Abstract
A right is a relationship that allows one person or entity to alter the behavior of another. An interest, on the other hand, is something that benefits a person or entity. At an auction, I may have an interest in acquiring an object, but I do not have a right to win the auction. There is a reciprocal relationship between interests and harms. It is against one’s interests to be harmed, while frustration of one’s interest is a harm. Legal consideration of children’s welfare has been based on interests, often expressed as the “best interests standard.” The term “best interests” has multiple conflicting meanings. First intended as a legal term of art, the term unfortunately has often been construed literally by bioethicists and by others who should know better. This undiluted focus on the child has led to a salutary attempt to replace the best interests standard as a state intervention principle with a “harm principle” that is closer to legal intent and much legal practice. Reasonable discussion will be difficult unless nomenclature changes. I propose that the intervention principle should be divided into (1) an identification principle for determining when the state may coercively intervene; and (2) a resolution principle for determining how the state should act. Identification of grounds for intervention should be based on failure to meet children’s needs; a need is an especially important kind of interest. Resolution should maximize fulfillment of the interests and needs of all stakeholders. It should not necessarily privilege the child in question, nor should health concerns necessarily be prioritized. Parents are to be accepted as the default deciders, and the state has the burden of showing that parents are failing to meet children’s needs.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
This is my example, not Kopelman’s.
- 2.
The Heinemann case (Heinemann's Appeal, 96 Pa. 112, Pennsylvania Supreme Court, 1880) may be the first American case to restrict parental rights based on a parent’s decision regarding health care. Though the court mentioned the children’s interests the case is better construed as relying on imminent parental harm. A father was treating his five children’s diphtheria using unproven, nonmedical methods. After three children died the court removed the remaining two from the father’s custody. The opinion was based on a child neglect statute, and the father is noted several times in the opinion to have treated the children in a neglectful manner.
- 3.
To appreciate how the court decided this case, see Matter of NJ, 129–130. The mechanism of determination is fairly typical in the US.
- 4.
Of course, if poor parenting is not to blame for a child’s obesity (Merry and Voight 2014) then it would be unjust to remove the child from his home.
- 5.
I have taken. extensive liberties with the back story of the Batman comics and films.
- 6.
In one early case custody was awarded to the mother because of the father’s incapacity to care for the children. (Commonwealth v. Addicks, 5 Binn. 520, Pennsylvania Supreme Court, 1813). Two years later, the father regained custody because the adulterous mother was found to be a bad moral influence (Commonwealth v. Addicks & Lee, 2 Serg. & Rawle 174, Pennsylvania Supreme Court, 1815) In each case, the court considered the effects on the child, albeit with differing outcomes.
- 7.
In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child’s parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent–child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child’s adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child’s family home pendente lite in order to alleviate stress in the household; (11) the stability of the child’s existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child’s cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected… and (16) whether the party satisfactorily completed participation in a parenting education program … The court is not required to assign any weight to any of the factors that it considers, but shall articulate the basis for its decision. (Emphasis supplied.).
- 8.
Indeed, how many humanities professors understand the science that supports the existence of climate change?
- 9.
But see the response to the media story by the facility involved, at https://newsnetwork.mayoclinic.org/CNN-Letter-08-15-2018.pdf, accessed April 27, 2019.
References
Abramowitz, Sarah. 2009. Childhood and the limits of contract. Yale Journal of Law and Humanities 21 (1): 37–100.
Adeel, Hassan. 2019. Officers Take Sick Toddler, Unvaccinated, from House. New York Times, March 30, 2019. https://www.nytimes.com/2019/03/29/us/unvaccinated-children-home-raids.html
Beauchamp, Tom L., and James F. Childress. 2013. Principles of Biomedical Ethics, 7th edn. New York: Oxford University Press.
Bester, Johan Christiaan. 2018. The harm principle cannot replace the best interests standard: Problems with using the harm principle for medical decision-making for children. American Journal of Bioethics 18 (8): 9–19.
