Children’s Health in a Legal Framework

The interdisciplinary periodical Future of Children has dedicated an issue to children’s health policy. This contribution to the issue maps the legal landscape influencing policy choices. The authors demonstrate that in the U.S. legal system, parents have robust rights, grounded in the Constitution, to make decisions concerning their children’s health and medical treatment. Following from its commitment to parental rights, the system typically assumes the interests of parents and children are aligned, even when that assumption seems questionable. Thus, for example, parents who would limit their children’s access to health care on the basis of the parents’ religious belief have considerable latitude to do so, unless the child’s life is imminently threatened. There are some exceptions to this legal regime. Adolescents have the right to obtain some health services independently; in these contexts, social welfare needs such as pregnancy prevention trump parental rights. Minors also have access to abortion (although this right is more restricted than for adults). Moreover, the state has the power to intervene when parents place their children’s health at risk through abuse or neglect. A hallmark feature of the legal regime based on parental rights is that the state has no affirmative obligation to help parents care for their children’s health needs. This libertarian framing of the family-state relationship has profound implications for the development of public policy. To the extent the state provides support for families and children, it is doing so as a matter of policy choice (as with Medicaid and the Children’s Health Insurance Program) and not enforceable legal obligation. The importance of family autonomy thus results in a weak conception of shared responsibility for children. The framework also means that the state often takes a reactive approach to child wellbeing, intervening primarily when families have broken down or parents have seriously defaulted on their duties. Appreciation of the legal framework underscores the need to develop political support for any initiative to improve health services for children. Often, as this article shows, the state intervenes to promote children’s health only in response to compelling social welfare needs such as crime or disease prevention, or to crises in which parents abuse their children or fail to provide adequate care

Social Norms and the Legal Regulation of Marriage

Americans have interesting and somewhat puzzling attitudes about the state\u27s role in defining and enforcing family obligations. Most people view lasting marriage as an important part of their life plans and take the commitment of marriage very seriously. Yet any legal initiative designed to reinforce that commitment generates controversy and is viewed with suspicion in many quarters. For example, covenant marriage statutes, which offer couples entering marriage the option of undertaking a modest marital commitment, are seen by many observers as coercive and regressive measures rather than ameliorating reforms. The law tends to reflect – and perhaps contributes to – this wariness about legal commitment in marriage. No-fault divorce law signals that marriage is a transitory commitment, one that is easily set aside. Moreover, there is continuing reluctance to permit spouses to use private agreements to reinforce their marital commitment. Few courts, for example, would enforce a premarital agreement incorporating covenant marriage terms. In the business context, in contrast, legal enforcement of reciprocal promises is routine and uncontroversial. It is well understood that the availability of legal enforcement expands the freedom of contracting parties by offering them the option of a binding commitment. Contract promotes cooperation by reinforcing informal social norms of reciprocity and discouraging opportunistic behavior. Thus, it protects (and encourages) investment in the relationship to the mutual benefit of the contracting parties. But even though the metaphor of marriage as a contract is well established, many people shy away from applying these lessons to marriage. At the same time, a divorce rate of fifty percent suggests that informal norms are often not successful in sustaining cooperation in marriage. As Russell Hardin put it, [I]f contracts become as shaky as marriage, then our society will be in danger of collapse. Contracts are not as unstable as marriage, in part because the parties understand that the commitment will be legally enforced. Why then is legal commitment associated with choice in contract, but with coercion in marriage

Children's Preference in Adjudicated Custody Decisions

Part I of this Article examines the trend toward recognizing children's custody preferences. It describes the related debate over whether the child should have a decisional role and, if so, how evidence should be elicited. Part II describes the findings of a study of attitudes and practices of judges who decide custody cases in Virginia. The study was designed to determine whether children's preferences counted in the judicial decision and by what means evidence of these preferences was elicited. In Part III we analyze the findings of the Virginia study and suggest implications for legal policy. We conclude that a short, private judicial interview directed solely at eliciting the preference of the adolescent child who wants to have a voice in the decision represents the optimal accommodation of the conflicting interests of parents and children in custody determinations. We further argue that the implicit legal rule favoring the custodial choice of adolescent children should be adopted as a presumption. The "adolescent preference" rule is consistent with developmental knowledge about adolescence and with the legal trend toward recognition of adolescent autonomy in other settings. Moreover, such a rule encourages private ordering and lends greater certainty to custody decision making for a significant category of cases. In Part IV, we examine the basis of the "adolescent preference" rule and suggest that it is derived from a modern social norm supporting a voice for teenagers in important matters affecting their lives. In general, social norms and customs regarding family roles tend to play a critical role in custody decisions and policies. We suggest that the precision or generality of custody decision rules is positively (and perhaps normatively) linked to the extent of the social consensus about family roles in marriage and divorce. Attending to the function of social norms in custody law may offer a valuable perspective for legal policy

