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THE WHITE HOUSE
WASHINGTON
April 13, 2000
Mr. Jacques d'Amboise
National Dance Institute
594 Broadway, Rm. 805
New York, NY 10012
Dear Jacques:
On behalf of the First Lady, thank you for your card
and invitation for Mrs. Clinton to attend NDI's Benefit
Performance week in June.
It is not yet certain whether Mrs. Clinton's schedule
might permit her to accept your kind invitation. But I have
forwarded the request to Patti Solis Doyle, Director of
Scheduling for the First Lady. If Mrs. Clinton can participate,
our scheduling office will be in touch with you.
As always very best wishes to you and your colleagues
at NDI.
Sincerely,
me Melanne Verveer
Chief of Staff to
the First Lady
d'Amboise
594 Broadway
Room 805
national dance
institute
New York. NY 10012
Melanne Verveel
Chief of staff to the
First Lady
The white House
Washington, D.C.
national dance
institute
National Dance Institute's Event of the Year 2000
AMERICAN SONG: Life, Liberty, and the Pursuit of Happiness
All performances will be in the Concert Hall of The LaGuardia High School of Performing
Arts located at 100 Amsterdam Avenue at 65ᵗʰ Street.
Thursday June 15, 2000
One performance from 6:30-7:30 p.m.
Following the performance there will be a benefit dinner from
7:45- 9:30 p.m. at the Tent at Lincoln Center.
Friday June 16, 2000
One performance from 6:30 - 7:30 p.m.
Saturday June 17, 2000
Three performances at the following times:
11:30 a.m.- 12:30 p.m.
3:00 - 4:00 p.m.
6:30 - 7:30 p.m.
For more information you may call the NDI office at (212) 226-0083. If Jacques is
unavailable please feel free to speak with his assistant, Tanya Nicholson.
Should you wish to contact Jacques at home, his number is (212) 873-2917.
594 Broadway
Room 805
New York. NY 10012
Tel (212) 226-0083
Inspiring Children Through The Arts
Fax (212) 226-0761
Gold Boat, Broighter, Co. Derry (Early Iron Age).
march 29 2000
POSTCARD
P
Dear first Lady Hillary
that on your busy studude
Coreetings to you
There maybe a possibility
there would be the
time and inclination to give yourselfa a treat
NATIONAL DANCE INStitute will be hosting inits June
Benefit performance week, some 2000 15ᵗʰ16ᵗʰ17ᵗʰ the children -
dawing over Several days- Jane enclosed
The 15 4h is the gala launch and is a
list of the following performaces after that launch
a Smiler- night anop tomistic and
Joy ful Event
and with your partici pation
m the andrew
an opportum ty for NYC children
to meet their future Senator
GOLD BOAT: Part of a hoard of gold objects, found at
Broighter, Co. Derry, at the beginning of this century.
You Jarques
my P and admination
Copyright National Museum of Ireland. 2/1912
Printed in Irela id by John Hinde Ltd.
THE WHITE HOUSE
WASHINGTON
May 23, 2000
Ms. Anne M. Dellinger
Professor of Public Law and Government
University of North Carolina at Chapel Hill
CB #3330 Knapp Building
Chapel Hill, NC 27599-3330
Dear Anne:
Thank you for the copy of your impressive work
relating pregnant adolescents and the law, legal issues in health
care which I read with great interest and have shared with my
colleagues. This is an excellent contribution to meeting needs
and hopefully will receive wide circulation.
It was great to hear from you and especially about your
exciting project. We miss seeing you and hope before too long
we can all get together.
Best wishes and thank you for all you do.
Sincerely,
have
Melanne Verveer
Chief of Staff to
the First Lady
ok
May 10, 2000
Ms. Anne M. Dellinger
Professor of Public Law and Government
University of North Carolina at Chapel Hill
CB #3330 Knapp Building
Chapel Hill, NC 27599-3330
Dear Ann:
in work
Thank you for the copy of your paper about pregnant
adolescents and the law, which I read with great interest and
to meeting needs
have shared with my colleagues. You offer a great deal about
this critical subject. This is - er cellent can this when
hope puly will receive
Mrs. Clinton recently convened a conference at the
White House that brought together experts from across the
pas wide circulation -
country to discuss the wide range of issues confronting
America's teens. There are so many reasons to be optimistic
that more and more attention will be given to the vital
In wn great to her
importance of taking care of all of our nation's teenagers.
than you + copecially
Best wishes and thank you for all you do.
tega 158nes
a Smt your exciting we
Sincerely,
project of ^ men
health
seeing you & hope
in
care
Melanne Verveer
Chief of Staff to
before tro Long we
the First Lady
Can all gel
together
INSTITUTE of GOVERNMENT
April 24, 2000
Melanne Verveer
The White House
1600 Pennsylvania Ave NW
Washington, D.C. 20500
Dear Melanne:
Several years ago I made a plan to try to help pregnant adolescents in North
Carolina, by identifying resources for them and explaining their legal choices to them,
their parents, school employees, social services workers and health providers. My own
institution was supportive and the project was also funded by a state agency, by the Z.
Smith Reynolds Foundation, the Ginter Foundation and The Mary Norris Preyer Fund.
Before writing, to get a sense of these young women's circumstances and the gaps
in their care, my co-author and I reviewed 186 medical records of girls who became
pregnant under the age of fifteen and 15 of their infants' records. The records were
generated in private practitioners' offices, local health departments, a large hospital and a
private abortion clinic in the state. In addition, we interviewed more than 70 people with
some connection to adolescent pregnancy-nurses, doctors, social workers in health
facilities; judges, clerks and lawyers involved with petitions for waiving parental consent
to abortion; clinic owners and directors; adoption and adolescent parenting specialists;
school officials; guardians and parents of pregnant teens.
The first document-the one for health providers-is now finished. For the next
six months, 150 providers throughout the state will use it and tell us how to improve it.
Meanwhile, I am beginning work on the next document.
I enclose a copy and the comments of reviewers, for your information. Since this
is an ongoing project, I would greatly appreciate any suggestions you might have about
this document or the others planned.
My best wishes to you.
Sincerely,
anne
Anne M. Dellinger
Professor of Public Law
and Government
The University of North Carolina at Chapel Hill
CB# 3330 Knapp Building
Chapel Hill, NC 599-3330
919 966-5381
919 962-0654 (Fax)
April, 2000
Comments on the health providers' document
"This document is refreshingly clear and precise, presented in an unobtrusive style that
never interferes with the authors' important message. It will be a valuable tool for
anyone working with pregnant adolescents."
--Gretchen Aylsworth, District Administrator, Guardian Ad Litem Program
"Thanks for your research and commentary. I think the combination yields a very useful
tool for health and human service providers You have undertaken a huge task-and we
will all benefit."
--Beth Harris Brandes, Assistant Director, Catawba County Department of Social
Services
"My overall impression of the draft of this document is very positive I think this is a
very worthwhile and needed document."
--Linda Childers, Regional Social Work Consultant, Winston-Salem Office,
Women's and Children's Preventive Health Section, North Carolina Department of
Health and Human Services
"Your first guide looks great-no specific comments, just excited to get it out there."
--Ennis Dellea, Early Childhood and Mental Health Specialist, Orange County
Early Head Start Program; Founder, Voices for Healthy Adolescent Choices
"You have done an extraordinarily impressive job of finding and analyzing the complex
body of law that is relevant to the health care of pregnant minors in North
Carolina Although I have worked for more than two decades on legal issues in
adolescent health care, I learned a lot from your document."
--Abigail English, Center for Adolescent Health and the Law (a project of
Advocates for Youth)
"Congratulations on your wonderful efforts to take on a very difficult topic It is
important work."
--Carol A. Ford, Assistant Professor of Internal Medicine and Pediatrics, and
Director, Adolescent Medicine Program, The University of North Carolina at Chapel Hill
"Will you do 'Grand Rounds' [at the Hospital] on documentation, consent and other
issues in caring for pregnant adolescents?"
--Ben Gilbert, Director of Legal Affairs, University of North Carolina Hospitals
"I was very excited Never bored. Spent about three hours at home last night reading
this straight through and I just wished there was more when I got through."
--Merle Green, Assistant Director, Guilford County Health Department
"The document is excellent. Very readable and understandable. It is an invaluable
document!"
--Beth F. Lamanna, Director, Intensive Home Visitation Project, The University
of North Carolina School of Public Health
"This is so good!"
--Janet Mason, Professor (and social services law specialist), Institute of
Government, The University of North Carolina at Chapel Hill
"Hats off to Dellinger and Davis. The book is an excellent resource for health care
providers as well as a fine example of University research serving the people of North
Carolina."
--Laurie Mesibov, Professor (and education law specialist), Institute of
Government, The University of North Carolina at Chapel Hill
"The document is an excellent, comprehensive source. I can't wait to have a final copy
on my own shelf."
--Jill Moore, Assistant Professor (and health law specialist), Institute of
Government, The University of North Carolina at Chapel Hill
"Fascinating" "It's an exciting piece of work."
--Merry K Moos, Research Associate Professor, Department of Obstetrics and
Gynecology, The University of North Carolina at Chapel Hill; Director, UNC Hospitals'
prenatal clinic for teens
"I really enjoyed reading your document! It was very interesting and informative. Thank
you for what you're doing."
--Barbara Pullen-Smith, Executive Director, Office of Minority Health, North
Carolina Department of Health and Human Services
"I have to believe that this will prove to be a very useful handbook. Your writing is very
clear and succinct."
--Elizabeth L. Quick, Partner, Womble, Carlyle, Sandridge & Rice, PLLC; Chair,
The Winston-Salem Foundation
"This publication is going to be so helpful!! Looks really good."
--Linda Riggsbee, President, Adolescent Pregnancy Prevention Coalition of North
Carolina
"You have done a fine job."
--Deborah Ross, Executive Director, North Carolina Civil Liberties Union
"Extremely knowledgeable. I had no idea there was so much law and so much to say on
this topic. Very impressive."
--Joy Vermillion, Junior Program Officer, Z. Smith Reynolds Foundation, Inc.
"I did send the draft out to a number of people-some nurses, some social workers, etc.
Most of the comments were oral or e-mail responses simply expressing appreciation that
this work was being done and that it was so comprehensive. One of our nurse consultants
said, 'I read the entire paper. I wish I had had it when I was out in the county as a nurse
and health director. I think they address all and every issue one could think to ask about
in reference to teens. Thank them for me. I hope this will go out free to every licensed
practitioner of health care, including nurses, NP's, PA's, MD's and SW's as well as
school guidance counselors."
--Margaret Woodcock, Supervisor, Women's Preventive Health Unit, North
Carolina Department of Health and Human Services
DRAFT
Legal Issues in Health Care for Pregnant Adolescents: A Guide
for North Carolina Providers
Anne Dellinger and Arlene M. Davis
copyright Institute of Government 2000
Preface
This book offers health providers information about the law and resources for
North Carolina adolescents who are pregnant. It focuses on the youngest girls. those
under 15. for two reasons: they present the most difficult legal issues and they are
arguably the neediest. Nurses. social workers, physicians and others should be better able
to care for these patients if they know what choices are open to patient and provider. The
material presented here should be equally useful in the care of older pregnant minors.
Our choice of topics emerged from four kinds of research. First. we reviewed 186
medical records of girls pregnant under 15 years of age and 15 records of their infants.
Most of these patients had delivered at a hospital in North Carolina after prenatal care in
local health departments. A smaller number had abortions performed at that facility or. in
more cases. at an urban clinic in the state. The record review told us about medical and
social problems affecting patients at the time of their pregnancy and sometimes years
later: suggested the nature of interactions between patients, their families and health
providers: and gave us an idea of what legal questions providers most want answered.
Second, we conducted legal research, and identified recommendations on the care
of pregnant adolescents from national medical organizations. With one exception we
could not locate any nursing guideline. although nurses probably provide more care for
pregnant adolescents than any other profession.
Third, we interviewed 70 people with some role in adolescent pregnancy. A large
majority were North Carolinians. These included nurses, nurse practitioners. physicians.
and social workers in hospitals. health departments, medical faculties. community
outreach programs. nonprofit agencies and private practice settings; maternity care
coordinators: an owner, directors and staff members of abortion clinics; a counselor in a
pregnancy support center; adoption specialists: judges, attorneys and prosecutors; several
parents of girls pregnant before age 15; and two adults who had given birth near that age.
To protect their privacy, no effort was made to contact pregnant girls or their partners.
However. Arlene Davis, who is a nurse as well as a lawyer, observed two sessions of a
teen pregnancy clinic and we listened for 15 hours to telephone operators staffing a
national abortion referral line.
In the fourth phase of research we gathered data on facilities, programs,
individuals to contact, written material or other assistance for adolescents or those
responsible for them.
We do not vouch for or endorse any resource, and this book does not offer legal
advice. Since the law is constantly in flux, readers must check any statute or regulation
cited to see whether it has been repealed or amended, and any decision for relevant
subsequent decisions.
Besides the support of the Institute of Government, The University of North
Carolina at Chapel Hill, we gratefully acknowledge support from the Z. Smith Reynolds
Foundation. [a funder to be consulted before acknowledging], the Ginter Foundation. and
the Mary Norris Preyer Fund, as well as the many contributions of our advisory
committee, those who reviewed drafts of this manuscript, and those who graciously
talked with us or assisted in other ways.
