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Parental Rights and Disabilities

In 1923, the Supreme Court established parental rights.

"It is the natural duty of the parent to give his children education suitable to their station in life." - Meyer v. State of Nebraska, 262 U.S. 390 (1923)

Mainstream Americans have long enjoyed a heritage of parental rights.

The “primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” Wisconsin v. Yoder, 406 U.S. 205 (1972)

In 1927, the Supreme Court denied those rights to parents with disabilities.

In an embarrassing eugenics-era decision made on May 2, 1927, in Buck v. Bell, the U.S. Supreme Court held that persons with disabilities do not enjoy the same fundamental rights to make private decisions regarding family life as other Americans.

“It is better for all the world if, instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind…. Three generations of imbeciles are enough.” - Buck v. Bell, 274 U.S. 200 (1927)

Sadly, this case that re-routed parents with disabilities off the high road of fundamental parental rights remains the precedent to this day. Even in this age of the Americans with Disabilities Act (1992), parents with disabilities still see their children taken away on account of their disability.

Facts About Disability Rights for Parents

There are 4.1 million parents with disabilities in the U.S.
5.6 million Americans live with paralysis due to stroke, multiple sclerosis, spinal cord injury, traumatic brain injury, neurofibromatosis, cerebral palsy, post-polio syndrome, other.
1 in 10 children have a parent with a disability.
35 states include disability as grounds for termination of parental rights.
2/3 of dependency statutes allow the court to determine that a parent is unfit on the basis of a disability.
In every state, disability of the parent can be included in determining the best interest of the child.
DC, GA, KS, MD, MS, ND, NM, OH, OK, & SC allow physical disability as the sole grounds for terminating parental rights, even without evidence of abuse or neglect.

(Above facts are from Christopher & Dana Reeve Foundation’s Parenting with a Disability: Know Your Rights Toolkit.)

Here are a few real stories illustrating what is happening to parents with disabilities:

Sara Gordon - Massachusetts was caught committing "extensive, ongoing violations" of the Americans with Disabilities Act in their removing of Sara Gordon's baby simply because Sara has a disability, according to a 2015 letter from the U.S. Department of Justice.
Erika and Blake - This Missouri couple lost their baby in 2010 because both parents are blind. (Their baby was returned 57 days later, but valuable bonding and nursing time had been lost.)

“Clearly, the legal system is not protecting the rights of parents with disabilities and their children. Fully two-thirds of dependency statutes allow the court to reach the determination that a parent is unfit (a determination necessary to terminate parental rights) on the basis of the parent’s disability. In every state, disability may be considered when determining the best interest of a child for purposes of a custody determination in family or dependency court. A nexus should always be shown between the disability and harm to the child, so that a child is taken from a custodial parent only when the parent’s disability is creating a detriment that cannot be alleviated. However, this is not the reality.”
- Jonathan Young, PhD, JD, Chairman of the National Council on Disability in the Letter of Transmittal for Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children [emphasis added]

In 2000, the Supreme Court left parental rights for all unprotected.

In 2000, U.S. Supreme Court reviewed the law in Troxel v. Granville, 530 U.S. 57 and came to a split decision that left no clear standard for future cases and has caused massive confusion in the courts regarding parental rights. Essentially, this ruling put all parents on the same footing: with their parental rights subject to the judge's whim on a case-by-case basis.

View the links on this page to see shocking stories of children across the country who have been taken from legally fit parents. There is a growing tendency to undermine parental rights and assume someone other than the parent knows best. Since parental rights are not clearly protected by law, there's also room for racial bias in decisions.

For nearly 75 years, parents with disabilities were forced to travel a different road than those without. And now we are all on the same road -- only it's the road none of us wants to travel.

Proposed Parental Rights Amendment Protects Disability Rights

If passed, the Parental Rights Amendment would be the first amendment specifically protecting disability rights. The Amendment states:

The parental rights guaranteed by this article shall not be denied or abridged on account of disability.

Now is the time to unite to
protect parental rights for all.

Now that all parents are facing what parents with disabilities faced for years--the lack of protection of parental rights--the public outcry should be large enough to address this issue for all Americans.

How? The only way to reverse a Supreme Court's decision is through another Supreme Court decision, or via an amendment to the Constitution. Since the Supreme Court has not shown an inclination to reverse itself, we need to act now with a Parental Rights Amendment to the United States Constitution. The proposed Parental Rights Amendment includes wording to make sure that parental rights are protected for all, including people with disabilities.

Section 4. The parental rights guaranteed by this article shall not be denied or abridged on account of disability.

Read More About Parental Rights for Parents with Disabilities:

Parenting with a Disability: Know Your Rights Toolkit (Christopher & Dana Reeve Foundation, 2016)
Cerebral Palsy Guide
Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children (National Council on Disability, September 27, 2012)