Tuesday, July 17, 2012

Regulation of Minors’ Abortion and Adoption Decision-making

OK, here's another part of the article I mentioned yesterday -- here, just a little taste of the different legal treatment of minors' decisions about abortion and about adoption placement.  Again, citations omitted!

A. Abortion and Minors
In 1975, the Supreme Court extended the privacy protection to make decisions about abortion, acknowledged two years earlier in Roe v. Wade, to at least some minors. The Court held that a statutory scheme that gave parents an absolute veto over a minor’s decision to terminate her pregnancy was unconstitutional, while “signaling that the Court might uphold a less intrusive law. The court revisited the issue four years later in Belloti v. Baird, holding that a minor’s ability to obtain an abortion could be limited in certain respects.  In particular, a state could, consistent with the Constitution, prevent a minor from having an abortion absent parental consent, so long as the state provided a judicial bypass exception. In so doing, the Court “simultaneously recognizes and curtails the liberty and interest of young women in their own bodies.” Since that ruling, 43 states have passed statutes requiring parental notification or consent prior to a minors’ abortion, though in six of those states the parental involvement laws are temporarily or permanently enjoined. Twenty-two states require that at least one parent consent to a minor’s abortion, while 11 states require prior notification of at least one parent. Four states require both notification of and consent from a parent prior to a minor’s abortion.

           In all states with parent involvement laws, statutes also provide for judicial bypass as required by the Constitution. The judicial bypass provision is designed to preserve decisional privacy for minors and to prevent parental consent requirements from amounting to an absolute veto.  Some statutes provide specific direction to the court on factors to consider in allowing a minor to have an abortion without parental notification or consent. For example, Arizona law requires the court to allow the abortion if it determines that the pregnant minor is mature and capable of giving informed consent, or that the abortion without parental notice or consent would be in her best interests.  In Louisiana, a minor seeking judicial bypass may be required to attend an evaluation and counseling session with a mental health professional, designed to produce “trustworthy and reliable expert opinion concerning the minor’s sufficiency of knowledge, insight, judgment, and maturity,” so that the court can consider her maturity and best interests.
B.  Adoption and Minors
In all U.S. jurisdictions, a minor’s status as a minor does not impair her consent to relinquish her parental rights, so long as statutory requirements are met.  In some jurisdictions, adoption statutes will say explicitly that a minor parent can relinquish parental rights and consent to adoption. Even where the statutes are silent, however, courts generally hold that the minor mother can consent.  In Nelson v. Gibson, the Minnesota Supreme Court held that the 17-year-old mother, who had since married the father of the child and sought to prevent the adoption, could consent under a silent statute:
The statute as then worded provided for the consent of the unwed mother without any limitation upon the giving of that consent by reason of her minority.  In the same section it is specifically provided that no child over the age of 14 years shall be adopted without his consent.  In other words, the Legislature was not unmindful of age qualifications, but chose to make none as to the illegitimate mother.  The age of legal capacity is wholly a matter of legislative regulation, and the disabilities of infancy may be removed for certain purposes at an earlier age than for others.  It follows that the mother, though a minor – as the law then existed – had the capacity to consent to the adoption of her child.
In a majority of U.S. jurisdictions, a minor’s decision to relinquish a child for adoption is not only valid, but is regulated exactly the same as an adult’s decision.  In only 15 states are there different or additional requirements for a minor’s decision to place a child for adoption.  In four states, a minor must be provided independent legal counsel.  In six states, a court must appoint a guardian ad litem for the minor parent. In five states, a minor’s parent must consent to the relinquishment.


Unknown said...

Do any states differentiate between the decisions a minor parent can make vs. the ones a parent over, say, 18 can make? For example, in any state, does a minor parent have to get her parent's permission to vaccinate or not vaccinate her child? Or to get her child's ears pierced? To get her child circumcised?

It seems to me, if one says that a parent is capable of making decisions for her child, and consenting to adoption is one of those decisions that a parent is capable of making for her child, then a minor parent has the same rights as a parent over 18. That is, the law doesn't care how old you are when you become parent; you're automatically capable of parenting. One of the decisions a parent can make is to place his/her child for adoption.

