GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 1989
Short Title: Consent for Minor's Abortion. (Public)
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Referred to: Judiciary.
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AN ACT TO REQUIRE PARENTAL OR JUDICIAL CONSENT FOR UNEMANCIPATED MINOR'S ABORTION.
The General Assembly of North Carolina enacts:
Section 1. Article 1A of Chapter 90 of the General Statutes is amended by designating all the existing language as "Part 1.", and by adding a new Part to read:
“Part 2.
"Parental or Judicial Consent for Abortion.
"§ 90-21.6. Definitions.
For the purposes of Part 2 of this Article, unless the context clearly requires otherwise:
(a) ‘Unemancipated minor' means any person under the age of 18 who has not been married or has not been emancipated pursuant to Article 56 of Chapter 7A of the General Statutes.
(b) ‘Abortion' means the use of any instrument, medicine, drug or any other substance or device with intent to terminate the pregnancy of a woman known to be pregnant for reasons other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.
"§ 90-21.7. Parental consent required.
(a) No physician licensed to practice medicine in North Carolina shall perform an abortion upon an unemancipated minor unless he or his agent or another physician or his agent, first obtains the written consent of the minor and of:
(1) A parent with custody of the minor;
(2) The legal guardian of the minor; or
(3) A parent with whom the minor is living.
(b) The pregnant minor may petition, on her own behalf or by guardian ad litem, the district court judge assigned to the juvenile proceedings in the district court where the minor resides or where she is physically present for a waiver of the parental consent requirement if:
(1) Neither of the parents nor the legal guardian is available to the physician performing the abortion or his agent or the referring physician or his agent within a reasonable time or manner;
(2) All of the persons from whom consent must be obtained pursuant to this section refuse to consent to the performance of an abortion; or
(3) The minor elects not to seek consent of the person from whom consent is required.
"§ 90-21.8. Procedure for waiver of parental consent.
(a) The requirements and procedures under Part 2 of this Article are available and apply to unemancipated minors seeking treatment in this State.
(b) The court shall ensure that the minor or her guardian ad litem is given assistance in preparing and filing the petition and shall ensure that the minor's identity is kept confidential.
(c) The minor may participate in proceedings in the court on her own behalf or through a guardian ad litem. The court shall advise her that she has a right to court appointed counsel and shall provide her with counsel upon her request.
(d) Court proceedings under this section shall be confidential and shall be given the precedence over other pending matters necessary to ensure that the court may reach a decision promptly. In no case shall the court fail to rule within seven days of the time of filing the application. This time limitation may be extended at the request of the minor.
(e) The parental consent requirement shall be waived if the court finds either:
(1) That the minor is mature and well-informed enough to make the abortion decision on her own; or
(2) That it would be in the minor's best interests that parental consent not be required; or
(3) That the minor is a victim of felonious incest under G.S. 14-178.
(f) The court shall make written findings of fact and conclusions of law supporting its decision and shall order that a confidential record of the evidence be maintained. If the court finds that the minor has been a victim of incest, whether felonious or misdemeanor, it shall advise the Director of the Department of Social Services of its findings for further action pursuant to Article 44 of Chapter 7A.
(g) If the female petitioner so requests in her petition, no summons or other notice may be served upon the parents, guardian, or custodian of the minor female.
(h) No court costs shall be required of any minor who avails herself of the procedures provided by this section.
"§ 90-21.9. Medical emergency exception.
The requirements of parental consent prescribed by G.S. 90-21.7(a) shall not apply when, in the best medical judgment of the physician based on the facts of the case before him, a medical emergency exists that so complicates the pregnancy as to require an immediate abortion, or when the conditions prescribed by G.S. 90-21.1(4) are met.
"§ 90-21.10. Penalty.
Any person who intentionally performs an abortion with knowledge that, or with reckless disregard as to whether, the person upon whom the abortion is to be performed is an unemancipated minor, and who intentionally or knowingly fails to conform to any requirement of Part 2 of this Article shall be guilty of a misdemeanor."
