Minor Rights and Wrongs

In re E.G., 549 N.E.2d 322 (1989).

Id. at 327–28.

Id. at 324.

Telephone interview with Diane Geraghty, Dec. 1989.

See Belcher v. Charleston Area Medical Center, 422 S.E.2d 827 (1992) (holding that failure to instruct jury as to mature minor exception to parental consent constituted reversible error); O.G. v. Baum, 790 S.W.2d (1990) (holding that appointment of conservator to consent to sixteen-year-old minor's blood transfusion was not an abuse of discretion); In the Matter of Long Island Jewish Medical Center, 557 N.Y.S.2d 239 (1990) (holding that patient who was a few weeks shy of his eighteenth birthday was not a “mature” minor and thus court had authority to order life-saving treatment); and Caldwell v. Bechtol, 724 S.W.2d 739 (Tenn. 1987) (holding that consent to spinal manipulation by a person of seventeen years and seven months could constitute a defense to a claim of battery if the minor had the ability to appreciate the nature, risks, and consequences of the medical treatment).

Long Island Jewish, 557 N.Y.S.2d at 239.

Id. at 727.

See Blustein J. , “The Family in Medical Decisionmaking,” Hastings Center Report. 23, no. 3 (1993): 6–13.

The following account of Benny Agrelo's fight to refuse treatment is drawn heavily from popular media coverage, like Primetime Live's personal interview with Agrelo. Primetime Live (ABC television broadcast, July 7, 1994); “Judge Lets Boy Give Up Life Prolonging Medicine,” Chicago Tribune, June 21, 1994, at 3; “I Don't Want to Live Like That,” Miami Herald, June 13, 1994, A1; and “Teen Not Trying to Commit Suicide,” St. Petersburg Times, June 13, 1994, at 3B.

“Runaway Cancer Patient Goes Home,” Chicago Tribune, Nov. 22, 1994, at 4.

Hall G.S. , Adolescence: Its Psychology and Its Relations to Physiology, Anthropology, Sociology, Sex, Crime, Religion and Education (New York: D. Appleton, 1905).

Miller P.H. , “Theories of Adolescent Development,” in Danner F. Worell J. , eds., The Adolescent as Decisionmaker: Applications to Development and Education (San Diego: Academic Press, 1989): 13–46.

Mead M. , Coming of Age in Samoa (New York: Blue Ribbon Books, 1927).

Zimring F. , The Changing Legal World of Adolescence (New York: Free Press, 1982): 36–40.

Zaman v. Schultz, 19 Pa. D. & C. 309 (1933); see also Holder A.R. , Legal Issues in Pediatrics and Adolescent Medicine (New Haven: Yale University Press, 1986): At 124–25.

Id. The policy underlying this rule is reflected Chief Justice Burger's opinion in Parham v. J.R., 442 U.S. 584, 602–03 (1979).

Id. at 602–03.

Luka v. Lowrie, 136 N.W. 1106 (Mich. 1912); and Sullivan v. Montgomery, 279 N.Y.S. 575 (1935).

Holder , supra note 17, at 125–26.

Id. at 139.

See, for example, Bach v. Long Island Jewish Hospital, 267 N.Y.S.2d 289 (App. Div. 1966); and Swenson v. Swenson, 227 S.W.2d 103 (Mo. Ct. App. 1950).

Ewald L.S. , “Medical Decision-Making for Children: An Analysis of Competing Interests,” St. Louis University Law Journal, 25 (1982): At 689. See also Holder , supra note 17, at 130.

See Ewald , supra note 24.

See, for example, III. Ann. Stat. ch. 410, para. 210/4 (Smith-Hurd 1994).

See, for example, Mich. Comp. Laws § 330.1498(d)(3) (1992).

Carey v. Population Services, International, 431 U.S. 678 (1977).

Sec Lacey v. Laird, 139 N.E.2d 25 (Ohio 1956); Younts v. St. Francis Hospital, 469 P.2d 330 (Kan. 1970); and Bach v. Long Island Jewish Hospital, 267 N.Y.S.2d 289 (App. Div. 1966).

Walter Wadlington identified the following factors that are common to case law permitting a minor to consent to treatment:

The treatment was undertaken for the benefit of the minor rather than a third party.