Anne Dellinger and Arlene M. Davis
Table of Contents
Preface
Introduction
Consent to Treatment for Minors
General rule that parental consent required
Consent from custodians. guardians or other adults
Guardians
Custodians
People acting as if they were parents
People acting for an absent parent
Parental consent not needed in emergencies
Consent from the minor only
Minors seeking care for certain conditions
A minor consenting to her child's treatment
Emancipated minors
Scope of a minor's consent
Documenting consent and other matters
Treatment of Pregnant Minors
Options counseling
Abortion
With parent's or another adult's permission
With court waiver of the adult consent requirement
Payment for abortion
Childbirth
Perinatal care
Raising the child
Parent's competence
Marriage
Support obligations of parents. grandparents or others
Out of home placement
Adoption
Additional Care Considerations
Taking the history
Contraception
Sterilization
STD and HIV assessment
Abuse, Neglect, Dependency, Sexual Assault
Patient reassurance and education
Confidentiality
Control of A Minor's Records
Provider's Liability
Treating a minor without parental consent
Treating a minor without parental consent negligently
Treating a minor without her consent
Not reporting abuse, neglect or dependency
4
Reporting erroneously
Performing an abortion on a minor who presents fraudulent parental consent
Financial Responsibility for A Minor's Medical Care
Index [to be added]
Glossary [to be added]
Resource List [an insert]
5
Introduction
A pregnant adolescent is a challenging patient. Her youth. combined with her
adult medical condition, leads health providers to consider more than medical issues in
caring for her. They usually want to understand the legal context for provider and
patient. Who consents for this patient? Who is responsible for payment? Should
authorities be involved? What are her rights? To the extent they can, many providers
also give some attention to the young patient's living situation. safety, health education
needs. and the effect of pregnancy or parenting on her future.
The providers for whom this book is intended are nurses. physicians, social
workers, students in those professions, administrators. educators and others delivering
care in a variety of settings. The book's users will have differing levels of knowledge
and experience with these patients. Some rarely diagnose or work with an early or pre-
teen pregnancy; others frequently do. Primary care providers and private practitioners
are likely to know patients for years, while specialists and hospital or clinic staff may
meet a young woman only once, for pregnancy diagnosis or counseling, for abortion.
prenatal care, or delivery. This book aims to answer many types of providers' legal
questions about the care of pregnant girls. as well as some of the questions a patient will
ask providers about her situation.
The information offered is of several kinds. We explain reasonably clear legal
requirements; interpret less clear law and venture predictions about unresolved legal
questions: refer to the literature on adolescent pregnancy; present advice on good practice
taken from medical organizations, treatises, and individual providers: and describe our
own observations from interviews with providers and others and medical record review
Our goals are to make this aspect of adolescent care easier for providers and to insure that
young patients' contact with providers benefits them as much as possible.
Consent to Treatment for Minors
Parents usually control minors' medical care-or if not parents, then custodians,
guardians or another adult with authority. Minors do not need adult consent in a
few circumstances: in emergencies; when the minor is seeking treatment for certain
medical conditions including pregnancy; when she is consenting for her own child's
treatment; or if she is emancipated. A minor's consent to treatment deserves special
attention from providers to assess competence to consent. the voluntariness of the
consent and whether the condition is one for which the law lets minors consent. It
would be prudent to document these matters in the medical record.
General rule that parental consent required
In North Carolina. minors (people under 18) are "subject to the supervision and
control of" their parents. As part of supervision, parents must see that children get
necessary medical care, and if parents don't, they can be charged with neglecting the
child. 2 Since parents are responsible for a child's medical care, they usually have the
legal right to control it-arranging it with providers, consenting to the treatment, and
paying for it.
A few states consider older minors generally capable of making medical
decisions, but North Carolina does not. Still, the General Assembly has made exceptions
in recent decades to the traditional rule that parents control minors' treatment. The
legislature has identified situations in which a minor may consent for herself. an adult
other than a parent may consent for her, or a physician may treat her without consent.
Each exception is described below. While more than one exception may apply to
a particular minor. any one is enough to allow the provider to treat a minor without
parental consent.
1
North Carolina General Statute (hereafter G.S.) "B-3400
Consent from custodians, guardians or other adults
Sometimes an adult who is not a minor's parent may legally consent to her care.
The most common situations in which this is true are these.
1) guardians. A guardian can consent to a minor's medical care as fully as a
parent can.³ However, to become a guardian, a person must be designated by a court. An
adult who will be consenting for a minor's care as her guardian should first be asked to
show his or her court appointment as guardian as proof of legal authority.
2) custodians. If a minor is in the custody of a local department of social services
(DSS), the department's director may consent to some types of treatment; namely, routine
or emergency care.⁴ Sometimes a director will delegate to foster parents the ability to
consent to a foster child's routine care, but a provider should verify that they have that
authority. Unless a parent's rights have been terminated by a court, no custodian can
consent to elective care. It remains the parent's prerogative. ("Routine," "emergency"
and "elective" care do not seem to be defined in North Carolina statute or regulation.)
If a minor is confined in a correctional facility, legal custody is not transferred to
the facility, but "remains with the parent, guardian, custodian, agency. or institution in
whom it was vested."5
3) people acting as if they were parents. The law allows providers to accept
consent for a minor from someone acting as her parent. (The legal term is a person
standing in loco parentis.) Being in loco parentis means taking on informally the rights
: G.S. 7B-101 (15).
3 G.S. 35A-124(a)(3); 7B-600; 7B-906(d): and TB-2001.
4 G.S. 7B-903(a)(2)c; 7B-2503(1)c: and 7B-2506( 1)c.
:
G.S. 7B-2513(g).
8
and duties of a parent, especially the burden of support." Unfortunately. it is quite
difficult to be confident that that has occurred. A provider rarely knows who is
support ng a child, and certainly cannot judge whether the adult intends to act as a
parent-and if so, how fully and for how long. The American Academy of Pediatrics
(AAP) advises providers who accept consent on this ground to "document the situation in
the medical record, including attempts to obtain verbal or written consent from a
parent.'
4) people acting for an absent parent. A North Carolina statute* lets a parent
transfer the power to consent to treatment for a child to someone else when "the parent is
unavailable for a period of time by reason of travel or otherwise." To transfer power, the
parent must have sole or joint custody of the child. The authority must be transferred in
writing, and no parent may authorize another person to agree to the withholding or
withdrawal of life sustaining procedures for the child. The statute does not say how long
the transfer of authority is valid.
Parental consent not needed in emergencies
A physician may often treat⁹ a minor whose parents are unavailable or object to
treatment. The doctor may treat at her or his own discretion if
1) despite reasonable efforts the physician cannot reach the proper adult when the
minor needs treatment;
5 State V. Pitard. 45 N.C. App. 701. 263 S.E.2d 809 (1980).
-
"Consent for Medical Services for Children and Adolescents." Policv Reference Guide (1998) at 130.
1 G.S Ch. 32A. Art. 4.
9
"Treatment" does not include surgery. but is "any medical procedure or treatment. including X rays. the
administration of drugs. blood transfusions. use of anesthetics. and laboratory or other diagnostic
procedures employed by or ordered by a physician licensed to practice medicine in the State of North
Carolina that is used. employed. or ordered to be used or employed commensurate with the exercise of
reasonable care and equal to the standards of medical practice normally employed in the community where
said physician administers treatment to said minor" G.S. 90-21.2
9
2) delaying treatment. in order to seek consent. would endanger the life or
seriously worsen the minor's physical condition:
3) the minor's identity is unknown:
4) the parent refuses to consent. If a parent refuses emergency surgical or medical
treatment. a physician may ask a judge to order it.¹⁰ The physician may also treat if
taking time to ask for a court order would endanger the life or seriously worsen the
minor's physical condition. In this case. though, another North Carolina-licensed
physician must agree-before the treatment-that it is needed to prevent immediate harm
to the minor.¹¹
The statute letting physicians treat without consent does not say they can do so
simply to relieve pain. However, that seems a reasonable inference. The statute refers to
the "time when the minor needs treatment." This term could cover a period of pain or
suffering, even if the minor's problem was not expected to produce immediate harm. a
threat to life, or worsening of physical condition. AAP guidelines suggest that physicians
assume an implied parental consent to treatment when a child is suffering or in pain. 12
If a physician wants to perform surgery on a minor in the circumstances listed
above. he must get a second opinion if that is feasible. 13 The second opinion is not
required in a "rural community" (not defined) or if it is impossible to reach another
physician.
A physician's decision to treat a minor in an emergency would not justify
treatment of nonemergency conditions at the same time.
10 G.S. 7B-3600, allowing a judge to consent to any treatment for any condition.
it G.S. 90-21.1.
12 Consent for Medical Services for Children and Adolescents." Policy Reference Guide (1998) at 131
12
G.S. 90-21 3.
10
Emergency abortion on a minor is treated separately under the law 14 The
physician may perform an abortion when in his or her "best medical judgement. based on
the facts of the case a medical emergency exists that so complicates the pregnancy as to
require an emergency abortion." A physician may also perform an abortion over a
parent's objection if delaying for a court order would endanger the minor's life or
seriously worsen her physical condition. In that instance, though-where the parent has
refused consent-the physician must get a second opinion, from another North Carolina-
licensed physician, that the abortion is needed to prevent immediate harm to the minor.
Consent from the minor only
Sometimes. no adult's consent is needed to provide a minor with medical
services. In our state, as in most others, a minor may obtain care on her own in a number
of circumstances; namely, when she wants treatment for one of a few specified
conditions, when she is consenting to care for her child, or when she is emancipated.
1) Minors seeking care for certain conditions. Minors can approach providers
independently for contraception, treatment for sexually transmitted diseases (STDs) and
prenatal care (but not abortion). 15 They can consent to services for the prevention,
diagnosis and treatment of the conditions specified in statute if the provider is a North
14 G.S. 90-21.9.
15 G.S 90-21.5 The other conditions with respect to which minors may consent to treatment are any
reportable communicable disease. abuse of controlled substances or alcohol. and emotional disturbance
The statute states that It does not cover abortion. sterilization or nonemergency hospitalization for mental
health care G.S 90-21.6 through -10. described later. require a parent's or other adult's consent to
abortion or a judicial waiver of the requirement. G.S. 130A-148(h) provides that. if parents refuse
permission for HIV testing, a child may still be tested if "there is a reasonable suspicion that the minor has
AIDS virus or HIV infection or that the child has been sexually abused." We assume that this provision
does not apply when the minor herself is consenting to diagnosis under G.S. 90-21.5
11
Carolina-licensed physician" or working under the physician's direction and supervision
or standing orders.¹
Moreover. the law tells the physician not to notify the minor's parent about the
request for treatment. There are important exceptions to this instruction. though. A
physician must notify a parent about a minor's condition if the physician thinks
notification may be essential to the minor's life or health and may talk with parents if
they contact her or him. 18 In weighing whether to notify a parent, providers should
consider the minor's mental and physical health-hints that she may be thinking of
suicide. for example, or her refusal to seek treatment for a serious health condition. In
one instance, a health director intended to inform a parent when a family planning patient
took no action for months after receiving a troubling PAP test result.¹⁹
Although the statute allowing minors to consent reads, "[a]ny minor may give
effective consent," a provider should not take "any" literally. To consent validly a minor.
like every other person, must understand her condition, the alternatives for treating it, and
the risks and benefits of treatment or the lack of it. There is no specific age at which
adolescents become capable of understanding these matters. and selecting an age
arbitrarily seems especially problematic when the health issue is pregnancy. Legal
commentators, psychologists and judges are divided, for example, on whether girls under
15 should be able to consent to abortion or childbirth. A national commission on consent
to treatment recognized that "there is an age, below about 14 years old. at which the
16 G.S. 90-21.5(a).
17
Opinion of Attorney General to Ed McClearsen. Staff Attorney, Mental Health Study Commission. 4-
N.C.A.G. 83 (1977) and Opinion of Attorney General to Margie Rose. M.P.H. Branch Head. Family
Planning Branch. Division of Health Services, 47 N.C.A.G. 80 (1977).
18 G.S. 90-21.4(b).
9
Personal communication from Jesse Williams. M.D. Cumberland County Health Director. to Anne
Dellinger
12
traditional presumption of incompetence remains sensible." Still. the commission advised
against a generally applied rule for age of consent. thinking it "more reasonable to ask-
of any person at any age-'is this person capable of making this decision?""²⁰
The commission described a competent adolescent as one with "sufficient ability
to understand a situation and to make a choice in the light of that understanding."
Another definition is the ability to understand the situation, weigh the risks and benefits
of the choices. compare choices, incorporate her own values in the final decision, and
make a decision that is not overly affected by others' opinions.
One North Carolina specialist in adolescent medicine uses practical tasks to
inform her judgement about a patient-for example, whether the patient demonstrates
responsibility for her own health care by keeping appointments that have been described
to her as important. In addition, this provider usually asks a pregnant adolescent to
describe in writing what she thinks her life will be like in one year and in five years if she
makes one choice or the other. 23 Simply talking with a patient about her situation and
plans can help a provider form an opinion about her competence to make medical
decisions.
