Best Interest of the Child: Surrogate Decision Making and the Economics of Externalities


The case of Twin B involves the decision to send a newborn to a less intensive Level 2 special care nursery (SCN) than to the Level 3 neonatal intensive care unit (NICU) that is considered optimal by the physician. The physician’s acceptance of the transfer is against the child’s best interest and is due to parental convenience. In analyzing the case, we reject the best interest standard. Our rejection is partly supported by the views of Douglas Diekema, John Hardwig, and Lannie Ross. Instead of the best interest standard, we offer and defend an approach we base on a microeconomic analysis of externalities, such as those involved with automobile emissions. This extends our previously presented general microeconomic approach to patient decision-making. It provides a clearer way to evaluate situations, like those of Twin B, in which burdens faced by family members may be used to determine the appropriate level of treatment for a decisionally incapable patient.

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  1. 1.

    Our use of economic externalities is an extension of our previously published microeconomic model of patient decision-making (Stewart and DeMarco 2005).

  2. 2.

    For example, in Little v. Little (1979), the court considered whether a daughter with Down syndrome should be used as a kidney donor for her sister. A court-appointed lawyer representing the prospective donor argued that donation is not in her medical interest. The court disagreed, arguing that the continuing life of the younger child would be a psychological benefit to the donor.

  3. 3.

    Benefits and costs of treatment are conceived technically as present discounted values of future benefits and costs.

  4. 4.

    While other criteria may enter in diagnosing type 2 diabetes, we simplify by assuming that the blood glucose level is the sole criterion. Type 2 diabetes was formerly known as adult-onset diabetes and is by far the most common type of diabetes.


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Correspondence to Douglas O. Stewart.

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We thank the reviewers for their thoughtful and helpful comments on an earlier version of this paper.

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DeMarco, J.P., Powell, D.P. & Stewart, D.O. Best Interest of the Child: Surrogate Decision Making and the Economics of Externalities. Bioethical Inquiry 8, 289–298 (2011).

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  • Informed consent
  • Decision-maker
  • Surrogate
  • Best interest
  • Bioethics: Medical ethics