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.