In re A.F.

Re: Medical Emancipation/My Sister’s Keeper (2009), Chicago Med (2015-)

When can a child exercise control over their own body and medical decisions?  Does a child have to fully emancipate themselves from their parents in order to make those medical decisions?

Sources:

Bellotti v. Baird, 443 U.S. 622 (1979).

In re E.G., 549 N.E.2d 322 (Ill. 1989).

Smith v. Seibly, 431 P.2d 719 (Wash. 1967).

Michelle Davis and Andrea Fang. “Emancipated Minor,” StatPearls.  National Library of Medicine (May 1, 2023). https://www.ncbi.nlm.nih.gov/books/NBK554594/

Written, Researched, and Recorded by Céleste Young, 2023-2025.
Music: Out On My Skateboard - Mini Vandals

Waitisthatlegal@gmail.com

Transcript

Back in Episode 10 I discussed the topic of Emancipation of Minors, the legal concept where someone under the age of 18 can become legally separated from their parents.  At the time I also wanted to discuss the idea of medical emancipation, but the episode was already pretty packed.  I also came across an episode of Chicago Med in the meantime that raises another aspect of the issue.  So today’s topic will be about medical emancipation for minors.

Popular media is pretty obsessed with the concept of “divorcing” one’s parents, it seems to show up as a topic at least once in every teen TV show.  In the fictional world it is usually a glamorous improvement to the character’s life.  They move out and get a job, which is generally the usual afterschool teen job that would pay enough for some extra spending money, but not much else.  The character almost always still manages to have a nice apartment to themselves; which is only realistic in the scenarios where they are not emancipated they just have absent parents.  The reality is that emancipation is incredibly rare because in many situations the separation would leave the child in a much worse condition than if some other option was figured out, like foster care or living with a relative or friend.  So what happens in a case where living with and being supported by their parents is not an abusive or bad situation for the minor, but they disagree with the medical decisions their parents are making for them?  This is the situation faced by Anna in the 2004 novel by Jodi Picoult and the 2009 movie adaptation starring Abigail Breslin and Cameron Diaz.  And by patient, Lindsay, in the Season 3 episode “Down By Law” of Chicago Med.

In My Sister’s Keeper, Anna (who is 11 in the movie, and 13 in the book) is conceived as a savior sibling by her parents after they and their oldest child are not viable donors for their sick daughter, Kate.  From birth, Anna is used as a lifesaving donor for her older sister, who has recurring leukemia.  Until the point in the book and movie, the procedures that Anna faces are invasive, but not life-changing.  She has donated her umbilical cord blood, given blood transfusions, and donated bone marrow.  At the point where the story picks up, Kate is in kidney failure and the parents want Anna to donate a kidney.  People who donate a kidney will usually be fine afterwards, and it is completely medically okay to have only one kidney.  The problem here is that an 11/13 year old child is being asked to live without one of her kidneys for the rest of her life without being asked if she’s okay with that.  However, this is perfectly legal.  Parents have the right to make medical decisions for their children.  There are of course some exceptions for medical emergencies, where the doctors do not have time to find and ask the parents to consent to lifesaving treatment.  Or in a situation where the parents are forcing the child to undergo unnecessary and invasive treatment for reasons that are not medically necessary, called Factitious disorder imposed on another (previously known as Munchausen by proxy).  Despite raising some ethical issues and even more questions about what is good parenting in this situation, genetically engineering a savior sibling and then using that child to save your other child is not expressly illegal.  There is limit, and a kidney is probably right there.  Again, it is possible to live with one kidney, and people willingly donate them all the time.  It would definitely be illegal to go much further than a kidney though.  If Kate was in heart failure, or had cystic fibrosis, her parents could not use Anna as a heart or lung donor, because this would be murder.  Even just taking one of her lungs, which you can live through, would likely still be too far because it would drastically affect Anna’s future medical outcomes.  But the fact that a child can be forced to undergo any medical procedures for the sake of saving another child, is pretty wild in and of itself, especially when you genetically engineered it that way.  And it is still not illegal when the child is old enough to express that they do not want the medical procedure done to them, because they are still under the age of 18 and lack the required legal capacity to make the decision themselves.  This is where medical emancipation comes in.  Courts in many jurisdictions in the U.S. have recognized that in certain situations a minor might be able to make medical decisions for themselves without the involvement of parents.  In far fewer jurisdictions, the U.S. courts have recognized that minors can be mature enough to make their own decisions about their medical care, a concept referred to as the Mature Minor Doctrine.

