The American legal system accords a high value to personal and bodily autonomy; in the context of medical care, physicians who violate patient autonomy may even be subject to criminal sanctions. It is axiomatic that competent individuals have the right to refuse medical treatment. But children are not recognized as competent as a matter of law. Their privacy rights may be infringed upon a showing of a significant state interest, although the state must show a compelling interest to justify similar infringements on the rights of an adult. Moreover, children are naturally dependent on parents or guardians who are legally presumed to have their best interests at heart. Lost among these legal axioms and presumptions are the voices of the children.
The Muffled Voice of the Child: American Health Care and Children’s Rights
Sheila Suess Kennedy J.D.
Assistant Professor
School of Public and Environmental Affairs
Indiana University Purdue University Indianapolis
Indianapolis, IN
The author gratefully acknowledges the research assistance and intellectual contribution to this paper of Wanda K. Mohr, Ph.D., R.N., F.A.A.N.
The American legal system accords a high value to personal and bodily autonomy; in the context of medical care, physicians who violate patient autonomy may even be subject to criminal sanctions.[1] It is axiomatic that competent individuals have the right to refuse medical treatment. But children are not recognized as competent as a matter of law. Their privacy rights may be infringed upon a showing of a significant state interest, although the state must show a compelling interest to justify similar infringements on the rights of an adult. [2] Moreover, children are naturally dependent on parents or guardians who are legally presumed to have their best interests at heart.[3] Lost among these legal axioms and presumptions are the voices of the children.
Competency for purposes of health-care decision-making, as in other areas of the law, requires mental capacity sufficient to understand the nature of the situation and the alternative actions that are possible.[4] Competency is one of three components (together with voluntariness and information) necessary for a patient’s treatment decision to be considered legally valid.[5] Legal scholars have addressed several components that must be present in order to meet the test of competency. They are: 1) evidence of choice; 2) reasonable outcome of choice (the option corresponds to the choice that a reasonable person might make); 3) rational reasoning (in making the decision); and 4) understanding of the risks, benefits and alternatives.[6]
In the United States, children are generally considered to be incompetent to give voluntary consent to what is done to their bodies by way of medical procedures.[7] In a 1995 review of cases involving life-sustaining treatment, researchers found that the stated wishes of the child were considered in only 13% of the cases.[8] Moreover, parents continue to invoke the right to make medical decisions for their children on the basis of the parents’ constitutional right to privacy, which has been held to include the right to raise one’s children in accordance with one’s own beliefs and values.[9] Parental rights have often been interpreted in ways that effectively disempower children.
In order to understand why the United States addresses the rights of children as it does, it is necessary to understand both the history of children’s rights, and the ambiguity of the term “children’s rights” as it has been used and understood within our legal system.
Persons or Property: Historical Context
Walker, Brooks and Wrightman have described the historical reality of childhood in a brief, but quite telling passage:
“Until modern times, childhood was an almost universally grim experience. For hundreds of years, children were treated primarily as chattel. They were bought, sold, cared for and abandoned in much the same way as a pair of shoes.”[10]
At English common law, children were considered the property of the father, who could dispose of them in his will like any other property.[11] It wasn’t until the 16th century that children’s status began gradually to improve; indeed, the very idea of childhood did not develop until that time.[12] The emergence of the concept of childhood, a concept that recognized vulnerability and acknowledged special needs requiring nurture and protection, also gave rise to the legal and ethical dilemmas faced by proponents of children’s rights today. If, as many commentators have noted, the United States lacks a coherent policy on children’s rights, much of the problem is that different people use the term “rights” to mean different, and often contradictory, things.