If providers think that a minor patient is competent to consent, they must also
assess whether her consent is voluntary. Are the pregnant girl's decisions unduly
influenced by adults-family, partner, or advisers, including providers? People who have
studied adolescents making medical decisions disagree on whether most of them acted
20 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral
Research. Deciding to Forezo Life-Sustaining Treatment A Report on the Ethical. Medical and Legal
Issues in Treatment Decisions (1983). at 122, note 5
21 Id. at 123.
:: Ambuel. Bruce and Julian Rappaport, "Developmental Trends in Adolescents' Psychological and Legal
Competence to Consent to Abortion." 16 Law and Human Behavior 129, at 132 (1992).
13
autonomously. Several staff members in North C rolina institutions (hospitals, clinics
and adoption agencies) told us that they often feared that the decision of a young
adolescent-whether about childbirth, abortion or keeping her child-was not truly her
own. If providers suspect that a minor's consent is coerced, they should tell her she has a
right to decide, and if necessary, they should ask the DSS to intervene on her behalf.
Treatment should be postponed until the issue is resolved and the minor's consent seems
to be freely given.
The scope of a minor's consent is another important issue under this statute.
When a minor is treated for one of the specified conditions-an STD. for example--
providers may not treat clearly unrelated conditions such as asthma or a sprained ankle.
In fact, however, a provider may find it hard to decide whether a condition is related, and
there are no guidelines to assist her or him.
2) A minor consenting to her child's treatment. When there is no law on a
practical matter that must be settled, lawyers must look to other legal principles for
guidance. As explained above, a parent is responsible for a child's basic needs including
medical care. Thus, it would seem that a minor parent must be able to consent to her
child's treatment because no one else has the responsibility or authority to do so.
= Interview with Carol A. Ford. Asst. Prof. of Pediatrics and Internal Medicine and Director. UNC
Adolescent Medicine Program. Chapel Hill. NC. March 3. 1999.
24 "[M]inors younger than 14 or 15 years are unlikely to assert themselves well against authority figures.
such as physicians or parents Also. there are significant social class differences that may modify
willingness to express preference." Sanford L Leikin. "Minors' assent or dissent to medical treatment."
102 I of Pediatrics 169. at 173. But Leiken's views contrast with those of David G. Scherer: "Children [9-
10 years old] were significantly more likely to defer to parents than either adolescents [14-15] or young
adults [21-25]. Adolescents were more likely to defer to parents than young adults. although this finding
only approximated statistical significance." "The Capacities of Minors to Exercise Voluntariness in
Medical Treatment Decisions." 15 Law and Human Behavior 431 (1991).
25 Sec. 5 18. "Children's Refusal of Treatment" in Rozovsky. Faye A., Consent to Treatment A Practical
Guide. (2d Ed) Little. Brown & Co.: Boston 1990. at 358-359.
14
Here is our reasoning. State statute allows an emancipated minor to consent for
her child's treatment. 26 but very few minor parents are emancipated since only marriage
or a court order--not parenting--is evidence of emancipation. (See section immediately
following Unless an unemancipated minor parent could also consent to her child's
treatment. many infants and small children could not be treated. The minor's parents or
her partner's parents might seem logical parties to consent. but their potential support
obligation for a grandchild confers no legal right to make decisions. If a minor is not a
competent parent, a court can place her child in the custody of another person or of DSS.
The guardian or custodian would then be the appropriate person to consent. However,
unless that has happened, the minor retains the rights and duties of parenthood The odd
result is. in our opinion, that minor parents can consent to their children's treatment,
even though it is generally believed that an unemancipated minor usually cannot consent
to her own treatment.
3) Emancipated minors. An emancipated minor is one who has the right to
transact business as if she were an adult. 27 Transacting business' includes consenting to
medical care. 28 Most people are automatically emancipated by reaching 18. at which age
they are treated as adults for most legal purposes, but North Carolina law also allows a
16- or 17-year old to petition a court for an order of emancipation.²⁹ Only fifty-three
minors filed petitions for emancipation in 1999, 30 however. which shows how rarely the
procedure is used.
26 G.S. 90-21.5(b).
:- G.S. 7B-3507.
:8 G.S. 90-21.5(b).
29 GS. 7B-3500 to -3509.
10 Telephone conversation with Patrick Tamer. Administrative Office of the Courts statistician. Raleigh
NC. February 22. 2000.
15
Marriage is the only other means of emancipation for someone under 18.
Becoming a parent does not emancipate a minor.
Documenting consent and other matters
Documenting patient consent is always an important legal matter, and especially so
when the patient is a minor. Although the law does not require different documentation
for minor patients, we suggest that providers take extra measures with pregnant
adolescents both as a precaution against liability and to help these vulnerable patients.
We recommend recording the following information:
whether an adult accompanied the minor on the first visit
the name of that adult
his or her relationship to the minor
that the minor and adult were interviewed separately
that the pregnancy diagnosis and all options were explained to the minor
what option(s) she chose
the legal basis for allowing her to consent-for example, "medical emergency,"
"treatment of pregnancy," "minor has court order allowing her to consent to abortion"
or "minor and her mother consented to abortion," or "minor showed certificate of
emancipation"
the physician's conclusion about the minor's competence to consent and whether her
consent was voluntary
counseling on STDs and
counseling and the patient's decision on contraception after the pregnancy is resolved
16
Besides documenting consent, providers could help pregnant minors by asking
about their living situation; sexual history: the possibility of abuse, neglect. or crime
committed against the patient. Documentation should include the girl's age and that of
the father of the fetus; whether she is enrolled in school, particularly after a child is born:
and what reports or referrals providers made.
Treatment of Pregnant Minors
Informing a pregnant woman about options (abortion or childbirth) is a
precondition for informed consent. For a minor, abortion requires the young
woman's written consent and that of a parent or specified other adult, but a judge
can waive the adult consent requirement. Minors who bear and raise a child can
make decisions about perinatal care and the child's care. Providers could help
patients by explaining the law on adoption. marriage and child support; by
facilitating their return to school; and by referring young mothers to resources for
parenting.
Options Counseling
Before providers ask for consent to treatment, medical³¹ and legal²² standards
require them to explain the condition, the treatments available for it, and the risks and
benefits of treatment or non-treatment.33 North Carolina's law on informed consent is
found both in statute and in court decisions.
Under the statute, a provider sufficiently informs a patient (and thus avoids
liability) by acting like fellow practitioners. explaining enough to give a reasonable
person a "general understanding of the treatments and of the usual and most frequent
11 For example. Standard RI121 of the Joint Commission's 1997 Hospital Accreditation Standards
32 G.S. 90-21 13
33 For a full discussion. see Rozovsky, Fay A., Consent to Treatment A Practical Guide. (2d Ed.) Little.
Brown & Co : Boston 1990) and 1999 Cumulative Supplement.
14 Specifically, "in accordance with the standards of practice among members of the same health care
profession with sumilar training and experience situated in the same or similar communities G.S. 90.
21.13.
1-
risks....."¹⁵ An alternative test for liability is whether a reasonable person would have
consented if advised under the first test.²⁶
Our state courts occasionally hear claims from patients that they were not fully
informed. Although no case has yet looked directly at liability for not explaining options
for normal pregnancy,3 a decision about unwanted conception may be relevant. 18
Allegedly, a woman's IUD was removed during surgery and she was not told. although
her doctor knew she did not want more children. After bearing a healthy child. she sued
for malpractice and the state supreme court upheld her right to sue. The justices said that
there are "many reasons to avoid pregnancy. some of which are matters of personal
inclination and some of which are related to health."39 When a patient conceives because
of a provider's mistake, "it is the fact of the pregnancy as a medical condition that gives
rise to compensable damages and completes the elements for a claim of negligence."
By viewing pregnancy as a medical condition that patients may seek providers' help to
avoid, the decision, like the informed consent statute. suggests that failure to counsel a
patient about pregnancy options is malpractice.
Considerations besides state law affect some providers. Most family planning
programs in local health departments in North Carolina use federal funds. Those working
in federally funded ("Title X") family planning programs are bound by federal
35
Id.
36
Id.
:- The supreme court refused to recognize claims by a child born with a genetic defect and his parents
Assuming that the mother would have aborted but for the providers' inadequate counseling, the court told
the child that "even life with genetic defects cannot be an injury in the legal sense." The court deferred to
the General Assembly on the parents' claim. Azzolino V. Dingfelder. 315 N.C. 103. 337 S 2d 528
1985).
18 Jackson V. Bumgardner, 318 N.C. 172. (1986).
0
Id. at 177.
40 Id. at 181.
18
regulations and program guidelines. Whether Title X clinics are to counsel patients
about abortion and refer them for it⁴² has inspired public controversy and official action
for years. involving Congress, the federal courts and several presidents. Since 1993.
when the abortion counseling 'gag rule' was suspended. abortion counseling and referral
is again required in Title X programs."
For adolescent patients, it is extremely important to explain options as soon as
pregnancy is diagnosed. Typically, these young women lack information about
pregnancy, the law, and health systems. They come for care near the deadline for
obtaining an abortion and past the time prenatal care should have begun. In one group of
58 teens, for example, 74% "only recognized their pregnancy when someone else
suggested the possibility, and half of them did not detect it until the second trimester ..45
A pregnant adolescent requires individual counseling whether or not she is
accompanied by another person. Most pregnant girls, especially the youngest, do come
with a parent to visit a health facility. Ninety per cent of those under 15 say that one
parent knows of the pregnancy and 43 per cent that both parents know.⁴⁶ Unless a
provider tells them. however, many of these young patients will not realize the extent to
which they are entitled to make health care decisions.⁴⁷
41 42 U.S.C.A. Sec. 300a authorizes the Secretary of the U.S. Department of Health and Human Services to
make grants to states for family planning services. The states. in turn. fund local agencies to provide
services. Regulations for the operation of these programs are found at 42 C.F.R. Sec. 59.1.
+2 U.S. Department of Health and Human Services. Program Guidelines for Project Grants for Family
Planning Services. Bureau of Community Health Services. Office for Family Planning Rockville. Md.
43 42 CFR. Section 59.8 (10-1-99).
14 Standards of Compliance for Abortion-Related Services in Family Planning Service Projects." 58FR.
7462 1 February 5. 1993) and U.S. Department of Health and Human Services. Program Guidelines for
Project Grants for Family Planning Services. Section 8.6.
45 Sandven. Kari. and Resnick. Michael D. "Informal Adoption Among Black Adolescent Mothers." 60
Amer J. of Orthopsychiatry 210. at 217 (1990).
46 Sex and America's Teenagers The Alan Guttmacher Institute: Washington and New York 1994. at 49
47 Except for abortion a pregnant girl is fully entitled if competent. In the case of abortion she must
consent. but a parent or other specified adult must also consent or a judge must waive the adult consent
19
Pregnant minors preferences about confidentiality must almost always be
respected. (For the exceptions under North Carolina law, see Minors seeking care for
certain conditions, above.) If a parent is present, medical and nursing association policy
statements advise providers to meet separately with the patient to counsel her, seek the
most highly confidential information, and learn how and whether she would like her
parent to be involved in her medical care.⁴⁸ The AAP policy is typical. It recommends
delivering the diagnosis of pregnancy to a minor patient alone, and then urging her,
particularly if she is a younger adolescent. to involve her parents and partner. While that
is best for most patients, the Academy realizes that for some the parent or partner is not a
supportive figure. In those instances, the Academy simply advises "appropriate action."
In dealing with pregnant minors providers have options too, although they may be
limited by conditions of employment or grants, or other requirements. Both state⁵⁰ and
federal⁵¹ laws allow providers to avoid participating in abortion on moral, ethical or
religious grounds. State law lets a physician treat a pregnant minor who does not want a
parent involved. but does not require accepting her as a patient.⁵² However, if a provider
is unwilling to explain options or treat the minor, he should refer her. If the girl has been
requiremnt. On the subject of minors' competence. see Weithorn. Lois A.. "Involving Children in
Decisions Affecting Their Own Welfare: Guidelines for Professionals." in Melton. Gary B. Koocher.
Gerald P., and Saks, Michael J. (eds.), Children's Competence to Consent. Plenum: New York 1983. at
252.
"ACOG Educational Bulletin. "Confidentiality in Adolescent Health Care." No. 249 (August 1998):
AWHONN Position Statement: "Confidentiality in Adolescent Health Care," Reaffirmed 1995: A.MA.
"Guidelines for Adolescent Preventive Services: Recommendations for Physicians and Other Health
Professionals".
19 AAP. "Counseling the Adolescent About Pregnancy Options." Policy Reference Guide (1998) at 180
50 G.S. 14-45.1(e)-applicable to physicians and nurses.
9
42 U.S.C.A. Sec. 300a-7. applicable to all heath care personnel in federally funded programs.
52 G.S. 90-21.5
20
a patient. referral may be necessary to avoid a claim of abandonment. The AAP. 53 the
American College of Obstetrics and Gynecology (ACOG) and the Association of
Women's Health, Obstetric and Neonatal Nurses (AWHONN) also advise referral.
AAP recommends. "When abortion counseling is in conflict with the physician's moral
code. this should be explained to the patient. It is also important that the physician
respect the adolescent's moral decision and legal right to terminate her pregnancy and not
impose any barriers to health services from another source."5
Abortion.
