PrEP and Our Youth: Implications in Law and Policy

Abstract

2. Minor Consent Pursuant to Emancipation Exceptions A minor who has reached the age of majority is automatically considered emancipated, but those under the age of majority who achieve legal emancipation, either by statutory mandate or judicial decree, have a greatly expanded range of rights and responsibilities. (175) All states have laws pertaining to the emancipation of minors who have not yet reached the age of majority. Emancipation may be de jure or de facto. De jure emancipation, or emancipation by law, occurs through court intervention, where a minor petitions a court to grant him or her the rights and responsibilities of adulthood. De jure emancipation, while an important tool, is of minimal significance for operationalizing PrEP for at-risk minors. Concerns about cost, privacy, and delay inherent in court intervention would likely be prohibitive for the majority of at-risk youth. Thus, operationalizing PrEP for minors without parental consent will require reviewing more economically feasible, confidential, and efficient solutions. De facto emancipation, or emancipation by right, is enabled by state statute and occurs when a minor has achieved a certain status or has certain individual or social (176) In these limited circumstances, the law presumes that the minor has the capacity to understand the risks and benefits of adult activities, and the minor may consent to general medical care (177) without court intervention. Thus, a minor who becomes a member of the armed forces, (178) enters into a marriage or receives a divorce, (179) graduates from high school, (180) is pregnant, (181) lives independently from his or her parents and is financially self-sufficient, (182) or is homeless (183) may, by virtue of this status, consent to a broad range of medical interventions. (184) No state law permits minors to consent to PrEP therapy or any other pharmacological HIV prevention modality. (185) However, some de facto emancipation exceptions that permit minors to consent to general medical care coincide with the personal, family, or social circumstances of certain at-risk minors. At-risk minors who are unaccompanied, have no contact with or live independently of caregivers, refuse to seek parental consent, or could endure mental or physical abuse should the provider seek parental consent likely comprise a great deal of PrEP candidates. Thus, it is critical to consider how state law treats minors in these circumstances. If a state permits a minor to consent to his or her own general medical care in these situations, advocates are presented with an excellent opportunity to operationalize PrEP for broad spectrum of high-risk youth who would likely eschew preventive HIV care in the event that parental consent is required. By statute, more than half of United States jurisdictions (186) permit certain minors to consent to general medical care, which by implication could include PrEP or other pharmacological HIV prevention modalities. (187) These statutory exceptions to the general rule that minors may not consent to their own medical care may be divided into six types: (1) separation and financial independence exceptions; (2) maturity exceptions; (3) mid-adolescence exceptions; (4) medical necessity exceptions; (5) parental unavailability or non-engagement exceptions; and (6) homeless youth exceptions. (188) Within this framework, I discuss each, and potential implications for operationalizing PrEP for self- consenting minors. a. Separation and Financial Independence Exceptions At least fifteen jurisdictions have statutes specifying that qualifying minors living separate and apart from their parents or guardians and managing their own financial affairs may consent on their own behalf to general medical care. (189) Some statutes do not specify the length of separation and financial independence. (190) In these jurisdictions, the exception may apply not just to those minors with sufficient financial means to live independently, but also to minors who are homeless, unstably housed, runaways, castaways, or living on the street, as long as those minors do not currently live with their parents or guardians and are not reliant upon them for financial assistance. …