American laws concerning children have been informed by two very distinctive approaches: a paternalistic, or progressive, approach which focuses upon nurturance and protection; and an individual-rights approach, which emphasizes the child’s age-appropriate right to personal autonomy.[13] To the first approach we can attribute legislation making school attendance compulsory, establishing juvenile courts, and prohibiting child labor. These are measures that assume a large degree of dependence by children on adult society. In the second category, we might list court cases such as Brown v. Board of Education,[14] which recognized children as rights-bearing individuals, or In re Gault,[15] which entitled juveniles to court-appointed counsel, or Tinker v. Des Moines,[16] which protected the right of minors to express political opinions in a non-disruptive manner in a public-school setting.[17] Studies have shown that in the U.S. there is strong political support for the extension of the protective, “nurturant” rights, but far less support for rights of self-determination.[18] If we are to rationalize these two approaches, and forge a comprehensive framework within which to discuss both the social and individual rights of children, we must determine when it is appropriate to treat a given individual as a dependent child requiring nurturance, and when as an adult entitled to individual autonomy and voice. The legal system has struggled with that core question, a struggle made more difficult because rights and duties of parents and (to a lesser but not inconsiderable extent) the interests of the state are also implicated. As one commentator has noted, the courts have struggled to mediate the conflict between “democratic ideals of individual freedom and the sanctity of the family unit.”[19] The result is a framework that rests on a sharp distinction between public and private responsibility for children’s welfare, with the public assuming responsibility only when the private actors have defaulted. The primacy of the power given to parents and family rests on a belief that children need authority rather than autonomy, that “rights” so understood are not in the child’s best interests.[20]
It is arguably misleading even to suggest the existence of an American jurisprudence on children’s rights; it is more accurate to say that there are a number of court decisions that have affected the legal rights of children. As Minow has noted, children have no political power and are not usually the focus of laws and decisions that affect them. Child labor laws went nowhere until labor unions decided that such laws would be economically beneficial to their members; similarly, court opinions affecting children typically arise in the context of other conflicts: child custody disputes, religious liberty cases, the criminal justice system and conflicts around medical treatment and intervention. Those disparate cases provide the underpinnings of the legal system’s current jurisprudence on the relationship of children, parents and the state, and even a brief and necessarily incomplete overview illuminates the need for a normative theory to bring order to this chaotic area of the law.
The earliest cases to focus on conflicts between parents and the government established parental prerogatives as constitutionally protected privacy rights. In 1923, Meyer v. Nebraska[21] considered, and overruled, a state law prohibiting parents and schools from teaching children in the German language. The case was decided largely on First Amendment freedom of expression doctrine. Pierce v. Society of Sisters,[22] decided in 1925, established the right of parents to remove their children from the public school system. The decision also upheld the right of the state to mandate education through a particular age, or for a particular number of years. The Court recognized the right of parents to instruct their children in a manner consistent with their own values and beliefs, but also recognized that society in general and government in particular has a vital interest in assuring an educated citizenry. Not until Wisconsin v. Yoder[23] in 1972 (and then only in a dissent by Justice Douglas) would there be an explicit recommendation that the interests of the children involved be given any consideration.
In Prince v. Massachusetts,[24] in 1944, the Court upheld the constitutionality of child labor laws, and penalties for parents who violated them. The case signaled that parental rights, while still paramount, could and would be limited when socially determined interests of children required such limitation.
In the late sixties, three cases sent mixed signals about the rights of young people: In re Gault,[25] handed down in 1967, required the state to provide legal representation for children facing criminal proceedings, extending to juveniles a right previously enjoyed only by adults. The next year, however, in Ginsberg v. New York,[26] the Court upheld a law prohibiting the sale of “girlie” magazines to a sixteen-year-old, over objections based upon adolescents’ free expression rights. Then in 1969, in Tinker v. Des Moines,[27] the Supreme Court issued the now-famous (and routinely disregarded) edict that children “do not leave their constitutional rights at the schoolhouse gate,” and permitted the plaintiffs to wear black arm-bands to class to express disapproval of the Vietnam War.
In 1971, retreating from the promise of In re Gault, the Court declined to extend the right of trial by jury to young people. (McKeiver v. Pennsylvania[28]). In 1972, it handed down another case involving the education of young people, Wisconsin v. Yoder.[29] The Court in Yoder held that Amish parents had First and Fourteenth Amendment rights to withdraw their children from formal schooling after completion of the eighth grade. The case continues to e widely discussed and analyzed, because it addresses the persistent tension between the free exercise rights of minority religious sects and the interest of the state in fostering civic cohesion and citizenship education. What it did not address, as Justice Douglas pointed out in dissent, was the possibility that Amish children might have rights distinct from those of their parents that the state might have a duty to consider.
