Term Paper: Intervention Minors, or Children Under 18

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¶ … Intervention

Minors, or children under 18, are generally presumed to be incompetent in making decisions about their own health care. Those decisions are traditionally awarded to parents who are also generally presumed to have their children's best interests at heart. However, there have been disputes over the extent of parental authority. The most heated debate has been over the societal and legal limits to parents' right to make medical decisions on religious grounds.

Kopelman, Loreta M. Using the Best Interest Standard to Make Decisions for Children. The Bioethics Center Newsletter: University Health Systems of Eastern Canada, 2008

Kopelman describes the best interest standard as a guide to reaching moral, social and legal decisions for children. The standard aims at maximizing benefits and minimizing harm to children. Confusion has, however, developed out of the different meanings and implications of the standard understood in different contexts. The best interest standard is used when parents make or share the decision on their children's treatment. They balance the risks and the advantages in determining the most suitable or appropriate. The standard is also used in settling custody disputes in divorce, in evaluating priorities in health care system, and in determining research policies for children.

Kopelman recognizes the differences in the use of the said standard and how the "best interest of the child test are used in law. The best-interest-of-the-child rule is objective. The decisions are made for the child by the court. The court focuses on the various factors of the individual for whom it must decide. It is a standard of "reasonableness" because it rests on the needs and interests of a particular child or children but not excluding or ignoring the rights or interests of others. The court weighs and selects the best available option

Bender, Denise G. Do Fourteenth Amendment Considerations Outweigh a Potential State Interest in Mandating Cochlear Implantation for Deaf Children. Journal of Deaf

Studies and Deaf Education: University of Oklahoma Health Sciences Center, 2004

Parental rights are neither explicitly included within the text of the Constitution nor formally defined by the Supreme Court. Nonetheless, time-honored tradition recognizes and supports the parents' right to exercise their children's rights in their behalf upon the assumption that parents have their children's best interest at heart. Courts and families in the U.S. traditionally perceived the child as belonging more to parents than to the State. But with the increase in cases of child abuse and neglect, responsibility for a child ceased to automatically attribute wisdom, kindness or even common sense to parents. Trends and fashions appear to affect parental choices. Some of these choices favor the child, but some create permanent and irreversible harm, which "limits the child's right to an open future."

The author notes that some medical decisions are life-and-death choices. The State finds cause to intervene in emergency situations, such as when religious reasons prohibit or forego a particular and necessary treatment. The State interferes in the best interest of the child in order to protect him or her as a "future productive citizen." It assumes the traditional role of parents in deciding the appropriate course of action in the child's best chances of survival into adulthood.

Salmon, Daniel a. Mandatory Immunization Laws and the Role of Medical Religions and Exemptions. Institute of Vaccine Safety: Johns Hopkins Bloomberg School of Public Health, 2002

Immunizations are among the most successful public health initiatives in curbing disease, death and health care expense. All laws requiring vaccination are State or local laws. Exemptions have been due to religious or philosophical reasons. A recent study, conducted by Rota et al. showed that 34 States allow religious or philosophical exemptions to immunization. The purpose has been to accommodate the wishes of the few parents who did not believe in immunization. At present, they represent less than 1% of the U.S. population.

The study also found that States, which easily allowed the exemptions, had them more than States, which made exemptions more difficult. The study suggested that those States permitting the exemptions should carefully monitor and evaluation the process more than the grounds for the exemptions. This would balance the rights of individuals with the protection of the community from disease. The study also found that only 9 States observed a written policy of informing parents who sought exemptions of the risks of avoiding vaccines. It likewise suggested additional research on the reasons for exemptions. Results of this additional research would improve vaccine risk communication, increased demand for vaccination, and reduced need for immunization laws.

Pasquerella, Lynn. Protecting Faith vs. Protecting Futures. The PRC Report Online:

University of Rhode Island, 2000. Retrieved on March 15, 2008 at http://www.uri.edu/artsci/psc/pscreport/spring00/paski.html

Religiously motivated parents, who were charged with child abuse and neglect, sought protection from the Free Exercise clause of the First Amendment and the liberty interests under the Fourteenth Amendment. The liberty interest portion provides that parents are to raise their children as they saw fit "and to engage in religious indoctrination and the respect for tolerance and pluralism."

The 1944 landmark case of Prince v Massachusetts recognized parental exercise to train and indoctrinate their children on religious matters. This free exercise, however, did not include conduct, which would endanger the health and life of their children. The ruling limited the parents' right to refuse medical treatment on behalf of their children. It clarified and stressed the State's interest in protecting children's welfare. It balanced social values against parents' free exercise of their rights or even override them. More importantly, it declared that parents did not have the right to "make martyrs out of their children" who have yet to attain the age of full legal discretion. She offers four arguments for this position.

Committee on Bioethics. Religious Objections to Medical Care. Volume 9 number 2

281 Pediatrics: the American Academy of Pediatrics, 1997

Some religiously-motivated parents deny proper medical care for their children because of religious beliefs. Exemptions or justifications for child abuse or neglect are at times committed because of these beliefs. The American Academy of Pediatrics believes that all children should receive effective and prompt medical treatment when needing it in order to prevent more serious harm, disease or death. It believes that all legal interventions should apply to all children who would be harmed or endangered by parents' religious beliefs. In effect, the Academy opposed all religious exemption laws. At the same time, the Academy called for greater efforts to educate the public on the medical needs of children.

Findings

Traditional belief holds that since minors, or children under 18, are not competent to make serious decisions about their health care, parents are generally trusted to perform the function on their behalf (Pasquerella 2000). The assumption has been that parents would naturally have their children's best interests at heart. But this assumption has been disputed in a number of legal battles, many of them highly publicized, especially in the limits set by the State on parental authority on children's medical care for religious reasons or grounds. In adhering to religious beliefs, parents either fail to provide the necessary medical care, apply medically improper treatment or expose their children's health, well-being and life to greater harm or death (Pasquerella)..

Religiously-motivated parents and their supporters justify their claim to exemptions to child abuse and neglect prosecution from two Constitutional provisions (Pasquerella 2000). These are the First Amendment and the liberty interests of the 14th Amendment. They insure and protect parents' right to raise their children as they see fit as well as to engage in religious indoctrination. They also guarantee respect for religious tolerance and pluralism. In the Prince v Massachusetts case, the Supreme Court once more recognizes and upheld parents' free exercise rights, which included training and indoctrination of children on religious matters. But it clarified that these rights excluded conduct and practices, which would seriously endanger a child's physical health or safety. This Court ruling limited parents' rights as regards religious beliefs. If the Court found that these religious beliefs or practices exposed children's health and lives, it could override parents' rights (Pasquerella).

The author adds four support arguments to limiting parental authority in medical decisions for religious reasons. These are the State's political and moral role in insuring children's "open futures" for children; children's rights to equal protection from the State; equal protection for laws, which affect children, as a result of parental conduct; and that exemptions violate the Establishment clause of the First Amendment (Pasquerella 2000).

Some religiously-motivated parents refuse medical treatment for their children on grounds of religious beliefs (Committee on Bioethics 1997). Some States allow exemptions to these parents from prosecution for child abuse and neglect in recognition of parental rights to the exercise of religious beliefs over their children. These exemptions thus restrict government protection to children who may otherwise be victims of abuse and neglect. The American Academy of Pediatrics or AAP contends that all children deserve to receive effective treatment in preventing injury, suffering and death. It also maintains that all legal interventions… [END OF PREVIEW]

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