BLBK075-Altcheck December 6, 2008 13:33
44 CHAPTER 44
Minors’ Rights to Reproductive
Healthcare and Privacy
Rhea G. Friedman
New York State Family Court Judge (retired), New York, NY, USA
Minors’ rights to reproductive healthcare vary from juris-
diction to jurisdiction; the area is often subject to intense
controversy and the law is in constant flux. These rights
derive from federal, state, local public health, and ed-
ucational laws; from local health regulations; and from
constantly changing court decisions, up to and including
decisions by the US Supreme Court. In countries covered
by the European Convention on Human Rights, the rights
and obligations set forth by Article 8, for example, may
also obtain. The topic is closely linked with privacy law.
It would be impossible to describe the current state of the
law in a volume several times the size of this one, and
moreover such a volume would have to be updated on
a monthly, perhaps a weekly, basis. Instead, this chapter
constructs a framework within which the changing law
can be understood.
A major reason why adolescents, more than any other
age group, do not access needed healthcare is their fear that
the medical providers will tell their parents or guardians.
Recognizing how vital medical care is, the law does al-
low minors the right to obtain certain medical treat-
ment, including reproductive healthcare, without their
parents’ involvement or even their parents’ knowledge.
In the overwhelming majority of cases (incest being an
obvious exception), healthcare professionals should en-
courage youngsters to communicate with their parents
or, if impossible, with other responsible adults such as
family members or social workers, rather than confront
these problems on their own. If this proves impossible,
Pediatric, Adolescent, & Young Adult Gynecology
Edited by Albert Altchek and Liane Deligdisch
© 2009 Blackwell Publishing Ltd. ISBN: 978-1-405-15347-8
the priority is for the minor to obtain healthcare even
without adult involvement rather than no healthcare at
all. Thus, the law has carved out exceptions to the general
rule that the consent of a parent or guardian or custodian
is necessary for minors to receive medical treatment.
This chapter addresses minors’ rights to consent to
certain types of healthcare based upon two factors:
r legal status – including adolescents who are married,
pregnant or who are themselves parents
r type of procedure: sexually transmitted diseases (STD)
testing or treatment; HIV/AIDS testing or treatment; con-
traception; and abortion.
The reader should keep in mind that every jurisdic-
tion has a set of complex laws and regulations address-
ing the areas of minors’ rights and healthcare providers’
obligations in the areas of sexual offense victims, sub-
stance abuse, and mental health treatment. These areas
are beyond the scope of this chapter, but there may be
overlapping issues. Other topics beyond the scope of this
chapter include additional problems faced by minors in
foster care when they seek confidential treatment, as well
as the interplay of health insurance, public and private,
with minors’ rights to privacy.
Consent
The place to begin any inquiry in this area is with the issue
of consent by minors (in New York State, for purposes of
medical treatment, a minor is a person under 18). Con-
sent means informed and willing consent. Consent means
a knowing and a voluntary agreement to a proposed med-
ical treatment. At a minimum, in order to establish that
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454
the provider did not adequately inform the patient, the
patient must demonstrate that (1) the provider failed to
disclose alternatives to treatment and failed reasonably to
alert the patient to foreseeable risks and benefits involved
that the similarly situated reasonable provider would have
disclosed in terms permitting the patient to make a knowl-
edgeable assessment; (2) a “reasonably prudent person”
in the patient’s position would not have undergone the
treatment or procedure if fully informed; and (3) the lack
of informed consent was a proximate cause of the injury
or condition for which the patient seeks recovery (PHL
2805-d).
If you, as healthcare provider, think that your patient,
the minor, is not capable of consenting, it is irrelevant
that she falls within the appropriate status (e.g. married)
or that the appropriate medical service (e.g. treatment
related to her pregnancy) is at issue. If, in your opinion,
she is incapable of giving consent, do not perform the
procedure, do not offer the treatment. You may be wary
because she appears limited or under the influence of
drugs or alcohol, or coerced. Whether that minor is giving
you a knowing, willing and informed consent is your
judgment call.