The particular minor was near majority (or at least in the range of 15 years of age upward) and was considered to have sufficient mental capacity to understand fully the nature and importance of the medical steps proposed.

Wadlington W. , “Minors and Health Care: The Age of Consent,” Osgood Hall Law Journal, 11 (1973): At 115.

The Carey opinion followed the recommendations of many professional associations, including the American Medical Association and the American Bar American. For a list of those who advocated permitting minors access to contraception as a means of reducing teenage pregnancy, see 1968 Report of the Family Law Section of the American Bar Association, “Report, Family Planning and the Law,” Family Law Quarterly, 1 (1967): At 103.

See, for example, City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983); Ohio v. Akron Center for Reproductive Health, Inc., 497 U.S. 502 (1990); Hodgson et al., v. Minn el al., 497 U.S. 417 (1990); and Planned Parenthood of S.E. Pennsylvania v. Casey, SOS U.S. 833 (1992). For an annotated discussion of this line of cases, see Tribe L. , American Constitutional Law (New York: Foundation Press, 2nd ed., 1996): At 1344–45.

Belotti II, 443 U.S. 622, 643 (1979).

Id. at 630.

Note, however, that some jurisdictions, located in socially conservative districts, tend to deny minors' requests with some frequency. See generally, Daly E. , “Reconsidering Abortion Law: Liberty, Equality, and the New Rhetoric of Planned Parenthood v. Casey,” American University Law Review, 45 (1995): At 77. Daly notes that Alabama has a considerable number of appellate court decisions involving minors who were not permitted to obtain abortions without parental consent. See, for example, In re Anonymous, 597 So. 2d 709 (Ala. Civ. App. 1992).

Belotti v. Baird, 393 F.Supp. 847, at 856 (D. Mass. 1975).

Sterilization of a Mentally Competent Individual Age 21 or Older, 42 C.F.R. § 50.203 (1996).

Peck v. Califano, 454 F. Supp. 484 (D.C. Utah 1977); and Voe v. Califano, 434 F. Supp. 1058 (D.C. Conn. 1977).

The outcome-determinative nature of competency findings is not unique to adolescents. Indeed, it has been identified and discussed in the context of refusals of medical treatment, generally. See Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990) (holding that clear and convincing evidence of an incompetent's wishes to refuse life-sustaining treatment was necessary to honor such a wish); Washington v. Harper, 494 U.S. 210 (1990) (holding that the state may forcibly medicate a mentally ill prison inmate if he is a danger to himself or others and it is in his medical interest to do so); and Michels R. , “The Right to Refuse Treatment: Ethical Issues,” Hospital Community Psychiatry, 32, no. 4 (1981): 251–55.

See, for example, Ingersoll G.M. , “Cognitive Maturity, Stressful Events, and Metabolic Control Among Diabetic Adolescents,” in Susman E.J. , eds., Emotion, Cognition, Health, and Development in Children and Adolescents (Hillsdale: Erlbaum, 1992): 121–32.

Parham V.J.R. , 442 U.S. 584, 602–03 (1979).

See Prince v. Massachusetts, 321 U.S. 158 (1979) (distinguishing a parental decision which is made for herself and a parental decision which is made for her child); and State v. Perricone, 181 A.2d 751 (N.J. 1962) (granting hospital permission to administer a blood transfusion to a critically ill infant despite parental objections).

Sher E.J. , “Choosing for Children: Adjudicating Medical Care Disputes Between Parents and the State,” New York University Law Review, 58 (1983): At 161–62.

Irwin C. Millstein S.G. , “Risk-Taking Behaviors and Biopsychosocial Development During Adolescence,” in Susman E.J. , eds., Emotion, Cognition, Health, and Development in Children and Adolescents (Hillsdale: Erlbaum, 1992): 75–102. See also Battle C.U. , “Ethical and Developmental Considerations in Caring for Hospitalized Adolescents,” Journal of Adolescent Health Care, 10 (1989): 479–89.

Battle , supra note 44, at 480.

Blustein , supra note 9, at 6.

Hardwig J. , “What About the Family?,” Hastings Center Report, 20, no. 2 (1990): At 5.

Nelson J.L. , “Taking Families Seriously,” Hastings Center Report, 22, no. 4 (1992): At 8.