If parents have often been accorded unreasonably wide latitude over childrearing decisions, the Court has just as steadfastly refused to limit the scope of state interference with children’s liberty interests. In 1979, in Parham v. J.R.,[30] the Court declined to require that a hearing be held before a child could be institutionalized; and in 1984, in Schnall v. Martin,[31] it permitted the “preventive” detention of juveniles said to “pose a risk” of committing crime. The Court in Schall held that a minor’s liberty interest was subordinate to his “best interests” as the state might define them.
The trend since 1980 has been to diminish even such children’s rights as the Court had previously established.[32] Hazelwood School District v. Kuhlmeier, a 1988 decision, upheld the right of public school officials to censor student newspapers. In the infamous DeShaney v. Winnebago County Department of Social Services, in 1989, the Court declined to find county social workers liable for severe brain damage suffered by a child at the hands of his father, despite the fact that the agency had been aware of the situation for months, had removed the child from the home at one point, had returned him to the father’s custody and then allowed him to remain despite the father’s noncompliance with required counseling and documented evidence of continued abuse. The case stands as a stark example of current legal principles favoring the rights of even abusive parents and sharply limiting the state’s affirmative responsibility for the well being of children.
The 1995 case of Vernonia v. Acton is the most recent of a series of cases considering and substantially restricting the Fourth Amendment rights of youngsters. Minors may generally be subjected to searches if there is “reasonable suspicion” rather than the higher standard of probably cause, and students may even be searched at random and without any individualized suspicion at all certain school settings. In Vernonia, the asserted pervasiveness of drug use in the school was held sufficient to justify random, suspicionless drug testing that would clearly e unconstitutional if conducted on adults.
A comparison of the juvenile justice system with health care law provides numerous examples of the legal system’s ambivalence about the rights and capacities of children. As prosecutors are waiving more and younger juveniles into adult courts, insisting that they be held legally and morally responsible under adult criminal standards, other courts are tightening parental notification laws based on the assumption that female adolescents are incapable of assuming responsibility for their own reproductive decisions.[33] Children’s voices are routinely and legally ignored in medical situations directly affecting them.[34] As Minow has noted, there are states in which an 18-year-old can obtain an abortion without parental notice, but cannot legally miss school for a doctor’s appointment without a note.[35]
It may be in the abortion context that these competing considerations are most starkly revealed. The Supreme Court has attempted to mediate among the values involved by constructing a mechanism by which the states could be informed of a minor’s desire to have an abortion, and could authorize the procedure in conformity with that desire without notice to the minor’s parent. This judicial mechanism signaled the Court’s recognition and protection of children’s constitutional rights, and its willingness to circumscribe those rights in light of children’s particular vulnerabilities, impaired decision-making, and dependence upon their parents. The Court has recognized a minor’s right to have an abortion, even without parental consent, but has also allowed the state to impose limits intended to encourage intra-familial resolution of the issue. States have been required to develop a judicial by-pass procedure allowing a minor to establish her maturity in the event that attempts at intra-familial resolution proved impracticable. This represents a recognition of the (admittedly limited and contingent) rights of children to make certain important personal decisions; but it also opens the door to inconsistencies of application, in large measure because courts are not well equipped to deal with issues of intellectual competency and emotional maturity, and because lack of competency is a convenient proxy for other, more authoritarian, concerns.[36]
Health Care Decisions and Children’s Rights
As Woodhouse has suggested, one reason for the inconsistent nature of children’s rights jurisprudence is that U.S. law is forged out of crisis intervention. The Constitution requires the existence of a “case or controversy,” a conflict implicating real interests and affecting real parties, as a condition to court action. Advisory opinions are not part of our legal tradition, and if a real case has not forced a court to address an issue, there is no case law on that issue. As a result, the guidelines we have for allowing children to participate in medical treatment decisions are more suggestive than determinate.