For minors' abortions North Carolina requires written consent from the minor. In
addition, an adult from one of several categories must consent in writing or a court must
waive the adult consent requirement. As noted, most minors considering abortion,
especially the youngest, do talk with a parent. In North Carolina, as for the United States
as a whole, the figure is approximately 90%. 58 But for those adolescents who will not or
cannot get adult consent, the court process described in this section is an alternative
means of gaining permission for abortion.
Minors generally depend. in the first instance, on health providers for information
about abortion. Many young patients will not know how far into a pregnancy abortion is
93 "Should a pediatrician choose not to counsel the adolescent patient about sexual matters such as
pregnancy and abortion. the patient should be referred to other experienced professionals." Policy
Reference Guide at 179.
14 ACOG Educational Bulletin. Confidentiality in Adolescent Health Care No. 249. August 1998. at 3.
55 For women of all ages. AWHONN "supports and promotes a right to accurate and complete
information and access to reproductive health services." Position Statement: "Health Care Decision Making
for Reproductive Care." Revised and reaffirmed under a new title. September 1999. See also. Position
Statement "Nurses' Rights and Responsibilities Related to Abortion and Sterilization." 1999 (both are
available at http: www.awhonn.org).
56 Policy Reference Guide at 142.
57 G.S. 90-21.7
98 In a year in which 2.287 abortions were performed on minors aged 9 through 17 (State Center for Health
Statistics. North Carolina Reported Pregnancies 1998). only 233 petitions for waiver of parental consent to
abortion were filed (Administrative Office of the Courts. Raleigh. NC).
21
legally. practically, or medically available: where or how to obtain one: or that if they
choose abortion they will need an eligible adult's consent or must ask a judge to waive
that requirement.
For providers' information, abortion is legal for any woman in North Carolina
until a fetus is viable.⁵⁹ Unless the physician concludes that the fetus is viable. abortion
can legally be performed through the end of the second trimester (the 24th week of
gestation). An abortion is legal at any point in pregnancy if "necessary to preserve the
life or health of the mother." North Carolina licenses clinics and ambulatory surgical
facilities to offer abortions through twenty weeks' gestation-although not all licensed
facilities do offer them for that length of time.63 After twenty weeks' gestation. abortions
in North Carolina must be performed in a hospital.
The requirements for a minor's obtaining an abortion are as follows.
1) With parent's or another adult's permission. Unless a judge waives the
requirement. a provider must have written consent from the minor and from one of these
adults: a custodial parent, a legal guardian or custodian, a parent with whom the girl is
59 In Roe V. Wade. 410 U.S. 113 (1973). the U.S. Supreme Court established an unfettered right to choose
abortion through the first trimester of pregnancy. Under Roe. in the second trimester a state may regulate
to protect maternal health. and after viability a state may forbid abortion except where a woman's life or
health may be at stake. Subsequent U.S. Supreme Court decisions have retreated from Roe by allowing
states to impose restrictions that the Court does not find unduly burdensome to the exercise of a right to
abortion.
Roe is understood to have invalidated the North Carolina statute. G.S. 14-45.1. that permitted
abortion only through twenty weeks' gestation. Although the General Assembly has not enacted a new
statute. we assume that North Carolina wishes to prohibit abortion after viability except. as required by
Roe. to preserve a woman's life or health
20 Roe V. Wade. 410 U.S. 113 (1973). at 164.
51 10 NCAC 3E.0101.
62 10 NCAC 3Q 0204.
53 For example. the Statesville, North Carolina. telephone book for 1998-99. listed under "Abortion
Services" two clinics advertising abortions through 20 weeks: another. through 16 weeks. and a fourth.
through 14 weeks In addition to different time limits by facilities. physicians serving a single clinic
sometimes have different numbers of weeks through which each is willing to perform abortions
22
living or a grandparent with whom she has lived for six months immediately before the
abortion." If the adult is available, informed consent standards would seem to require
providers to explain treatment options. risks and benefits to the adult as well as the minor
patient.
00
If the minor is unaccompanied and presents a document as an appropriate adult's
consent. providers may wonder how far they must go to verify it. The only North
Carolina case on this point held that a physician could rely on the minor's word that the
signed permission she presented was valid. The state court of appeals ruled that the
parental consent statute "contains no requirement, express or implied. that the physician
conduct an investigation into the circumstances of a purported written parental consent
for an abortion to determine the validity of the writing."67
2) With court waiver of the adult consent requirement. If a minor wants an
abortion. but no eligible adult is available to consent, or will consent, or she does not
want to ask them, she may ask a judge to let her decide.⁶⁸ (The official name for such a
request is a "Petition for Waiver of Parental Consent for Minor's Abortion," which court
staff usually call a "waiver petition" or "judicial waiver.") The judge must grant the
request if he or she finds any one of the following to be true:
1) the minor is mature and well-informed enough to make the decision;
2) making the decision herself would be in her best interest; or
:- In 1998 North Carolina hospitals reported performing 125 abortions after twenty weeks. Forty-one were
performed on women 19 and under. These later abortions were less than one half of 1% (4%) of the
29,868 abortions performed in the state that year.
55 G.S. 90-21.7 7(a).
56 G.S. 90-13. Informed consent to health care treatment or procedure.
5" Jackson V.A Woman's Choice. 130 N.C. App. 590. at 503 S.E.2d 422 (1998) at
58 G.S. 90-21.7
23
3) she is a victim of rape or felonious incest."
If a minor wants a waiver, a provider should refer her to the district court clerk in
a county courthouse for information and assistance. The minor need not be a North
Carolina resident to submit a waiver petition here,⁷¹ and if she is. she does not have to file
her request in the county she lives in. Any minor may ask for a judicial waiver in any
county in the state.
Health providers could. if they wished. further assist a patient who wants a waiver
by explaining the court procedure and giving her written certification of pregnancy and
the estimated gestational age of the fetus to take to court. Although neither the statute
nor the court forms on waiver mention these items, a significant number of judges are
asking for them. Having that information to present to a judge might save the minor a
delay that would make it impossible for her to obtain an abortion.
State law requires that a court employee help a young woman prepare her request.
if she wants help. The court employee will give her forms entitled "Instructions for
Minor Petitioners." She may have, without charge, the assistance of a lawyer or
someone else. -1 or she may proceed on her own.75 If she wants a lawyer, the court will
find and appoint one to represent her. Court costs and fees are waived for this procedure.
so that it costs the minor nothing. The minor's identity and the record of the hearing can
24 The court must notify the department of social services if the pregnancy is the result of incest (G.S. 90.
21.8.) or abuse or neglect (G.S. 7B-301).
TO G.S. 90-21.8 through -21.10.
"1 G.S. 90-21.8(a).
72 The statute says a petition may be filed "in the district court where the minor resides or where she is
physically present." G.S. 90-21.7(b).
G.S. 90-21 S(b). See also Rule IC.. Jack Cozort. Rules of Recordkeeping Judicial Waiver of Parental
Consent (JW) Proceedings. Raleigh. NC: October 1. 1995. (Hereafter. Rules of Recordkeeping
- The nonlawyer adult helper is called a guardian ad litem. that is. a guardian for purposes of the court
proceeding This could be someone suggested by the minor or identified by the clerk of court.
G.S. 90-21.8(c). See also Rule 1B. Rules of Recordkeeping
24
be kept confidential, except that the court must notify DSS if the pregnancy is the result
of incest or rape. The DSS investigation or its consequences could cause parents to
learn of the minor's abortion. Otherwise. the minor's parents are not notified if she
makes it clear on the forms that they should not be. by checking the appropriate box."
When a waiver petition is filed a judge must decide within seven days whether to
grant it. Some judges talk with the minor and come to a decision the day the petition is
filed. -9 If the judge grants the request, she or he issues an order. The clerk of court then
gives the minor a certificate to show an abortion provider which states that the minor
does not need an adult's consent. If her request is denied, a minor has 24 hours to appeal.
On appeal, she will be required to present her case anew, to a different judge. Or, since
the statute does not limit a minor to a single petition. she could file another petition in a
different county or before a different judge.
3) Payment for abortion. Many minors will find it hard to pay for an abortion.
Medicaid very rarely covers the procedure. A state abortion fund, which at some points
paid for many abortion procedures, no longer functions. The absence of the fund may
produce a significant difference in the number of pregnancies carried to term.32
"6 G.S. 90-21.8(f).
--
Under rules of the North Carolina Supreme Court
-8 Form AOC-J-601. All the forms used for the waiver process can be found in Administrative Office of
the Courts. Forms and Procedures for Judicial Waiver of Parental Consent Raleigh. NC, October 1995
9 Interview with a North Carolina assistant clerk of court. April 1999.
30
Abortions that qualify for Medicaid reimbursement are those where the pregnancy 15 the result of rape or
incest. or is life-endangering. A North Carolina-licensed physician must fill out and sign a statement to that
effect. In 1998 Medicaid paid for 20 abortions in North Carolina. according to Lynda C. Dixon. N.C.
Department of Health and Human Services. Division of Medical Assistance. March 22. 2000.
1. Since 1995 the fund has consisted of $50.000 available under the same conditions as Medicaid. but the
applicant must not be eligible for Medicaid despite her poverty status. Sec. 23.27. Ch. 324. SL-1995. Sec
23.8A. Ch. 507. SL-1995; Sec. 11.29. Ch. 237, SL-1999. According to Lynda C. Dixon. North Carolina
Department of Health and Human Services. Division of Medical Assistance the fund has not paid for an
abortion in years. Telephone conversation with Anne Dellinger. March 21, 2000.
42 Cook. Philip J. et al. "The effects of short-term variation in abortion funding on pregnancy outcomes." 18
I of Health Economics 241-257 (1999).
25
However. some private health insurance policies cover a dependent's abortion. and
clinics and hospitals sometimes reduce or waive charges for those unable to pay.
Childbirth.
Although many adolescents end their pregnancies. a majority now give birth and
raise their child. As a result. health providers may treat a young pregnant patient pre- and
postnatally. They may also treat her child8⁴ and, occasionally, her partner. despite the
fact that serving several members of a family can raise conflicts of interests. For
example, as discussed earlier, a provider would have to report a mother who abused or
neglected her child, and might urge a girl to report an older or abusive partner's statutory
sexual offense or violence. Physicians have different policies on retaining minor patients
who give birth. One pediatrician whom we interviewed stated that her practice group
will no longer treat such a patient. but will accept her infant as a patient.
Continuing to treat an adolescent after she becomes a mother is likely to benefit
her greatly. Familiar providers can best assess her needs for personal security,
contraception. and protection from STDs. and encourage her to pursue education and
employment while developing competence as a parent. The AAP notes that. "Adolescent
parents and their offspring represent high-risk families that require intensive monitoring
and a sensitive and caring approach by the pediatrician." The Academy recommends
interventions for adolescent mothers and fathers. both as parents and patients, as well as
for their infants.⁸⁶
83 In 1998 North Carolina reported 592 pregnancies in girls under 15 328 of the pregnancies resulted in
live births. State Center for Health Statistics, Department of Health and Human Services. Raleigh. NC.
14
35 "Care of Adolescent Parents and Their Children." Policy Reference Guide at 116 (1998).
36 Id. at 93.
26
1) Perinatal care. The law governing the perinatal period is straightforward Under the
state statute letting minors consent to treatment for pregnancy," an adolescent can
consent for prenatal care, labor and delivery, and postnatal care.
But a minor who gives birth and keeps the child faces medical and financial
challenges. which must be met while she learns to function as a parent and resumes
school work. Previous pregnancies or other children may add to the difficulties. Nine of
the 186 pregnancies in girls under 15 that we studied were second pregnancies. At least
four girls had a child at home already.
Although most adolescent mothers do well physically, the medical risks of
childbirth for them (especially the youngest) and their infants are substantially greater
than for adult women.88 In addition, they are disproportionately poor,⁸⁹ usually first-time
mothers. and less prepared for parenthood than older women-facts which make a very
brief postpartum stay a strain on their personal resources. The AAP calls short hospital
stays for high-risk mothers a problem for their infants, and includes among early
discharge risk factors "lack of social support, particularly for single, first-time mothers"
and being a teen mother. "When these or other risk factors are present," the AAP
recommends that "the discharge should be delayed until they are resolved or a plan to
safeguard the infant is in place." A 1999 policy statement advises pediatricians to
17 G.S. 90-21.5.
18 Adolescent Pregnancy-Current Trends and Issues 1998." 103 Pediatrics 516-520. citing Piccinino LJ.
Mosher. WD. "Trends in contraception use in the US: 1982-1995." 46 Family Planning Perspect 4-10
(1998) and Satin. AJ. Leveno J. Sherman ML. Reedy NJ. Lowe TW. McIntire DD. "Maternal youth and
pregnancy outcomes: middle school versus high school age groups compared with women beyond the teen
years." 171 Am J Obstet Gvnecol 184-187 (1994).
39 "Poverty is correlated significantly with adolescent pregnancy in the United States. Although 38% of
adolescents live in poor or low-income families. -83% of adolescents who give birth and 61% who have
abortions are from poor or low-income families." Adolescent Pregnancy-Current Trends and Issues
1998." 103 Pediatrics 516-520.