Marriage, Cohabitation, and Collective Responsibility for Dependency

Marriage has fallen on hard times. Although most Americans say that a lasting marriage is an important part of their life plans, the institution no longer enjoys its former exclusive status as the core family form. This is so largely because social norms that regulate family life and women\u27s social roles have changed. A century (or even a couple of generations) ago, marriage was a stable economic and social union that, for the most part, lasted for the joint lives of the spouses. It was the only option for a socially sanctioned intimate relationship and was the setting in which most children were raised. Today, when about 40 percent of marriages end in divorce, marriage is a less stable relationship than it once was. It is also less popular; many couples choose to live in informal unions instead of marriage, and many children are raised by unmarried mothers, other family members, or by unmarried heterosexual or gay couples. These changes pose a challenge to foundational policies of family law. Formal marriage is a privileged legal status that receives substantial government protection and benefits, and is also defined by many legally enforceable rights and obligations between the spouses. In a world in which marriage no longer functions as well as it once did to provide care for children and to serve other family dependency needs, it is quite appropriate to ask whether the special legal status of marriage can be justified any longer. In this Article, I offer a modest defense of the privileged legal status of formal marriage (as I will define this union) and of neutrality toward informal intimate unions. My claim is that the special treatment of marriage can be justified, even if one has no nostalgic fondness for traditional family roles and rejects the moral superiority of marriage over other family forms. Through marriage, the government can delegate to the family some of society\u27s collective responsibility for dependency. Retaining the privileged legal status of marriage in a contemporary setting can (and should) constitute part of a comprehensive policy of family support that acknowledges the pluralism of modem families

The Legal Construction of Adolescence

American lawmakers have had relatively clear images of childhood and adulthood-images that fit with our conventional notions. Children are innocent beings, who are dependent, vulnerable, and incapable of making competent decisions. Several aspects of the legal regulation of childhood are based on this account. Children are assumed not to be accountable for their choices or for their behavior, an assumption that is reflected in legal policy toward their criminal conduct. They are also assumed to be unable to exercise the rights and privileges that adults enjoy, and thus are not permitted to vote, drive, or make their own medical decisions. Finally, children are assumed to need care, support, and education in order to develop into healthy productive adults. The obligation to provide the services critical to children\u27s welfare rests first with parents and ultimately with the state. When children cross the line to legal adulthood, they are assumed to be autonomous persons who are responsible for their conduct, entitled as citizens to legal rights and privileges, and no longer entitled to support or special protections. This picture is deceptively simple, of course. In fact, the legal regulation of children is extremely complex. Much of the complexity can be traced ultimately to a single source-defining the boundary between childhood and adulthood. Thus, the question, What is a child? is readily answered by policy makers, but the answer to the question, When does childhood end?\u22 is different in different policy contexts. This variation makes it very difficult to discern a coherent image of legal childhood. Youths who are in elementary school may be deemed adults for purposes of assigning criminal responsibility and punishment, while seniors in high school cannot vote and most college students are legally prohibited from drinking.

Adolescence and the Regulation of Youth Crime

I am delighted to be a part of this Symposium on Law and Adolescence. My talk today is about adolescent development and juvenile justice policy. Specifically, I will focus on why a legal regime that is grounded in scientific knowledge about adolescence and the role of criminal activity during this developmental period is better for young offenders and for society than the contemporary policy, which often pays little attention to differences between adolescents and adults. My talk is based on a book on juvenile justice policy I am currently writing with Larry Steinberg, a developmental psychologist who is a leading expert on adolescence. For about ten years, Larry and I have worked together on an interdisciplinary research network sponsored by the MacArthur Foundation – the Research Network on Adolescent Development and Juvenile Justice. The purpose of the Network has been to examine how scientific knowledge about adolescence and juvenile crime can usefully inform policy and practice, to determine where there are gaps in that knowledge, and to develop and conduct research studies that can fill those gaps and inform policymaking in this area. The book offers a framework for youth crime policy that we have developed through our work in the Network. Our thesis is that scientific knowledge about adolescence and youth crime is critically important as a foundation for satisfactory juvenile justice policy and that (for the most part) this premise translates into a legal regime that deals with young offenders as an intermediate legal category of persons – neither children nor adults

