Same-Sex Parents and Consent for Treatment of a Minor
Patchwork Parenting Laws for LGBT Families
Healthcare law requires providers to secure the informed consent of a minor child’s parent before providing medical treatment. Different legal jurisdictions recognize various individuals as “parents” in their law bearing on parental consent for the treatment of a minor. These parental individuals could include biological parents, custodial parents, adoptive parents, foster parents, step-parents and those serving in loco parentis.
For LGBT families, the determination of parentage for medical consent purposes is complicated by widespread variance in relationship recognition and adoption law. This patchwork state law produces uncertain outcomes, especially when same-sex couples secure relationship recognition and/or adoptions in one state and later move to a different state.
Policies on Parental Consent for Treatment of Minor Children
Data obtained through the Healthcare Equality Index survey indicates that hospitals establish the baseline practice that a healthcare provider must obtain the informed consent of a minor child’s parent prior to commencement of medical treatment. Once this consent is obtained, the healthcare provider must document the consent and place it in the medical records of the minor child. Many policies incorporate by reference the legislative exceptions to the general rule which permit a minor to consent for their own treatment. Some policies also include provisions to addressing contingencies where parents disagree on the proper course of treatment for a minor child.
For the purposes of the LGBT community, the most critical issue in these policies hinges on the definition of “parent.” Some institutions fail to define “parent,” listing only the word “parent” without providing further guidance. Other institutions utilize a more traditional and restrictive definition of parent, typically centering on the biological or custodial parent.
Because this area remains confusing for healthcare providers and sensitive from a legal liability perspective, the HEI survey will be a key tool in seeking additional data. Future HEI surveys will seek input from participants on more state-specific inquiries.