90 AAP. "Hospital Stay for Healthy Term Newborns." Policy Reference Guide 487 (reatfirmed 10 98)
"recommend that adolescent mothers not receive early postpartum discharge so that
clinicians can ensure that the mother is capable of caring for her child and has resources
available for assistance."
North Carolina law requires private insurers to cover a 48-hour stay for any
mother after a normal vaginal delivery. If a mother and her physician agree on earlier
discharge, the insurer must cover "timely postdelivery care."92 Medicaid has similar
postpartum coverage (1.9 days) but allows a longer stay if medically necessary. If a
minor's parents' insurance does not cover her.93 she is very likely eligible for Medicaid
Since Medicaid considers only the minor's income for childbirth, nearly all adolescents
would qualify. As a last resort for pregnant women. a federal statute requires hospitals to
treat anyone, regardless of ability to pay, who comes to the hospital in active labor.⁹⁴
Hospital staff often refer an adolescent mother to North Carolina's Child Services
Coordination program. This voluntary program is open to all families. and consists of
home visits for the first three years of a child's life by a nurse or social worker trained to
identify services available for the child. Visits are made at least quarterly and more
frequently if needed.
Young mothers' continued school attendance is crucial to the economic wellbeing
of adolescents and their children. School policies vary in how well they facilitate a new
mother's returning to school and gaining credit for the semester or year in which she
91 Adolescent Pregnancy-Current Trends and Issues: 1998," 103 Pediatrics 516-520. Recommendation 6
92 G.S. 58-3-169(c).
9) Many policies exclude dependents' coverage for labor and delivery. Telephone conversation with Kim
Shepherd. Life and Health Section. N.C. Department of Insurance. June 9. 1999.
74 Emergency Medical Treatment and Labor Act. 42 U S.C. Sec. 1395dd. renamed in 1989 Examination
and Treatment for Emergency Medical Conditions and Labor Act.
95
For one of numerous studies reaching this conclusion. see J. Brooks-Gunn and Furstenberg. Frank F. Jr.,
"Continuity and Change in the Context of Poverty: Adolescent Mothers and Their Children." The
Malleability of Children. J. Gallagher and C. Ramey (eds), Baltimore: Brookes Publishing 1989. 171-88
28
gives birth. One district grants students who want it an excused absence for up to 30 days
before and 30 days after delivery.96 Another requires a doctor's letter before excusing
absence even for physical necessities of the postpartum period. Given these differences
in policy and practice regarding pregnancy and childbirth. if a physician and patient
decide that an absence of more than a day or two is advisable--for instance. for maternal-
child bonding. establishing breastfeeding or securing child care--a written statement from
the physician to school officials may be essential for the student to have a chance of
being allowed to continue working at home for credit.
2) Raising the child. In 1998 girls pregnant before they were 15 years old gave
birth to 328 infants. In all, 5808 babies were born to North Carolina minors that year.⁹⁷
Nearly all minors who give birth intend to raise the baby. While most will manage,
usually with family help, health providers may have questions about how and whether
some young patients can bear the responsibility.
a. parent's competence.
There is no minimum age for raising a child. Instead. all parents have a legal duty
to give a child life's necessities (including health care) plus education. and to keep a child
from harm. Failing in these duties can carry civil and criminal penalties⁹⁸ and cause
authorities to terminate a parent's rights.⁹⁹
to The "Homebound Instruction" policy of the Alamance-Burlington School System allows for such an
absence. Telephone conversation with Jerry Ferguson. Director of Student Support Services. March 13.
2000. Moreover. under the system's "High School Attendance Policy Procedures. for "[a]bsences
resulting from life-altering circumstances of the student. the principal has the authority to exempt the
student from the provisions of the individual class attendance policy."
: North Carolina Reported Pregnancies 1998 State Center for Health Statistics. North Carolina
Department of Health and Human Services. Raleigh. North Carolina.
48 For example. a caretaker who exposes a child to "a substantial risk of physical injury" commits 1
cruminal misdemeanor. G.S. 14-318.2. The court of appeals finds the same duty in civil law. Coleman V
Cooper. 89 N.C. App. 188. 366 S.E.2d 2. discretionary rev. den.. 322 N.C. 834, 371 S.E.2d.275 (1988).
19 Ch. 7B. N.C. General Statutes. especially Articles 3.5. and 11.
:-
Health providers should assume that a young mother, though not adult for most
legal purposes. has the legal rights of a parent (and they can help young mothers gather
resources for parenting by referring them to DSS). If, however, providers have reason to
suspect that the mother. her child or both are being abused or neglected, they must contact
social services. (See the section below on "Abuse. Neglect, Dependency. Sexual Assault"
for more information.)
b. marriage.
North Carolina law strongly favors marriage and the legitimacy of children,
although the benefit of very early marriage is debatable. 100 People are free to marry at 18
in North Carolina, when they become adults. Sixteen- and seventeen-year olds may
marry with consent from an appropriate adult. 101 A girl as young as twelve may marry if
she (1) is pregnant or has a child by the person she wants to marry, and (2) has written
consent from one of a number of adults. The adults eligible to consent are a parent she
lives with; a person, agency or institution that is her guardian, custodian or stands in loco
parentis; or the director of DSS where either the girl or her partner lives. 102 In 1998
100
According to one source. the policy "subordinates other interests. such as those of the parents and
guardians of the underage applicant [for a marriage license] and the long-term welfare of both the child and
its mother." Campbell. William A., "North Carolina Marriage Laws: Some Questions." Popular
Government. Vol. 63. No. 2. Institute of Government. UNC CH: Chapel Hill. N.C. 1998. 53. Another legal
writer points out that the Uniform Marriage and Divorce Act. which North Carolina has not adopted. allows
no one younger than 16 to consent and "expressly rejects pregnancy as an automatic exception to an age
requirement" because "marriages entered into under these circumstances are even more vulnerable than
other youthful marriages." Reynolds. Suzanne. Lee's North Carolina Family Practice (5th Ed.) Vol. 1. See
2.8. The Michie Company: Charlottesville. Va. 1993. at 98. A third source concludes that '[a]dolescent
childbearers may not be able to combine school attendance and marriage successfully." Scott-Jones. Diane
"Educational Levels of Adolescent Childbearers at First and Second Births." American J of Education
(August 1991) at 477.
101
An appropriate adult is any of these: a parent with whom the minor lives: guardian: legal custodian. or
person in loco parentis. G.S. 51-2(a).
IV: G.S. 51-2. Campbell. William A.. North Carolina Guidebook for Registers of Deeds (7th Ed.) Institute
of Government. UNC CH. Chapel Hill. N.C. 1994. 126-127
30
forty North Carolina girls pregnant under age 15 were married 103 The law does not
mention a minimum marriage age for a male whose partner is pregnant or has given birth.
An emancipated minor does not need anyone's consent to marry. 104 But, the minor must
file a copy of the certificate of emancipation with the register of deeds to obtain a
marriage license
c. support obligations of parents. grandparents or others.
Whether they are married or not. parents owe financial support until a child is at
least 18 or emancipated.¹⁰⁵ ("Support" is defined as an amount that satisfies "the
reasonable needs of the child for health. education and maintenance" considering the
family's "accustomed standard of living" and total circumstances. 106, Most unmarried
fathers in North Carolina acknowledge paternity when their child is born. and the state's
Child Support Enforcement program is able to establish paternity in most of the
remainder of the cases.¹⁰⁷
A mother can ask a court to establish paternity. 108 The action can be filed any
time until the child is 18, and it is the necessary first step in getting financial support from
the father. Besides ordering support, a court may order a father to reimburse the mother
for pregnancy and childbirth expenses and the cost of her legal action against him. 109
03 North Carolina Reported Pregnancies 1998 State Center for Health Statistics. North Carolina
Department of Health and Human Services. Raleigh. NC.
104 G. 51-2.
105 G.S. 50-13.4.
106 G.S. 50-13 4(c),
07 52% of unmarried fathers acknowledge paternity at the hospital. Paternity is established later for 57%
of the remaining children. Telephone conversation with Barry Berger. Asst. Chief of Program Operations.
Child Support Enforcement. Division of Social Services. North Carolina Department of Health and Human
Services. March 23. 2000.
108
G.S. 49-14.
109
G.S. 110-132.
31
A minor's parents and her partner's parents can be responsible for support too.
The General Assembly requires both sets of grandparents to support a child when one or
both parents are unemancipated minors who together do not provide full support for their
child. 10 If another person or agency, organization or institution stands in loco parentis to
the minor parent. that party too can be responsible for support.
d. Out of home placement. A parent who feels unable. for any reason.
to care for a child should contact DSS. Some departments will accept the child
temporarily and let the parent reclaim her months later. III Other departments rarely
accept custody unless a parent is willing to give up the child permanently or a court has
found the child to be abused, neglected or dependent. (See the later section on "Abuse,
Neglect. Dependency, Sexual Assault.) An important goal of social services today is
"permanency planning;" that is, developing "a plan to achieve a safe, permanent home
for the [child] within a reasonable period of time."¹² With that in mind, departments
usually move within months, or at most a year or two, to reunite a family or arrange a
permanent alternative, which may include termination of parental rights. 113
3) Adoption. The most permanent arrangement for a parent to choose who
cannot raise a child is adoption. Although minors of any age are legally able to offer a
child for adoption, 114 few make this choice-only three to five per cent of unmarried
adolescent mothers. 115 Apparently, far more teens consider placing their child for
120 G.S. 50-13.4.
111 A court must review a parent's voluntarily placing her child with DSS within 180 days. and the child
may not stay in voluntary placement more than a year unless DSS files a petition to have the child declared
abused. neglected or dependent. G.S. TB-910
112 G.S. 7B-907(a).
113 G.S. TB-907
114 G.S. 48-3-605(b).
115 One source reports five per cent. Musick. Judith. Young. Poor. and Pregnant: The Psychology of
Teenage Motherhood New Haven Yale U Press 1993. at 18: another. three per cent. Solinger. Rickie
32
adoption than do so-12 per cent in one study. even though 89 per cent predicted a
negative reaction from partner. friends or family. 116
Health providers may not realize how important their views of adoption are to
adolescent patients. Researchers have found that among teens considering adoption. "While
the most influential person was the adolescent's mother. over half of respondents solicited
advice [on legal adoption] from a professional-usually a physician or a nurse (the
importance of providing counseling in health care facilities seems salient.)"¹ A North
Carolina adoption specialist reports that it is "all too common and can be extremely
destructive" for a minor who has tentatively decided on adoption to face disapproval from
one or more providers. According to this source. such interactions occur most frequently
during hospitalization for delivery. 118
The AAP advises members to know state laws on adoption and to indicate
repeatedly to patients during pregnancy that the provider is willing to discuss the subject. 20
For their legal protection, providers should counsel patients and other parties about adoption
for the same fee (no more. no less) they normally charge patients for counseling. Otherwise.
they might inadvertently violate criminal statutes barring unauthorized people from . various
kinds of involvement in adoptions. 121
Below are some questions that patients may have about adoption and brief
answers to them under North Carolina law.
Introduction The Abortion Wars: and according to the AAP. two to four per cent. "The Adolescent's Right
to Confidential Care When Considering Abortion." Policy Reference Guide at 31. citing nother source
1:6 Sandven and Resnick at 217,
117
Id. at 220
113 Telephone conversation with Sandy M. Cook. Director. Children's Home Society of North Carolina.
March 2. 2000.
119 "Issues of Confidentiality in Adoption The Role of the Pediatrician." Policy Reference Guide at 473
(20 "Counseling the Adolescent Concerning Pregnancy Options. Policy Reference Guide at 180.
(2) G.S. 48-101 and -102.
33
1) Do my parents have to agree to my baby's adoption?
No. Whatever your age. you alone can decide to let the baby be adopted. 122 By
the same token. if your parents want the baby to be adopted and you do not. you
do not have to agree.
2) Does the baby's father have to agree to adoption?
The baby's father does have legal rights. He can stop an adoption if you and he
married. if he took legal responsibility for the baby in any of a number of ways.
supported you or the baby or was ordered to support the baby by a court. 123 He
can lose the right to object to adoption, though. by not responding to notice that
an adoption is scheduled to take place. Another way for an unmarried father to
lose rights is to sign a notarized statement denying that he is the father or saying
he does not have a legal interest in the baby.¹²⁴
3) If I agree to adoption, could the baby's father get the baby or his family
adopt the baby?
A father can always try to get custody, whether or not you are trying to have the
baby adopted. But you can prevent the father or his family's gaining custody of
the child as a result of the adoption process. If you choose the person who
adopts the baby, 125 you and that person can agree, in writing, that if the father tries
to claim the baby before the adoption. you will take the baby back. 126 If an
agency handles the adoption. you can agree to give up the baby only on condition
= G.S. 48-3-605(b).
123 G.S 48-3-601
24 G.S. 48-3-603
25 This kind of adoption. if arranged by a baby's parent. IS called direct adoption (see G.S. 48-3-202) or. If
an agency IS involved. a designated agency adoption (see G.S. 48-3-703a(5)(b)).
