Minor's Rights Versus Parental Rights: Review of Legal Issues in Adolescent Health Care

Ann Maradiegue, C-FNP, MSN


J Midwifery Womens Health. 2003;48(3) 

In This Article

Exemptions from Parental Consent for Minors

Although adolescents are considered to have limited decision-making capacity by many policy makers, there are occasions when adolescents can give informed consent without parental intervention. Examples of allowable treatment of minors without parental consent include the mature minor, the emancipated minor, and an emergency situation.[8,10,19]

Mature Minor Exemption

Under the mature minor exception, a minor may consent to receive medical care without parental consent or notification if the court determines that the minor has the maturity to make independent decisions. A minor may seek medical care without parental consent if she can convince the court that she is mature enough to act in her own best interest and thus make an independent judgment to consent to treatment.[18,19] Once a finding has been made in court that a minor is sufficiently mature enough to act in her own best interest and make an independent judgment to consent to treatment, it is unconstitutional for judicial authorization to be withheld.[18,19,22] The process that allows the minor to be declared a mature minor is known as judicial bypass. Judicial bypass has consistently allowed minors another option to consent for care in states with parental notification or parental consent requirements for adolescents seeking abortion. The Supreme Court ruled in 1990 that judicial bypass is constitutionally required if state law requires parental notification or consent.[23] Opponents of judicial bypass believe the process of seeking judicial bypass places an undue burden on adolescents seeking abortion.[24] The determination of maturity provides sufficient authorization for a minor to exercise her right to privacy without confirmation by third parties.[25]

The laws affecting a minor's right to privacy for health care, and specifically abortion, continue to change according to current interpretation of the law.[18] The Supreme Court in Planned Parenthood v Danforth struck down the parental consent requirement for minors in 1976.[13] In the 1981 case H.L. v Matheson, a law that parents should be notified "if possible" was upheld.[26] The Supreme Court upheld a parental consent law with judicial bypass provision in 1983 in Planned Parenthood v Ashcroft.[27]

Emancipated Minors

Unlike the mature minor, state statutes define an emancipated minor. Although state statutes vary, there are many similarities between the different states and their definition of an emancipated minor. Generally, the youth must be a minimum age, usually 16 years old, live apart form her parents, and be economically self-sufficient.[28] Definitions of an emancipated minor include those who are self-supporting and not living at home, married, pregnant or a parent, in the military, declared emancipated by the court.[28]

Emancipated minors are considered adults for several purposes, including the ability to enter into a contract, rent an apartment, and consent to medical care. Emancipated minors relinquish the right to parental support, and they are expected to be self-supporting.[28] State statutes do vary; for example, in California to be emancipated, a minor must be at least 14 years old.[28,29] However, in Montana, emancipation will only be granted if the court finds that "the youth has graduated or will continue to diligently pursue graduation from high school, unless circumstances clearly compel deferral of education".[28,30] Although state statutes allow emancipated minors to make complex decisions, they are not immune from all state age requirements; for example, they must be 18 years of age to vote.[15,28,30,31]

Without going to court to be declared mature or emancipated minor, minors can and do make several decisional choices about reproductive issues. There are no laws that dictate the sexual activity of a minor, other than certain criminal laws such as prohibiting statutory rape. A minor who is sexually active may choose contraception under current laws.[18] If a minor does not use contraception, is sexually active, and becomes pregnant, the minor must then choose whether to have the baby and keep the baby, give the baby up for adoption, or have an abortion. Once the minor becomes a parent, the minor is in charge of all decisions for the baby.[18]


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