Decision to Have Children
Q. Who makes the decision to become a parent?
A. The Supreme Court in Roe v. Wade and other cases has declared that the decision of
whether or not to have a child is a very personal one and that the decision is protected by the
right of privacy under the United States Constitution. This means that individuals who wish to
have a child cannot be barred from doing so (unless perhaps they are incarcerated). Individuals
who do not wish to have a child have a legal right to obtain and use contraceptives.
Q. What if one spouse wants children and the other does not?
A. This is a significant emotional issue that, of course, can be very difficult. If one member of the
married couple wants a child and the other does not, that could be a basis for a divorce. A
disagreement on such a fundamental issue could be an “irreconcilable difference” under the nofault
divorce laws of most states. In states that have grounds for divorce based on someone
being at fault, a disagreement on the question of whether to have children could be viewed as
“mental cruelty,” and thus a basis for ending the marriage.
Beyond divorce, remedies are limited. The courts cannot force a pregnant woman to stop
the pregnancy, nor does the law require a wife to have her husband’s permission for an
Q. What is the current status of abortion law?
A. As of the year 2000, women still have a right to an abortion. In the 1992, the U.S. Supreme
Court in the case of Planned Parenthood v. Casey reaffirmed its 1973 decision in Roe v. Wade
that women have a constitutional right to seek an abortion during the early stages of pregnancy.
States, however, do have a right to regulate how abortions are performed and states may ban
abortions after the fetus is viable (able to live outside the womb) unless the mother’s life or
health is endangered. The scope of regulation and funding of abortions by the government varies
from state to state. In Casey, the Supreme Court held it was permissible for states to impose a
24-hour waiting period on obtaining abortions and to require a minor to have consent of one
parent or a judge for an abortion.
Q. Are there any rules prohibiting parents from having their children born at home?
A. No, at-home births generally are an option for parents. The mother should have good
prenatal care, and she should make sure the health care provider believes the delivery will not
pose significant risks to the mother or child. If the delivery is risky for the mother or child, it is
much better to use a hospital. Some states allow nurse-midwives to deliver children at the
parents’ home or at a birthing center. Other states allow nurse-midwives to practice only at
hospitals or under the direct supervision of a physician.
Q. If the delivery is at a hospital, may the father or a sibling be present?
A. At most hospitals, the father may be present at birth. Hospitals often prefer that the father
and mother have gone through some training before the delivery. Parents should check with their
hospitals about other rules and about whether siblings would be allowed in the delivery room.
Q. What are the rights of parents?
A. Parents have a right to direct the care, control, and upbringing of their children. This gives
them the power to make various decisions, including where to live, what school to attend, what
religion to follow, and what medical treatment to obtain.
Normally the state may not interfere in these decisions. Only in life-threatening or extreme
situations will the courts step in to overrule parents. For example, when a child might die without
the medical care that the parents refuse to provide, a judge may make the child a ward of the
court and order that the care be provided. Parents have been prosecuted for withholding
medical treatment from seriously ill children. This is true even in situations where parents act out
of religious belief.
There may be certain medical procedures, however, that the law allows “mature minors”
to decide upon for themselves, even if their parents disagree. For example, parents have no
absolute veto power over a minor’s decision to use contraceptives or to obtain an abortion.
Parents also have the legal authority to control their children’s behavior and social lives.
Children have a duty to obey their parents’ reasonable rules and commands. Parents may
discipline or punish their children appropriately. They may not, however, use cruel methods or
excessive force; that constitutes child abuse.
Q. What are the legal rights of children?
A. Children have a unique status under the law. This chapter cannot explain this special status
fully. However, it can point out a few of the major differences between the rights of adults and
Most important, children have a right to be supported by their parents. At minimum, this
means food, shelter, clothing, medical care and education.
The law defines children as unmarried persons under the age of majority–usually
eighteen–who have not left home to support themselves. The law protects children from abuse
and neglect. It also entitles them to the protection of the state. Children may be removed from
their home if it is necessary to ensure them a safe, supportive environment. This removal may be
temporary or permanent.
The law allows children to sue. However, in most instances an adult legal representative
must begin the suit.
