JOURNAL OF GENDER, SOCIAL POLICY & THE LAW, Volume 7, Number 1,
Pages 106-113.


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IV. THE POWER OF THE STATE TO INTERVENE IN PARENTAL DECISIONS
AFFECTING THE MEDICAL TREATMENT OF MINORS

        The power of the judiciary to intervene in decisions affecting the minors is contained in the equitable authority of the court known as parens patriae.143 In many cases involving the medical decision making and minors, the state asks the court to exercise its parens patriae power to compel action over parental objections.144 These objections often implicate constitutionally protected rights of the parent.145 The court's parens patriae power is weakest in such situations because the state is advocating intervention, and so typically the state has the burden to show by clear and convincing evidence that intervention is necessary.146

        The necessity for the intervention must outweigh the interests of the parents in their exercise of parental discretion, as well as the interest of the minor in preserving bodily integrity.147

A. The Power of the State to Prohibit Medical Intervention Over Parental
Discretion

        Cases of proposed sterilization of incompetents are the most common circumstance in which parental discretion to consent to medical treatment is challenged by the state.148 In a surprisingly large body of case law, courts have struggled to balance the interests of the minors, (including adult incompetents), parents, and the state, in proposed sterilization.149 The court's parens patriae power is relatively strong in such situations, because the court is safeguarding both the interests of the state in ensuring the health of minors, as well as the right of minors in preserving bodily integrity.150 Also the proponents of sterilization typically have the burden of establishing that the proposed intervention is either necessary, or at least in the minor's best interest.151

        The similarity between the sterilization of incompetents and infant circumcision goes beyond the mere fact that both involve surgery on the genitals.152 Incompetents of whatever age are treated by the law as minors, and the court's parens patriae power applies equally to both.153 Both sterilization and circumcision violate the personal integrity of the minor.154 While sterilization implicates powerful personal privacy interests in procreative choice which circumcision does not,155 circumcision does involve the radical alteration of a males's most sensitive and private body part which is surely a protected privacy interest.156

        The extent to which parental discretion is subordinated to the interests of the minor and the state is immediately apparent in the sterilization cases. In many of the cases, parents are not deemed to have the ability to consent to sterilization on behalf of incompetents without specific statutory authority.157 Other courts claim the equitable power to confer upon parents the ability to consent to sterilization in the absence of express statutory authority. Other courts claim the equitable power to confer among parents the ability to consent to sterilization in the absence of express statutory authority. The parents must demonstrate by clear and convincing evidence that the procedure is medically necessary.158 In some cases, the courts merely require a showing that the procedure is in the minor's best interest.159 A number of courts have pointed to procedural safeguards in state laws that protect minors from inappropriately authorized sterilization.160

B. Determining the Best Interest of the Minor

        For a court to utilize its equity power to authorize sterilization of an incompetent, it must invoke the doctrine of substituted judgment.161 Many medical contexts have adopted this doctrine162 which requires the court to determine what the incompetent person would have decided if he or she were capable of making an informed decision on the matter.163 The substituted judgment doctrine reflects the fundamental right of individuals to exercise control over their own bodies.164 Because people are presumed to act in their own best interest, the best interest test has become a convenient shorthand for substituted judgment.165 The distinction is sometimes important, however, when the medical "best interest" conflicts with emotional or other "best interest," and the court is left to decide what the minor might have done.166

        Substituted judgment is also a helpful tool to remind a court that the "best interests" at stake are those of the minor rather than the State or the parents. In some cases, the incompetents parents will be best able to determine what he would have wanted, drawing upon knowledge gained from close association over time.167 The court should be alert to situations, however where the parents are likely to substitute their wishes for those of the incompetent. Circumcision typically occurs within days of birth, and hence, there is little likelihood that the parents will be better able than the court to determine what the minor "would have chosen."168

        Because we now know that the infant experiences excruciating pain at the time of the circumcision, has obviously no idea what is happening or why, and must be restrained from struggling to escape, it is fair to conclude that the infant undergoing circumcision does not want the procedure performed.169 Leaving the child uncircumcised, in most cases, involves no health risk to the infant, avoids the potential complications from the procedure,170 avoids the possibility of making an irreversible error of substituted judgment, and does not foreclose the possibility that the infant might consent to the procedure upon reaching maturity.171 On the other hand, attempting to determine what the infant would have chosen had he been mature is practically an attempt at clairvoyance. For these reasons, the most prudent course under these circumstances would be to postpone authorization for the procedure until the individual is able to choose for himself. Parents wishing to invoke the substituted judgment doctrine, should be required to demonstrate with clear and convincing evidence that the procedure is one the infant "would have chosen."172

        The best interest standard, often employed by courts in conjunction with or in approximation of the substituted judgment doctrine is usually assessed on the basis of medical or emotional "benefit."173

