Family Law – Columbia Journal of Law & Social Problems

An Assault on the Fundamental Right to Parenthood and Birthright Citizenship: An Equal Protection Analysis of the Recent Ban of the Matrícula Consular in Texas’ Birth Certificate Application Policy

By Cathy Liu

Recent changes in Texas’s birth certificate application policy have made it nearly impossible for hundreds — and perhaps thousand — of undocumented immigrants to obtain birth certificates for their U.S.-born children. The Texas Department of State Health Services (DSHS) has implemented a policy banning state registrars from accepting the matrícula consular (matrícula) as an identifying document applicants may present as part of the state’s birth certificate application process. Matrículas are consular identification cards issued by Mexican consulates to citizens of Mexico living outside of the country. They are widely-accepted as a reliable form of identification and are often the only identification available to undocumented immigrants. Without alternative forms of ID, undocumented parents cannot satisfy the policy’s identification verification procedure and consequently cannot obtain birth certificates for their children.

Undocumented parents lacking birth certificates for their children cannot fully access their fundamental right to parenthood, which includes the right to make decisions on how best to raise and care for their children. Enrolling a child in schools and daycare and obtaining public benefits like Medicaid and Section 8 housing assistance all require presentation of that child’s birth certificate. In addition, although the children affected by the changes are citizens by virtue of being born in the U.S., they cannot fully exercise their rights as citizens, including the right to travel interstate, to receive a public education as well as the right to work. Furthermore, the policy may, in some instances, have the effect of denaturalizing U.S.-born children, thereby depriving them of their statuses as U.S.–citizens.

This Note provides an Equal Protection analysis of Section 181, the provision of the Texas Administrative Code that codifies this new policy. Part I explains the recent changes in Texas’ birth certificate application procedures. Part II provides an overview of the Equal Protection Clause. Parts III through V argue that the new Texas policy violates the Equal Protection Clause. This Note first argues that strict scrutiny is the appropriate standard of review in analyzing the constitutionality of the policy. It then argues that the policy fails to survive strict scrutiny review because it fails to further a compelling state interest, is underinclusive in its attempt to prevent fraud, and because less discriminatory alternatives can as effectively deter identity crimes and fraud.

Download Article

Catalyzing the Separation of Black Families: A Critique of Foster Care Placements Without Prior Judicial Review

Issues Volume 51, Issue 3

By Kathleen Simon

Although decades of efforts have realized significant progress toward the goal of eliminating racial discrimination in the child welfare system, black children continue to enter foster care at rates that exceed their level of need. This Note explores how the standard practice of removing a child without prior judicial authorization has quietly contributed to this civil rights crisis by enabling racial bias to go unchecked in the placement decision-making process.

In an attempt to understand how state legislatures can ensure that risk, rather than race, informs foster care placements, this Note introduces an original analysis comparing the racial disparity rates in foster care entries among states. Based on the study’s finding that greater racial disparities exist in jurisdictions with flexible emergency removal laws, this Note recommends that states excuse pre-deprivation hearings only when taking the time to seek an ex parte court order would jeopardize a child’s safety.

Download Article

Download Appendix

Why the Intent Test Falls Short: Examining the Ways in Which the Legal System Devalues Gestation to Promote Nuclear Families

Issues Volume 52, Issue 3

By Lauren Springett

For hundreds of years, the act of gestating and giving birth to a child was the lynchpin of the mother-child relationship. Now, changes in technological and societal norms have made it possible for motherhood to be established by some combination of gestation, genetics, and intent. As maternity disputes have increased, courts have privileged genetic and intent-based claims to motherhood over gestation-based claims.

This Note argues that in privileging genetic and intent-based claims to maternity over gestation-based claims, courts have implicitly devalued the historic importance of gestation in ways that privilege nuclear families at the expense of more marginalized women. Part II provides background on the evolution of the mother-child relationship in U.S. family law. Part III discusses the ways in which the legal system’s current approach to maternity disputes was shaped by its historical approach to paternity disputes. Part IV explores the ways in which the current approach specifically disadvantages gestational mothers — in particular, gestational surrogates and birth mothers. Part V proposes a model of reform that would more fully recognize both the contributions of gestational mothers and the rights of children to have relationships with all the women involved in their creation.