Children accused of committing crimes are subject to the juvenile courts of their state, not
the regular criminal justice system. (In some states, children accused of serious crimes who are
above a certain age—such as thirteen—may be tried in court as adults.) Juvenile courts entitle
children to only some of the due process safeguards that adults receive. In return, these courts
have more freedom to deal with juveniles in an effort to rehabilitate them.
Q. How long do parents’ legal obligations to their children continue?
A. Parents are legally responsible for their children until they reach the age of majority (usually
eighteen), marry, or leave home to support themselves. In some states, divorced parents may be
obliged to pay for a child’s college education or trade school. In addition, a parent’s duty to
support a disabled child might continue for the child’s entire life.
WHO CONTROLS THE MONEY CHILDREN EARN OR INHERIT?
Generally, parents do not have unlimited, direct control over their children’s money. If children
earn or inherit money, that money must be used for the children=s benefit. Some states require
the appointment of a guardian under court supervision if a child has substantial funds. Unless a
court appoints someone else, parents are the guardians of their children’s money. The parents
are legally responsible for managing the money properly and using it for their children’s needs.
Q. Are parents financially responsible for the acts of their children?
A. The law on this varies from state to state. Some states make parents financially responsible
for damage caused by their children, but the states may place limits on the amount of liability. In
Illinois, for example, parents or guardians may be required to pay no more than $2,500 for the
“willful or malicious acts” of minor children who harm another person or property.
Generally, if a child has an auto accident while driving a parent’s car, the parent’s auto
insurance policy will cover the loss to the same extent it would if the parent had been driving the
car (although parents usually have to pay higher insurance premiums to cover young drivers).
THE DUTIES OF ADULT CHILDREN TOWARD THEIR PARENTS
Adult children normally have no responsibilities toward their parents. In return, their parents
have no duties toward them. However, there are exceptions. In some states, children must
support parents who otherwise would be on welfare. The children can avoid paying support if
they can show that the parents did not care for them when they were underage. In some states,
children may have to contribute to the support of parents in a state hospital or mental institution.
However, the children’s ability to pay–not the actual costs of the care–usually determines how
much they must pay.
Q. How does one adopt a child?
A. Adoption laws vary from state to state. For adopting a child who is not related to the
adoptive parent or parents, there generally are two types of adoptions: agency adoptions and
Q. What is an agency adoption?
A. As the name implies, the parents work though a licensed agency. The agency often
supervises the care of biological mothers who are willing to give up their children, and it assists
in the placement of children after birth. Agencies screen adoptive parents–often extensively–
before the adoption proceeds. Some agencies have long waiting lists of parents. Some agencies
also specialize in placing children born in foreign countries.
Q. What is a private adoption?
A. Private adoptions bypass the use of agencies and they may help bypass the long waiting lists
as well. The process may begin when people who seek to adopt a child contact an attorney
who specializes in adoptions. The attorney may work with physicians who are aware of women
willing to give up children for adoption. Sometimes would-be parents will place ads in
newspapers seeking women who are willing to place their babies for adoption.
In most states, adoptive parents are allowed to pay a biological mother’s medical
expenses and certain other costs during the pregnancy. But adoptive parents are not allowed to
pay the biological mother specifically to give up the child. The law treats this as a “black market
adoption,” the buying and selling of children, and it’s a crime in every state.
Q. Is court approval necessary for an adoption?
A. Yes. Court approval is needed for both agency and private adoptions. Many states also
require that the adoptive parents be approved by a social service agency.
Q. Can a biological mother revoke her consent to adoption?
A. Yes, but there are limits on her right to revoke consent. In most states, a biological mother
who initially consents to a child’s adoption before birth, may revoke that consent after birth. In
other words, the mother’s consent usually is not final or binding until a certain period of time
after birth. In most states that time period is relatively short, such as two to eight days. If a
biological mother consented to adoption during the proper period of time after birth, it is much
harder for her to revoke her consent. Following an after-birth consent, a biological mother
generally may revoke her consent only if she can show that there was fraud or duress. Fraud
could be found if the adoption agency or attorney lied to her about the consequences of what
she was doing. Duress might exist if a person at the adoption agency threatened the biological
mother with humiliation if she did not sign. A biological mother’s change of heart normally is not
enough by itself to revoke an after-birth adoption consent. Although a mother may feel
emotionally drained and under stress after birth of a child that she plans to give up for adoption,
that type of stress usually is not enough to revoke an adoption unless the person or agency that
obtained the mother’s consent used harsh tactics to obtain her consent.
