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Deciding for a child: a comprehensive analysis of the best interest standard

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Abstract

This article critically examines, and ultimately rejects, the best interest standard as the predominant, go-to ethical and legal standard of decision making for children. After an introduction to the presumption of parental authority, it characterizes and distinguishes six versions of the best interest standard according to two key dimensions related to the types of interests emphasized. Then the article brings three main criticisms against the best interest standard: (1) that it is ill-defined and inconsistently appealed to and applied, (2) that it is unreasonably demanding and narrow, and (3) that it fails to respect the family. Finally, it argues that despite the best interest standard’s potent rhetorical power, it is irreparably encumbered by too much inconsistency and confusion and should be rejected.

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Notes

  1. While the ambit of this article is decision making for children, I should acknowledge that the best interest standard is used beyond just this context, most notably in decision making for incompetent adults with no knowledge of previously articulated desires or wishes.

  2. For more information on the decision making abilities of children, see Klayman [2], Weithorn and Campbell [3], and Scott et al. [4].

  3. This phrase comes from In re: Weberlist, but is not accompanied by any further elucidation of what constitutes “traditional” best interests, beyond survival [8].

  4. Compare Cruzan v. Director, MO Dep’t of Health [13] with In re Drabick [14], both cases of patients in PVS without evidence of the patients’ preferences. The Cruzan court determined that it would be in the objective interest of the patient to continue ANH, while the Drabick court concluded the opposite, that the patient’s interests were best served by a decision to withdraw medical nutrition and hydration.

  5. See, for instance, In re Storar [15]; Superintendent of Belchertown V. Saikewicz [16]; Wadlington [17].

  6. While the United States had a significant role in the drafting of the Convention, and signed it in 1995, it has not yet ratified it. When a country signs a protocol or treaty, it indicates general support for its objectives and provisions, as well as its intention to become party to the protocol or treaty in the future. However, until the protocol is ratified, the country is not legally bound to its content. The U.S. has traditionally spent significant time, sometimes up to three or four decades, to formally ratify treaties that it has signed [21].

  7. Please note, I am including only theories that identify with the “best interest” language, in either a strict or expanded way. Indeed, not all theories adopt this language, and there are several that have offered significant alternatives (including Lainie F. Ross’s Constrained Parental Autonomy [30] and Douglas Diekema’s harm principle [31]). However, because I am not considering them to be versions of a best interest account, they will be dealt with later in the discussion.

  8. Special thanks to an anonymous reviewer from Theoretical Medicine and Bioethics for recommending this analysis.

  9. These basic categories are an adaptation of Abraham Maslow’s need categories in his hierarchy of needs [33]. My usage of them does not, however, include the hierarchical structure, meaning no one category of needs is prioritized over others.

  10. Interestingly, several empirical studies have demonstrated that this variability is evident in clinical practice for newborns, as well. Janvier et al. [36] showed that the best interest standard is applied differently to neonates versus full term infants, grade school aged children and adults, despite the exact same outcomes being described for each.

  11. See the court case In re Storar [15].

  12. This is an observation that many have made about Beauchamp and Childress’s principles of bioethics. Beauchamp and Childress argue that their four principles are mid-level principles, meaning they can be justified using a variety of comprehensive philosophies, and they can, in turn, justify a variety of interpretations, depending on the particular case. Indeed, many find this to be critical weakness of Beauchamp and Childress’s theory. See, e.g. [38].

  13. The selection of Buchanan and Brock’s formulation will be discussed and defended in a following section.

  14. The basic facts of this case came from Ross [30, p. 21] while many of the details have been added for the sake of the discussion at hand.

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Acknowledgments

I would like to thank Ana Iltis for her guidance and help in the preparation of this manuscript, as well as the reviewers at Theoretical Medicine and Bioethics for their helpful suggestions in the refinement of my arguments.

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  1. Center for Health Care Ethics, Saint Louis University, 3545 Lafayette Ave., Salus Center, rm 504, St. Louis, MO, 63104, USA

    Erica K. Salter

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Correspondence to Erica K. Salter.

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Salter, E.K. Deciding for a child: a comprehensive analysis of the best interest standard. Theor Med Bioeth 33, 179–198 (2012). https://doi.org/10.1007/s11017-012-9219-z

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