Document Type



This Article evaluates the misalignment of medical capacity and legal competence for perinatal people with serious medical illnesses (SMI), an issue that has had limited discourse in legal academia. It delineates the contours of these concepts, dissecting their theoretical underpinnings and practical applications. While medical capacity is often considered an iterative, context-specific determination, legal competence is typically treated as a rigid, binary legal categorization. It then illustrates how the disparate scope and aims of capacity and competence lead to a precarious misalignment for people with fluctuating mental states, particularly perinatal people with SMI. The Article proposes solutions to harmonize the medical and legal paradigms including normative considerations and practical policy changes, aiming to protect the rights and well-being of individuals while ensuring that determinations are fair, accurate, and reflective of an individual’s true abilities. Ultimately, the Article advocates for a paradigm shift away from the legal system’s inflexible, protectionist approach towards a more nuanced, adaptable capacity assessment model that responds to the variable nature of living with mental illness.