Common Law Marriage Analysis

Common Law Marriage Analysis

In Re SIDNEY BRISTOW

AKA

JANE DOE

MEMORANDUM IN OPPOSITION TO PETITIONER'S

MOTION FOR MEDICAL EMANCIPATION

The Honorable Court has heard a Motion for Medical Emancipation from the minor petitioner, Sidney Bristow, a.k.a. Jane Doe ("Sidney," "child" or "minor") in preparation for a volitional kidney removal. The petitioner asks the court for the autonomous ability make all future decisions, consent to medical procedures and submit to a kidney removal for the benefit of her recently met half-sister, Nadia Santos. Jack Bristow ("Defendant" or "Parent") respectfully requests that the Court deny the Plaintiff's Motion for Medical Emancipation as neither in the child's nor the Commonwealth's best interests.

STATEMENT OF FACTS

Sidney Bristow, a thirteen-year-old minor in seventh grade, has petitioned the Court for medical emancipation. The child's mother died when she was quite young, leaving her to be raised by her "always working" father. (Transcript page 4, herein and after "P.4") Prevented from attending social events with her classmates, the minor experienced a lonely childhood without many friends, though she "always wanted a sister that [she] could share clothes and secrets with and everything" (P.5, 25). Lacking a job and fiscal responsibility, the child used her free time to act, run, play hockey and ride horses with interests in learning tock-climbing and foreign languages (P.6). Recently the minor became aware of the existence of a half-sister ("Nadia") born out of wedlock, whom she "never knew growing up"(P.5). Nadia has a kidney ailment that requires a transplant. The child would like to facilitate this by removing and donating her own, romanticizing that Nadia "is going to be [her] best friend" (P.10, 24, 25). Sidney has been consulted and tested by a psychiatrist against the Gerber Scale of Maturity and scored a 13.0. This score and the psychiatrist's determination suggest that the child has attained the psychological maturity of a person who just turned 13 years-old, "possessing some traits that are naпve and childlike and other that are beyond her years" (P.22). In considering the unnecessary kidney removal, Sidney has demonstrated her naпvetй, as "her brain isn't wired yet to look far ahead into the future," according to expert testimony (P.23). As the psychiatrist appropriately testified in the hearing, "any decision she makes will be based on the immediate future rather than the long term" (P.23). Sidney demonstrated this near-sidedness in consideration of Nadia's predicament, which led to her father dismissing the child's assertion that she should be allowed to needlessly donate her kidney. Though the minor has some understanding of her predicament and the consequences of her decision, she is unable to put them within a mature context of the long term. Without life experiences and long-term context, the child is able to characterize her hospital stay as "like staying at a hotel," a life-altering operation as one where "there really aren't any" risks, and dismiss serious potential complications that "won't happen to me" (P.9). Further, the minor explains the operation is "like watching a extra long movie" and when pressed about the certain complications to any future plans for physical activity and child birth, the child sets aside such affects as "eons from now," admitting an inability to picture herself as a grown up (P.12). Accordingly, Jack Bristow is prepared to continue his parenting by acting in his child's best interests and requesting the Court deny the Petitioner's Motion for Medical Emancipation.

ARGUMENT

The minor petitioner, Sidney Bristow lacks the maturity to warrant medical emancipation or to allow for autonomous consent to the risks of kidney removal. For a minor to be granted the ability to make her decisions independently, that minor must be judged a mature minor, meet other enumerated criteria of emancipation, or be worthy of a substitute judgment as determined by the court upon analysis of a balance of the best interests of both the minor and the state. Sidney Bristow's motion must be denied as the child is not a mature minor and a voluntary kidney removal procedure while facing no health risk is not in her best interests, nor that of the commonwealth.

I. THE COURT SHOULD DENY THE MOTION FOR MEDICAL EMANCIPATION DUE TO THE IMMATURE MINOR'S INABILITY TO COMPREHEND CONSEQUENCES AND THE OPERATION'S LACK OF NEED AND SUFFICIENT RESULTING BENEFIT.

The child is not mature enough to excuse her obligation of parental consent as controlled by the mature minor rule and fails to meet the contextual standards of maturity and ability of informed consent. A child may only provide consent for medical procedures when deemed mature by the court, a decision only attainable in cases where the child is able to demonstrate responsible understanding of consequences through analysis of the need for the operation, the resulting benefit and the child's ability to fully comprehend consequences. Baird v. Attorney General, 371 Mass. 741 (1977).

A minor lacks the maturity to provide informed consent where a minor does not have the capacity to appropriately weigh the risk and benefits of medical procedures or when the operation is unneeded or absent of sufficient benefit as judged by the court. Matter of Rena, 46 Mass. App. Ct. 335 (1999). Primary to the analysis of the mature minor rule is the nature of the operation and its resulting benefits. The consent entered on behalf of the minor patient became ineffectual based upon the emergency present and certain death of the child without the contemplated procedure. Matter of McCauley, 409 Mass. 134 (1991). Despite the lack of consent, the judge issued an order authorizing all reasonable medical care because the child's life was at issue and the first and paramount duty is to consult the welfare of the immature child. McCauley, 409 Mass. at 136. Similarly, a seventeen year-old patient asserted that she understood the potential consequences of her decision to risk her life by avoiding a necessary blood transfusion. Rena, 46 Mass.