Monday, July 16, 2012

Minors' Consent to Abortion and Adoption

In case you're wondering how I'm spending my summer vacation (!), I'm trying to finish up a law review article for my day job (if you've been around for a while, you've probably figured out by now that I'm a law professor).  Anyway, I thought I'd copy the intro for you, and then if folks are interested in more, I can copy other parts that might interest you.  Here goes (footnotes omitted!):

A minor girl’s decision about the resolution of an unplanned pregnancy is a highly contested issue.  Especially contentious is the minor’s ability to consent to an abortion without the interference of a substitute decision-maker such as her parents or a judge. That issue has received substantial attention from policy makers, scholars, judges and legislators.  Almost no attention has been paid, however, to the decision of a minor parent to relinquish her parental rights and place a child for adoption.  The assumption seems to be that such a decision is the only rational choice under the circumstances, so no protections are needed to protect that minor.  Thus, in the vast majority of states, a pregnant minor can go through labor and delivery without her parents knowing. A pregnant minor can relinquish her parental rights in her child in order to place that child for adoption without her parents knowing.  In fact, in all but 15 states, a minor can make the legally consequential decision of voluntarily terminating her parental rights without the advice of legal counsel, without a guardian ad litem representing her interests, without any adult in the room other than the representative of an adoption agency or adoptive parents.  By contrast, in the vast majority of states, a pregnant minor cannot terminate her pregnancy without her parents knowing, unless a judge approves.

The difference in the treatment of minors’ abortion decisions and minors’ decisions about relinquishing parental rights is, in some ways, inexplicable.  The decisions share a number of similarities that suggest that similar protections against minors’ arguably less-capable decision-making should be employed.  In addition, the decisions are different in one significant way that suggests additional protections are necessary for the minor’s decision about relinquishing parental rights, regardless of whether minors are competent to make the decision about abortion.  After all, the decision about abortion is only a medical decision, and arguably a moral decision.  The decision about relinquishing parental rights also implicates medical decision-making in carrying the pregnancy to term and moral decision-making in forgoing abortion.  In addition, the decision is one involving complex legalities about constitutionally-protected parental rights and responsibilities that the minor is choosing to forgo. The complexities of legal decision-making may require additional protections for minors relinquishing for adoption that may not be necessary for minors seeking an abortion.

One frequent argument for parental notification in teen abortions is that parents ought to know about medical procedures performed on their children.  What about childbirth by their minor children?  Shouldn't parents know about that?  The risk of death and medical complications is greater with childbirth than with abortion, after all. The other popular argument rests on the significance of the decision -- deciding whether to have an abortion is such an important thing that minors ought to have the advice of grown-ups in making the decision.  Parents can serve in that role, and if there is some reason why they should not be notified, then a judge can evaluate whether a minor is sufficiently mature to make the decision on her own.  Why don't we treat similarly for another extremely important and significant decision, whether to terminate parental rights and place a child for adoption?

This article will explore the differences in treatment between a minor’s decision to have an abortion and a minor’s decision to place a child for adoption.  Part I examines attitudes toward teen pregnancy, teen parenting and adoption, supportive of the argument that these attitudes privilege adoption over child-rearing by teens. Part II will set out the scientific research on the ability to minors to engage in competent decision-making and the legal history of minors’ decision-making in a number of areas. Part III will explore the legal limitations on minors’ decision-making in abortion and adoption placement, highlighting the different legal treatment of these decisions. Part IV will explore various justifications for parental notification in minors’ abortions and explore their applicability to minors’ decisions about adoption placement.  This section concludes that there are stronger reasons for protecting minors making the decision to relinquish parental rights and place a child for adoption than for protecting minors making the decision about abortion. Finally, Part V will propose statutory reforms to ensure that a minor’s decision about relinquishing parental rights and placing a child for adoption is well-informed and voluntary. This section proposes that, given the legal nature of the decision facing a teen considering relinquishing her parental rights and placing a child for adoption, states should require that all minors be represented by independent legal counsel during the placement process.


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Many states specifically authorize minors to consent to contraceptive services, testing and treatment for HIV and other sexually transmitted diseases, prenatal ...

Kris said...