Probably the most litigated area involving children’s right to self-determination is abortion and required parental notification. Parental notification laws are an example of legislation directed at politically powerless constituencies, and courts have “reinforced the state’s power to curtail the rights of minors when where it acts in the guise of a protector of minors from their lack of capacity to fend for themselves.”[37] In addition to the presumed diminished capacity of minors, deference to the integrity of the family is often cited as a justification for parental notification requirements. While it is true that the due process clause’s liberty interest protects parental authority over children, it is also true that even in cases upholding parental rights the courts frequently distinguish between the rights of the father and mother, suggesting that “family integrity” is a more nuanced issue than proponents of parental notification legislation might recognize.[38]
In order to pass constitutional scrutiny, parental notification laws must contain bypass provisions that allow a young woman to demonstrate that she has sufficient capacity to make an informed and responsible decision. The guidelines usually applied to determine capacity are very similar to those courts have applied in cases involving general medical care and informed consent. The older the girl, the more nearly emancipated, the more likely it is that a court will respect her decision. A typical case is In re Mary P,[39] in which a Queens County, New York, court issued a protective order against a mother who was insisting that her daughter abort. The girl was fifteen, and wanted to carry her child to term. The judge ruled that “it is the child who has the right to decide.” Of course, there is a strong concern that, when dealing with polarizing issues like abortion, judges will be influenced by their own strong beliefs, and will tend to see as “mature” those adolescents who make decisions they agree with. In order to guard against that danger, it has been suggested that the burden of proof in such cases be placed on whoever is opposing the minor’s decision. Parents or others who wish to substitute their judgment for that of the young woman involved should have to demonstrate by clear and convincing evidence (a high legal standard) that the decision is not in the minor’s best interests.[40]
In a legal system that accords so much power to parents, courts have been called upon to decide whether parents may give consent to a child’s participation in medical research, or may authorize transplantation of their minor child’s organs, and if so, under what circumstances. In Strunk v. Strunk,[41] a court allowed parents to consent o the transplantation of a kidney from an institutionalized 27 year old with an I.Q. of 35. The recipient was his brother, a married university student. In Hart v. Brown,[42] a court allowed a similar transplant from a healthy 7 year old to her sibling, but only after a searching examination of the risks and motives involved. In several other reported cases, permission has been denied.[43]
A number of courts have had to weigh the rights of terminally ill minors against the wishes of their families and the advice of medical professionals. A case in point was fifteen-year-old Benny Agrelo, born with a malfunctioning liver. He had undergone a transplant at eight that had failed when he was thirteen. Following another transplant and treatment with experimental drugs, he was left unable to lead a normal or comfortable life. When he refused to continue his drug regimen (with his parents’ concurrence), his doctors went to court to compel treatment. In a widely reported case, the judge ruled that Benny was capable of informed consent, and he died as he had wished.[44]
Informed consent implies a right of informed refusal. Competent adults have that right, not only under common law, but as a part of their constitutional right to privacy. That right, however, has not been generally extended to minors, due both to their presumed incapacity to make such decisions and to the intervening rights of parents.[45] Over the last several years, however, some courts have begun to extend the right to refuse treatment to “mature” minors. The burden of proof is on the minor to demonstrate maturity. Standards applied by different courts differ, with some using a common-law “rule of sevens” to support a presumption that children over fourteen are competent, and others taking a case-by-case approach. Two decisions, one issued in 1989 and the other in 1990, illustrate some of the complexities of these cases. In In re E.G.,[46] a seventeen-year-old Jehovah’s Witness refused transfusions necessary to save her life. The trial court disregarded her wishes, despite finding her to be mature and informed. That decision was overturned by the appeals court, which ruled that her right to make her own decision must be balanced against the importance of preserving life, the need to protect the interests of third parties (usually parents), society’s interest in preventing suicide, and maintenance of the ethical integrity of the medical profession. In this case, the mother supported the decision, and the balance was struck in favor of respecting the minor’s right to self-determination. In re Long Island Jewish Medical Center,[47] decided the following year, is an example of the fact-sensitive nature of such inquiries. As with E.G., the case involved a seventeen-year-old Jehovah’s Witness (in fact, he was only seven weeks shy of his eighteenth birthday). His parents, too, supported his decision to refuse transfusions. But the evidence demonstrated that he was highly dependent, that he considered himself still a child, and that his connection to the religious beliefs compelling his decision was tenuous, at best. He repeatedly testified that it wouldn’t be “his” sin if the Court ordered the transfusions. The Court found that he was not a “mature minor,” and that he lacked legal capacity to make the medical decisions involved.