25 G.S. 48-3-609(a)(2). Both you and the baby's father might then seek custody. A mother's having
previously consented to adoption will not prevent her being awarded custody. G.S. 50-13.2(d).
34
that S. he be adopted by a particular family that's been described to you. (Setting 1
condition is called "designated relinquishment.") Be sure that the relinquishment
form you sign says that you want to be notified if the adoption doesn't work out.
so you can take the baby back.
4) Can I talk to an adoption agency or a person who wants to adopt my baby
and then decide against adoption? What about changing my mind after the
adoption?
You have time to think about adoption before deciding and a brief time to change
your mind afterwards. A mother can't agree to her baby's adoption until the baby
is born. though the baby's father can. 27 If the baby is three months or younger
when you sign a consent to adoption. you have 21 days from the time you sign to
change your mind. If the baby is older than three months, you have seven days. 128
5) Can I choose the family for my baby?
Yes. you may choose a family. You might choose someone you know, who
would then (unless they were close relatives) have to be investigated before being
approved as an adoptive parent. Or you could let an adoption agency or the DSS
find a family. If you don't want to name a particular person. you can still say
what kind of family you would like. 129 Most agencies would let you choose from
the descriptions (and often pictures) they keep of families already approved for
127 G.S. 48-3-604(a) and (b): 48-3-703(b).
:3 G.S. 48-3-608 and 48-3-706. These are the usual periods. In a few circumstances the period could be
shorter or longer
29 G.S. 48-3-201 through 48-3-203
35
adoption. Whatever way an adoptive parent is selected. though. a court must find
that the person is suitable before it will approve an adoption. 130
6) If I don't choose someone I know or a family described to me, will I ever
know anything about the parents?
Most agencies (including social services departments) will tell you about the
adopting family, so long as you and the family aren't identified to each other.
Some agencies will show pictures or let you and the adoptive parents speak by
phone. If knowing about the family is important to you. ask adoption agencies
before you choose one, how much information they would give you. You might
learn the most from asking whether you could read the "home study" done on
each possible adoptive family. Agencies are required by law to answer your
questions. 131
7) Will I have to pay to have my baby adopted?
No. There are no charges.
8) Can the adoptive parents give me money?
They can pay your ordinary living expenses during pregnancy and for six weeks
afterwards. They can also pay counseling, medical and legal fees. 132 You can
accept this money and still change your mind about letting the baby be adopted.
The money is not payment for the baby.¹³³
9) Can I visit or hear about my baby as it grows up?
130 G.S. 48-2-501.
11 G.S. 48-3-203(b).
:: G.S. 48-10-103.
33
It IS a crime either to give or take money for a baby G. S 48-10-102
36
You don't have a legal right to. not even if you chose the adoptive parents If
they promise you that you can contact the child. they might keep the promise but
they do not have to. 134
10) Can the baby find me when he or she is grown?
If you both want to, probably yes. North Carolina has not created a system for
adult children and birth parents to contact one another, but there are registries in
the United States that match inquiries from birth parents and children.
11) Why should I think about adoption if a relative or friend will keep the
baby?
Actually, more than half of adoptions are by relatives. Letting a friend or relative
adopt, rather than just keep your baby, would help the person care for the baby.
As an adoptive parent. your relative or friend could more easily act for and gather
resources for the baby-get the baby medical care, enter him or her in school.
apply for health insurance or other benefits for the baby. Still. you must
understand that after adoption the person becomes the baby's parent for all legal
purposes.
12) Are there places where I could go for a while, have the baby and then
return home? If so, how do I find one?
Yes. They are called maternity homes and there are several in North Carolina.
One way to locate a maternity home is to ask an adoption agency for information
about them. Adoption agencies also have information about state funding that
might be available to pay for a maternity home stay.
134 G.S. 48-3-610.
Additional Care Considerations
The needs of pregnant minors, especially early adolescents. differ in some ways from
those of adult patients. Many minors need advice on abstinence. contraception and
sexually transmitted disease control. State law gives minors a right to confidential
care in these areas except in extraordinary circumstances. Providers should watch
for evidence that these patients are mistreated and, if found. report it or discuss the
matter with the patient.
Taking the History
The girls who become pregnant at an early age often have been leading more
difficult lives than older teens and, certainly. adults. 135 It would be prudent for providers
to collect information about these patients for legal and medical reasons-to resolve
questions about consent to treatment or patient discharge, for instance: and to understand
risk factors, the patient's ability to comply with treatment, and the need for patient and
family education.
A patient's sexual history can yield important clues about neglect, abuse and
assault. which are known to be associated with early adolescent pregnancy. 136 The AAP
recommends that pediatricians "be prepared to obtain a developmentally appropriate
sexual history on all adolescent patients.
Certain data--age at first intercourse, number and age of partners. sexually
transmitted diseases and concerns about intercourse or pregnancy-are often missing in
pregnant adolescents' records. In one set we reviewed. age at first intercourse was
recorded for only 31 of 50 girls. The possible value of the missing information can be
35 Musick. Judith. Young. Poor and Pregnant: The Psvchology of Adolescent Motherhood. especially 127.
129 Also. interview with Carol A. Ford. Asst. Prof of Pediatrics and Internal Medicine. and Director.
UNC Adolescent Medicine Program. Chapel Hill. NC. March 3. 1999.
136 Elders. M. Jocelyn. "Adolescent Pregnancy and Sexual Abuse." 280 JAMA 648-49 (August 19. 1998).
Gershon. Harold P. et al., "The Prevalence of Coercive Sexual Experience Among Teenage Mothers." 1 L
of Interpersonal Violence 204-219 (June 1989).
:-
'Adolescent Pregnancy-Current Trends and Issues: 1998." 103 Pediatrics 516-520. Recommendation
inferred from what was recorded: Two of the 31 said they were raped at age seven. A
third stated that she began intercourse "voluntarily" (the provider's word) at age 10. Two
more began intercourse at age 11.
Attending to a young patient's personal history and social context is appropriate
recognition that she is still in part a pediatric patient, that sexual activity at a young age is
often related to maltreatment. 138 and that early adolescent pregnancy can be either a cause
or effect of psychic distress. Compiling a psycho-social history alerts providers to
matters that a pregnant adolescent may want help with, which in turn improves the
chances of good outcomes for her and her child. 139
Data collection will be easier if staff know the particular significance of history-
taking for these patients, can allow additional time for it, and will check their
assumptions and ask open-ended questions. 140 For example, "Who lives in your home?"
is likely to be a more productive question than "Do you live with your mother?" The
patient may answer "yes" to the latter to meet the provider's expectations. although her
grandmother is the head of household and more constant presence. Or after her "yes,"
the patient may not mention other household members whose presence could affect her
ability to care for a newborn.
138
'Some 74% of women who had intercourse before age 14 and 60% of those who had sex before age 15
report having had sex unvoluntarily," Alan Guttmacher Institute. Sex and America's Teenagers. New York.
NY: Alan Guttmacher Institute 1994. at 22.
19 Personal communication to Anne Dellinger from Carol A. Ford. Asst. Prof. of Internal Medicine and
Pediatrics. and Director. UNC Adolescent Medicine Program. Chapel Hill. NC. December 30. 1999
:40 Based on authors' observation that the social worker's note in a medical record often contained the most
complete and accurate patient history. Unfortunately. in the facility from which most of our records came,
the social work interview usually took place just before discharge. so Its results were not available to
doctors. nurses and other staff when they might have acted on them.
39
Contraception
National organizations of providers advise confidential counseling of patients 11
and older about responsible sexual behavior, including abstinence, and offering them
means to protect themselves from unplanned pregnancy. 141 The AAP recommends that
pediatricians encourage and support abstinence. but also inform teens about other
contraceptive options. 142 North Carolina law allows minors independent access to
contraception.
Some young obstetric patients do not fully understand reproduction and
reproductive health. In that respect, they are typical teens. A 1999 survey of over 1000
high school students showed widespread ignorance. Most girls did not know about
emergency contraception. Of those who were sexually active, thirty-nine per cent did not
know they could obtain birth control pills without a parent's permission. Forty-seven per
cent did not know that an STD increases the chance of contracting HIV during sex. The
high school students were quite aware that they lacked information. Roughly half of
those surveyed-more or less, depending on the item--wanted information on
contraception, STDs, HIV, handling pressure to have sex, and dealing with rape or sexual
assault. 144
Nearly all minors who become pregnant in the United States say that it was
unplanned, and half the pregnancies occur within six months of the girl's first sexual
(4) American Medical Association (AMA). Guidelines for Adolescent Preventive Services (GAPS)
Recommendations for Physicians and Other Health Professionals (hereafter. GAPS Recommendations).
1995-99 For American Academy of Pediatrics (AAP) recommendations. see "The Adolescent's Right to
Confidential Care When Considering Abortion." Policy Reference Guide (1998) at 30: "Counseling the
Adolescent About Pregnancy Options." Policy Reference Guide (1998) at 179: and "Contraception and
Adolescents." 104 Pediatrics 1161-1166 (November 1999).
+: "Contraception and Adolescents." 104 Pediatrics 1161-1166 (November 1999).
43
G.S 90-21.5
40
encounter 45 Although sexually active teens are using contraception more often and
more effectively, 146 the youngest are the least likely to do so.¹⁴⁷ Moreover. contraception
is more likely to fail if a woman is young, unmarried. low-income, African-American or
Hispanic 48
Sterilization
Very rarely, a minor asks to be sterilized and a physician is willing to consider
it. 149 Providers should proceed with considerable caution about liability in this area,
however. Federal funds cannot be used.¹⁵⁰ State law allows married minors to be
sterilized-after all, they are emancipated. An unmarried minor, though, may only be
sterilized if
she gives written consent.
her parent files a request with a juvenile court,
the court finds that the surgery would be in her best interest and
the court issues an order authorizing a physician to perform the operation. 151
Sexually Transmitted Diseases. including HIV
Sexually transmitted diseases (STDs)¹⁵² are serious health threats for teens in the
United States. 153 In 1998, among 10 to 14 year old girls, North Carolina recorded 9 cases
+4 Kaiser Family Foundation National Survey of Secondary School Students about Sexual Health Issues
and Services: The Facts and More (http: www.kff.org).
145 Hatcher. Robert A.. et al.. Contraceptive Technology (16th edition) 580 (1994). [Arlene. Carol Ford
says there's a more recent edition of Hatcher.]
146 When Teens Have Sex: Issues and Trends. The Annie E. Casey Foundation Baltimore 1998. at 8-9.
14" Alan Guttmacher Institute. Sex and America's Teenagers. New York. NY: Alan Guttmacher Institute
1994. at 33.
148 Steiner. Markus J. "Contraceptive Effectiveness: What Should the Counseling Message Be?" JAMA
(October 20. 1999) at 1405
149 In two records we reviewed the patient requested sterilization. One young woman had four, and the
other five children before 18 years of age.
150 Family planning (42 C.F.R. 50.203(a)) and Medicaid (42 C.F R. 441.253) funds cannot be used to
sterilize anyone under 21.
151 G.S. 90-272
41
of syphilis, 254 of gonorrhea. and 536 of chlamydia. 154 STDs were often noted in the
records of early adolescent pregnancies that we reviewed. About 20% (35 of 186) of the
patients had STDs diagnosed during their pregnancy; for another 11 an STD was
identified in the preparations for an abortion or during labor. These diseases
disproportionately affect African-American and Hispanic youth. 155 and in North Carolina
a majority of the youngest pregnant group are African-American. 156 The portion that is
Latina, while still small. is growing. 157
The AMA recommends talking to adolescent patients annually about STDs and
making latex condoms available 158 The AAP emphasizes the danger of HIV
transmission.
159 While the Academy deems general advice on HIV advisable for all
teens, it recommends more specific counseling for teens in these high risk categories:
drug abusers, homosexual or bisexual teens, teens with a history of STDs (particularly
herpes or syphilis). teens with multiple partners, and those with partners who engage in
152 As used here "STDs" mean HIV. syphilis, gonorrhea, chlamydia. and the pelvic inflammatory disease
that can follow from either of the last two diseases. Also included are trichimoniasis. herpes genitalis
(HSV) and human papillomavirus (HPV). Hepatitis B may also be transmitted through sexual activity
Hatcher. et al.. at 86 -103.
155
Ralph J. DiClemente, pH. Preventing Sexually Transmitted Infections Among Adolescents. A Clash of
Ideology and Science. JAMA. May 20, 1998. Vol. 279, No. 19. page 1574.
154 N.C. Center for Health Statistics. Raleigh. NC. February 21. 2000.
155 Shain. et al., at 93. See also Jemmon. John B. III. et al., "Abstinence and Safer Sex: HIV Risk-
Reduction Interventions for African American Adolescents." JAMA May 20. 1998. Vol. 279. No. 19.
1529; Rosenberg. Philip S., et al., "Trends I HIV Incidence Among Young Adults in the United States.
JAMA. June 17. 1998. Vol. 279, No. 23. 1896-1899
120 348 of 592 pregnancies reported in 1998 in girls 9 to 14. Telephone conversation with Sidney J Evans.
State Center for Health Statistics. NC Department of Health and Human Services. Raleigh. NC. March 10.
2000.