1. Medical Benefits

        A finding that a proposed procedure is medically necessary to avoid a serious risk of death for a minor will almost always result in the procedure going forward despite parental objections.174 There is an important state interest in protecting the health of minors, as well as a judicial presumption that the minor would choose to go on living.175 In those cases the Court will not overrule parental objections to necessary treatment if a balancing of the risks indicate that a minor's best interests might not be served by going forward with the operation.176 In the case of amputation, the courts have generally required a life and death situation before allowing parents to authorize the procedure on behalf of minor children.177

        The amputation of the male foreskin in the United States is unique in medical practice for not requiring any medical justification, and for the widely accepted view that the amputation may be authorized at the sole discretion of a parent.178 This attitude is completely at odds with legal and medical practice regarding other forms of amputation and must be challenged.179 It is time to consider a judicial presumption that a minor would choose not to have a normal healthy piece of his body removed. It is also time to limit the ability of parents to authorize circumcision to the highly exceptional case where the procedure is medically necessary. This is especially appropriate in view of the fact that the option of removing the foreskin is not foreclosed to the minor upon reaching legal maturity.180

2. Emotional Benefits

        The operation of the substituted judgment doctrine is most clearly evident in those cases that consider the sensory, emotional or psychological impact of a proposed procedure upon the minor. In one case, a procedure deemed necessary was not authorized by the court due to the anticipated pain of the procedure.181 In a number of cases involving altruistic donation of organs or blood, usually to save the life of close family members, the courts have reasoned that the emotional benefits to the minor justified the procedure.182 The express preferences of the minor may be given consideration by a court, not as an effective choice regarding the treatment, but as an indicator of the psychological and emotional benefit to the child.183 In the case of circumcision, emotional considerations clearly weigh in favor of avoiding the procedure. The procedure is traumatic and painful, and may disrupt nursing and bonding with the mother.184