This is a tough one. As a nurse, I understand needing parental consent for an abortion. We are not allowed to perform any procedure, no matter how minor, without a parent/guardian permission. One can argue, from a medical perspective, that giving birth is not a medical procedure. Yes, often medical procedures become part of the process, but giving birth itself is a natural human process. Having an abortion is not.

If you inform the parents, the giving birth will happen anyway. What is there to give consent for?

Having said that, I'm not even sure of my personal opinion on the matter. It is very complicated. I don't think a minor should be able to sign a legal document (like adoption papers) without parental consent or some sort of representation any more than they should be able to have medical procedures.

As a nurse, to be honest, it is a matter of protecting your own license. I am always aware of getting consent. I cannot imagine performing or assisting with any procedure on a minor without parental consent.

I am pro-choice. However, I would be leary of performing any medical procedure on a minor without parental consent. Why should an abortion be different than any other procedure? said...

I think as a country we need to do a much better job with sex education (for our daughters and our sons). Teenagers have sex; contraception protects them from unwanted pregnancy and disease. Abstinence is the best method but the reality is teenagers have sex – we should protect them.

Anonymous said...

In theory, parental notification in the case of a minor relinquishing a child for adoption is probably a good idea. In practice, not so much... given that if a girl does not want to tell her parents/guardians that she wants to have an abortion/relinquish a child for adoption she usually has a very good reason (eg she was raped, incest, abusive family member she feels is likely to hurt/beat her if she tells them she's pregnant, etc).

I know that there's a judicial bypass option for a girl pregnant in a state that requires parental notification for her to have an abortion... but the thought of, say, a pregnant-via-incest 15 yr old girl having to explain to a judge that she's pregnant by her own father and thus is disinclined to seek his permission to get an abortion is beyond horrifying. Ditto for a girl in the same situation who wants to give up her baby for adoption.

But I do agree that it's horrifically unfair how young girls are coerced into giving their babies up for adoption too, so legal remedies are in order. No clue how one could go about archiving a balance between the two.

Anonymous said...

Kris - your comment "If you inform the parents, the giving birth will happen anyway. What is there to give consent for?"

1. You are allowing her to give birth in your facility so you have liablity to intervene if something goes wrong. You aren't implying that there is no interaction, monitoring, assisting with the actual birth are you - because to me that is NOT a hosiptal.

I had nurses and the doctor monitor my progress (including internal exams), perform an episiotomy (sp?) to prevent ripping, assisting the baby out and ready to assist if necessary, cutting the cord, cleaning the baby and doing whatever tests were required at birth.

That all falls under medical intervention and if it doesn't I am wondering what my dad was doing all those nights he was away from home when he said he was out "delivering" babies...


Malinda - very fascinated and want to read more and the whole paper when done...

veggiemom said...

As a pro-choice adoptive mom who works in women's health care where I see a large number of pregnant teens (who almost always parent their children), I would love for you to post the entire article (or as much as you can). This is a fascinating subject.

Kris said...

@theadoptedones: I stand by my opinion that INITIATING a procedure on a patient that is NOT MEDICALLY NECESSARY is different than assisting with a procedure that is imminent and medically necessary (like assisting in the birth of a child.) I am not saying it is black and white, there are all kinds of gray in there. But an abortion is elective and that is the difference (in my opinion).

I also think there is a difference between treating a minor without consent who has been seriously injured in a car accident and a minor who wants an elective surgery/procedure.

I am sure there are RNs who would be comfortable assisting with an abortion without parental or judicial consent. I am not one of them. It has nothing to do with morality but with boundaries that are in place to protect minors. This is my opinion, based on what I know as an RN and the legal obligations when treating minors. Please accept it as my opinion. I am not a lawyer, a doctor or an activist.

I can see the other side, too. As Suzee mentioned, what about the girl who was raped by her father? There do have to be provisions in place for circumstances such as these. This is where lawyers and social workers come in. Obviously, there is no easy answer. Hence, all the controversy.

Anonymous said...

What is NY Law when a minor surrenders her infant within a county office, no guardian present, and no follow up support given by county worker. Please respond.

Mother was to be present, never showed.

Anonymous said...

A minor who is pregnant from a rape is seen once by social worker at a Catholic Charities office, next day her mother is called with a bed available in a home for unwed mothers, minor sent immediately. SW from Catholic Charities never contacts minor again. Is this legal, or just very unethical?