Id. at 9.

Moreno J.D. , “Treating the Adolescent Patient: An Ethical Analysis,” Journal of Adolescent Health Care, 10 (1989): At 456.

Offer D. Schonert-Reichl K.A. , “Debunking the Myths of Adolescence: Findings from Recent Research,” Journal of the American Medical Academy of Child Adolescent Psychiatry, 31 (1992): At 1003; Battle , supra note 44, at 479; McAnarney E.R. , “Adolescent Medicine: Growth of a Discipline,” Pediatrics, 82 (1988): 270–72; and Petersen A. , “Adolescent Development,” Annual Review of Psychology, 39 (1988): 583–607. Significant research on adolescence is a recent development in that the medical school specialty originated in the 1980s, as did the two or three journals that deal specifically with adolescence.

Miller , supra note 13, at 15.

Irwin Millstein , supra note 44, at 91.

Sec, for example, Lantos J.D. Miles S.H. , “Autonomy in Adolescent Decisionmaking,” Journal of Adolescent Health Care, 10 (1989): 460–66; Kohrman A. , “Guidelines on Forgoing Life Sustaining Medical Treatment,” Pediatrics, 93 (1994): At 535; and Battle , supra note 44, at 484.

Irwin Millstein , supra note 44, at 91.

See generally, Petersen , supra note 51. See also Piaget J. , The Growth of Logical Thinking from Childhood to Adolescence (New York: Basic Books, 1958).

Battle , supra note 44, at 481.

Id. “In addition to experiencing the usual stresses related to illness and disability, the adolescent patient is also experiencing the transition through the developmental turmoil of this stage of life.” This is compounded because the disease itself hinders the usual pattern of development for the adolescent.

Korsch B.M. , “Non-Compliance in Children with Renal Transplants,” Pediatrics, 61 (1978): At 874.

Kruse W. , “Patterns of Drug Compliance with Medications to be Taken Once and Twice Daily Assessed by Continuous Electronic Monitoring of Primary Care,” International Journal of Clinical Pharmacology Then, 32 (1994): 452–57; and Evans L. Spelman M. , “The Problem of Non-Compliance with Drug Therapy,” Drugs, 25, no. 1 (1983): 63–76. These studies indicate that about half of all patients who receive medication from their donor do not take the drug or fail to take it as prescribed; even more will stop treatment as soon as they feel better.

Hobbs N. , Chronically Ill Children and Their Families (San Francisco: Jossey-Bass, 1985): At 72. See also Korsch , supra note 59, at 872–75. This study of fifty adolescents with cancer who had undergone a renal transplant showed that fourteen adolescents interrupted their medication schedule at some point during treatment. Twelve of the fourteen were girls. They did so despite being advised about and understanding the importance of the medication. The reasons the adolescents gave for their refusal to comply with their medicinal regimen ranged from cosmetic concerns and guilt to a resentment of dependence on treatment and the medical establishment and a desire to “fool” the doctors, the system, and their parents.

“Federal Policy for the Protection of Human Subjects: Subpart D—Additional DHHS Protections for Children Involved as Subjects of Research,” Fed. Reg. 48,9818 (Mar. 8, 1983); and Fed. Reg. 55,28032 (June 18, 1991).

Sigman G. Gordon E.F. , “Ethical Issues in Research on Adolescents,” Adolescent Medicine: State of the Art Reviews, 5 (1994): At 503. “Evidence indicates that adolescents have been excluded from necessary research.” AIDS research is one area of research where adolescents were expressly excluded although they are at special risk for contracting HIV

Id. (citing Leiken S.L. , “An Ethical Issue in Biomedical Research: The Involvement of Minors in Informed and Third Party Consent,” Clinical Research, 31 (1983): 34–40). “There is no reason why teenagers 15 years and older should not participate in the decision-making concerning research, independent of their parents.” This conclusion is supported by empirical research. See Grisso T. Vierlig L. , “Minors Consent to Treatment: A Developmental Perspective,” Professional Psychology, Aug. (1978): 412–26; and Weithorn L.A. , “Children's Capacities to Decide About Participation in Research,” IRB: A Review of Human Subjects Research, 5, no. 2 (1983): 1–5.

Sigman Gordon , supra note 64, at 501.