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      143. See In re Phillip B., 156 Cal Rptr. 2d 48, 51 (Cal. Ct. App. 1979) (stating that "[t]he state is the guardian of society's basic values. Under the doctrine of parens patriae, the state has a right, indeed a duty, to protect children. State officials may interfere in family matters to safeguard the child's health, educational development and emotional well being").
       144. See Parham v. J.R., 142 U.S. 584, 603 (1979) (finding that while parental rights are substantial, they are not absolute when a child's physical or mental well-being are at stake and stating that the Supreme Court has "recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized").
       145. See In re Quinlan, 348 A.2d 801, 822 (N.J. Sup. Ct. 1975) (holding that religious beliefs are absolute, but religious practices are not free from government regulation).
       146. Prince v. Massachusetts, 321 U.S. 158, 801 (1944). See also Bothman v. Warren, 156 Cal. Rptr. 48, 51-52 (Ct. App. 1979) (adopting a clear and convincing evidence standard).
       147. Bothman, 156 Cal. Rptr. At 51-52.
       148. Prince, 321 U.S. at 169 (holding that the State may intervene under parens patriae to protect a child's health, educational development and emotional wellbeing. There must however be clear and convincing justification.).
       149. Id. See generally Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923); Davis v. Beacon, 133 U.S. 333 (1890); Reynolds v. United States, 98 U.S. 145 (1878).
       150. Id.
       151. Id.
       152. See Catherine L. Annas, Irreversible Error: The Power and Prejudice of Female Genital Mutilation, 12 J. CONTEMP. HEALTH L. & POL'Y 325, 337 (1996) (arguing the parallel between sterilization and FGM).
       153. While sterilization cases sometimes involve guardians in lieu of parents' the responsibilities of guardians toward their wards are treated almost identically by the courts as birth parents and their children. It is conceded, however, that the sacredness of the parent/child relationship does not extend to the guardian/ward relationship. There is no discernable difference, however, between the outcome of sterilization cases involving parents and those involving wards. Annas, supra note 152, at 338.
       154. Annas, supra note 152, at 338.
       155. See e.g., Anonymous v. Anonymous, 469 So. 2d 588 So. 2d 588, 592 (Ala. 1985); Mildred G. v. Valerie N., 707 P.2d 760, 786 (Cal. 1985); Matter of Romero, 790 P.2d 819, 821-11 (Colo. 1990); In re Grady, 426 A.2d 467, 473-74 (N.J.) 1981). See generally Carey v. Population Serv. Int'l, 431 U.S. 678, 679 (1977); Eisenstadt v. Baird, 405 U.S. 438, 454-5 (1972); Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965); Skinner v. Oklahoma, 316 U.S. 535, 542-43 (1942) (holding that the right to privacy in connection with decisions affecting procreation extends to minors. The state may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy).
       156. Mildred G., 707 P.2d at 786.
       157. See Hudson v. Hudson, 373 So. 2d 310, 310 (Ala. 1979) (holding that a court may not authorize sterilization absent statutory authority); see also Ruby v. Massey, 452 F. Supp. 361, 366 (D. Conn. 1978) (holding that parents may not veto or give consent to sterilization of their children); A. L. v. G. R. H.., 325 N.E.2d 501, 502 (1975), (ruling that a mother could not consent to sterilization of retarded son under common law parent-child relationship).
       158. See In re C.D.M., 627 P.2d at 607, 612 (Alaska 1981) (finding that a court has authority under parens patriae to order sterilization when using a clear and convincing evidence test to determine the best interest); In re Grady, 426 A.2d 467, 483 (N.J. 1981) holding that clear and convincing evidence of best interest should be used even if the sterilization is not medically necessary because the court has the inherent power to order the sterilization); In re Terwilliger, 450 A.2d 1376, 1383 (Pa. Super. Ct. 1982) (holding that parents may not authorize sterilization absent judicial or statutory authority and may authorize only after considering the best interest of the incompetent person. A court, however, may order the sterilization under parens patriae); In re Romero, 790 P.2d 819, 822 (Colo. 1990) (claiming what is medically necessary via the best interest test); In re A.W., 637 P.2d 366, 375 (Colo. 1981) (reviewing what is medically necessary by clear and convincing evidence); Mildred G. v. Valerie N., 707 P.2d 760, 771 (Cal. 1985) (finding that a statute prohibiting sterilization unconstitutionally deprives developmentally disabled persons of a constitutionally protected choice. A state may, however, regulate choice if guardians show necessity.
       159. Mildred G., 707 P.2d at 766.
       160. See generally Parham v. J.R., 442 U.S. 584 (1979) (emphasizing the procedure whereby the state orders a determination before admission that the patient will benefit and hospitalization is appropriate); Hart v. Brown, 289 386, 391 (Conn. Super Ct. 1972) (weighing the possibility of the procedure being clinical experimentation as opposed to a medically accepted theory); Matter of Grady 405 A.2d 851 (N.J. Super. Ct. Ch. Div. 1979) (giving the statutory provisions concerning sterilization in minors which safeguard the procedure).
       161. The doctrine originated in a case involving the administration of an incompetents estate. Ex parte Whitbread in re Hinde, a Lunatic, 35 ENG. REP 878 (1816). In Ex Parte Whitbread, the court used its equitable powers to grant a pension from the estate of the incompetent to a loyal personal servant whom the incompetent had no legal duty to support. Id. See In re Carson, 241 N.Y.S. 2d 288, 289 (N.Y. Sup. Ct. 1962) (recognizing that the doctrine calls upon the court to "don the mental mantle of the incompetent").
       162. See Strunk v. Strunk, 445 S.W.2d 145, 145 (Ky. 1969) (examining the donation of an organ by an incompetent); see also In re A.C., 573 A.2d 1235, 1239 (D.C. Ct. App. 1990) (addressing caesarian delivery of a terminally ill patient's baby).
       163. See Strunk, 445 S.W.2d at 148 (invoking the doctrine of informed consent to permit removal of a kidney from an incompetent donor. The kidney was needed to save the life of the donor's brother. The court found that the incompetent donor was emotionally close with his brother and would if competent, consent to the procedure); Hart v. Brown, 289 A.2d 386, 386 (Conn. Super. Ct. 1972).
       164. See Superintendent v. Saikewicz, 370 N.E. 417, 430 (Mass. 1977) (holding that "[t]he 'substituted judgment' standard which we have described commends itself simply because of its straightforward respect for the integrity and autonomy of the individual").
       165. See Lynn E. Lebit, Compelled Medical Procedures Involving Minors and Incompetents and Misapplication of the Substituted Judgment Doctrine, 7 J.L. & HEALTH 107, 110-11 (1993) (examining the difference between the substituted judgment doctrine and the best interest standard). The best interest test, Lebit argues does not afford equal protection to incompetents and mirrors because of the loose standards of benefit which have been applied in various court cases. Id. at 3-5. Lebit proposes a best interest test for minors and congenitally impaired mental incompetents combined with a judicial presumption favoring the preservation of bodily integrity and a clear and convincing standard of review. Id. at 11. Lebit's construction of the substituted judgment doctrine disqualifies it for use upon those for whom the doctrine was first formulated and for those for whom it has historically been applied, namely mental incompetents. Id. For purposes of this article, the ambiguities between the substituted judgment doctrine and the best interest standard may be left in place. Id.
       166. Saikewitz, 370 N.E.2d at 430. The court stated:

We realize that in inquiry into what a majority of people would do in circumstances that were truly similar assumes an objective viewpoint not far removed from a "reasonable person" inquiry. While we recognize the value of this kind of indirect evidence, we should make it plain that the primary test is subjective in nature, that is, the goal is to determine with as much accuracy as possible the wants and needs of the individual involved. This may or may not conform to what is thought wise or prudent by most people.
Id.
       167. Id.
       168. Mildred G. v. Valerie N., 707 P.2d 760, 789. The court stated:
Like Valerie, the daughter in Grady had never been capable of articulating choices. There was not the slightest bit of evidence regarding the ability of the parents to determine that their daughters would choose to be sterilized. Hence, 'a decision by the parents [was] mere speculation, rather than an ascertainment of the incompetents preferences based on prior observations and conversations, as in Quinlan.
Id. (citations omitted).
       169. Id.
       170. The circumcision of an adult is a more involved medical procedure than routine infant circumcision, and has been described as more traumatic for the patient. See generally ROMBERG, supra note 15, at 191; WALLERSTEIN, supra note 16, at 127. A policy which postpones circumcision until the patient reaches maturity will adversely affect the rare patient for whom circumcision becomes medically necessary in adulthood.
       171. In re R.H., 622 N.E.2d 1071, 1076 (Mass. App. Ct. 1993). The court stated:
[I]n determining what the incompetent person's choice would be, the judge should consider: (1) the patient's expressed preferences, if any; (2) the patient's religious convictions, if any; (3) the impact on the patient's family; (4) the probability of adverse side effects from any treatment ...[and the] present and future incompetency of the individual....
Id.
       172. Id.
       173. See Lebit, supra note 165, at 125-27.
       174. See Walker v. Superior Ct., 763 P.2d 852, 855 (Cal. 1988), (finding that "[p]arents have no right to free exercise of religion at the price of a child's life, regardless of the prohibitive or compulsive nature of government infringement"); see also Jehovah's Witnesses v. King County Hosp., 278 F. Supp. 488, 497 (W.D. Wash. 1967) (allowing the state of Washington to authorize a medically necessary blood transfusion over a parent's religious objections).
       175. See in Re Quinlan, 348 A.2d 801, 807 (N.J. Super. Ct. Ch. Div. 1975) (creating a presumption that a person desires to go on living).
       176. See In Re Phillip B., 92 Cal. App. 3d 796, 802 (Cal. Ct. App. 1979) (holding that although necessary, if an operation would pose great risk, the court cannot overrule parental objection).
       177. Compare In re Nemser, 273 N.Y.S. 2d 624, 631 (N.Y. Sup. Ct. 1966) (declining to permit the children of a semi-conscious parent to order amputation on the parent where the procedure was not clearly a matter of life or death), with In re Schiller, 372 A.2d 360, 363 (N.J. Super. Ct. Ch. Div. 1977) (deciding that a guardian of an incompetent person may consent to amputation when life or death matter). But see In re Richardson, 284 So. 2d 185, 187 (La. Ct. App. 1973) (holding that neither the court nor the parents have authority to order a minor to donate a kidney).
       178. See Nemser, 273 N.Y.S.2d at 689 (discussing the progression of doctors proceeding with certain medical procedures on patients who are willing or unwilling to consent thereto).
       179. Id.
       180. See Anonymous v. Anonymous, So.2d 588, 592 (Ala. 1985) (Faulkner, J., dissenting) (asserting that where a person's incompetence is due only to age, there are fundamental constitutional rights involved and one is entitled to court protection); In re Romero, 790 P.2d 819, 824 (Colo. 1990) (finding that a State must consider permanence of disability before ordering medical intervention).
       181. See Newmark v. Williams, 588 A.2d 1108, 1118 (Del. 1991) (recognizing that the painful procedure was not in the best interest of the child even though the child's life was in jeapordy).
       182. See Hart v. Brown, 289 A.2d 386, 390 (Conn. Super. Ct. 1972) (holding that a nontherapeutic operation may be ordered by a court where there is an emotional benefit to the child); see also Strunk v. Strunk, 445 S.W.2d 145, 149 (Ky. 1969) (ruling that parents are authorized by the court to give consent to operate on an adult incompetent where there is an emotional benefit to the donor). A kidney transplant may be authorized by the court where the court found that the surgery was in the best interest of the child, however, the parents could not authorize surgery unless the minor's life was in danger. Id.; see also Bonner v. Moran, 126 F.2d 121, 139 (D.C. Ct. App.); Fleming v. Michigan Mut. Liab. Co., 363 F.2d 186, 188 (La. 1966) (showing evidence of consent in sharp dispute); Drechsler, supra note 77 at § 179.
       183. See In re Phillip B., 92 Cal. App. 3d 796 (Cal. Ct. App. 1979) (finding that in determining whether the State may intervene to require treatment over parental objection considerations include a child's express preferences).
       184. See supra notes 50-53 and accompanying text.

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