JOURNAL OF GENDER, SOCIAL POLICY & THE LAW, Volume 7, Number 1,
Pages 98-106.




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III. THE PREQUISITES OF EFFECTIVE CONSENT TO SURGERY

        The common law of battery has for centuries recognized the right of a person to be free from unwanted touching.76 The common law has long recognized surgery as a technical battery that can only be excused when there is expressed consent from the patient.77 Because of the fundamental interests at stake, the consent must be "informed" in accordance with accepted standards for disclosure of information by the physician and actual understanding by the patient.78 Some courts base the necessity for informed consent in the fiduciary nature of the relationship between the physician and the patient, or upon "fundamental fairness."79

        An operation performed without informed consent is an unauthorized operation and may subject the physician to liability.80 In assessing liability, courts have considered whether or not the patient would have withheld consent if a doctor had provided adequate information.81 Courts will also consider the existence of emergency conditions.82 Courts have held that the requirement for informed consent is applicable even to minor surgical operations with extremely slight risks, such as the removal of a wart.83

        The judicial standard for determining whether a patient has given informed consent varies by jurisdiction.84 Courts measure informed consent either by the disclosure that would have been given by a reasonable physician,85 typically measured by the customary practices of physicians in the locality,86 or by a standard based upon disclosure of information which the patient would deem relevant in reaching a decision.87 The latter "patient-based rule reflects the trend towards healthy skepticism of medical authority,88 and the increasing recognition of patients' right to control their own treatment.89 Consent under the patient based rule is valid only if the risks of surgery have been communicated in fact.90

        There have been surprisingly few cases involving the question of informed consent to circumcision.91 The paucity of cases may reflect the awkward legal position that parents face when bringing an action on behalf of the child in a situation where any harm to them is indirect.92 It may also reflect the widespread but erroneous belief that circumcision is without adverse consequences for the child, or its relationship to its parents.93 The startling result has been that courts have denied parents standing to sue for unauthorized circumcision, despite the fact that their consent, or the lack thereof, formed the basis for the complaint.94 As awareness of the adverse consequences of circumcision becomes more widespread, courts are likely to find standing for the parents in case of unauthorized circumcision.

        In any event, providing a legal remedy for the unusual case of unauthorized circumcision does not address the larger issue of whether or not the parents are, or should be, legally authorized to consent on their child's behalf. Unfortunately, most parents in the United States either give their consent or acquiesce in the occasional unauthorized procedure.95 In order to protect the infant's fundamental right to bodily integrity, a reassessment is required of the power of minors and parents to consent to surgery, and of the State's role in protecting the right's of unborn children.96

A. Ability of Minors to Consent to Surgery

        Most jurisdictions severely constrain the ability of minors to consent to medical treatment on the premise that minors lack the considered judgment to act in their own best interest.97 Some courts recognized the power of minors to consent when the granting or withholding of such consent constitutes the exercise of a fundamental right.98 The most settled area in which such power is recognized concerns decisions over procreative choice.99

        In Planned Parenthood v. Danforth,100 which overturned restrictions on a minor's right to consent to abortion, the Supreme Court held that constitutional rights do not ``magically'' appear at the time a child reaches maturity.101 The Court emphatically stated that ``[m]inors as well as adults are protected by the Constitution and possess constitutional rights.''102 The Court quickly conceded that the state has ``somewhat broader authority to regulate the behavior of children than of adults,''103 but ultimately concluded that the state interest in the ``safeguarding of the family unit and of parental authority ...is no more weighty than the right of privacy of the competent minor mature enough to have become pregnant,''104 provides a convenient limit to the scope of the Court's ruling. In Danforth, the Court had little difficulty overriding any concern for the parent's interest in parental discretion, as distinct from the interest of the minor or the state.105

        In each case in which the right to consent to medical treatment has been extended to minors, the court has favorably assessed, either explicitly or implicitly, the minor's ability to make a considered decision regarding the treatment.106 The presence of sufficient maturity and judgment to make such a decision is necessary in a minor because of the fundamental nature of the rights at stake and the cognitive prerequisites for granting effective consent.107 Thus, there is a biological limit, determined by psychological and intellectual development factors, to the ability of minors to grant effective consent.108 In other words, at a certain age, the minor is too young to say ``yes.''

