Abstract
Minors are generally considered incompetent to provide legally binding decisions regarding their health care, and parents or guardians are empowered to make those decisions on their behalf. Parental authority is not absolute, however, and when a parent acts contrary to the best interests of a child, the state may intervene. The best interests standard is the threshold most frequently employed in challenging a parent's refusal to provide consent for a child's medical care. In this paper, I will argue that the best interest standard provides insufficient guidance for decision-making regarding children and does not reflect the actual standard used by medical providers and courts. Rather, I will suggest that the Harm Principle provides a more appropriate threshold for state intervention than the Best Interest standard. Finally, I will suggest a series of criteria that can be used in deciding whether the state should intervene in a parent's decision to refuse medical care on behalf of a child.
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REFERENCES
American Academy of Pediatrics, Committee on Bioethics. “Religious Objections to Medical Care.” Pediatrics 99 (1997): 279–81.
Anderson, Roy, and Robert May, “The Logic of Vaccination.” New Scientist 96 (1982): 410–15.
Beauchamp, Tom L., and James F. Childress. Principles of Biomedical Ethics, 5th edition New York: Oxford, 2001.
Buchanan, Allen E., and Dan W. Brock. Deciding for Others: The Ethics of Surrogate Decision-Making. New York: Cambridge University Press, 1990.
Cruzan v. Director, Missouri Department of Health, U. S. 497: 261 (1990).
DeVille, Kenneth A., and Loretta M Kopelman. “Fetal Protection in Wisconsin's Revised Child Abuse Law: Right Goal, Wrong Remedy.” Journal of Law, Medicine, & Ethics 27 (1999): 332–42.
Diekema, Douglas S., and Edgar K. Marcuse. “Ethical Issues in the Vaccination of Children.” In Primum Non Nocere Today. Edited by G. Roberto Burgio and John D. Lantos. Amsterdam: Elsevier, 1998, pp. 37–48.
Dover, Thomas E. “An Evaluation of Immunization Regulations in Light of Religious Objections and the Developing Right of Privacy.” University of Dayton Law Review 4 (1979): 401–24.
Dworkin, Gerald. “Representation and Proxy Consent.” In Who Speaks for the Child: The Problems of Proxy Consent. Edited by Willard Gaylin and Ruth Macklin. 190–208. New York: Plenum Press, 1982.
Feinberg, Joel. Harm to Others: The Moral Limits of the Criminal Law. New York: Oxford University Press, 1984.
Flamm, Anne Lederman. “Understanding Faith: When Religious Parents Decline Conventional Medical Treatment for Their Children.” Case Western Reserve Law Review 45 (1995): 891.
Frader, Joel. “Minors and Health Care Decisions: Broadening the Scope.” Bioethics Forum 11 (1995): 13–16.
Goldstein, Joseph. “Medical Care for the Child at Risk: On State Supervision of Parental Autonomy.” In Who Speaks for the Child: The Problems of Proxy Consent.
Edited by Willard Gaylin and Ruth Macklin. 153–90. New York: Plenum Press, 1982.
Goldstein, Joseph, Anna Freud, and Albert J. Solnit. Before the Best Interests of the Child. New York: Free Press, 1979.
Hanisco, Christine M. “Acknowledging the Hypocrisy: Granting Minors the Right to Choose Their Medical Treatment.” New York Law School Journal of Human Rights 16 (2000): 899–932.
Hardwig, John. “The Problem of Proxies with Interests of Their Own: Toward a Better Theory of Proxy Decisions.” The Journal of Clinical Ethics 4 (1993): 20–27.
Hodges, F. M., J. S. Svoboda, and R. S. Van Howe. “Prophylactic Interventions on Children: Balancing Human Rights with Public Health.” Journal of Medical Ethics 28 (2002): 10–16.
Holder, Angela. “Circumstances Warranting Court-Ordered Medical Treatment of Minors.” 24 POF 2d (1980): 169–210.
In Re Phillip B, Cal Rptr 2d 156: 48 (1979).
Knepper, Kathleen. “Withholding Medical Treatment from Infants: When Is It Child Neglect?” University of Louisville Journal of Family Law 33 (1994): 1–53.
