
operation for sterilization it was entirely justifiable for them
to take the simpler and less dangerous alternative and have
the husband sterilized. . . . We therefore hold that under the
circumstances of this case the contract to perform sterilization
was not void as against public policy nor was the performance
of the operation illegal on that account.

Dr. Justin Miller, now on the court of appeals in the
District of Columbia, studied this point some years ago,
as dean of the college of law of the University of Southern
California. He concluded that barring Connecticut, Kansas



and Utah, already mentioned as having legislated on the
subject, "the general rule of tort law would seem to apply
and the consent of the party to submit to the operation
should be a complete shield against civil liability on the
part of the operating physician, provided the operation was
performed without negligence." He further concluded that
such an operation could not be considered an offense under
the criminal law unless malice could be shown to exist.
"Where the state has nothing but a mayhem statute which
follows the common law concept, it is very doubtful if the
modern operations for sterilization could be considered
criminal."

This view was upheld when the matter came directly be-
fore the California court in 1936, through the well-
advertised Ann Cooper Hewitt case. This girl, at the age of
20, had been sterilized by two surgeons in private practice,
her mother signing the consent. When she became of age
and could manage her own affairs, she filed a complaint
against the surgeons, charging that they had committed
mayhem against her. The judge of the superior court, who
heard the case, dismissed it on the ground that ( 1 ) there
was no law against sterilization in California and (2) that,
the girl being a minor at the time the operation was per-
formed, the mother had a right to consent to any legal
operation on her daughter's behalf. No crime had been
committed, under the circumstances, and the court refused
to send the case to the jury, dismissing the defendants in-
stead. The state, which was prosecuting this as a criminal
offense, appealed in turn to the state court of appeals and
to the state supreme court, each of which upheld the judg-
ment of the trial court.

The general trend therefore is toward maintaining the
legality of sterilizations in private practice. As sterilization
becomes continually more widespread and better known,
the likelihood of any court declaring it illegal probably
decreases.



The Twilight of Industrial Life Insurance



. By LEE K. FRANKEL, Jr.
Washington, D. C.



JOHN PRYBLZKA is today twenty-five years old. He
earns $25 a week as a machinist. On this wage he must
feed, clothe and house himself, his wife, and his three-
year-old son. He buys an occasional drink, visits an occa-
sional movie, and sets aside a small part of his wages to
provide for a decent burial.

For his "nickel-a-week" or industrial life insurance, John
forks out 25 cents a week to an insurance collector, in
exchange for which he is given a closely printed certificate.
This promises to pay "somebody" about $250 in the event
of John's death within a specified period of years always
provided that John's premiums have been paid in full up
to the time of his demise. In most cases, industrial policies
offer no clue as to the identity of the payee, leaving this
entirely to the discretion of the insurance company. Mrs.
John may get the money ; on the other hand, the under-
taker, or any creditor who can prove that he incurred
expenses incident to John's death or last illness, stands an
equal chance of collecting.

John is totally unable to budget a quarterly or semi-
annual insurance premium. Hence he is one of the millions



paying from one and one half to three times the cost of
so-called "ordinary" or "straight-life" insurance, sold in
units of $1000 or more, and with premiums payable an-
nually, semi-annually, or quarterly. The extra cost of this
debatable protection is usually justified by the companies
on the grounds of the high cost of premium collection and
the greater risk involved in insuring the "working-man"
sector of the insurable population. Whether or not these
assumptions are warranted is not pertinent to this discus-
sion. In any event, John is paying through the nose for some
degree of assurance that his earthly remains will not lie in
Potter's field. As of December 31, 1936 there were 68'
million industrial policies in force, totaling $19,400,000,000.

John, a typical industrial policyholder, may or may not i
have realized that he couldn't borrow a red cent of his own i
money from the company until he had paid premiums for?
five years; that his wife might or might not receive the face-



Online LibrarySurvey AssociatesSurvey midmonthly : journal of social work (Volume 74) → online text (page 54 of 109)