Implied Consent and Mental Capability
Under the Alabama Adoption Code, there are certain persons who consent is not required for an adoption to go through. Many of the people whose consent is not required may seem obvious, such as a deceased parent, or a parent whose rights with regard to the adoptee have been terminated. One unique classification of people whose consent is implied is found in Alabama Code 26-10A-10(2). It reads:
“A parent who has been adjudged incompetent pursuant to law or a parent whom the court finds to be mentally incapable of consenting or relinquishing and whose mental disability is likely to continue for so long a period that it would be detrimental to the adoptee to delay adoption until restoration of the parent’s competency or capacity.” (emphasis added)
If a parent has to reside in a Psychiatric Hospital, it is logical that they are unable to properly care for the child, and thus their consent is implied. However along the lines of “mentally incapable”, I began to think about highly functioning people with Downs Syndrome. According to the National Downs Syndrome Society, over 50% of women with Downs Syndrome are fertile.
If a Downs person was to have a child, would the child be taken away? Would this person’s consent be implied to having their child placed for adoption?
After researching the topic, I did not find one report of a couple in which both have Downs Syndrome and conceived a child. The closest situation I could find was a Case Study in India in which a Downs woman was married to a man without Downs and they had a child without Downs. There were several articles about Downs couples who had gotten married and intended to have children. In each of these articles, the parents of the individuals expressed serious concern regarding the ability of their child to be able to care for a newborn.
It was obvious from my research that a case involving the relinquishment of rights because of Downs Syndrome would be a very rare instance. To find an answer to my questions, let’s look back at the code. The beginning phrase says “a person who has been adjudged incompetent.” In order for a person’s consent to implied because of mental capability, they would have to be adjudged separately to be determined incompetent. So, in order for a Downs person not to be able to take care of their own child, or their consent to adoption to be implied, they would first have to be decided by a judge to be incompetent.
__
Article by Haley Horn.
SOURCES:
http://www.ndss.org/Resources/Wellness/Sexuality/Sexuality-and-Down-Syndrome/
http://www.jaypeejournals.com/eJournals/ShowText.aspx?ID=764&Type=FREE&TYP=TOP&IN=_eJournals/International%20Journal%20of%20Infertility%20and%20Fetal%20Medicine.jpg&IID=70&AID=16&Year=2010&isPDF=YES
Photo courtesy of: http://www.ds-health.com/trisomy.htm