The first basis for the rights of minors to consent to
medical services and treatments derives from their status.
This analytic framework is based on New York State law.
New York law is in the majority rule for most jurisdic-
tions; practitioners must check the law in their jurisdic-
tion. States may not accord their citizens fewer rights than
those provided by the United States Supreme Court.
The following categories of minors can always consent
to healthcare (caveat: remember that the consent must be
informed and willing). Married minors and minors who
are parents can always consent to healthcare; minors who
are parents can also consent to healthcare for their chil-
dren; pregnant minors can always consent to healthcare
for services related to pregnancy, a “right” with its own
set of issues.
There are recurring references in the literature to
“emancipated” and “mature” minors as also being able
to consent to reproductive healthcare (e.g. American
Academy of Pediatrics. Policy statement: informed con-
sent, parental permission, and assent in pediatric practice
(RE9510). Pediatrics 1995;314:95, advising physicians to
seek informed consent directly from patients “in cases
involving emancipated or mature minors with adequate
decision-making capacity, or when otherwise permitted
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by law. . . .”). There is a paucity of case law in all jurisdic-
tions addressing the terms “emancipated” and “mature”
minors. These cases deal primarily with emancipation in
terms of parental child support obligations (where the law
defines minors as under 21). There are almost no written
court orders which issue declaring such a status. Moreover,
very few cases have relied on this status as one allowing mi-
nors to consent to healthcare and this case law has not de-
veloped in any meaningful way since the Academy’s 1995
policy statement. A note of caution is therefore in order
to the physician or provider relying solely on the minor’s
consent based on her status as mature or emancipated.
The second basis for the right of minors to consent to
medical treatments and services derives from the type of
medical procedure.
Sexually transmitted diseases
Parental consent is unnecessary in New York State in order
for a minor to obtain testing or treatment for STDs (PHL
2504). Confidentiality is mandated unless the minor con-
sents to release of testing and results. There are reporting
requirements (PHL 2101(1)) to the district office where
the STD occurred. There are additional notification re-
quirements by the patient or by the Department of Health
to partners of exposure to STDs. Reporting requirements
for STDs in the communicable disease category (syphilis,
chlamydia, and gonorrhea) offer greater anonymity for
patients than do reporting requirements for other com-
municable diseases, as the regulation allows reporting of
the patient’s initials only unless the full name and address
is specifically requested by the authorized public health of-
ficer. Additional reporting requirements for county health
clinics require them to send information about all patients
diagnosed with and/or treated for STDs to the New York
State Department of Health. However, this information,
apparently, may be in aggregate form with no specific
patient-identifying information. Reporting requirements
must be checked jurisdiction by jurisdiction.
HIV/AIDS
Regarding HIV/AIDS testing or treatment (PHL 2780-
81), confidentiality is the keyword. There are extensive
and strict statutory protections from disclosure. Minors
may consent, or refuse to consent, to HIV testing except
for mandatory testing of all newborns and, by extension,
mothers. In New York, minors appear to have the right
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Minors’ Rights to Reproductive Healthcare and Privacy
to consent to treatment, although the statute should be
clearer.
Confidential HIV/AIDS-related information is permit-
ted only in very limited circumstances (PHL 2782). These
circumstances include certain third-party reimbursers,
persons complying with court orders, and correctional
facilities and their employees under some circumstances.
In general, once certain authorized facilities and individu-
als have received such information, they are not permitted
to redisclose it. The prohibition against disclosure applies
to physicians, other health professionals, health facilities
and social workers, not to those who obtain this infor-
mation in nonprofessional capacities, although this is a
potential case law area for civil breach of privacy suits.
Contraception
Minors’ right to consent to contraception applies to both
contraceptive services and prescriptions, including emer-
gency contraception. According to the New York State De-
partment of Health protocol, a minor who is a victim of a
sexual assault should be offered emergency contraception
where medically appropriate. Federal programs offering
contraception services are governed by rules guaranteeing
minors’ rights. Local Department of Education regula-
tions also must be referenced. Minors in foster care enjoy
the same rights as minors living at home.
