Excerpted From: Simone Lieban Levine, Not a Girl, Not Yet a Woman: The Legal Limbo of Being a Parent Before Becoming an Adult, 37 Berkeley Journal of Gender, Law & Justice 75 (2022) (218 Footnotes) (Full Document)


SimoneLiebanLevine“I'm giving birth to this person whose life is going to end mine.”-- Natasha Vianna, on being pregnant at 17 years old.

Maddi Runkles, a White, straight-A student and the student council president at a private Christian academy in Hagerstown, Maryland, was eighteen years old and a few short months away from graduating with the Class of 2017 when she found out she was pregnant. After informing her school about her pregnancy, she was banned from returning to campus, being seen on-site, or attending any school event until after she gave birth, including her graduation. Instead, she was forced to finish her classes from home, which was significantly more difficult prior to the COVID-19 pandemic due to less structural and technological support. In an open letter to parents, the school's administrator wrote, “Maddi is being disciplined, not because she's pregnant, but because she was immoral .... Heritage is ... pleased that she has chosen to not abort her son. However, her immorality is the original choice she made that began this situation.”

Maddi initially considered having an abortion due to fears of the stigma of being pregnant and not married as a teenager in a tight-knit, religious, conservative community. However, she chose to carry the pregnancy to term because her family was supportive of her decision to be a teen parent. Although she was unsuccessful in reversing the school's decision to bar her from campus, Maddi continued advocating for herself throughout her pregnancy. She participated in campaigns led by a local Students for Life of America chapter (a student-run anti-abortion organization that aims to convince individuals not to have abortions by providing resources and support during their pregnancies), took her story to the media, and made plans to take the fall semester off and start college the following spring.

An hour away in Columbia, Maryland, Yesica Mamgandi, a sixteen-year-old sophomore in high school, also became pregnant in 2017.  As a young woman of color at a public high school with family issues that exacerbated her academic challenges, Yesica could have faded into anonymity as one of the many statistics at the intersections of race, teen pregnancy, and high school dropout rates.  Instead, a teacher referred her to a teen parenting program at the high school.  To address day-to-day practical and logistical concerns for teen parents, the program provides day care for the children of teenagers, a child development center, and a school-based health center that can address infant and toddler health concerns. To address more long-term concerns for teen parents, the program also offers outreach and case management services as well as a teen parenting class alongside their regular courses.

Yesica faced a variety of difficulties, especially once classes became remote during her final semester in the spring of 2020, and, consequently, she took an additional year to obtain her diploma. Still, she was the first in her family to graduate from high school and “crossed the virtual graduation stage with her 2-year-old daughter, Marvely, by her side.”  That summer, she obtained a job as a manager at a McDonald's.

Both mothers can be considered success stories in the traditional sense. They successfully graduated from high school, maintained their education and employment goals, and are raising their children with the help of solid support systems. Although Maddi's private school limited her rights and opportunities, her parents rallied behind her with emotional and financial support and fought for her rights at school.  Conversely, despite pre-pregnancy absences from school and little family support, Yesica lived in a school district with a support program for teen parents and got back on track to graduate with the help of that parenting program's childcare, classes, health access, and social service support. She dreams of becoming a nurse one day to help others start their families.  When given the tools to advocate for themselves and balance their newfound parental responsibilities with those typical of their peers, pregnant and parenting teens can thrive even in the face of additional struggles.

Maddi's and Yesica's respective stories show the importance of (1) accepting the child-parent and their child both within social mores and into societal structures, such as the law, and (2) providing resources and support to fully realize their rights, opportunities, and, ultimately, their childhoods. These actions are vital regardless of the circumstances that resulted in their becoming pregnant,  including whether or not the pregnancy was planned.  Minors who are parents are in a legal limbo; their needs slip into an unaddressed gap between the current social policies and structures that address the needs of minors and those that address the needs of parents. Social models that focus only on preventing teen pregnancy (including those ranging from progressive sex education and free access to contraceptives to abstinence-only policies) do not address the reality of the situation--minors always have had, and will continue to have, children of their own. The field of children's rights also inadequately examines or provides solutions for the unique legal situation of minors who become parents. Though these structural failings leave the child-parent and their child behind, both individuals are still entitled to exercise agency, to experience childhood, and to have their best interests realized. Advocates and governmental agencies must vindicate these legal rights.

Of the over one hundred thousand teens  who give birth each year in the United States, most are not well supported.  Pregnant and parenting minors frequently find themselves grappling with the difficult process of becoming a parent before they become a legal adult. In addition to navigating personal struggles and the high risk of negative social, medical, and economic outcomes for both themselves and their children (exacerbated along racial and economic lines 2), minor parents must also interact with systems that treat them as if they were adults when those systems would have otherwise treated them as non-parent children. However, there is not a consensus across all medical, social, and legal institutions as to how much autonomy minor parents should be given. 

Minors who become pregnant in the United States live in a legal limbo. Does becoming pregnant make them adults with the right to make decisions on behalf of their children, their pregnancies, and themselves? Or are they still children whose decisions need to be vetted by their parents or the courts until they reach the age of majority or have somehow proven their maturity to earn the adult right to autonomous decision-making? Further, do they have the same right to a childhood as their non-pregnant or parenting peers? Or do the best interests of their child outweigh their own right to innocence and a carefree life?

This Article examines the legal limbo of pregnant and parenting minors, 4 including the decisions that the child-parent can make on behalf of their child but cannot make on behalf of themselves. Because this limbo and its inconsistencies make it more difficult or outright impossible for a child-parent and their child to fully exercise their rights, it is vital that socio-political structures acknowledge, address, and work to resolve these issues. Part I puts into context the social and statistical background of young parenthood in the United States, as well as the conflation of correlation and causation in discussions about parental outcomes as illuminated by sociologist Kristin Luker. Part II assesses the various interplaying legal rights and doctrines for both the child-parent and the child, including the right to childhood, the best interests of the child standard, the complicated network of bodily autonomy rights, and the ways law and policy address minors' legal, economic, social, and cultural concerns. The Article concludes with recommendations for further research and policy advocacy.

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Lastly, states must remove legal barriers to autonomous decision-making, including laws requiring parental consent and notification for medical decisions, abortion, and adoption. Although the necessity of the above-described social programs cannot be overstated, nowhere is the legal limbo of underage parents more apparent than in the inconsistency with which states refuse to allow minors to exercise control over their bodily autonomy. Expanding minors' ability to make medical decisions without requiring state or parental approval would help young pregnant and parenting individuals access vital health services confidentially, with dignity, and without fear of punishment or retaliation from their families and communities. Further, eradicating these barriers for all minors would cure the inconsistency between the rights of child-parents to make decisions on behalf of their children and the rights of child-parents to make decisions on behalf of themselves, thereby both facilitating the autonomy of all minors and allowing child-parents to not be singled out compared to their non-parenting peers. Minors who become parents inevitably have more responsibilities than their non-parenting peers, but creating uniformity in minors' rights and obligations would likely help ensure that the right to childhood remains consistent regardless of parental status.

J.D., UC Berkeley School of Law.