157 The State Center for Health Statistics does not record pregnancies in an Hispanic or Latina category. but
an increase can be inferred from the increase in Hispanic births to mothers of all ages between 1990 (1752)
and 1995 (8095). Office of State Planning website. www.ospl.state.nc.us In 1998 1381 children were
born to Hispanic adolescents in North Carolina. Thirty-eight were born to girls under 15. State Center for
Health Statistics, September 15, 1999.
158 Recommendation 9. from AMA. Guidelines for Adolescent Preventive Services (GAPS):
Recommendations for Physicians and Other Health Professionals. 1995-1999 (http: www.ama-assn.org
129 'Adolescents and Human Immunodeficiency Virus Infection: The Role of the Pediatrician in Prevention
and Intervention." Task Force on Pediatric AIDS. Policy Reference Guide. at 44
42
high risk behaviors. 160 Under North Carolina law, a patient must specifically consent to
be tested for HIV before a physician may order the test, 161 and the patient must be
"counseled appropriately" when told of the result. 162
STD testing and counseling are advisable for pregnant teens as well. Just as for
birth control and pregnancy, North Carolina law lets minors ask for medical care for the
prevention. diagnosis and treatment of "reportable" communicable diseases. All STDs
are included in this category. The state Commission for Health Services decides which
diseases are to be reported, 163 and physicians, diagnostic laboratories. school principals
and child care operators must inform the local health director of each case they
encounter. 164 Medical facilities may report. but not required to. 165 (The purpose of
letting them report is to protect them from liability if they do.)¹⁶⁶ If a reportable disease
is diagnosed, state law requires "the attending physician" to teach patients how to prevent
its transmission.¹⁶⁷
Providers (and everyone else) must keep information and medical records about
reportable disease cases confidential. 168 In this area facilities should be especially careful
not to use billing practices that breach confidentiality without patient consent. Before
releasing communcable disease information. providers must consult the confidentiality
160 Id. Policy Reference Guide at 42.
101 G.S. 130A-148(h). Although not required. written consent would be advisable for liability protection
162 G.S. 130A-148(g).
103 G.S. 130A-134.
54
Physicians must report if they have "reason to suspect" a case in someone "about whom the physician
has been consulted professionally," G.S. 130A-135. Principals and child care operators must report a
suspected case in any person within the school or facility. G.S. 130A-136.
53 G.S. 130A-137.
100 G.S. 130A-142
6 G.S. 130A-144 requires the Commission for Health Services to prescribe control measures. which it
does in the state's administrative code: 15A NCAC 19A.0204 Control Measures Sexually Transmitted
Diseases (1991. amended 1993): 15A NCAC 19A.0202 -- Control Measures HIV (1988. temporary
amendment. recodified. or amended in 1989. 1990. 1991. 1992. 1994. 1995).
08 G.S. 130A-143.
43
statute itself--the summary immediately following is not sufficiently detailed--and should
have legal advice. The exceptions to the law. that is. the situations in which information
about a reportable disease case could be released, fall into these general categories:
release of nonidentifying statistical information
with the patient's written consent
to health care personnel caring for the patient
for public health purposes
for judicial or law enforcement purposes. and
for research.
Abuse, Neglect. Dependency, Sexual Assault
Thirty per cent of 15 year olds giving birth in the United States are thought to
have partners six or more years older.169 In North Carolina, having sex with a person
under 16 and four or more years younger than the older person is a sexual assault.
(Sexual assaults are described more fully at the end of this section.) The older partner
commits statutory rape, even though the younger person acquiesces. Then, too. a young
girl's pregnancy might indicate that she has been abused by a parent or caretaker. or that
she was not properly supervised. Failure to supervise one's child is legally defined as
neglect. *0 A parent's approval of a daughter's inappropriate sexual relationship might
also be considered neglect.
For these reasons, the fact that a young girl is pregnant should always raise a
question for providers of whether she has been or is being sexually assaulted. or is
neglected, abused or dependent. ("Dependent" is a legal term that does not imply fault
- Sex and America's Teenagers The Alan Gurtmacher Institute Washington and New York. 1994. at 53
44
on the part of the caretaker. It means having "no parent. guardian. or custodian
responsible for care or supervision or whose parent. guardian, or custodian is unable to
provide for the care or supervision and lacks an appropriate alternative child care
arrangement.") An adolescent, her baby¹⁷² or both might be abused, neglected or
dependent. A provider's suspicion that any of these is true triggers a duty to report.
All providers (in fact, "any person or institution") must report possible abuse,
neglect (that is, mistreatment by a caretaker) or the dependency of a minor. Here is the
process. A provider with a reasonable suspicion that a young patient is abused, neglected
or dependent tells what she or he knows or suspects to the DSS where the minor "resides
or is found."¹ For his or her legal protection, a reporting provider should clearly
document the date and time of the report, the name of the person to whom it was made,
and what information the provider gave.
DSS then moves to protect the minor about whom the report was made and, if
necessary, other children in the home. 174 If DSS opens an investigation. the provider
must cooperate with it. A DSS director or representative has the right to see any
information the director thinks may be relevant to an investigation. Although a patient
might guess where the report came from, DSS does not identify reporters. After an
investigation, DSS must tell the reporter the outcome of its inquiry.
170
G.S. 7B-101(15).
-
G.S. 7B-101(9).
One study's major conclusion was that. "Childbearing at an early age was strongly associated with
infant homicide. particularly if the mother had given birth previously." Overpeck. Mary. et al., "Risk
Factors for Infant Homicide in the United States," 339 New Eng. J. of Med. 1211-1216 (October 22. 1998).
173 G.S. 7B-301.
174
TB-302(b).
175
G.S. 7B-302(e) and TB-303.
176
G.S. 7B-302(a).
1""
G.S. TB-302
45
Sometimes a provider who suspects that a minor patient is being mistreated will
not know who is mistreating her or what the person's relationship is to the patient. In our
opinion. unless providers know that the person who may be harming a minor is not a
parent or caretaker. they should report their knowledge of a situation to the department of
social services. The director of social services then deals with the matter if it is abuse.
neglect or dependency, or if it is not. conveys the information to the district attorney. 178
Reporting Child Abuse and Neglect in North Carolina¹⁷⁹ by Janet Mason is a very
useful source for providers. It explains essential terms such as "reasonable suspicion."
"caretakers," "abuse," and "neglect," describes the reporting process and its possible
resolutions. and offers helpful advice. Mason emphasizes. "if in doubt. make the
report. ...SO
Medical guidelines support legal requirements to report abuse and neglect. The
AMA recommends that every adolescent patient "be asked annually about a history of
emotional, physical, and sexual abuse.' Similarly, the AAP urges providers to "be
sensitive to the possibility of sexual abuse or incest in the young or developmentally
delayed pregnant adolescent.
Only a few crimes must be reported in North Carolina. Treating physicians and
health facilities are required to report illness or injury from firearms, knives or poison or
where "there is grave bodily harm or grave illness if it appears that the wound, injury or
178 G.S. 7B-301.
179
Institute of Government. UNC CH: Chapel Hill. N.C., 1996.
30 Id. at 33
$1 Recommendation 21. GAPS.
$2 AAP. "Counseling the Adolescent about Pregnancy Options." Policy Reference Guide at 180
46
illness resulted from a criminal act of violence" These reports are made to law
enforcement authorities. 183
Since providers are not required to report sexual assaults including statutory rape.
unless they meet the definition above. what a provider should do in these instances is a
hard question and. unfortunately. a common situation. Some providers will wonder
whether any purpose is served if the crime is reported. Despite the state law making 16
the age at which minors can consent to intercourse, there are still perceptions. shared by
some prosecutors. that younger girls are responsible for their sexual behavior. that sex
between minors and older people is not a serious problem. that convictions are unlikely
or that the penalty is too severe. 184 Or, providers may hesitate to raise the subject of
sexual assault because they fear that asking about a girl's partner may drive her away
from medical care. Finally, they may know they could be liable for violating patient
confidentiality by reporting, since reporting sexual assault is not legally required.
On the first point, whether pre- and early-teen sexual activity is truly voluntary.
there is considerable evidence that it often is not. 185 A young female ordinarily has less
power and experience than her partner and, in addition, may have been directly coerced.
A substantial age difference "may make it hard for the young woman to resist [a
partner's] approaches and even more difficult for her to insist that contraceptives be used
to prevent STDs and pregnancy. Judith Musick, who researches teen pregnancy and
133 G.S. 90-21.20.
14 "No convictions under tougher statutory rape law," The News and Observer. Raleigh. NC. November
26. 1997). 3A. Cols. 2-5
185 For example. the U.S. Department of Justice in a survey of 12 states including North Carolina. found
that a majority of all forcible rape victims were minors and that 38% of those minors were under 12 Pierre
Thomas. "Rape of Girls Is Common. Study Finds: Half of All Victims Are Under Age 18." The
Washington Post (June 23. 1994). Al. Col. 1.
.50 Sex and America's Teenagers at 74. See also Landry. David I and Forrest. Jacqueline Darroch. "How
Old Are U.S. Fathers?" 27 Family Planning Perspectives 159-161. 165 (1995). For a general discussion of
47
works with teen mothers. states that. while girls may appear to be eager initiators of sex.
that "is probably not the case for many girls who become mothers in their teens, and it is
surely not the case for those who become pregnant in their very early teens."** In other
research 61% of teen mothers reported at least one coercive sexual experience. Almost
30% reported coercion by a family member and over 50% by a male friend. 46% of the
males involved were more than 10 years older than their partners. 188
Legally, the safest course for providers is to encourage a young patient to end a
criminal relationship and consider reporting the crime herself or telling her parents so
they can report. (Remember that a treating physician who learns of an imminent threat to
a minor patient's life or health must tell her parents.¹⁸⁹) Providers should initiate
discussions about an inappropriate relationship with the young pregnant patient and, if
she is willing, with her parents. Providers can also help by knowing and explaining to
patients and families the criminal law on intercourse with minors. For providers,'
patients' and families' information, then. the following activities are criminal in North
Carolina:
Intercourse between someone 12 or younger and a person at least four years
older is first degree rape, a crime with severe penalties. 190
If one partner is between 13 and 15 and the other is four to six years older.
their intercourse is called statutory rape. Statutory rape means intercourse that
is apparently consensual but with someone too young to consent. It is a
the legal context. see Elstein. Sharon and Davis. Noy. Sexual Relationships Between Adult Males and
Young Teen Girls. Exploring the Legal and Social Responses. ABA Center on Children and the Law 199-
. Op. cit. at 74.
Gershon. Harold P. et al.. "The Prevalence of Coercive Sexual Experience Among Teenage Mothers." 4
I of Interpersonal Violence 204 (June 1989).
G.S. 90-21.4.
G.S. 14-27.2.
48
serious felony. and if the older partner is six or more years older. the penalties
are greater 191
Intercourse "by force and against the will" of one partner, no matter what their
ages. is second degree rape. The force need not be physical; inducing fear can
be enough.¹⁹²
Regardless of age, incest between grandparent and grandchild: parent and
child or stepchild; or brother and sister is a felony,¹⁹³ as is intercourse with a
minor residing in a home where the adult partner has the position of a
parent.¹⁹⁴ (Some of these relationships would also be child abuse and as such
would have to be reported.)
Patient's Reassurance and Education
To repeat and summarize points made above: The youngest pregnant girls
represent a paradox. On the one hand, their condition (pregnancy) is adult in nature. and
their right to deal with it must be respected. On the other, as the AAP reminds
practitioners, the patient is still an early adolescent, 195 a pediatric patient. 196 and entitled
to providers' broad attention and concern, 197 particularly if she becomes a mother. 198
Some pregnant minors do not understand the basic facts of sexual activity or pregnancy,
and providers may help them to reject sexual activity¹⁹⁹ by telling them directly that they
do not have to allow it. Counseling, referring and supporting pregnant adolescents.
191 G.S. 14-27.7A.
192 G.S. 14-27.3.
193 G.S. 14-178.
194 G.S. 14-27.7.
195 The AAP defines adolescence as ages 10 or 12 to 21. "Adolescent Pregnancy," Policy Reference Guide
at 27.
196 AAP. "Age Limits of Pediatrics." Policy Reference Guide at 48.
197 A.A.P. "Adolescent Pregnancy," Policy Reference Guide at 27.
198 AAP. "Care of Adolescent Parents and Their Children." Policy Reference Guide at 94.
49
especially the youngest. 200 is a difficult task for providers. but likely to benefit greatly the
patients and children they may bear 201
Confidentiality
As individuals, providers have divergent views on whether adolescents should
have independent. confidential access to health services. 202 However. health
professionals' organizations support such access. Numerous medical and nursing groups
advise providers to 1) offer adolescents confidential care for sex-related conditions, while
in most cases strongly encouraging parental involvement; 2) breach an adolescent's
confidentiality in extreme circumstances; and 3) make their policies clear from the
beginning to parents and patients. 203 The National Association of Social Workers holds a
similar view. 204
As explained earlier, North Carolina law requires that physicians treating
pregnant minors keep the minor's confidence "unless the situation in the opinion of the
attending physician indicates that notification is essential to the life or health of the
199 Musick at 85.
200 "[I]t IS really the early adolescents who need the most help and counseling [from health providers].
but they are the least likely to report for followup appointments." Hatcher. Sherry Lynn Marcus. "The
Adolescent Experience of Pregnancy and Abortion: A Developmental Analysis." 2 J of Youth and
Adolescence 53-102 (1973) at 72.
