Minors, parents, and minor parents.

• Author: Martian, Maya
• Position: Abstract through II. Minors, Parents, and Minors as Parents A. Minor Parents' Parental Rights in Theory, p. 127-160

ABSTRACT

As numerous scholars have noted, the law takes a strikingly incoherent approach to adolescent reproduction. States overwhelmingly allow a teenage girl to independently consent to pregnancy care and medical treatment for her child, and even to give up her child for adoption, all without notice to her parents, but require parental notice or consent for abortion. This Article argues that this oft-noted contradiction in the law on teenage reproductive decision making is in fact not as contradictory as it first appears. A closer look at the law's apparently conflicting approaches to teenage abortion and teenage childbirth exposes common ground that scholars have overlooked. This Article is the first to compare the full spectrum of minors' reproductive rights and the first to unmask deep similarities in the law on adolescent reproduction --in particular an undercurrent of desire to punish (female) teenage sexuality, whether pregnant girls choose abortion or childbirth. It demonstrates that in practice, the law undermines adolescents' reproductive rights, whichever path of pregnancy resolution they choose. At the same time that the law thwarts adolescents' access to abortion care, it also fails to protect adolescents' rights as parents. The Article's analysis shows that these two superficially conflicting sets of rules in fact work in tandem to enforce a traditional gender script--that self-sacrificing mothers should give birth and give up their infants to better circumstances, no matter the emotional costs to themselves. This Article also suggests novel policy solutions to the difficulties posed by adolescent reproduction by urging reforms that look to third parties other than parents or the State to better support adolescent decision making relating to pregnancy and parenting.

TABLE OF CONTENTS ABSTRACT TABLE OF CONTENTS INTRODUCTION I. PARENTS, CHILDREN, AND THE STATE: A CONSTITUTIONAL BALANCING ACT A. Privacy and Parents' Rights B. Privacy and Adolescents' Rights C. Conflicts in the Law on Adolescent Sexuality and Reproduction 1. Sex Education 2. Contraception 3. STI Treatments 4. Pregnancy, Childbirth, and Medical Care for Minors' Children 5. Adoption 6. Abortion Exceptionalism II. MINORS, PARENTS AND MINORS AS PARENTS A. Minor Parents' Parental Rights in Theory B. Minor Parents' Parental Rights in Practice 1. Minor Parents and the Child Welfare System 2. Minor Parents and Adoption Law III. A THIRD WAY: THIRD PARTY SUPPORT FOR PREGNANT OR PARENTING ADOLESCENTS A. Science, Politics, and Youth Law: Do Adolescents Need Adult Guidance? B. Third Parties in Private Family Law and Possibilities for Reform V. CONCLUSION INTRODUCTION

When does childhood end? The answer to this question determines the legal rights of youth in all arenas of life. (1) Yet, as many scholars have noted, the law lacks a coherent approach to defining the end of childhood, the beginning of adulthood, or a space in between. (2) Those categorized as children for most purposes can be criminally liable as adults. (3) Those categorized as adults for most purposes cannot legally purchase alcohol. (4) Those who many view as falling in between the categories of child or adult--adolescents--are invisible under the law. (5)

The law's incoherent approach to adolescent sexuality and reproduction is especially striking. For example, in states with parental notice or consent mandates, which represent the vast majority of states, teenage girls facing an unplanned pregnancy must obtain permission from a parent or, alternatively, from a judge to receive abortion care. (6) In contrast, states typically exempt other similarly sensitive medical care from parental involvement, especially medical care related to sexual activity. (7) All states allow minors to obtain treatment for sexually transmitted infections without notifying their parents, and many states allow minors to receive prescription contraceptives without involving a parent. (8) States also overwhelmingly allow a teenage girl to independently consent to pregnancy care and medical treatment for her child, and even to give up her child for adoption, all without notice to her parents. (9) Yet, these same states mandate parental notice or consent for abortion. (10) If teenagers are too immature to make the decision to obtain an abortion without parental or judicial supervision, how can states conclude that those same teenagers are mature enough to decide to continue a pregnancy and raise a child, or to relinquish the child for adoption, all without the guidance of an adult?