Birchley, Giles. 2016. Harm is all you need? Best interests and disputes about parental decision-making. Journal of Medical Ethics 42 (2): 111–115.
Bombay, Amy, Kim Matheson, and Hymie Anisman. 2009. Intergenerational trauma: Convergence of multiple processes among first nations peoples in Canada. Journal of: Aboriginal Health 5 (3): 6–47.
Buchanan, Allen E., and Dan W. Brock. 1989. Deciding for Others: The Ethics of Surrogate Decision Making. Cambridge: Cambridge University Press.
Cohen, Elizabeth, and John Bonifield. 2018. Escape from the Mayo Clinic: Parents Break Teen Out of World-Famous Hospital. CNN Health. August 17, 2018. https://www.cnn.com/2018/08/13/health/mayo-clinic-escape-2-eprise/index.html
Council of Europe. 2015. European Union Agency for Fundamental Rights and Council of Europe. Handbook on European Law Relating to the Rights of the Child. https://www.echr.coe.int/Documents/Handbook_rights_child_ENG.pdf
Cunningham, Thomas V. 2016. A life below the threshold? Examining conflict between ethical principles and parental values in neonatal treatment decision making. Narrative Inquiry in Bioethics 6 (1): 63–71.
Cuthbert, Denise M., and Marian Quartly. 2012. ‘Forced adoption’ in the Australian story of national story of national regret and apology. Australian Journal of Politics and History 58 (1): 82–96.
Diekema, Douglas S. 2004. Parental refusals of medical treatment: The harm principle as threshold for state intervention. Theoretical Medicine 25 (4): 241–264.
Dolgin, Janet L. 1996. Why has the best interest standard survived? The historic and social context. Children’s Legal Rights Journal 16 (1): 2–10.
Elwyn, Glyn, Dominick Frosh, Richard Thompson, Natalie Joseph-Williams, Amy Lloyd, Paul Kinnersley, Emma Cording, et al. 2012. Shared Decision making: A model for clinical practice. Journal of General Internal Medicine 27 (10): 1361–1367. https://doi.org/10.1007/s11606-012-2077-6.
Frick, Marie-Luisa. 2019. Human Rights and Relative Universalism. Cham: Palgrave Macmillan.
Gavison, Ruth. 1980. Privacy and the limits of law. Yale Law Journal 89 (3): 421–471.
George, Robert P. 2008. Natural law. Harvard Journal of Law and Public Policy 31 (1): 171–196.
Gray, Ben, and Fern Brunger. 2018. (Mis)understandings and uses of ‘Culture’ in bioethics deliberations over parental refusal of treatment: Children with cancer. Clinical Ethics 13 (2): 55–66.
Haidt, Jonathan. 2012. The Righteous Mind: Why Good People are Divided by Politics and Religion. New York: Pantheon.
Hauerwas, Stanley, and Michael Baxter. 1992. The kingship of Christ: Why freedom of “Belief” is not enough. De Paul Law Review 42 (1): 107–127.
Henrich, Joseph. 2016. The Secret of Our Success: How Culture is Driving Human Evolution, Domesticating Our Species, and Making Us Smarter. Princeton: Princeton University Press.
Hester, D. Micah, Kellie R. Lang, Nanibaa' A. Garrison, and Douglas S. Diekema. 2018. Agreed: The harm principle cannot replace the best interest standard … but the best interest standard cannot replace the harm principle either. American Journal of Bioethics 18 (8): 38–40.
Iltis, Ana S. 2010. Toward a coherent account of pediatric decision making. Journal of Medicine and Philosophy 35 (5): 526–552.
Jacobs, Allan J., and Kavita Shah Arora. 2018. When may government interfere with religious practices to protect the health and safety of children? Ethics in Medicine and Public Health 5 (1): 86–93.
Kopelman, Loretta M. 1997. The best-interests standard as threshold, ideal, and standard of reasonableness. Journal of Medicine and Philosophy 22 (3): 271–289.