Emancipation on the broader scale is the legal term for a minor, someone under the age of majority, which in the U.S. is 18 years old, who is separated from their parents or legal guardian.  In all legal aspects an emancipated minor is treated as an adult.  They can sign contracts, live alone, make decisions about employment and education.  Emancipation can happen expressly, where a court order is involved or where the child and parents make an agreement to separate.  Emancipation is implied when the minor is married, becomes a teenaged parent, or joins the military.  Both express and implied emancipation is a legal separation of the child and parents that results in the child being fully responsible for themselves and completely severs the responsibility of the parents to support and provide for that child.  So there are situations where full emancipation would be detrimental to a child, especially in a medical context.  For example, if an otherwise decent parent refuses to vaccinate their child, but that child is now old enough to ask to be vaccinated they will probably not want to completely blow up the whole relationship over preventing measles.  If they pursue emancipation they will now have to provide for themselves and this would include no longer being covered by their parents’ medical insurance.  On the other hand the argument that the parent is in the best position to make vaccination decisions for their child rings a bit hollow considering the number of life-altering consequences that can come from contracting any of these otherwise preventable diseases and that making the child wait till they are 18 might end up being too late.  There are many States in the U.S. that allow minors to be vaccinated against their parent’s wishes if the child asks their doctor.  This a limited form of medical emancipation granted by the State to the minor patient.  It became a big issue during the Covid-19 Pandemic when lots of teens of anti-vax, or just vaccine hesitant, parents wanted to get the Covid Vaccine.

In contrast to My Sister’s Keeper, the Chicago Med medical emancipation scenario presents a situation where a minor does not realize they have the power to make their own decisions.  In the episode, “Down By Law,” the doctors encounter a 14 year old patient with severe abdominal bleeding and an older man who they first take to be the girl’s dad.  The man is actually her husband, which the legal department confirms was approved by the girl’s, Lindsay, dad.  The husband believes the bleeding is related to a miscarriage, but in the course of treating Lindsay the doctors discover she has early Uterine Cancer.  It turns out Lindsay’s mother and grandmother also died young from cancer.  The doctors propose that Lindsay start chemotherapy right away, but the husband refuses because of the chance it could make Lindsay infertile.  One of the doctors is very agitated that she cannot speak to the patient alone without her husband speaking for her, so when he is out of the room she goes in to speak to Lindsay.  She explains that despite her age, because she is married she is medically emancipated and can make her own medical decisions.  Lindsay is in the process of asking for more information about her options when they are interrupted.  In the end Lindsay expresses her desire to have the most radical treatment, a hysterectomy, to destroy both the cancer and her marriage.  As the doctors explain to her husband that she is having a hysterectomy and that Lindsay consented to the treatment, she smiles as he screams at her about ex-communication.

In the two fictional scenarios we have one child that still wants to be a part of her family and keep both her kidneys.  On the other hand we have a child who is implicitly emancipated and faced with an important health decision that the adults in her life are trying to make for her.  We are also dealing with two very different jurisdictions.  My Sister’s Keeper is set in Rhode Island, which does not recognize any form of medical emancipation for minors.  Chicago Med is set in Illinois where the State’s Supreme Court has recognized the Mature Minor Doctrine.  The Doctrine is explained very well in an article for the National Library of Medicine on the National Institutes of Health website.  [quote] “The ‘mature minor’ doctrine legally recognizes the medical decision-making capacity of adolescents, even though they are still minors under parental or legal guardian control…Minors usually 12 years or older who demonstrate adequate cognitive maturity and capacity to understand the risks, benefits, alternatives, and likely outcomes of medical evaluation and treatment are authorized to provide consent or refuse without parental permission.” [end quote]

In the Illinois Supreme Court case, In re E.G., which was decided in 1989, the Court recognized the maturity of E.G., a 17 year old girl with leukemia who wanted to refuse the blood transfusion treatments based on her religious beliefs.  In this case the State had taken over as the girl’s guardian for making medical decisions because the mother had refused the blood transfusions despite it being a lifesaving procedure.  In the case, E.G. is actually asking to be emancipated from the State in order to refuse further treatment.  The Court considered the testimony of E.G. herself, as well as the various doctors, lawyers, and psychiatrists that had treated, interviewed, and evaluated her.  The Court agreed that E.G. had sincerely held religious beliefs, understood what the consequences of her decision would likely be, and was clearly capable of making her own medical decisions, without interference from the State.