Determining Children’s Competence
The body of empirical scholarship on children’s competence is sparse; there is much theoretical or expository posturing, but little in the way of empirical study. While there have been recent challenges to the theories of Jean Piaget, his theoretical framework has guided the few studies that have been done. Piaget describes the ability to posit general logical rules through internal reflection—that is, hypothetico-deductive reasoning—as the capacity which evolves during the formal operational stage of development.[48] During this stage of development, abstract thinking appears and a child who is faced with a problem will think of most of the possibilities and outcomes, including those that are not obvious, will weigh the alternatives, and will test those alternatives against reality in an orderly fashion. This is precisely the skill that is required for informed consent. The presence of formal operational thought is necessary in order for one to be able to appreciate the nature and consequences of a proposed treatment, to reflect on those consequences rationally, and to reach a reasoned—and reasonable—decision.[49] Extensive evidence suggests that developmental stage is a more accurate determinant of cognitive ability than is chronological age; this would suggest that at least some individuals below the age of 18 are intellectually capable of giving truly informed consent to treatment. By the same token, many persons over the age of 18 have yet to reach the formal operational stage – a finding that has been substantiated by empirical research.[50]
There have been few major studies attempting to apply cognitive developmental concepts to analyses of minors’ capabilities to make independent decisions about their own health care. Grisso and Vierling, who examined the extant research in developmental psychology, concluded that the moral and intellectual maturity of most 15 year olds was usually at least equal to that of most adults, and that most 11 to 14 year olds would be capable of informed consent in selected instances.[51] In 1982, Weithorn and Campbell empirically tested the legal presumption about minors’ competence to make decisions affecting their own health care. The study compared performance of persons ages 9, 14, 18, and 21 on a measure developed to operationalize legal standards of competency. Their findings supported Piaget’s theoretical predictions of cognitive development. Minors aged 14 were found to demonstrate a level of competency equivalent to that of adults. Minors aged 9, however, were less competent than adults.[52]
Only one reported study to date has considered the issue of informed consent and children’s ability to participate in a clinical trial. In that study, researchers found that after the nature of the research and its risks and benefits were explained to them, children aged 9 to 12 years were capable of understanding the process and consequences of participation.[53]
Despite the dearth of empirical data establishing competence and the capacity to make reasoned decisions, there is wide agreement that nervous systems and cognitive structures mature over time. While maturation and the acquisition of stage-salient competencies may theoretically be attenuated by certain factors, such as physical injury or exposure to noxious environmental influences; nevertheless, maturation generally proceeds incrementally. Although the law finds it convenient to establish ages at which certain abilities can be presumed, neither developmental theory nor empirical evidence supports this position. Rather, both theory and research demonstrate that children who at one time cannot comprehend the facts and issues on which consent must be granted do become able to do so, or at least as able as adults, at some point in their adolescence.
Health Care Providers and their Ethical Obligations
Doctors and other health care providers relate to their patients—adults or children—from a position of trust, based upon the presumed expertise of the medical professional. Given this relationship asymmetry, such professionals have a special obligation to be strictly at the service of their patients, and to be particularly solicitous of their well being. In the case of children, this obligation is more daunting, because children constitute a special class of vulnerable patient. Children generally do not initiate the professional relationship, and once they are party to it, they are disempowered by their presumed incompetent status under the law.
To be sure, it does not take very long to identify a series of decisions that ought not to be left to a child. Irreversible surgical procedures are one example. But by the same token, parents may deprive children of rights and in other ways exercise authority over children that would be impermissible in other contexts between citizens. A not uncommon example occurs when one child is critically ill and the only potential for saving him is to remove a kidney for transplant from a healthy sibling. The child in this instance experiences both impotence and powerlessness against a coalition of adults acting in traditional adult roles.
As evidenced by the few studies available on the subject, much empirical work on child competency remains to be done. Nevertheless, a foundation for ethical decision making by health care professionals does exist. Principles of beneficence and nonmaleficence are central to the ethical standards regulating health professionals. The maxim primum non nocere — above all do no harm — is at the core of the Hippocratic oath and foundational to Western medicine. In the American Nurses’ Association Code of Ethics, the very first provision states: “The nurse provides services with respect for human dignity and the uniqueness of the client, unrestricted by considerations of social or economic status, personal attributes, or the nature of the health problems.”[54]
Furthermore, a large body of psychological literature points to the positive value of allowing humans to exercise choice. Patient choice appears to be an important determinant of treatment success.[55] Thus, medical ethics point strongly in the direction of recognizing the age-appropriate right of persons to be given choice and sufficient information upon which to base such choice, the right to participate in treatment decisions, and the right to be engaged in the process of care.
