The Application of the Americans with Disabilities Act to the Termination of the Parental Rights of Individuals with Mental Disabilities
Journalof ContemporaryHealth Law andPolicy [Vol.
Individuals with Mental Disabilities The Application of the Americans with Disabilities Act to the Termination of the Parental Rights of
Susan Kerr
Follow this and additional works at: http://scholarship.law.edu/jchlp Recommended Citation Susan Kerr, The Application of the Americans with Disabilities Act to the Termination of the Parental Rights of Individuals with Mental Disabilities, 16 J. Contemp. Health L. & Pol'y 387 (2000). Available at: http://scholarship.law.edu/jchlp/vol16/iss2/6
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Article 6
Susan Kerr*
INTRODUCTION
Although Buck v. Bell continues to be "good" law, its premise is no
longer practiced.' Gone are the days when the "mentally disabled" or
mentally retarded were mandatorily sterilized as a condition of
deinstitutionalization because it was believed "three generations of
imbeciles [were] enough."2 However, the underlying belief that persons
*
The author received her undergraduate degree from Barnard College,
Columbia University, J.D. from the University of Houston Law Center, Master
of Public Health from the University of Texas Health Science Center at
Houston, and is a Ph.D. candidate in Management and Policy Sciences at the
University of Texas Health Science Center at Houston. Her interest is in bioethics
- the interaction of law, medicine and ethics - and she is writing her disserta-,
tion on the medical, legal and ethical issues surrounding assisted reproductive
technologies. She is a member of the American Bar Association and its Health
Law Section, the New York State Bar Association, and the Association of the
Bar of the City of New York where she is an active member of the Science and
Law Committee. All pronouns used in this paper are in the male form for
simplicity only.
1. See Buck v. Bell, 274 U.S. 200 (1927).
2. Id.; As a condition of being released from the State Colony of
Epileptics and Feeble Minded, Carrie Buck was to undergo a salpigngectomy, a
surgical operation performed by opening the abdominal cavity and cutting the
fallopian tubes to sterilize an individual. This procedure intends to prohibit
reproduction of those "defective" persons, who if discharged, would become a
menace, but if incapable of procreating might be discharged with safety and
become self-supporting. While this procedure is no longer a condition of
deinstitutionalization, the holding of Buck, permitting the involuntary sterilization
of allegedly feebleminded or defective persons, has never been explicitly
overturned.
In his decision, Justice Holmes opined that the statute in question
success
JournalofContemporaryHealthLaw andPolicy [Vol. 16:387
with mental disabilities should not reproduce and are inherently
unable to provide proper parenting to their children survives today.
Although it is not an articulated policy, persons with mental
disabilities consistently have their parental rights terminated and
routinely lose their appeals. While terminations are often based on the
fact that the parent is truly incapable of adequately caring for his
children, the courts seldom apply the Americans with Disabilities Act
(ADA) 3 in determining parental rights. The ADA requires that public
entities, such as the courts, the Department of Health and Human
Services (HHS) and child protective services, make reasonable
modifications to their rules, policies, and practices of the services they
provide in accommodating persons with disabilities that utilize their
services. The services provided by these entities include individual
assessments and reunification programs designed to evaluate and assist
persons in developing their parenting skills when their children are
removed from their custody.
As a civil rights statute, Congress enacted the ADA to level the
playing field and facilitate the transition of the disabled into
mainstream society. It aims to remedy ingrained practices of isolating and
segregating persons with disabilities. With proper implementation of
the ADA, individuals with mental disabilities can acquire adequate
parenting skills and will not automatically lose their parental rights.
Part I of this paper traces the events leading up to the present day
conundrum, a result of the de-institutionalization of the "mentally
disabled" without accompanying and appropriate support services. Part II
addresses the rights of persons with a mental disability to procreate
and to parent, as well as the termination of those parental rights. Part
III focuses on active discrimination in the termination process: the
court's presumptive terminations based on the label "mentally
disfully balanced the interests of the disabled with society's interest in eradicating
feeblemindedness, stating, "It would be strange if [the state] could not call
upon those who already sap the strength of the state for these lesser sacrifices.
..in order to prevent our being swamped with incompetence." Id.at 207. The
statute was upheld and Carrie Buck was sterilized. See ida.t 208. Gi (...truncated)