While the doctors of Chicago Med use the term medical emancipation in the show, Lindsay is actually completely emancipated because she is married.  They are correct that because she is married she is able to make medical decisions for herself despite only being 14 years old.  Her implicit emancipation due to marriage means that she does not even need to show that she is mature enough to make her own medical decisions.  Her dad gave up his parental rights to his minor daughter when he signed the marriage license, basically implying he believes that his daughter is mature enough to be married (whether he understands that or not).  And I’m going to go with the not because the husband in this situation seems to be under the false assumption that as her husband he is entitled to make those decisions for her, or maybe he believes that because Lindsay is still a child that he is somehow her guardian as well as her spouse.  Both of these assumptions are just that, false.  It is illegal, and immoral, to marry someone without the capacity to consent to the marriage, like a minor.  The laws that allow parents’ to consent to marriage on behalf of their minor child are only allowed because the parents are transferring that ability to consent to their child.  They are not transferring their guardianship over their child to the child’s spouse.  Which if you think about it would be really messed up, because it would be State-sanctioned sexual abuse of a child.  This topic on its own has plenty of legal grey areas owing to the relatively recent recognition of the concept of marital rape, but that is another topic that I will not go into any further today.  What’s important is that a married minor is considered legally emancipated from their parents and therefore seen as an adult by the State.  

The U.S. Supreme Court has recognized the right of adults to make their own healthcare choices, including the right to consent to procedures or to refuse treatment all together.  These rights exist for the patient alone and doctors have an ethical responsibility to their patient and to respect the patient’s decisions.  Spouses only have the power to make medical decisions in situations where the patient is unconscious or incompetent.  Even then if the doctor feels the decisions made by the spouse are not in the best interests of the patient there are avenues for potentially going around those decisions.  The right to make medical decisions is linked to the Right to Privacy that is held to exist under the 14th Amendment’s Due Process Clause.  Of course, that could change any day now because Roe v. Wade was considered one of the core cases in establishing the right to privacy and it was overturned in the 2022 decision in Dobbs v. Jackson Women’s Health Organization.  Interestingly, the right to privacy has also been used to protect the rights of parents to make health and education decisions for their children without interference from the State, so the Conservative Justices are playing with fire here.

Within the In re E.G. decision, the Illinois Supreme Court notes that part of their logic in conferring the right to make medical decisions to mature minors was because of the U.S. Supreme Court cases that have granted limited rights to pregnant minors to seek an abortion without the consent or knowledge of their parents.  This right comes from two Supreme Court cases; Bellotti v. Baird, decided in 1979, and City of Akron v. Akron Center for Reproductive Rights, decided in 1983.

Unlike Illinois, Rhode Island has not recognized the Mature Minor Doctrine, or any specific rights for minors to make their own health decisions.  However, as a State in the United States of America it is subject to the jurisdiction of the U.S. Supreme Court and the legal precedent it sets. The decisions in Belotti and in City of Akron does show some recognition of the problem inherent in placing a bright line at age 18 for when someone can start making decisions about their own health.  Even without an express avenue, minors are not completely without agency when it comes to life-altering medical decisions.  In My Sister’s Keeper, there is a situation where the parents are insisting that doctors remove an 11/13 year old child’s kidney and the donor child is objecting to having the surgery done.  Any of the doctors or surgeons in this scenario could refuse to do the procedure and the hospital could involve the State in the decision.  Anna could have just as easily found a social worker at the hospital to intervene on her behalf, but going to a lawyer works, too.  