Kopelman, Loretta M. “The Best-Interests Standard as Threshold, Ideal, and Standard of Reasonableness.” Journal of Medicine and Philosophy 22 (1997): 271–89.
Kopelman, Loretta M. “Children and Bioethics: Uses and Abuses of the Best-Interests Standard.” The Journal of Medicine and Philosophy 22 (1997): 213–17.
Krause, H. D. Family Law in a Nutshell. 2nd edition St. Paul, Minnesota: West Publishing Co., 1986.
Lantos, John D. Do We Still Need Doctors? A Physician's Personal Account of Practicing Medicine Today. New York: Routledge, 1997.
Leikin, Sanford. “A Proposal Concerning Decisions to Forgo Life-Sustaining Treatment for Young People.” The Journal of Pediatrics 115 (1989): 17–22.
Meyer v. Nebraska, U. S. 262: 390 (1923).
Mill, John Stuart. On Liberty and Utilitarianism. New York: Bantam Books, 1993.
Miller, Richard B. Children, Ethics, and Modern Medicine. Bloomington, IN: Indiana University Press, 2003.
Murray, Thomas H. The Worth of a Child. Berkeley: University of California Press, 1996.
Newmark v. Williams, A.2d (Del Super Ct) 588: 1108 (1991).
Parham v. J. R., U. S. 442: 584 (1979).
Paris, John J., and Michael D. Schreiber. “Parental Discretion in Refusal of Treatment for Newborns: A Real but Limited Right.” Clinics in Perinatology 23 (1996): 573–81.
Pierce v. Society of Sisters, U. S. 268: 510 (1925).
Povenmire, Ross. “Do Parents Have the Legal Authority to Consent to the Surgical Amputation of Normal, Healthy Tissue from Their Infant Children? The Practice of Circumcision in the United States.” American University Journal of Gender, Social Policy, and Law 7 (1998): 87–123.
Prince v. Massachusetts, U. S. 321: 158 (1944).
Ross, Lainie Friedman. Children, Families, and Health Care Decision-Making. New York: Oxford University Press, 1998.
Ross, Lainie Friedman, and Timothy J. Aspinwall. “Religious Exemptions to the Immunization Statutes: Balancing Public Health and Religious Freedom.” Journal of Law, Medicine, & Ethics 25 (1997): 202–209.
Ruddick, William. “Questions Parents Should Resist.” In Children and Health Care: Moral and Social Issues. Edited by Loretta M. Kopelman and John C. Moskop 221–29. Dordrecht, Netherlands: Kluwer Academic Publishers, 1989.
Schoeman, Ferdinand. “Parental Discretion and Children's Rights: Background and Implications for Medical Decision-Making.” The Journal of Medicine and Philosophy 10 (1985): 45–61.
Sher, Elizabeth J. “Choosing for Children: Adjudicating Medical Care Disputes between Parents and the State.” New York University Law Review 58 (1983): 157–206.
Strong, Carson. “Patients Should Not Always Come First in Treatment Decisions.” The Journal of Clinical Ethics 4 (1993): 63–65.
Superintendent of Belchertown v. Saikewicz, 370: 417 (1977).
Traugott, Isabel, and Ann Alpers. “In Their Own Hands: Adolescent's Refusals of Medical Treatment.” Archives of Pediatric and Adolescent Medicine 151 (1997): 922–27.
Union Pacific Railway Company v. Botsford, 141: 250 (1891).
Vorys, Yolanda V. “The Outer Limits of Parental Autonomy: Withholding Medical Treatment from Children.” Ohio State Law Journal 42 (1981): 813–29.
Wing, Kenneth R. The Law and the Public's Health. 3rd edition Ann Arbor, Michigan: Health Administration Press, 1990.
Wisconsin v. Yoder, U. S. 406: 205 (1972).
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Diekema, D. Parental refusals of medical treatment: the harm principle as threshold for state intervention. Theor Med Bioeth 25, 243–264 (2004). https://doi.org/10.1007/s11017-004-3146-6
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DOI: https://doi.org/10.1007/s11017-004-3146-6