Kopelman, Loretta M. 2018. Why the best interest standard is not self-defeating, too individualistic, unknowable, vague or subjective. American Journal of Bioethics 18 (8): 34–36.
Ku, Po-Wen, Andrew Steptoe, Yun-Ju Lai, Hsiao-Yun Hu, Dachen Chu, Yung-Feng Yen, Yung Liao, and Li-Jung Chen. 2018. The associations between near visual activity and incident myopia in children: A nationwide 4-year follow-up study. Ophthalmology 126 (2): 214–20
Lantos, John D. 2017. The tragic case of Charlie Gard. JAMA Pediatrics 171 (1): 935–936.
Mason, Mary Ann. 2011. The roller coaster of child custody law over the last half century. Journal of the American Academy of Matrimonial Lawyers 24 (2): 451–466.
McLaughlin, Julia Halloran. 2009. The fundamental truth about best interests. Saint Louis University Law Journal 54 (1): 116–165.
Merry, Michael S., and Kristin Voigt. 2014. Risk, harm and intervention: The case of child obesity. Medical and Health Care Philosophy 17 (2): 191–200.
Mnookin, Robert H. 1975. Child-custody adjudication: Judicial functions in the face of indeterminacy. Law and Contemporary Problems 39 (3): 226–293.
Mutcherson, Kimberly M. 2002. No way to treat a woman: Creating an appropriate standard for resolving medical treatment disputes involving HIV-positive children. Harvard Women’s Law Journal 25 (2): 221–279.
Offit, Paul. 2015. Bad Faith: When Religious Belief Undermines Modern Medicine. New York: Basic Books.
Pope, Thaddeus M. 2011. The best interest standard: Both guide and limit to medical decision making on behalf of incapacitated patients. Journal of Clinical Ethics 22 (2): 134–140.
Salter, Erica K. 2012. Deciding for a child: A comprehensive analysis of the best interest standard. Theoretical Medicine and Bioethics. 33 (3): 179–198.
Schneider, Carl E. 1995. On the duties and rights of parents. Virginia Law Review 81 (8): 2477–2491.
Shah, Seema. 2013. Does Research with children violate the best interests standard? An empirical and conceptual analysis. Northwestern Journal of Law and Social Policy 8 (2): 121–173.
Sinclair, Raven. 2007. Identity lost and found: Lessons from the sixties scoop. First Peoples Child and Family Review 3 (1): 65–82.
Smith, Peter J. 2007. New legal fictions. Georgetown Law Journal 95 (5): 1435–1496.
Trennert, Robert A. 1983. From Carlisle to Phoenix: The rise and fall of the Indian outing system, 1878–1930. Pacific Historical Review 52 (3): 267–291.
Varness, Todd, David B. Allen, Aaron L. Carrel, and Norman Fost. 2009. Childhood obesity and medical neglect. Pediatrics 123 (1): 399–406.
Wilder, Joanne Ross. 2009. Resolving religious disputes in custody cases: It’s really not about best interests. Journal of the American Academy of Matrimonial Lawyers 22: 411–423.
Wistrom, Grant. 2018. The Importance of Teamwork: What Football Can Teach Us About Finding Success as a Team. February 14, 2018. https://www.linkedin.com/pulse/importance-teamwork-what-football-can-teach-us-finding-grant-wistrom/
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2022 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Jacobs, A.J. (2022). What is Relevant: Interests, Needs, and Harms. In: Assigning Responsibility for Children’s Health When Parents and Authorities Disagree: Whose Child?. The International Library of Bioethics, vol 90. Springer, Cham. https://doi.org/10.1007/978-3-030-87698-2_3
Download citation
DOI: https://doi.org/10.1007/978-3-030-87698-2_3
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-87697-5
Online ISBN: 978-3-030-87698-2
eBook Packages: Religion and PhilosophyPhilosophy and Religion (R0)