Girls in foster care get pregnant. A lot. (1) For example, in 2005 the New York City Office of the Public Advocate estimated that as many as "[o]ne in six young women in foster care in New York City are pregnant or are already mothers...." (2) When a teenage girl gets pregnant, there is always a complex set of issues and challenges that she will face: whether or not she will continue the pregnancy, what medical services are available to her if she decides to have the child, what abortion services are available to her if she does not, who will retain custody of the baby, whether she will give the baby up for adoption. For a pregnant teen in foster care, these issues are amplified by the child welfare system, where there are many more actors in play than just the pregnant girl, her parents, and the father of her child. The foster parents, the biological parents, and the state each play a substantial role in determining how the pregnant foster girl manages her pregnancy and the resources available to her, yet at the same time, the existing legislation and policies guiding these actors are inadequate for addressing her needs and often hinder her ability to exercise her rights.
While the populations of girls who become pregnant and girls in foster care overlap in great numbers, legislative and judicial actions in both state and federal forums have addressed the topics of teen pregnancy and foster care as separate and discrete, ignoring the challenges that pregnant girls in foster care face. For example, basic teen pregnancy prevention legislation that focuses on contraception, health, and sex education fails to account for the common experience of foster girls, who may lack access to a comprehensive health education due to gaps from frequent school changes and who may be particularly uncertain of whom to ask for access to birth control. There is a two-way informational gap that needs to be closed: legislators, policy makers, judges, agency officials, and others involved in the welfare of teenagers should make sure that when creating foster care policy, they also consider the impact of pregnancy, and that when considering measures to combat or mitigate teen pregnancy, they also consider the segment of teenagers in foster care.
This Article argues that the existing state and federal statutes, agency regulations, and sparse case law leave pregnant foster girls without appropriate resources and assistance. Child protection laws should provide for assistance with prenatal care and planning and access to abortion in order to truly serve their purpose. Part I of this Article provides background material concerning foster care and entitlements for foster children, including the medical care that foster children receive through Medicaid, and the various barriers to abortion access for women in general and for minors in particular. Part II of this Article discusses current agency regulations specifically related to pregnant foster girls as well as judicial responses to the intersection of pregnancy and foster care. Part III discusses statutory and regulatory recommendations to improve the situation of these young women.
I. Fpster Care, Entitlements, and Abortion Access
Foster care has traditionally included a range of options including, officially and unofficially, kinship care. The availability of kinship care (care by relatives of the foster child) can create more complexity in the relationships that foster children have with their foster parents. The legal framework for entitlements for foster children includes medical care and specific Medicaid provisions, which allow foster children to access certain services, but which also place limits on their access to choice within the healthcare system. Some of those limits include Medicaid barriers to funding for abortion, as well as parental consent and notification laws in many states.
A. Foster Care
1. Overview of Foster Care
The number of children in foster care is large. …