Surrogacy and the Politics of Commodification

In 2004, the Illinois legislature passed the Gestational Surrogacy Act, which provides that a child conceived through in vitro fertilization (IVF) and born to a surrogate mother automatically becomes the legal child of the intended parents at birth if certain conditions are met. Under the Act, the woman who bears the child has no parental status. The bill generated modest media attention, but little controversy; it passed unanimously in both houses of the legislature and was signed into law by the governor. This mundane story of the legislative process in action stands in sharp contrast to the political tale of surrogacy that unfolded in the 1980s and early 1990s as the Baby M case left its mark on American law. It was through the lens of Baby M that this innovative use of reproductive technology was first scrutinized as an issue of social, political, and legal interest. Over the course of the litigation between the intended parents, William and Elizabeth Stern, and the surrogate mother, Mary Beth Whitehead, hostility toward commercial surrogacy arrangements hardened. Opponents of surrogacy – mostly feminists and religious groups – argued that the contracts were baby-selling arrangements that exploited poor women who either were coerced or did not understand the consequences of their decisions. Opponents argued that surrogacy degraded the female reproductive function and undermined the family. This framing of the transaction as illegitimate commodification was adopted by the New Jersey Supreme Court in Baby M and prevailed for several years thereafter, with far-reaching effects on legal regulation. By the early 1990s, many states had enacted laws prohibiting or severely restricting surrogacy agreements. Some observers predicted the end of this particular use of reproductive technology. But that did not happen. In fact, the politics and social meaning of surrogacy arrangements have slowly changed, and the alarm and hostility that surrounded this issue have diminished substantially. An alternative frame has emerged, in which altruistic surrogates (contractually bound and compensated nonetheless) provide the gift of life to deserving couples who otherwise would be unable to have children. News stories about surrogacy arrangements in the past decade have tended to be upbeat, human-interest tales describing warm relationships between surrogates and the couples for whom they bear children – a far cry from the acrimonious battle between Ms. Whitehead and the Sterns over Baby M. The political and judicial response to surrogacy has also changed in recent years. In Illinois and other states, the contemporary legislative approach has been largely pragmatic, driven by a perception that parties will continue to enter these agreements and thus, that it is important to have procedures that establish parental status in intended parents. ° In the absence of statutory authority, several courts, including the California Supreme Court, have also enforced gestational-surrogacy contracts and have held that the intended parents can be named on the birth certificate. Although social conservatives continue to speak out against surrogacy in the political arena,1 2 most contemporary groups interested in this issue advocate in favor of laws enforcing the arrangements

Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy

The undisputed objective of sterilization law is to promote decisions that reflect the interests of the disabled person. The autonomy model proposed in this article offers a more accurate and precise definition of these interests than does the paternalism model that forms the foundation of current law. The paternalism model limits the mentally disabled person's freedom through the erection of formidable barriers to sterilization. These barriers are justified by a strong presumption that the individual has a pervasive interest, not in autonomy, but in procreation. By clarifying the substantive interest in procreation as an interest in producing a child to rear, the autonomy model promotes a direct examination of whether the person in fact has this interest. If the person cannot rear a child, she lacks this interest and the law should take into account those interests that she retains. These residual interests include interests in optimal medical decisions, in human dignity and privacy, and in family stability. The desire to correct the abuses of the past is admirable. We should only take care that in pursuing this goal, we do not create a new set of problems for the future. In contrast to current law, the autonomy model accords substantial deference to personal and family autonomy. The model reveals that the law's objectives are best met by leaving the sterilization decision to the retarded person who is competent to make her own reproductive choices, with only as much intervention as is necessary to facilitate her decisions. For retarded persons who cannot make their own decisions, parents-not courts-are the best surrogates

Divorce, Children\u27s Welfare, and the Culture Wars

Are children harmed when their parents divorce? If so, should parents\u27 freedom to end marriage be restricted? These questions have generated uncertainty and controversy in the decades since legal restraints on divorce have been lifted. During the 1970s and 80s, the traditional conviction that parents should stay together for the sake of the children was supplanted by a view that children are usually better off if their unhappy parents divorce. By this account, divorcing parents should simply try to accomplish the change in status with as little disruption to their children\u27s lives as possible. This stance has been challenged sharply by conservative family-values advocates who see divorce and marital instability as the key to societal decline. In their view, children whose parents divorce are damaged in their moral, social, and emotional development, and society ultimately pays a high price through increased teen pregnancy, school drop-outs, poverty, and delinquency. These advocates argue that marriage can only be saved if the government restricts divorce by reinstituting fault grounds and discouraging unhappy spouses from selfishly defecting from their responsibilities. In contrast, liberals and some feminists oppose any restrictions on the freedom of unhappy spouses to divorce, in part because they suspect (correctly for the most part) that the ultimate agenda for many conservatives is a return to the era of traditional marriage and gender roles. Liberals tend to discount concerns about the harm to children of divorce and assume that parents only end marriages that are intolerable