Download Article

The Sentencing Judge’s Role in Safeguarding the Parental Rights of Incarcerated Individuals

Issues Volume 53, Issue 1

By Anna Iskikian

Incarcerated parents face a disproportionate risk of having their parental rights terminated. According to a recent analysis of three million child-welfare cases nationwide, parents whose children have been placed in foster care due to their incarceration, but who have not been accused of child abuse, endangerment, or drug use, are more likely to lose their parental rights than parents who have physically or sexually assaulted their children. A dramatic rise in the prison population and the passage of the Adoption and Safe Families Act (ASFA) have driven the increase in the loss of parental rights among incarcerated parents. Furthermore, sentencing guidelines and mandatory minimums constrain a judge’s ability to adequately consider a defendant’s parenthood at sentencing.

This Note examines the sentencing judge’s role in preventing the termination of parental rights of incarcerated parents and proposes the establishment of a judicial recommendation against termination proceedings while a parent is incarcerated. Part II of this Note examines the history of criminal sentencing and the historical practice of granting a judicial recommendation against deportation (JRAD) to noncitizen defendants. Part III analyzes the disproportionate rate at which incarcerated parents lose their parental rights as compared to nonincarcerated parents. Part IV argues for amending the ASFA to implement the JRAD’s analog in the parental rights context and concludes that accounting for loss of parental rights at sentencing serves retributive, deterrent, and rehabilitative aims.

Download Article

Making It Right: Preserving Wrongful Birth After Dobbs

Issues Volume 57, Issue 1

By Natasha Statz-Geary

In overturning Roe v. Wade, the U.S. Supreme Court opened the floodgates for anti-abortion laws to sweep the country, radically transforming the legal landscape surrounding prenatal care. On the criminal side, centuries-old abortion bans have been given new life following Dobbs. On the civil side, statutes have empowered private citizens to sue anyone who “aids and abets” an abortion. These concerns have dominated much of the legal discourse following Dobbs, but another civil cause of action implicated in the decision has received little attention: wrongful birth.

Wrongful birth is a medical malpractice claim brought by parents who assert that but for a doctor’s negligent failure to detect a fetal abnormality, they would have terminated the pregnancy. Despite criticisms from disability activists and anti-abortion groups alike, the tort has served its dual aims of compensating victims and deterring negligent care for over fifty years. Scholars have long believed that the cause of action was made possible by Roe; following Roe’s reversal, the tort’s future is unclear. Wrongful birth is in jeopardy at the precise moment when women need it most. Deterrence and financial compensation are more important than ever in a world with more pregnancies and ambiguous legal standards.

This Note examines wrongful birth’s viability post-Roe and argues that the cause of action can remain available. After reviewing the tort’s history and arguing that it is not dependent on Roe, this Note proposes three novel theories plaintiffs can utilize to recover for wrongful birth: (i) an expanded “loss of deliberation and preparation” theory that encapsulates the harm flowing from delayed diagnosis and the lost chance to travel for a legal abortion; (ii) a statutory interpretation analysis through which plaintiffs can argue that their child’s condition would have fallen under an abortion-ban exception for fetal anomalies; and (iii) a choice of law analysis for plaintiffs whose prenatal care crossed state borders.

Download Article

Keeping Ferris Out of Foster Care: Reforming the JJDPA to Prevent Home Removals Based on Truancy

Issues Volume 57, Issue 1

By Rose Wehrman

Truancy is directly correlated with negative educational and life outcomes for students. The state exacerbates these negative effects when it removes students from their homes for truancy. Far from addressing the underlying causes of truancy, home removals—whether into secure or non-secure placements—cause devastating harm.

The Juvenile Justice Delinquency and Prevention Act (JJDPA) allows, with some restriction, for children to be incarcerated for truancy. Additionally, the JJDPA has never regulated the civil removal of juvenile status offenders to non-secure yet prison-like placements. JJDPA reform has so far focused on the harms of incarceration—a worthy cause, but one that must not overshadow the overlapping harms of non-secure removals.

This Note argues that truancy should not be handled by removing children from their homes and proposes revisions to the JJDPA that would bring the Act closer to its purpose: preventing delinquency and providing necessary services. To achieve the intended purpose of the JJDPA, Congress must implement further reform. This Note offers an analysis of how non-secure home removals intersect with the JJDPA and extends existing discourse through its analysis of post-2018 valid court order (VCO) exceptions. Ultimately, this Note demonstrates how non-secure civil removals and VCO incarcerations frustrate the intended purpose of the JJDPA.

Part I discusses the scope of the truancy problem and the JJDPA’s background and context. Part II offers insight into the unique harms of home removals, and Part III demonstrates how current loopholes frustrate the purpose of the JJDPA. Part IV suggests revisions to strengthen the JJDPA’s protections and more closely align the bill with its purpose.

Download Article