This Article argues that this oft-noted contradiction in the law on adolescent reproduction is in fact not as contradictory as it first appears. A closer look at the law's apparently conflicting approaches to teenage reproductive decision making reveals common ground that scholars have overlooked. This Article is the first to compare the full spectrum of minors' reproductive rights and the first to unmask deep similarities in the law on adolescent reproduction. Using a wider lens to assess minors' reproductive rights, this Article compares the law on minors' rights to obtain abortion care with minors' parental rights. Through this wider lens, this Article reveals that in practice, the result has been not so much that the two areas of law conflict, but instead, that in reality, the law undermines adolescents' rights, whichever path of pregnancy resolution they choose. At the same time that the law thwarts teenage girls' access to abortion care, it also fails to protect their rights as parents.

A more expansive inquiry into adolescents' reproductive rights demonstrates that the conflicting doctrines in practice work in tandem to enforce a traditional gender script: namely, self-sacrificing mothers should give birth and give up their children to better circumstances than teenage parenting presumably provides, regardless of the emotional pain these young mothers might suffer as a result of relinquishment. The notion that the law should mete out punishment onto sexually irresponsible women, such as by denying access to abortion or removing their children, has a long history." The impact of the law's punishment falls most harshly on adolescents from poor and struggling families, as these youth have the fewest resources to obtain either judicial bypass for an abortion or support for making parenting decisions.

While a superficial review of the law on adolescent reproduction suggests conflict and incoherence, a closer look at the reality of minor parents' parental rights unmasks a perverse coherence to the law. The conflicting doctrines on abortion and childbirth obscure how both abortion law and the law dealing with minors as parents take highly skeptical views of adolescents' rights to make reproductive decisions and mask how these laws serve as a means to enforce traditional gender norms. This Article uses family law doctrines and practices as a lens to shed light on the law's seemingly contradictory approaches to teenage sexuality, pregnancy, parenting, and abortion. Family law's prism helps to explain these conflicts in novel ways. This Article argues that the surface incoherence in the law regulating adolescent sexuality and reproduction stems, in part, from traditional rules governing parental rights. Current law in this context, although appearing to have made progress for adolescent rights, in fact maps onto conventional rules about parents' rights to control their children's upbringing and the narrow exemptions to those rules.

For example, the rule that adolescents can freely consent to medical treatment for sexually transmitted infections represents an application of the traditional exemption from parental control for medical emergencies, rather than a recognition of adolescents' right to sexual or health care autonomy. Similarly, this Article argues that the law grants minor parents full parental autonomy, at least in theory, because of a reflexive desire to assert the rights of persons categorized as parents--not out of respect for a minor's right to be a parent. In other words, the law resists any overt reduction of parental rights, including for minor parents, out of fear that explicitly undermining even minors' parental rights would also threaten the authority and certainty of the traditional parental rights model reserved for most adults. (12)

Yet, while paying lip service to the parental rights of minors in theory, the law fails to support adolescent parenting in substance. We can see this through a deeper examination of the areas of family law that deal directly with minors as parents: child welfare law and adoption law. Closer study of child welfare and adoption practices reveals that the rigid notions about parental rights that inform the law's superficial grant of autonomy to teenage parents do not carry through to substantively protect minor parents' abilities to parent their children. In some contexts, as in adoption law's right to relinquish, the law's grant of adult-like parental "rights" to minors may actually serve to undermine minors' parental interests by making it easier to remove infants from their care. Minor mothers especially face the worst of both worlds--the lack of governmental support endured by adult parents and the intensive oversight generally enforced upon minors.

The last part of this Article takes a prescriptive turn. It suggests that we could better support adolescents' decisions about pregnancy and parenting by turning to third party adults other than parents or state agents--such as judges and child welfare officials--who wield heavy-handed authority over minors. Depending on the context, third parties who might serve as beneficial resources for pregnant or parenting minors include extended family members, neighbors, and community members; health care professionals; and lawyers acting on behalf of the minor.

Abortion law, child welfare law, and adoption law all purport to...