Public Health Law Map - Beta 5 - Medical and Public Health Law Site

allow the noncustodial parent to consent to or direct the child’s medical care, the
physician should ask custodial parents their wishes. If the custodial parent wants
the noncustodial parent to be able to obtain medical care for the child and there is
no court order to the contrary, the custodial parent should sign a delegation of
authority to consent to the child’s medical care. In all states, the physician should
ask the custodial parent if there are any court- ordered limitations on the rights of
the noncustodial parent. If a pregnant woman is divorced during the course of the
pregnancy, the courts will sometimes make a determination of paternity as well as
custody of the child. A physician should handle this the same way as any other
child of divorce.
2. Adoption
Adoptions are proceedings that vest parental rights in a person who was not the
child’s legal parent before the proceeding. Adoption involves the termination of the
existing legal parent’s parental rights and the determination that the potential
adoptive parent is fit. All conflicting parental rights must be terminated before an
adoption is final. If a parent marries a person who is not the child’s legal parent, this
stepparent does not have full parental rights unless he or she formally adopts the
child. Such an adoption will require the rights of the previous parent, if known and
still living, to be terminated. If a married couple, neither of them parents of the child,
or a single adult seeks to adopt a child, the rights of both of the child’s existing
parents must be terminated. Parents may voluntarily relinquish their parental rights in
an adoption proceeding, but most states protect the parent (usually the mother) from
precipitous decisions concerning termination of parental rights. These protections
may include a ban on agreements signed before the baby is born and a waiting period
after birth during which the parent may revoke the decision to give up parental rights.
In most states it is illegal to pay parents to induce them to terminate their parental
rights. It would be legal to give the mother almost anything as long as she did not
give up her baby. It is only when she gives up the baby that coercion becomes an
issue. It is acceptable to pay for the mother’s medical expenses and support during
the pregnancy, but this cannot be conditioned on a waiver of parental rights.
Although the courts realize that this payment is an incentive, they treat it as a gift.
Payments made after the birth of the baby are suspect because they have no
relationship to providing for the mother’s and baby’s welfare during the pregnancy.
Payments to husbands are impossible to characterize as anything other than bribes to
terminate their parental relationship. Although it is acceptable for physicians to
receive their routine fees from an agency or prospective parent, any payment in
excess of the fees charged in other situations could subject the physician to
prosecution for receiving money in connection with an adoption.
In addition to bans on paying parents, the courts are sensitive to efforts to coerce
parents into relinquishing their parental rights. This concern with coercion, combined
with the fiduciary nature of the physician–patient relationship, makes it improper for
physicians to participate in obtaining a waiver of parental rights from their patients.
The physician’s legal and ethical duty is to protect the patient’s best interests,
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