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.