Deciding for a child: a comprehensive analysis of the best interest standard
- 1.8k Downloads
This article critically examines, and ultimately rejects, the best interest standard as the predominant, go-to ethical and legal standard of decision making for children. After an introduction to the presumption of parental authority, it characterizes and distinguishes six versions of the best interest standard according to two key dimensions related to the types of interests emphasized. Then the article brings three main criticisms against the best interest standard: (1) that it is ill-defined and inconsistently appealed to and applied, (2) that it is unreasonably demanding and narrow, and (3) that it fails to respect the family. Finally, it argues that despite the best interest standard’s potent rhetorical power, it is irreparably encumbered by too much inconsistency and confusion and should be rejected.
KeywordsPediatric decision making Best interest standard Surrogate decision making
I would like to thank Ana Iltis for her guidance and help in the preparation of this manuscript, as well as the reviewers at Theoretical Medicine and Bioethics for their helpful suggestions in the refinement of my arguments.
- 5.Locke, J. 1988. Two treatises of government. Cambridge: Cambridge University Press.Google Scholar
- 7.Developments in the law: The constitution and the family. 1980. Harvard Law Review 93(6): 1156–1383.Google Scholar
- 8.In re Weberlist. 79 Misc. 2d 753 (N.Y. Sup. Ct., 1974). Google Scholar
- 9.Clarke, A.M. 1980. The choice to refuse or withhold medical treatment. Creighton Law Review 13(3): 795–841.Google Scholar
- 10.Developments in the law: Medical technology and the law. 1990. Harvard Law Review 103 (7):1519–1676.Google Scholar
- 11.Dresser, R.S. 1994. Missing persons: Legal perceptions of incompetent patients. Rutgers Law Review 46(2): 609–719.Google Scholar
- 12.Griffith, D.B. 1991. The best interests standard: A comparison of the state’s parens patriae authority and judicial oversight in best interests determinations for children and incompetent patients. Issues in Law and Medicine 7(3): 283–338.Google Scholar
- 13.Cruzan v. Director, MO Dep’t of Health. 497 U.S. 261 (1990).Google Scholar
- 14.In re:Drabick. 245 Cal. Rptr. 840 (Ct. App. 1988).Google Scholar
- 15.In re Storar. 420 N.E.2d 64 (N.Y.), cert. denied, 454 U.S. 858 (1981).Google Scholar
- 16.Superintendent of Belchertown v. Saikewicz. 370 N.E.2d 417 (1977).Google Scholar
- 17.Wadlington, W. 1994. Medical decision making for and by children: Tensions between parent, state and child. University of Illinois Law Review 1994(2): 311–336.Google Scholar
- 18.American Medical Association. 2006. Surrogate decision making. In Code of medical ethics, opinion E-8.081. Chicago, IL: AMA.Google Scholar
- 19.President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. 1982. Making health care decisions: A report on the ethical and legal implications of informed consent in the patient-practitioner relationship. Washington, DC: U.S. Government Printing Office. Google Scholar
- 20.U.K. Parliament. 2005. Mental Capacity Act 2005. Chap. ix. http://www.legislation.gov.uk/ukpga/2005/9/contents.
- 21.Amnesty International. 2007. Convention on the rights of the child: Frequently asked questions. http://www.amnestyusa.org/children/crn_faq.html. Accessed February 2, 2012.
- 22.Lo, B. 2009. Resolving ethical dilemmas: A guide for clinicians. Baltimore, MD: Lippincott, Williams & Wilkins.Google Scholar
- 23.Beauchamp, T.L., and J.F. Childress. 2008. Principles of biomedical ethics. 6th ed. New York: Oxford University Press.Google Scholar
- 24.Jonsen, A., M. Siegler, and W. Winslade. 2006. Clinical ethics: A practical approach to ethical decisions in clinical medicine. 6th ed. New York: McGraw Hill.Google Scholar
- 25.Buchanan, A.E., and D.W. Brock. 1989. Deciding for others: The ethics of surrogate decision making. Cambridge: Cambridge University Press.Google Scholar
- 26.Blustein, J. 1982. Parents and children. New York: Oxford University Press.Google Scholar
- 27.Drane, J.F., and J.L. Coulehan. 1995. The best interest standard: Surrogate decision making and quality of life. Journal of Clinical Ethics 6(1): 20–29.Google Scholar
- 29.Goldstein, J., A. Solnit, S. Goldstein, and A. Freud. 1996. The best interests of the child: The least detrimental alternative. New York: Free Press.Google Scholar
- 30.Ross, L.F. 1998. Children, families and healthcare decision-Making. Oxford: Clarendon Press.Google Scholar
- 34.Rawls, J. 1971. Theory of justice. Cambridge: Harvard University Press.Google Scholar
- 37.Walker, K. 1998. Jurisprudential and ethical perspectives on the best interests of children. Interchange 29(3): 287–308.Google Scholar
- 39.Masden v. Harrison. Eq. No. 68651 (Mass., June 12, 1957).Google Scholar
- 40.Hart v. Brown. 289 A.2d 386 (Conn. Super. Ct., 1972).Google Scholar