Q. Is the biological father’s consent necessary?
A. Generally, yes–at least if the biological father is known. He should be notified of the birth
and pending adoption so that he may consent or object. If the father is not known, the adoption
may proceed without his consent (although adoptive parents can feel safer about the validity of
their adoption if the biological father has been notified and agreed to it). If a biological father is
not notified, he may later contest the adoption if he acts within a certain period of time after the
child’s birth or adoption. (Six months is a typical time period, although the period varies
Q. What is a “related adoption”?
A. A “related adoption” is one in which a child’s relatives, such as grandparents or an aunt and
uncle, formally adopt a child as their own. This might occur if the child’s biological parents are
deceased or are otherwise unable to care for the child.
Q. What is a stepparent adoption?
A. A stepparent adoption is one in which a child’s biological parent marries someone who
wishes to adopt the biological parent’s child and is able to do so.
Q. What happens if the child’s other biological parent does not agree to the adoption
by the stepparent?
A. If a biological parent does not consent to the adoption of a child, the child cannot be
adopted by another person unless a court first finds that the biological parent is unfit.
Q. What is the definition of an unfit parent?
A. Parental unfitness is determined by state law. Normally, an unfit parent is one who has failed
to have regular contact with a child or to contribute to his or her support. A parent is also unfit if
he or she has been abusive or has otherwise failed to provide adequate care for the child.
Q. What happens if a stepparent adopts his spouse’s child and the parents later
A. A divorce does not affect the legality of the adoption. The stepparent continues to have all
the rights and responsibilities of a biological parent, including a right to seek custody or visitation
and a duty to support the child.
Q. Can a single person adopt a child?
A. Yes, although some agencies strongly prefer to place a child with a married couple. Other
agencies–particularly those dealing with children who might be hard to place–are willing to
place a child with a single person. Single-parent adoptions usually are possible in private
Q. Can lesbian or gay couples adopt a child?
A. Yes, in some states, such as New York and California, gay and lesbian couples are able to
adopt a child.
Q. What is an “open adoption”?
A. An “open adoption” is one in which the adoptive parents agree to let the biological mother
(or biological father) have some continued contact with the child after the adoption. This contact
might be periodic visits or an exchange of pictures and other information between the adoptive
family and the biological parent or parents. The nature of the contact often is specified in the
adoption agreement. Open adoptions have become more common as more birth mothers have
become involved with choosing which adoptive family will receive their child. But open
adoptions are a relatively new phenomenon, and in many states it is not certain whether an open
adoption agreement is enforceable by the birth mother.
Q. Who has access to adoption records?
A. In most states, court adoption records are sealed and can only be opened by court order
(although Oregon allows all adopted children access to their adoption records). Procedures and
standards for opening records vary by state. Increasingly, states require that certain nonidentifying
information, such as the medical history of the biological family, be made available to
the adoptive parents at the time of adoption. Some states also have registries where parties to
the adoption can agree to a later exchange of information, including names and addresses.
Q. What is the legal status of an adopted child?
A. An adopted child has exactly the same rights as one born to his or her parents. Similarly,
adoptive parents have the same obligations to the child as they would to one born to them.
Q. What about medically assisted pregnancies?
A. As medical science advances, there are a variety of ways in which individuals who wish to
become parents can be helped to do so by medically assisted means, including artificial
insemination and in vitro fertilization. These medical procedures have legal implications that vary
by state. Generally, however, if both husband and wife consent to artificial insemination or in
vitro fertilization, the rights and duties of the husband, wife, and child will be the same as if the
child had been naturally conceived.