In the United States, the Federal Family Educational
Rights and Privacy Act (FERPA)(20 USCA 1232g)(2001)
is an important law in this area. Among other provisions,
FERPA denies funds to schools that refuse to allow par-
ents of students under 18 access to student records which
contain information about a student and are kept by or
on behalf of the school. Thus, “education records” may be
subject to parental disclosure. If a school provides services
such as contraceptives to a student, commentators have
pointed out that records of such confidential health infor-
mation (this may also include counseling records) should
be kept separate from educational records available to a
parent. This would arguably go a long way towards obviat-
ing the conflict between FERPA’s requirement of parental
disclosure and state confidentiality laws.
Nothing in the law requires a minor seeking confiden-
tial reproductive healthcare or pregnancy or STD services
to reveal the identity of their partners. Of course, if the
minor does reveal that the sex partner is a family member,
that will trigger mandated reporting requirements.
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Abortion
Abortion has been legal in New York State since 1970,
three years before the lead US Supreme Court case of Roe
v. Wade. States may give their citizens greater rights than
does the Supreme Court. Again, the laws for the particular
jurisdiction one is in need to be consulted. In New York, a
minor can obtain an abortion without parental or spousal
consent or notification. In a long line of cases beginning
with Belloti v. Baird (1979), the United States Supreme
Court has ruled that parental consent requirements for
abortion are not constitutional unless they provide a judi-
cial bypass procedure or an opportunity for a court order.
This procedure must be both confidential and expedi-
tious. There is no provision for such a bypass procedure
in New York or in the majority of states. While there is
no New York law which explicitly permits abortions for
minors, they may get them without parental consent. The
literature tells us that the majority of minors do involve
at least one parent in this decision, and this, unless inap-
propriate, they should be encouraged to do by healthcare
professionals. There is no waiting period requirement in
New York State. Hospitals need not allow abortions to
be performed, but must provide referral information to a
patient as to where an abortion can be obtained (10 NY-
CRR 905.10(a)). Since most minors have incomes below
the poverty level, they would be eligible for payment un-
der a variety of government insurance programs for any
abortion.
Release of records to parents or others of abortions
performed on minors is prohibited, without the consent
of the minor.
Protecting minors’ health
information privacy
A healthcare provider who discloses confidential infor-
mation without patient authorization or court order or
statutory authority may be subject to professional as well
as legal sanctions. Such a disclosure is deemed profes-
sional misconduct (NYCRR 29.1(8); see also NY Educ.
L. 6509(9)). This duty to preserve confidentiality exists if
there is a provider–patient relationship; if the informa-
tion was obtained in the course of treatment; and if this
information was necessary for treatment.
Bear in mind that when seeking to protect minors’
health information, it is the minor who exercises rights
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456
of the individual over the health information if: (1) the
minor consented and no other consent is necessary, (2) a
court or another authorized person consented or (3) the
parent assented to confidentiality.
Regarding parental access to minors’ health informa-
tion, if the minor exercises the rights of the individual over
the health information: (1) parents are not allowed access
unless state or other law explicitly requires or permits
parental notification or access; (2) if state law is silent, the
provider has discretion to grant parental access, if the par-
ent so requests; and (3) the provider always has discretion
to deny parental access if the minor’s safety is at stake.
Confidentiality issues are impacted by the Health Insur-
ance Portability and Accountability Act (HIPAA). HIPAA
is a complex statute and already has an extensive litigation
history and commentaries. A doctor must be able to rec-
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ognize a potential HIPAA issue and know when to consult
with counsel.
Conclusion
In relation to legal aspects of reproductive healthcare for
minors, parental (and spousal) consent is not needed for
testing and treatment of minors for STDs; for HIV/AIDS;
for contraception services and prescriptions; or for abor-
tions. There is no waiting period required in New York
State for abortions. Confidentiality must be strictly pre-
served. Some minors can always consent to healthcare
based on their legal status. Use your best informed med-
ical judgment about whether the consent proffered is in-
formed, knowing and voluntary.