While we're on the subject, though, I think all parents considering relinquishing, regardless of age, should be required to have their own counsel.

Reena said...

Something I don't understand and maybe I have this all wrong-- I thought that it is not possible for a minor to legaly sign anything--not even have their "own" checkbook unless it is a co-account with a parent/adult because a minor's signature is not legally binding. Is this correct?

If this is correct-- how can a minor legally sign documents relinquishing their rights?

I am ProChoice and I am not sure how I feel about required notification/consent of parents that their child is PG. I have witnessed a mom pressuring her daughter to have an abortion (not the right choice for this young woman--but she did it). Also-- the whole Baby Scoop Era-- seems like it was primarily the parents forcing their young daughers to relinquish their babies--so I am not so sure that parental notification is the answer. I am not sure what the answer is . . .

-J.D. Humenay said...

I'm pretty sure my maternal grandmother (in the late 1970's) made my biologocial mom have me.

And I gotta say, from sitting behind this computer today, I'm pretty glad she did.

After all, my bio mom was 15 and maintained she was raped for 15 years after my birth (she wasn't - she was sneaking around with a 20 something and said she was 18...)

She got zero prenatal care and probably did everything a 15 year old could to try to get rid of me. I was still born, but recusitated.

When I think of all those facts counting against me, it amazes me to think I surivived my birth with no real defects, and was placed in a loving family who was ready for a (2nd) child.

Abortion has always been a challenging topic for me, because here I sit- a living, breathing testimony to what 'can' be if we take the chance. W/o pre natal care, they had no idea if I'd be normal and healthy. And no teenager should have to suffer the child of violence (rape), right? But they took their chances, and here I am.

I know I have a unique perspective from where I sit - but for what it's worth - sometimes parents of teenage moms have some really great insight. My maternal grandmother's pressure probably saved my life.

Reena said...

Wow J.Darling-- that is a jaw dropping story. I want to clarify-- when I say I am ProChoice-- I emphasize the choice part. It seems like some folks tend to take ProChoice as meaning ProAbortion-- I am not pro or anti abortion.

I am glad that in your situation (your mom's situation) things worked out well-- but I have seen and lived with the fall out of parents who have made decisions regarding pregnancy and parenting for their children-- that did not worked out.

Sometimes parents of teen moms will have great insight and sometimes they will not. I know a mom who coerced her daughter to have an abortion even though her daughter didn't want to. Decades later she still struggles with having had an abortion. This was not the right choice for her and her mom knew that it wasn't but coerced her anyway.

Like most things in life, I don't think there is an end all right or wrong for every sitatuion.


-J.D. Humenay said...

Yeah - I know my perspective is unique. With all the horror stories about adopted kids and kids lost "in the system", more and more of us who weren't lose need to tell our stories as well.

All I can share is the facts of my life as I've known it, and the fall out.

Was my Bio mom traumatized? Probably - she suffers from immaturity and seems a perpetual teenager - but it's impossible to know if having me was what traumatized her, or if she should have been that way on her own. My other example would be my mom, who adopted and raised me. She gave up a child for adoption in her teen years, and she was able to move forward to a good career, a strong marriage (41 years and counting) and a great family of her own (when she was ready - ironically after not being able to concieve).

So it's really a "case by case" thing.

I would like to see some sort of mandated therapy for teens going through these things - some sort of family counseling, in the hopes those entertaining tough decisions (and whether to go through the physical and emotional changes to allow a child to take it's first breath or not is probably the TOUGHEST I can think of) will take the time to explore their options COMPLETELY - Meet people in similiar circumstances, etc. I'm sure it must seem terribly overwhelming and we've all heard horror stories of both routes. Those who have made peace with their decisions seem to speak more quietly.

No doubt there is emotional, legal, and physical "fallout" from either decision. I would hope every family could come to these things with open hearts, but not every family has that warmth and dynamic, which would make the parental permission for either more challenging. I can't condemn anyone as I'm not in their shoes. It's just so darn tough to really put legal guidelines to such heart felt, uniquely circumstanced topics. :/