        Nevertheless, it does not necessarily follow that the minor is too young to say ``no.'' Invasive medical treatment, for example, is a battery and a violation of constitutional rights unless the patient has granted effective consent. The absence of consent is all that is required in the case of competent adults, under normal circumstances, to preserve an individual's bodily integrity.109 For adults, no affirmative withholding of consent is necessary. Important exceptions to this analysis of effective consent occur in the case of medical treatment required to safeguard the community, such as an inoculation against communicable disease,110 or when the judicial presumption of consent is warranted.111 For minors, the absence of consent should operate in a similar manner with the distinction that a presumption of effective consent is warranted once it is demonstrated that the medical treatment is necessary to preserve the infant's life. Another distinction exists when clear and convincing evidence indicates that the minor would have given consent if shown competent to do so.112 Under most circumstances, the courts could approximate this standard by determining by clear and convincing evidence that the proposed procedure is in the minor's best interest.113 In the case of male circumcision in the United States, the need for such a demonstration is rarely articulated, and is all too readily relinquished to the perceived parental interest in exercising parental discretion.114

B. Ability of Parents to Consent on Behalf of Their Children

        The Supreme Court has struggled to define a zone of privacy within the family unit that is beyond the purview of state interference.115 Courts have long recognized parental discretion in decisions affecting their children as a ``fundamental'' interest of the parents, and thus distinct from the interests of the state.116

        Support of a constitutional basis for parental discretion is provided in several cases including: Wisconsin v. Yoder;117 Meyer v. Nebraska;118 and Pierce v. Society of Sisters.119 In each of these cases, the Court protected parental discretion from state interference, after a careful weighing of the state interest and the First Amendment right asserted by the parents.120 Instead of recognizing a broad constitutional right of parental discretion, these cases stand for a limited scope of parental discretion in the matters of education and religion.121 Other Supreme Court cases have hinted at a "fundamental right to raise a family," although the Court has not clearly defined the contours of this right.122

        The Supreme Court has sharply curtailed parental discretion, even in the exercise of First Amendment rights, when the exercise of such rights may adversely affect the health of a minor.123 Prince v. Massachusetts124 involved the prosecution of the guardian of a minor child under child labor laws.125 The Court held that ``[p]arents may be free to become martyrs themselves. But it does not follow that they are free to, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.''126 Subsequent cases tested and sustained the Prince reasoning.127

        In the context of the recognized fundamental interest in procreative choice and contraception, the Supreme Court has again declined to recognize constitutional protection of parental discretion in medical decisions affecting their children.128 In cases dealing with these issues, the Court barely paused to acknowledge the independent interests of parents.129 Indeed, these decisions that a dawning recognition of a minor's constitutional right to privacy in procreative choice, a right which is inextricably intertwined with the right to bodily integrity.130

        In Parham v. J.R.,131 the Supreme Court upheld a Georgia statute permitting parents to commit their children to state mental institutions for medical evaluation and treatment.132 The parental discretion at issue, however, was carefully delimited by the procedural safeguards contained within the statute.133 This statute placed decision making in the hands of a neutral fact-finder.134 While the Court recognized ``broad parental authority over minor children,''135 it emphasized that, ``a state is not without constitutional control over parental discretion in dealing with children when their physical and mental health is jeopardized.''136 Significantly, the Court did not identify a constitutionally protected interest in parental discretion.137

        Given the ambiguous constitutional status of parental discretion in medical decision making for minors, courts should be wary of relinquishing such decisions to parents without serious consideration of the other interests involved. Increasingly, the other interests include the separate constitutional interests of the minor to bodily integrity. However, the decisions of lower courts on the issue of parental discretion in medical decision making vary widely, with all jurisdictions recognizing the ability of parents to consent to medical treatment of their children in cases where the treatment is deemed medically necessary.138 In fact, a minority of courts have limited the scope of parental discretion in cases where the courts have not deemed medical treatment necessary.139 Most courts, however, defer to parental discretion within a broad spectrum of situations ranging from those which are medically necessary, to those which do not threaten the health of the child.140

        In the case of male circumcision in the United States, parents are presumed to have the power to consent to the circumcision of their infant sons despite the mounting evidence of the procedure's deleterious effects.141 This practice is no longer tenable given the emerging recognition of constitutional rights for minors, the ambiguous and highly qualified status of parental interests in medical decision making on behalf of children, and the important state interest in ensuring the protection of children's health.