201
For the difficulties of working with adolescents and likely gains from offering them services. see
O Leary, Kathleen M., Shore. Milton F. and Wieder. Serena. "Contacting Pregnant Adolescents: Are We
Missing Cues" Social Casework: The Journal of Contemporary Social Work (May 1984) 297-306
202 See. for example, Fleming, Gretchen. et al., "Pediatricians" Views of Access to Health Services for
Adolescents." 15 J. of Adolescent Health 473 (1994).
::
The joint recommendation of the American College of Obstetricians and Gynecologists. American
Academy of Family Physicians. American Academy of Pediatrics. NAACOG-The Organization for
Obstetric. Gynecologic. and Neonatal Nurses. and the National Medical Association is found in AAP,
"Confidentiality in Adolescent Health Care." Policy Reference Guide at 158. See also Confidential Health
Care for Adolescents: A Position Paper of the Society for Adolescent Medicine The AMA's policy IS
more limited. Recommendation 3. GAPS.
Adolescent Pregnancy." Social Work Speaks: NASW Policy Statements 14th Ed.) 1997
50
minor." However, if the adult responsible for the minor contacts the physician, he or she
may give the adult information. 205
Control of A Minor's Records
Although there is no law on this point, the most reasonable assumption is that
whoever consents to treatment controls access to records.
In general, the person who consents to medical care has the right to control access
to records of the care. Since in most circumstances parents consent to children's care,
parents usually control access to children's health records. But, the state law that
encourages providers to offer minors independent access to care for a few conditions
would be meaningless if parents or others could see the records of the care. For that
reason. although North Carolina has no law on the point, we assume that a minor patient
usually has exclusive control over records of her pregnancy or related conditions.
Provider's Liability
Treating minors is legally more complicated than treating adults, but does not seem
to expose providers to substantial additional liability. Except for handling special
consent issues and the required reporting of maltreatment, the usual standards of
medical care apply.
Treating a minor without parental consent
Although there do not seem to be reported North Carolina decisions, the general
rule in law is that a provider will be liable for treating a minor without parental
consent.206 As described above. the main exceptions are that a provider may rely on
consent from someone the parent has appointed, in writing,²⁰⁷ may treat a minor in an
205 G.S. 90-21.4.
206 Lee. Robert E.. North Carolina Family Law. Vol. 3. Sec. 240.2 (1981 and 1998 Supplement). See also.
"Medical Practitioner's Liability for Treatment Given Child Without Parent's Consent." 67 A.L.R. 4th 511
(1996).
207 G.S. 32A-33.
51
emergency, 208 and may accept the minor's consent to her own treatment for certain
conditions. 209 Performing an abortion on a minor "with knowledge or reckless disregard"
of the fact that she is a minor, and without proper consent, is a Class I misdemeanor.²¹
Treating a minor without parental consent negligently
Physicians and other providers under their supervision who treat minors under
one of the exceptions to parental consent are held to the usual standards of medical
treatment. That is, just as with an adult patient, they could be liable if they did not use
methods "commensurate with the exercise of reasonable care and equal to the standards
of medical practice normally employed in [their] community... ..211
Treating a minor without her consent
Treating a minor at a parent's request, but against her will, is a murky area of the
law with very few decisions reported anywhere in the United States. Medical and legal
sources advise against it, however,²¹² and it is possible that a provider could be liable for
forced treatment of an adolescent.
North Carolina law specifically forbids performing an abortion on a minor
without her written consent.
208 G.S. 90-21.1 and -21.3. The former also tries to insulate a physician from liability for not treating [But
could a physician get away w/refusing to help a minor who came to him in an emergency-say ectopic
pregnancy?]
109 G.S. 90-21.5.
210 G.S. 90-21.10.
211 G.S. 90-21.2. See also, G.S. 90-21.4(a).
210 AAP. "Informed Consent. Parental Permission. and Assent in Pediatric Practice (RE9510)." 95
Pediatrics 316 (February 1995): Rozovsky. Faye A., Consent to Treatment A Practical Guide Little.
52
Not reporting abuse. neglect. dependency
Criminal and civil liability could result from not reporting a reasonable suspicion
of child abuse. neglect, or dependency 213 When a state statute does not specify a penalty
for violation. failure to comply is a misdemeanor. At least two people. a psychologist
and a school official, have been prosecuted in North Carolina for failure to report
possible mistreatment of a child. 214
As for civil liability, according to Janet Mason, "[t]hus far, the threat of civil suit
has materialized rarely. There are no appellate court decisions in North Carolina-and
very few nationally-dealing with civil liability for failing to report child abuse, neglect,
or dependency. But that does not mean that a person cannot be civilly liable for failing to
report child abuse in North Carolina. The issue simply has not come before the courts in
this state. Cases from other states and the literature in this area suggest that the potential
for civil liability for failing to report is real" 215
Reporting erroneously
Reporters of abuse, neglect or dependency are protected from liability in most
circumstances, even if their suspicion proves incorrect. The law offers them immunity
because acting on reasonable suspicion, which reporters must do, creates a significant
risk of error. The state immunity statute aims to save people from legal consequences for
honest error. A reporter's good faith is presumed: that is. in order to recover from a
reporter the other party must prove that the reporter acted from malice or in bad faith.
Brown & Co. Boston 1990. 358-359; and Holder. Angela R., Legal Issues in Pediatrics and Adolescent
Medicine (2d Ed.) Yale Univ. Press. New Haven 1985. 290-293 (abortion issue only).
213 G.S. 7B-301.
214 Mason. Janet, Reporting Child Abuse and Neglect in North Carolina. Institute of Government. UNC
CH. Chapel Hill. NC 1996. at 43. notes + and 5.
215 Id. at 40.
53
Unless bad motives are established. anyone who reports. cooperates in a DSS
investigation. testifies or otherwise participates in a statutory process for protecting
minors is immune from civil or criminal liability. 216
Performing an abortion on a minor who presents fraudulent parental consent
There is one North Carolina case on point. A physician performed an abortion on
a girl who forged a consenting note from her mother. Six months later the girl and her
parents sued the physician for assault and battery and infliction of emotional distress for
performing an abortion on her without valid consent. The trial court dismissed their
complaint and the court of appeals agreed that the doctor was entitled to rely on the
patient's statement that her mother had written the note. The court found that the parental
consent law "contains no requirement. express or implied. that the physician conduct an
investigation into the circumstances of a purported written parental consent for an
abortion to determine the validity of the writing."2¹
Financial Responsibility for A Minor's Medical Care
Payment for pregnant adolescents' care is a major concern for them and providers.
State or federal programs often cover prenatal care and delivery, contraception.
STD treatment, mother and child nutrition and other needs, but there are few
sources of payment for minors' abortions. Providers whose billing practices do not
insure minors' confidentiality should let them know before treatment begins.
It is hard to be sure that a minor patient will be legally responsible for her own
bill. and providers should not assume it. English. and then state courts including North
Carolina's. long ago developed theories on this issue. 218 The basic rules are, first, that
116 G.S. TB-309
::
Jackson V A Woman's Choice. Inc., 130 N.C. App. 590 (1998).
218 For a general discussion. see Hodson. John D., "Infant's Liability for Medical. Dental. or Hospital
Services." 53 A.L 1th 1249 (1998). Significant North Carolina cases include Freeman V. Bridger. 49
N.C. 1 (1856): Cole V. Wagner. 197 N.C. 692. 150 S.E. 339 (1929): Bitting V. Goss. 203 N.C. 424. 166
S.E. 302: In re Peacock. 261 N.C. 749. 136 2d 91 (1964): Lane V. Aema Casualty & Surety Co. 48
NC App. 634. 269 S.E 2d 711 (1980): and Rhodes. Inc. V Morrow 937 F Supp 1202 (M.D NC, 1996).
54
parents (or another party responsible for the minor) must supply or pay others to supply
the necessities of life for a minor, and medical care is a necessity. Second. those who
provide necessities to a minor cannot collect for their services unless they contract with
the responsible adult. That rule is meant to prevent minors being taken advantage of,
their families from unknowingly incurring debt, and strangers from making decisions for
the minor that properly belong to a parent.
For other good reasons, an exception to these rules developed. which can be
particularly useful when a minor receives medical services that a parent does not know
about. To encourage providers to help minors who are ill or injured, the law sometimes
makes minors themselves responsible to providers. In North Carolina minors have been
liable for a bill when the parent was unable or unwilling to pay it, or simply because the
minor had a source of payment at his command--a damage award for an injury, 219 for
instance. or insurance coverage. 220
Although minors may not be able or legally required to pay for care themselves,
they may qualify for assistance. For pregnant minors, the regular Medicaid program and
Medicaid's "Baby Love" program²²¹ pay for prenatal care. labor and delivery, childbirth
and parenting classes, maternity care coordination, nutrition therapy and postpartum
home visits. Any minor on Medicaid ("Health Check") or enrolled in the Child Health
Insurance Program ("Health Choice") in North Carolina has contraceptive and STD
treatment coverage. Under state law. any person is entitled to STD diagnosis and
219 In re Peacock. 261 N.C. 749, 136 S.E.2d 91 (1964).
220 Rhodes, Inc. V. Morrow, 937 F.Supp. 1202 (M.D.N.C. 1996)
221 Regular Medicaid enrollees are given a blue card and "Baby Love" enrollees. a pink one. The colors
indicate financial eligibility at different income levels and coverage for specific services.
222 Health Choice enrolls North Carolina children with family incomes just above that of Medicaid-eligible
families.
55
treatment without charge at a local health department. 223 Health Choice does not cover
pregnancy-related care or abortion. However. if minors in Health Choice become
pregnant, most qualify for Medicaid since only an adolescent's income, plus that of the
father of the pregnancy if he lives with her. are counted. Medicaid covers abortion. but
only in the case of rape or incest or when the pregnant woman's life is endangered. The
program paid for 20 abortions in 1998. 224 For fuller descriptions of these programs, see
Pam Silberman. North Carolina Programs Serving Young Children and Their Families
North Carolina Institute of Medicine: Chapel Hill, NC. 1999.
Some private insurance policies pay for dependents' prenatal care and abortions:
most cover STD treatment and contraception.
The billing processes of government or private insurance may or may not
maintain a minor patient's confidentiality. For instance, Medicaid does not notify its
enrollees about payments Medicaid has made for service to their dependents. Health
Choice enrollees do receive such notices. As a result, minors could use Medicaid, but not
Health Choice benefits without their parents becoming aware that the minor received a
medical service. 225 One medical association, ACOG. draws connections among minors'
underutilization of health care, their concern about confidentiality. and the frequent loss
of minors' confidentiality through billing procedures." 226 Researchers report similar
findings.** ACOG correctly notes that some minors, in order to maintain confidentiality.
may prefer to pay for tests and treatment themselves without parental involvement or to
E
G.S. 130A-144(e).
124 Information in this paragraph is based on correspondence with Lynda C. Dixon. State "Baby Love"
Program Coordinator. N.C. Department of Health and Human Services. Division of Medical Assistance
Raleigh. North Carolina. March. 2000.
225
Id.
125
ACOG Educational Bulletin: "Confidentiality in Adolescent Health Care." No. 249. August 1998.
56
use only providers who can offer confidential care. Providers' and health facilities'
practices. including billing practices, should be explained to minor patients so they can
make these choices. and minors should be referred for confidential care if it is available
in the community.
Emancipated minors are adults for purposes of financial responsibility for
services. 228 Remember, though, that very few North Carolina minors are emancipated.
When parents refuse consent for treatment and a judge consents in their place, he
or she may order the parent or "other responsible parties" to pay. If the parent cannot, the
judge may order the county to do so.
Noncitizens who do not have legal immigration status in the United States are not
eligible for Health Choice or for Medicaid (except for emergency care). However,
hospitals must treat anyone with an emergency condition and any woman in active labor.
or lose the right to Medicare and Medicaid reimbursement. 230 In addition. federal
agencies interpret the Welfare Reform Act²³¹ to require providers to offer the Women's.
Infants and Children's supplementary feeding program (WIC) and federally funded
prenatal care and family planning services regardless of recipients' ability to pay or
citizenship status. 232
== Ford. Carol A.. Bearman. Peter S., and Moody. James, "Foregone Health Care Among Adolescents."
282 JAMA 2227-2234 (December 15. 1999).
229 The emancipation decree gives a minor "the same right to make contracts and to transact business as if
[the minor] were an adult." G.S. 7B-3507.
129 G.S. 7B-3600.
::0 The Emergency Medical Treatment and Active Labor Act. colloquially known as the "anti-dumping"
law. 42 U.S.C. Section 1395dd(a). et seq.
231
Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193. 110
Stat. 2105.
32 For definition of categories of foreigners in the United States and the government benefits for which
they qualify. see articles by Jill D. Moore in Popular Government Institute of Government. UNC CH
Chapel Hill NC. Fall 1999. 18-37: "ABCs of Immigration Law and Policy." "Migrants Access to Public
Benefits." and "A Guide to Immigrants' Eligibility for Public Benefits in North Carolina."
in