85 Indiana Law Journal 955 (2010)
In the health-care setting, parental decisions to size, shape, sculpt, and mine children's bodies through the use of nontherapeutic medical and surgical interventions are a matter of parental choice except in extraordinary cases involving grievous harm. This Article questions the assumption of parental rights that frames the current paradigm for medical decision making for children. Focusing on cases involving eye surgery, human growth hormone, liposuction, and growth stunting, I argue that by allowing parents to subordinate their children's interests to their own, the current paradigm distorts the parent-child relationship and objectifies children in violation of the moral principle, deeply embedded in American legal tradition, that no person, even a parent, may subordinate the life, liberty, or body of another for his or her own purposes. I propose an alternative. Pushing analogies developed in family law and moral philosophy to respect children as complete but vulnerable human beings, I develop a trust-based construct of the parent-child relationship, in which the parents are assigned trustee-like powers and responsibilities over a child's welfare and future interests and are charged with fiduciary-like duties to the child. Application of the trust-based construct in the health-care setting separates medical decisions that belong to parents from decisions that belong to children and those that should be made by a neutral third party.
"Shaping Parental Authority Over Children's Bodies,"
Indiana Law Journal:
3, Article 5.
Available at: http://www.repository.law.indiana.edu/ilj/vol85/iss3/5