        Courts typically place a high burden on the state to show that medical treatment is necessary before they will compel treatment over parental objections.142 This article argues that the burden should be reversed where the state intervenes to ensure the health of children against questionable medical procedures authorized by the parents on the child's behalf.


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       76. Cole v. Turner, Nisi Prius, 6 Modern Rep. 149 (1704). See U.S. v. Charters, 829 F.2d 479 (4th Cir. 1987) stating that the right to be free from undesired touching traces its origin to English common law).
       77. See Bonner v. Moran, 126 F.2d 121,122 (D.C. Cir. 1941) (citing Schloendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y 1914)) (stating "[w]e think there can be no doubt that a surgical operation is a technical battery, regardless of its results, and is excusable only when there is express or implied consent by the patient; or stated somewhat differently, the surgeon is liable in damages if the operation is unauthorized"); See also Tabor v. Scobee, 254 S.W. 2d 474,475 (Ky. 1951) (involving the removal of patient's fallopian tubes without consent during operation for appendicitis); Mohr v. Williams, 104 N.W. 12, 14 (Minn. 1905) (asserting that it cannot be doubted that ordinarily the patient must be consulted, and his consent given before a physician may operate upon him") See generally Carl T. Drechle, Annotation, Physicians, Surgeons and Other Healers, 61 AM. JUR 2d §§ 174-177 (1981) & Supp. 1997) (discussing physician liability and patient consent); Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 1008,1012 (1978 & Supp. 1997) (exploring collection of modern cases discussing the general nature of physician's duty to inform patients of risks.).
       78. See U.S. v. Charters, 829 F.2d 479, 490-91 (4th Cir. 1987) (providing that forcible medication implicates right to freedom from physical invasion and privacy protected by the constitution, and forms the basis of the informed consent requirement); see also Schloendorff, 105 N.E. at 92 (concluding that informed consent is based on right to control of body); Bowers v. Talmage, 159 So. 2d 888, 890 (Fla. Dist. Ct. App. 1963) (noting that the doctor was under a duty to adequately inform parents of possible dangerous outcomes of child planning operation).
       79. Frantz, supra note 77, at 1018.
       80. See Newmark v. Williams, 588 A.2d 1108, 1115-16 (Del. 1991) (holding that an operation without informed consent is battery); see also Ruby v. Massey, 452 F. Supp. 361, 364 (D. Conn. 1978) (noting that a doctor who performs circumcision without informed consent may be liable); Conservatorship of Drabick v. Drabick, 245 Cal. Rptr. 840, 849 (Cal. Ct. App. 1988) (holding that an adult has the right to determine the scope of his own medical treatment, including instructions relayed through the use of a conservator); Scott v. Kaye, 24 A.D. 2d 890, 891 (1965) (concluding that an operation without informed consent is an unauthorized operation).
       81. See Bourgeois v. McDonald, 633 So. 2d 684, 688 (La. Ct. App. 1993) (stating that the test is whether a reasonable patient in plantiff's position would have consented "had a doctor disclosed the material information or risks involved); see also Karp v. Cooley, 493 F.2d 408, 422 (5th Cir. 1974 noting that other jurisdictions have held that in order to recover, patients must prove that they would not have given consent if informed).
       82. See Hum v. Dericks, 162 F.R.D. 628,639 (D. Haw. 1995) (stating that one issue involved in the concept of informed consent is dispensing with the requirement when emergency conditions are present).
       83. See Hively v. Higgs, 253 P. 363, 365 (Or. 1927) (holding that the fact that an operation is routine and without serious risk does not obviate need for informed consent).
       84. See supra notes 65-67 and accompanying text.
       85. See Brown v. Wood 202 So.2d 125 (2d Cir 1967); McGeshick v. Coucair, 9 F. 3d 1229 (Wis. Ct. App. 1993); Stovall v. Harms, 522 P.2d 353 (Kan. 1974); Drechsler, supra note 77 at § 188 (stating that the physician-based standard is still the most common rule).
       86. K.A.C. v. Benson, 527 N.W.2d 553,561 (Minn. 1995) See Stauffer v. Karabin, 492 P.2d 862, 865 (Colo. Ct. App. 1974) (discussing customary disclosure practices); Coleman v. Garrison 327 A.2d 757, 762 (Del Super. Ct. 1974) (stating that the general rule is that the law holds all surgeons to a standard of conducting themselves with the same care and competence as any surgeon in good standing within the same or similar community).
       87. See Drechsler, supra note 77, at § 189 (asserting that the modern view gaining acceptance by a number of courts is that the fundamental right of self-determination mandates disclosure based on patients needs); see also Getchell v. Mansfield, 489 P.2d 953 (Or. 1971) (stating that the material risk is one which physicians should know would be significant to a patient making a decision). See generally Ball v. United States, 461 F.2d 772 (6th Cir. 1972); Korman v. Mallin, 858 P.2d 1145 (Alaska 1993); Cobbs v. Grant, 502 P.2d 1 (Cal. 1972); Feeley v. Baer, 669 N.E.2d 456 (Mass. 1996); Dixon v. Peters, 306 S.E.2d 477 (N.C. Ct. App. 1983.).