Sec. 2. Appeals. An expedited confidential appeal is available to any unemancipated minor from the decision of the district court. Because time may be of the essence regarding the performance of the abortion, the Supreme Court of North Carolina is respectfully requested to promulgate rules to ensure that appeals under Part 2 of this Article are handled in an expeditious and confidential manner.
Sec. 3. G.S. 7A-523(a) is amended by adding a subdivision to read:
"(7) Proceedings involving judicial consent for an abortion on an unemancipated minor pursuant to Article 1A, Part 2 of Chapter 90 of the General Statutes."
Sec. 4. G.S. 7A-451(a) is amended by adding a subdivision to read:
"(16) A proceeding involving judicial consent for an abortion on an unemancipated minor pursuant to Article 1A, Part 2 of Chapter 90 of the General Statutes. G.S. 7A-450.1, 7A-450.2, and 7A-450.3 shall not apply to this proceeding.”
Sec. 5. G.S. 7A-491 reads as rewritten:
"§ 7A-491. Conflict of interest or impracticality of implementation.
If a conflict of interest prohibits a local program from
providing representation to an abused, neglected, or dependent or pregnant juvenile, the court may
appoint any member of the district bar to represent said juvenile. If the
Administrative Office of the Courts determines that within a particular
district court the implementation of a local program is impractical, or that an
alternative plan meets the conditions of G.S. 7A-492, the Administrative Office
of the Courts shall waive the establishment of the program within the
district."
Sec. 6. G.S. 7A-489 reads as rewritten:
"§ 7A-489. Office of Guardian Ad Litem Services established.
There is established within the Administrative Office of the
Courts an Office of Guardian Ad Litem Services to provide
services in accordance with G.S. 7A-586 to abused, neglected, or dependent or pregnant juveniles
involved in judicial proceedings, and to assure that all participants in these
proceedings are adequately trained to carry out their responsibilities.
Beginning on July 15, 1983, and ending July 1, 1987, the Administrative Office
of the Courts shall establish in phases a statewide guardian ad litem
program comprised of local programs to be established in all district court
districts of the State. Each local program shall consist of volunteer guardians
ad litem, at least one program attorney, a program coordinator
who is a paid State employee, and such clerical staff as the Administrative
Office of the Courts in consultation with the local program deems necessary.
The Administrative Office of the Courts shall promulgate rules and regulations
necessary and appropriate for the administration of the program.”
Sec. 7. G.S.7A-586 reads as rewritten:
"§ 7A-586. Appointment and duties of guardian ad litem.
When in a petition a juvenile is alleged to be abused or neglected, abused, neglected,
or pregnant (if the pregnant juvenile has requested appointment of a guardian ad
litem), the judge shall appoint a guardian ad litem to
represent the juvenile. When a juvenile is alleged to be dependent, the judge
may appoint a guardian ad litem to represent the juvenile. The
appointment shall be made pursuant to the program established by Article 39 of
this Chapter unless representation is otherwise provided pursuant to G.S.
7A-491 or G.S. 7A-492. In every case where a nonattorney is appointed as a
guardian ad litem, an attorney shall be appointed in the case in
order to assure protection of the child's legal rights within the proceeding.
The duties of the guardian ad litem shall be to make an
investigation to determine the facts, the needs of the juvenile, and the
available resources within the family and community to meet those needs; to
facilitate, when appropriate, the settlement of disputed issues; to explore
options with the judge at the dispositional hearing; and to protect and promote
the best interest of the juvenile until formally relieved of the responsibility
by the judge.
The judge may order the Department of Social Services or the guardian ad litem to conduct follow-up investigations to insure that the orders of the court are being properly executed and to report to the court when the needs of the juvenile are not being met. The judge may also authorize the guardian ad litem to accompany the juvenile to court in any criminal action wherein he may be called on to testify in a matter relating to abuse.
The judge may grant the guardian ad litem the authority to demand any information or reports whether or not confidential, that may in the guardian ad litem's opinion be relevant to the case. Neither the physician-patient privilege nor the husband-wife privilege may be invoked to prevent the guardian ad litem and the court from obtaining such information. The confidentiality of the information or reports shall be respected by the guardian ad litem and no disclosure of any information or reports shall be made to anyone except by order of the judge."
Sec. 8. This act shall become effective October 1, 1989.