This is made more clear in the book because Anna is technically not granted medical emancipation, instead the Judge gives her lawyer medical power of attorney.  Meaning that the Court just shifted Anna’s parents’ ability to make medical decisions for their daughter over to Anna’s lawyer, Anna still does not have the power to make her own decisions.  In the movie, Anna’s lawyer sues for partial termination of parental rights, which, again, does not actually confer those rights to Anna, but would instead give the government (through a case worker) the ability to make medical decisions on Anna’s behalf.  Both of these solutions do allow an outside perspective of the medical decision, removing the parents’ obvious emotional reasoning from the equation.  A lawyer, and someone with power of attorney, has an ethical obligation to represent the interests of their client, so in the case of the book, Anna’s interests would be represented by the lawyer.  In the movie version, the State would be responsible for looking out for Anna’s best interests, not her personal wishes.  This would likely still result in Anna not having to donate a kidney, but Anna has a lot less agency.

Neither version of My Sister’s Keeper dealt with the fact that Anna was not actually seeking her own ability to make medical decisions.  It is revealed that the reason for Anna’s seeking legal counsel was because her sister, Kate, no longer wished to receive medical treatment.  As an older teen (around 15 years old) she has a lot more agency when it comes to making health decisions.  Courts are much more likely to recognize a 15 year old’s decision to refuse a kidney, than an 11 year old’s wish to go against her parents’ decisions.  Kate’s expressed desire is to give up treatment, her method of doing this in the book and movie would not have respected her wishes.  Legally, Anna is protecting herself from her parent’s medical choices.  With Anna’s kidney out of the running, the parents could still have put Kate on the transplant registry and in the meantime she would have been subjected to dialysis.  It mostly works out for Kate in both the outcomes presented in the book and movie, because her mother realizes that she has not considered Kate’s wishes.  In real life, if the parents wanted to continue to do everything possible to keep Kate alive, Anna’s actions would actually make things worse for Kate.  Despite what Kate and Anna seem to think, Anna cannot advocate for her older sister.  If Kate’s only wish was to allow Anna to keep her kidney, but to continue to allow her parents to control her medical decisions, then this was the best way to accomplish that goal.  However, Anna basically admits that she wasn’t actually opposed to donating her kidney; she just wanted to respect Kate’s wishes.  Without Anna’s perfect match of a kidney Kate would have to be on dialysis until another kidney became available.  Or Kate might have ultimately been forced to accept her younger sister’s kidney if the decisions of the parents were considered to be rational and in the best interests of both sisters.  This would have been a more likely outcome, because it means that both children survive, which is a reasonable goal for both the parents and the State, and it does not seem that the doctors have any objections to the treatment plan.

For Kate to have her wishes heard she needed to advocate for herself, not selfishly put all the responsibility and inevitable parental anger onto her younger sister.  The only way Kate could prevent her parents from forcing her to continue treatment of her cancer was to tell them, the doctors, and a social worker/lawyer, that she no longer wanted to continue treatment and that she fully understood what that would mean in the long run.  Being in Rhode Island would have made this more of a longshot for Kate to win, she had a better chance in Illinois, but it would have been more likely to achieve the actual outcome that she wanted.

My Sister’s Keeper and Chicago Med present two scenarios where a minor wants to make different medical decisions than their parents.  In Chicago Med the doctors’ immediately recognize the patient’s right to make her own choices despite being 14 and separate from what her husband may want.  Once they are able to talk to her away from her husband, she makes it clear what she wants, which is beyond even what the doctors are recommending.  They make sure that she understands the risks and she articulates a very good, personal reason for making the choice that she does.  Then the doctors respect the patient’s wishes over the objections of her husband, which is exactly how it should play out.  In contrast, in My Sister’s Keeper, it would have benefitted all the characters if they had communicated more.  If Kate had sought a lawyer to assert herself, or told her parents that she unequivocally did not want her sister’s kidney, or anything else, and that they needed to let her go.  This would have been much better for her little sister, who had to put herself in the line of fire for something her older sister wanted but couldn’t ask for herself.  If she had said something it probably wouldn’t have been the smoothest sailing, but it at least would have saved Anna from getting the hate she did from their mother.

Everyone that is of sound mind, regardless of age, should have the right to make their own medical decisions without religious or government interference.