       88. See Canterbury v. Spence, 464 F.2d 772, 789 (D.C. Cir. 1972) arguing that no custom may result in a custom of silence); see also Cobbs v. Grant, 502 P.2d 953 (Or. 1971) (observing that the physician-based standard is so nebulous that it gives physicians absolute discretion). Mason v. Ellsworth, 474 P.2d 909, 915 (Wash. Ct. App. 1970) (holding that the existing physician standard may be negligent).
       89. See Frantz, supra note 77, at § 1013 (stating that The Patient's Bill of Rights adopted in 1972 by the American Hospital Association adopts a patient-based standard); see also Dunham v. Wright, 423 F.2d 940, 946 (3d Cir. 1970) (holding that fundamental fairness requires informed consent because patients bear all risks and expense).
       90. See Hondroulis v. Schumacher, 553 So.2d 398, 402 (La. 1988) (maintaining that awareness requires that material risks have been accumulated in fact).
       91. See Wilson v. Lockwood, 711 S.W.2d 545, 549 (Mo. App. 1986) holding that there was no liability for "failure to warn" where parents read brochure and where Plastibel did not fall off after circumcision); see also East v. United States, 629 F. Supp. 682, 686 (E.D. Mo. 1986) (ruling that there is no evidence to suggest that patient would have declined consent if he had been informed of the standard surgical practice of circumcising the penis as part of the requested prosthetic implant operation).
       92. See Kalina v. General Hosp. of Syracuse, 195 N.E.2d 309,309 (N.Y. 1961) (holding that there is no liability to parents for unauthorized circumcision because there is no duty to parents); see also Fishbeck v. North Dakota, 115 F.3d 580, 581 (8th Cir. 1997) (holding that parents wishing to circumcise their sons have no standing to challenge anti-female genital mutilation statute on equal protection grounds).
       93. See supra notes 23-28 and accompanying text.
       94. See Fishbeck, 115 F.3d at 581 (holding that parents had no standing because nothing could reverse circumcision of son that mother had opposed); see also Kalina v. General Hosp. of Syracuse, 220 N.Y.S.2d 733, 735 (N.Y. Sup. 1961 (holding that Jewish parents had no legally protected interest in improper circumcision of son where surgeon was not a Jewish mohel. A mohel is a religious figure approved to perform the circumcision ritual.). But see Oliner v. Lenox Hosptial., 431 N.Y.S.2d 271, 272 (N.Y. Sup. Ct. 1980) (holding that parents had enforceable right to the circumcision ritual in a hospital under public health law mandating that "civil and religious liberties shall not be infringed"). C. f. Ruby v. Massey, 452 F. Supp. 361, 371 (D. Conn. 1978) (asserting that courts have the duty to protect the plaintiff's interests, and holding that doctors may not deny access to hysterectomies for mentally and physically handicapped minor daughters on the grounds that on the grounds that procreation is a fundamental right).
       95. See Oliner v. Lenox Hospital., 106 Misc. 2d 107, 109 (N.Y. Sup. Ct. 1980) (affirming that parents had standing to demand circumcision be performed on their son according to the parents' religious standards).
       96. See Ruby v. Massey, 452 F. Supp. 361, 368-70 (D. Conn. 1978) (stating that the rights of children to abort a fetus or bear a child are tantamount, despite the present interests of guardians or physicians).
       97. See Smith v. Seibly, 431 P.2d 719, 722 (Wash. 1967) (outlining the criteria that historically characterized minors as not suitably mature to make decisions about their own medical treatment).
       98. According to some statutes, the ability of minors to consent is favored for limited purposes such as treatment of venereal disease, alcohol or drug abuse, and emotional or psychological counseling without parental consent. See, e.g., ME. REV. STAT. ANN. Tit. 22 §§ 1502, 1823, 1908 (West 1996); ME. REV. STAT. ANN. Tit. 32, §§ 2595, 3817, 6221, 7004 (West 1996).
       99. See Carey v. Population Serv. Int'l, 431 U.S. 678, 700 (1977) (overturning restrictions on the distribution of condoms to minors); Planned Parenthood of Mo. v. Danforth, 428 U.S. 52, 75 (1976) (overturning a requirement of parental consent in the case of abortion of minors); Smith v. Seibly, 431 P.2d 719, 723 (Wash. 1967) (defining criteria for considering whether an 18 year-old minor may consent to a vasectomy).
       100. 428 U.S. 52, 74 (1976)
       101. Id.
       102. Id. at 74. See Carey, 431 U.S. at 692 (noting that minors as well as adults, are entitled to constitutional protection of their rights).
       103. Danforth, 428 U.S. at 74.
       104. Id. at 75.
       105. Id. at 73.
