Authored by Christopher Arroyo, Health Care Policy '23
Art by Fiona Reilly '26
Are children property, people-in-part, or whole persons? What should they be? From a Constitutional perspective, the emphasis is placed on parental rights to direct the upbringing of their children; though children gain due process rights to liberty, often those liberties provided by the state, they often lack some autonomous liberties . That is to say, children are to always be in the custody of an adult or an institution. Thus, adults and institutions are often the decision makers for the child; they are trusted to determine the best interests of the child . Starting with a reference point in commonly accepted practice of surrogate decision-making—decisions made for incapacitated, end-of-life patients—surrogates only predicted patient treatment preferences at an accuracy of 68%, even with controls for designation versus kinship status as well as prior discussion of preferences . This level of accuracy is sufficient to cause worry and calls for reform in end-of-life surrogate decision-making, and provides a would-be ballpark for acceptable decision-making for children in the medical context.
Though the presumption is that parents make medical decisions in the best interest of their children, this is not always the case. When there are concerns of abuse—such as when a parent seeks to refuse life-saving medical assistance for their child, or care for injuries from parental abuse—the responsibility to challenge parental medical decisions falls on medical providers or other relatives of the child. This often involves a court order or a child protection agency at some point in the process . Similarly, when medical treatment of a child is necessary and no parent is available, providers are to follow protocol for best practice only concerning medically necessary treatment to prevent harm, until the parent is obtained .
36 states, including Washington D.C. and New York, give minors unique authority in their medical decision-making. Such states allow minors living on their own to consent to routine medical care, as well as diagnosis and treatment of common diseases and conditions . These presumptions do not address the emancipated minor laws that all states contain, which generally pertain to those who are married, a parent, on active duty, incarcerated, or economically self-supporting and not living at home and would otherwise be considered a minor. Minors in these categories in New York may consent to any kind of health care service . Building on New York State law, treatment rendered to minors who have legally consented to said treatment even remains confidential from their parents, though this form of autonomy is relatively thinner and is granted by the provider’s assessment of the minor’s being mature enough to provide informed consent . Finally, all minors in New York can consent to a variety of confidential health care without their parent, including reproductive health, mental health, and emergency medical care .
Other than emancipated minor and state laws for ‘routine medical care,’ the remaining major source of medical autonomy for minors is found in the ‘mature minor doctrine,’ which applies to unemancipated minors—minors who are still dependents. The ‘mature minor doctrine’ was originally derived and introduced to U.S. common law in the middle of the 20th century, partly through the Illinois Supreme Court opinion of In Re E.G. (1989). The opinion describes how “mature minors may possess and exercise rights regarding medical care,” whether in consenting to or refusing care, given clear and convincing evidence “that the minor is mature enough to appreciate the consequences of her actions, and that the minor is mature enough to exercise the judgment of an adult” . This common law development in the judiciary inspired state codification of ‘mature minor’ rights into their laws, though in doing so they may maintain interests in life, involved third parties, and the ethical practice of medicine . The states thus significantly vary in age requirements—ranging from having no age requirement to age requirements in the last few years of adolescence—as an eligibility criteria for potentially ‘mature minors,’ as well as in other eligibility requirements and restrictions as to which medical rights are wielded by ‘mature minors’ . Though children nearly always lack the ability to even ‘vote with their feet,’ extreme variation in state appreciation for the child’s capacities create a diversity of actual valuations of children in those states. Even among states with expanded protections for children in medical decision making, state decisions in the specifications and granting processes for those protections additionally influence the child, parent, and state rights dynamic.
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