Q. What is surrogate parenthood?
A. In this arrangement, a woman agrees, with or without payment, to bear a child for another
couple. This usually occurs when the wife cannot conceive or carry a child to term. In nearly all
cases, through artificial insemination, the husband’s sperm fertilizes an egg belonging to either the
wife or the surrogate mother. This makes the husband the biological father of the child. The
surrogate mother agrees to give up all parental rights at birth. Then the wife of the biological
father legally adopts the child. A few states outlaw this arrangement when the surrogate mother
receives payment. Other states are considering laws that would restrict it. Persons
contemplating such an arrangement should seek legal advice before entering into such an
PATERNITY AND MODERN SCIENCE
Paternity cases increasingly use scientific evidence. The blood tests used during much of the last
century were useful only up to a certain point. They might prove that a man was not the father of
a certain child, but could not prove that he was the father. New tests that sample the DNA
(genetic material) of the child and the supposed father are nearly 100 percent accurate in
proving or disproving paternity.
Q. May an unmarried mother legally force the father of her baby to support the child?
A. Yes. Both parents, married or not, have a duty to support the child. If the father admits
paternity, the mother should have him sign a statement to that effect. Then, if necessary, it will be
easier to force the father to help support the child. If he does not admit to being the father, the
mother may file a paternity suit against him. If this civil action succeeds, the court will require the
father to provide support. Sometimes the court also will require the father to pay for the
mother’s pregnancy and childbirth expenses.
Q. If a court decides that a man is a child’s father, how much will he have to pay in
A. The law requires unwed parents to support their children the same as married parents. Child
support guidelines, which have been enacted in all states, will determine the amount of support.
As with children born to married parents, the obligation of support usually lasts until the child is
an adult. If a father refuses to support his child, a court may garnish his wages, seize his
property or bank accounts, revoke his driver=s license or professional license, and perhaps even
send him to jail.
Q. What may a husband legally do if his wife bears a child that is not his?
A. The law presumes that a married woman’s child is her husband’s. He must support the child
unless he can prove in court that he is not the father. Some states assume the husband is the
father no matter what proof he presents. These states do not allow a husband to disprove
paternity of a child born during the marriage.
Q. What is child neglect?
A. State laws make it a criminal offense for parents and legal guardians to fail to meet children’s
basic needs, including food, shelter, clothes, medical treatment, and supervision. Such failure
constitutes child neglect.
Q. What persons and what types of actions are covered by child abuse laws?
A. It is a crime for adults to abuse children in their care. Such adults include parents, foster
parents, legal guardians, other adults in the home, family members, and baby-sitters. Supervising
adults may not go beyond reasonable physical punishment. For example, adults who beat
children so severely that they require medical treatment have violated these laws. Child abuse
laws involve not only physical abuse (such as beatings or starvation), but other types of cruelty,
such as sexual molestation and subjecting a child to extreme public humiliation.
A person may be guilty of child abuse that he or she did not personally commit if that
person had legal responsibility for the child and failed to protect the child from the abuser.
TAKING CHILDREN AWAY FROM THEIR PARENTS
Whether or not a criminal case is brought, the state may remove children from the custody of
their parents if there is reason to believe the parents are physically, sexually, or emotionally
abusing one or more of the children. The state also may remove the children if the parents are
unable or unwilling to provide adequate care, supervision, and support.
Q. Who has a duty to report suspected child neglect and abuse?
A. The law compels a wide range of people who have contact with children to report suspected
child abuse or neglect. Such people include doctors, nurses, teachers, social workers, and
childcare providers . A person who is required to report suspected neglect or abuse may face
civil or criminal penalties for failure to do so. In addition, states often encourage the reporting of
suspected abuse by others such as neighbors and family members through special hot lines. The
laws of most states encourage persons to make reports of abuse by granting them immunity
from defamation suits by the accused parents if they make the report in good faith. Some states
keep central lists of suspected child abuse cases. This helps identify parents, for example, who
take their children to different hospitals in order to conceal the evidence that they have
repeatedly abused their children.
Q. If the law takes children away from their parents, is the removal temporary or
A. The goal usually is to reunite the family after correcting the problems that led to the removal.
This, however, is not always possible. For example, if the parents make little or no effort to
improve the children’s care, then the state may ask a court to end all parental rights. If this
happens, the legal bonds between parents and children are completely and permanently cut, and
another family may adopt the children.