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posted Jul 20, 2012, 12:14 AM by Mizz Abe   [ updated Jul 20, 2012, 12:14 AM ]
Parental rights v child's best interests

Andy Ho, Senior Writer
The Straits Times
19 July 2012

Recently, doctors turned to the law to ensure a three-year-old boy suffering from acute leukaemia received chemotherapy.

Though there was an 80 per cent chance of recovery with chemotherapy, the child's divorced parents could not agree on it, opting instead for an Arizona-based philosophy of 'natural therapy' which involves fasting, sunbathing and a diet of fruit and vegetables.

Doctors then referred the case to the Ministry of Community Development, Youth and Sports, so the Child Protection Service came into the picture, which secured a Care and Protection Order through the Juvenile Court to place the child at KK Women's and Children's Hospital until a decision was made.

Hearings went ahead to get the parents to 'voluntarily agree' to treatment. But before the third hearing, the toddler's condition deteriorated and the parents finally consented, albeit unwillingly especially in the mother's case.

The law invoked was the Children and Young Persons Act, which has a provision that if the child needs health care but 'his parent or guardian neglects or refuses to have him so examined, investigated or treated' then the authorities may step in, remove the child to a safe place and schedule court hearings to get expert medical opinion on the matter.

While this rare move was totally legal, some ask if it was morally right for the State to override parental rights to make health-care decisions for their children.

This question may have arisen because it is generally assumed that the parent-child filial bond is a hierarchical one in which the parent has broad rights over the offspring, making decisions for the child in his or her interests.

Parents do have control over their minor offspring to an extent not permissible in any other human relationship. That is, common law recognises that each of us are entitled to our own bodily integrity, which is why slavery is disallowed and why we have the right to refuse treatment. Or, why compelling someone to receive treatment violates her liberty.

This, however, is not true for minors as it is assumed they are not mature enough to make health-care decisions and parents will decide for their best interests.

However, the minor's right to bodily integrity is personal: Neither the biological tie nor the zone of privacy for families gives parents a right to impugn that integrity. That is why parental physical and sexual abuse of their offspring is criminal. The child is an individual who must be accorded dignity and respect like all other persons. She is not chattel, so parental rights do not derive from ownership of the child in any sense.

The uneasy feeling that the State may have usurped parental rights here probably derives largely from the implicit, hierarchical owner-to-chattel model of the parent-child relationship.

However, if we regard the child as a not yet autonomous but complete, vulnerable person growing into self-autonomy, then parental rights must be seen to be limited by the rights of the child.

A better way to nuance the parent-child relationship might be to view it as one between a trustee and beneficiary. The late University of Arizona philosopher Joel Feinberg argued in Whose Child? (1980) that parents are really adults who hold certain future interests of their child in trust.

A child has the basic right to life that all humans enjoy. He also has a right to depend on adults for food, shelter and protection. He enjoys some deferred rights that must be 'saved for the child until he is an adult' - like choosing one's spouse, vocation or religion.

Feinberg felt that parents are morally obligated to preserve these 'rights-in-trust' which are their offspring's future options. This parents can do by bringing the child up healthy and well into the age of majority.

As trustees, parents would have wide authority to manage the trust's 'assets'. Thus, ordinarily, they would make the health-care decisions for the child too. And as trustees of its 'rights-in-trust', parents must preserve the child's life so he can go on to make his own health-care decisions as an adult in the future.

But should the parent do something that threatens such rights held in trust, Feinberg argued, the State is morally bound to intervene because 'children are not legally capable of defending their own future interests against present infringement by their parents, so that task must be performed for them'.

In health-care decisions, especially when risk of death or serious disability is imminent, a neutral third party widely acknowledged to be qualified to make unbiased decisions in the child's best interests should do so in place of the trustee who has failed.

Since science-based medicine has produced the best survival rates with acute leukaemia compared to any form of alternative medicine, the physician would be the best qualified, neutral third party to advise the courts in the present case. It is safe to say thatthe Arizona 'treatment' has no independently verified leukaemia survival track record to speak of.

Thus the State's actions in this case were both legal and also morally correct. This legal precedent shows that the authorities will take a hard stance against philosophically motivated parental refusals of treatment for their children.

Parents are free to martyr themselves but they are not free to martyr their children, who must be kept safe to reach the age of majority when they can choose to do likewise or not.

As for the toddler, things are working out and he is now into the first third of his nine-month schedule of chemotherapy.


Do you agree that the State's actions in the above case were morally correct?

To what extent should parents have control over their children? Completely? What are the limits? Or when should the Government come into the picture?