       106. See, e.g., Danforth, 428 U.S. at 74 (acknowledging that some minors may be mature to make appropriate decisions about terminating pregnancy); see also Smith v. Seibly, 431 P.2d 719, 723 (Wash. 1967) (recognizing that the minor in this case exhibited considerable maturity and could make an informed decision to have a vasectomy).
       107. Danforth, 428 U.S. at 74.
       108. Id. at 72-73.
       109. Id. at 67.
       110. See Jacobsen v. Massachusetts, 197 U.S. 11, 26 (1905) (upholding the constitutionality of a state law requiring persons to be inoculated against smallpox, the Court noted that "[t]here are manifold restraints to which every person is necessarily subject for the common good"); see also Kristine M. Severyn, Jacobsen v. Massachusetts: Impact on Informed Consent and Vaccine Policy, J. PHARMACY & L. 249 (1996).
       111. In re Quinlan, 348 A.2d 801, 818-19 (N.J. Super. 1975).
       112. Little v. Little, 576 S.W.2d 493, 496-97 (Tex. Ct. App. 1979).
       113. Id. at 497.
       114. See generally Oliner v. Lenox Hosp., 106 Misc. 2d 107, 109 (N.Y. Sup. Ct. 1980) (holding that a hospital must comply with parental interest in having circumcision performed as a bris).
       115. See Griswold v. Connecticut, 381 U.S. 479, 483 (1965) (holding that illegality of contraceptives invades privacy rights of married couples protected by the Ninth Amendment penumbral theory); see also Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding that "[m]arriage and procreation are fundamental to the very existence and survival of the race," invoking protection under the Equal Protection Clause of the Fourteenth Amendment of a sterilized prisoner).
       116. See generally In re Philip B., 156 Cal Rptr. 2d 48, 50 (Cal. Ct. App. 1979) (holding that parental autonomy is constitutionally protected but not absolute).
       117. See 406 U.S. 205, 232 (1972) (upholding the decision by Amish parents to withdraw their children from public school after a careful balancing of parental and state interests.).
       118. See 262 U.S. 390, 399 (1923) (striking down a law prohibiting the teaching of German and holding that the liberty interest protected under the Fourteenth amendment included the right to "marry, establish a home, and bring up children ....").
       119. See 268 U.S. 510, 534-35 (1925) (striking down a law requiring attendance at public schools and considering the "liberty of parents and guardians to direct the upbringing of children under their control").
       120. See Wisconsin v. Yoder, 406 U.S. 205, 231 (1972) (balancing parental interest in free exercise of religious rights with the state interest in maintaining consistent compulsory attendance laws for school-aged children); Pierce v. Society of Sisters, 268 U.S. 510, 532-33 (1925) (balancing parental rights of choice in education around religious interests with states' rights to provide education as they deem appropriate); Meyer v. Nebraska, 262 U.S. 390, 402-03 (1923) (holding that states' interest in educating children in English may not supercede parental rights to speak with children in their native language).
       121. See Elizabeth J. Sher, Choosing for Children: Adjudicating Medical Care Disputes Between Parents and the State, 58 N.Y.U. L. REV. 157, 173-84 (1983) (stating that courts only advocate parental assertion of rights in cases involving decisions about religion, education and morality).
       122. See Stanley v. Illinois, 405 U.S. 645, 654-55 (1972) (the right to raise one's children is a fundamental right which cannot be abridged unless the potential harm to the child is significant); Griswold v. Connecticut, 381 U.S. 479, 495 (1965) (striking down a Connecticut law interfering with the right to use contraceptives, and holding that "the entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the right to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.")
       123. Prince v. Massachusetts, 321 U.S. 158, 159-60 (1944).
       124. Id.
       125. Id. at 160.
       126. Id. at 170.
       127. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 234 (1972) (holding that parental discretion may be challenged "if it appears that the parental decision will jeapardize the health and safety of the child, or have a potential for significant social burdens"); Stanley v. Illinois, 405 U.S. 645, 647 (1972).
       128. H.L.V. v. Matheson, 450 U.S. 398 (1981).
       129. See, e.g., Belotti v. Baird, 443 U.S. 622, 647-49. (1979) (holding that statutes cannot require minors to inform their parents of their intent to have an abortion and obtain parental or judicial consent, or prohibit the sale of contraceptives to minors); Carey v. Population Serv. Int'l, 431 U.S. 678, 693-94 (1977); Planned Parenthood of Mo. v. Danforth, 428 U.S. 52 (1976). But see H.L. v. Matheson, 450 U.S. 398, 413 (1981) (holding that "[t]he statute plainly serves important state interests, is narrowly drawn to protect only those interests, and does not violate any guarantees of the Constitution").
       130. See Conservatorship of Valerie N., 707 P.2d, 760, 773 (Cal. 1985). The court stated that:

[T]he interests of the incompetent which mandate recognition of procreative choice as an aspect of the fundamental right to privacy and liberty do not differ from the interests of women able to give voluntary consent to this [contraception through sterilization] procedure.... Therefore, whether approached as in infringement of the right of privacy under the First Amendment or the privacy right that is found within the liberty protected by the Fourteenth Amendment, and whether analyzed under due process or equal protection principles, the issue is whether withholding the option ... is constitutionally permissible.

Id.
       131. 442 U.S. 584 (1979)
       132. Id.
       133. Id. at 616.
       134. Id. at 606-08.
       135. Id. at 602.
       136. Parham v. J.R., 442 U.S. 584, 603 (1979).
       137. See generally Pierce, 262 U.S. 390 (1923).
       138. See Ruby v. Massey, 452 F. Supp. 361, 365 (D. Conn. 1978) (holding that a parent may give lawful consent to surgical treatment that in a physician's opinion is medically necessary).
       139. Id. See In re Hudson, 126 P.2d 765, 778 (Wash. 1942) (protecting a parent's right to bar amputation of a child's deformed arm because there was no issue of child abuse or neglect); c.f. Alfonso v. Fernandez, 584 N.Y.S.2d 406, 412 (N.Y. Sup. Ct. 1992) (holding that a condom availability program was not a "health service", therefore not requiring parental consent). But see Powers v. Floyd, 904 S.W. 2d 713, 717 (Tex Ct. App. 1995) (advocating a broad reading of treatment and rejecting Little v. Little definition of medical treatment as too narrow because it would allow "surgery to remove an unwanted birthmark or even circumcision."); Little v. Little, 576 S.W.2d 493, 495 (Tex. Ct. App. 1979) (ruling that while parents could consent to surgical intrusion on a mentally retarded minor, such services did not constitute medical treatment because medical treatment signifies affirmative efforts to effect a cure).
       140. See generally Powers v. Floyd, 904 S.W.2d 713, 717 (Tex Ct. App. 1995) (holding that parental discretion may be appropriate in a wide range of circumstances).
       141. See Davis Richards, Male Circumcision: Medical or Ritual, 3 J. L. & MED. 371 (1996) (arguing that the evolution for the concept of balancing the interests of the minor, parents, and the state, as applied to circumcision, has evidently proceeded further in Australia than in the United States).
       142. See Newmark v. Williams, 588 A.2d 1108, 1113 (Del. Super. Ct. 1991) (holding that the state has burden of clear and convincing evidence that intervention is necessary in order to overrule parental objection to treatment); In re Green 292 A.2d 387, 391-92 (Pa. 1972) (holding that the state does not have authority to force medical intervention where the child's life is not in danger).


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