Conclusion
The issue of children’s rights in the context of medical care is a nuanced and multi-dimensional issue. It is also an issue that requires reference to ethics and social and developmental sciences, as well as the law. Relevant codes of ethics suggest that children, as human beings, should have the opportunity to be informed about and consent to medical treatment. Social and developmental sciences tell us that children have incremental capacities for decision making, and that those capacities depend upon a number of ontogenetic and ecological factors. Despite this evidence, the legal system has shown little faith in minors’ competence and capacity to make informed decisions.
Children’s capacity for decision-making and the exercise of meaningful autonomy over their bodies depends upon socially constructed definitions, observations, attitudes and values. Unfortunately, these definitions, observations, attitudes and values are too infrequently informed by hard data. In fact there is a clash between the sciences and the law, with the law relying more on logic and legal reasoning, and the sciences relying on empirical analysis. This is unfortunate; both law and public policy would be better served if this disconnect could be bridged, and laws affecting the treatment of children informed by a familiarity with relevant empirical data. The current situation all too frequently requires medical professionals to choose between ethically responsible and legally required behaviors.
It has been suggested that legal competency be a rebuttable presumption, that courts approach the issue with children as they already do with adults whose competency is at issue.[56] This argument notes that current children’s rights jurisprudence rights rests upon questionable presumptions about capacity, and that the issue of capacity is at the heart of much of the difficulty courts experience with these cases.[57] As one judge has observed,
While mature children may not have the political autonomy that an adult possesses, they still possess the personal autonomy possessed by all human beings. The specter of a judge ordering such a drastic intrusion into the personal autonomy of a cognitively competent, socially mature adolescent, who for personal or religious reasons chooses to reject treatment, ultimately repulses most individuals. Power has its limits. Our society has recognized those limits where adults are concerned. While the result in children’s cases is not altogether satisfying, the alternatives are worse.[58]
Of course, as a practical matter, ignoring children’s strong preferences may also undermine the enforceability of a court order.
Noting that the rhetoric of “best interests” provides inadequate guidance to jurists, Wallace J.Mlyniec has made several recommendations for ethical decision-making:
· Judges should be aware of the importance of good legal representation in these cases;
· Judges should be familiar with scientific research and child development theory;
· Judges should be required to demonstrate expertise about children before trying cases involving them.
· Judges should be willing to evaluate cognitive competence, particularly in juvenile criminal proceedings where children under fifteen rarely understand their rights and I.Q. will affect their ability to do so.
· And finally, Judges should look carefully for evidence of undue influence.
Subject to those variables, Mlyniec gives no weight to the preferences of children under ten, and applies a rebuttable presumption favoring the preferences of children over fourteen. Whatever the age of the child, however, Mlyniec is adamant that the child should be heard.[59]
A similar approach should be taken by health care professionals concerned with the issue of children’s voice in decision making. Difficult cases such as the bone-marrow donation dilemma will be rare, but in view of children’s vulnerability and powerlessness, professionals have an obligation to empower rather than further disempower children. Empowerment means that children should be heard, their interests advanced, and their rights determined on a case-by- case basis that takes context and competency into account. It means that medical practitioners, as both advocates and fiduciaries, should provide children with as much information and decision-making power as is consistent with their age and capabilities.
[1] Jennifer Fouts Skeels, In re E.G.: The Right of Mature Minors in Illinois to Refuse Medical Treatment 21 Loy. U. Chi. L.J. 1199 (1990).
[2] Susan C. Lonowski, Recognizing the Right of Terminally-Ill Minors to Refuse Life-Sustaining Medical Treatment. 34 U. Louisville J. Fam. L. 421 (1996).
[3] See, e.g.,Troxel v. Granville, 530 U.S. 57, 68 (2000) (noting that “there is a presumption that fit parents act in the best interests of their children.”)
[4] See, e.g., UNIF. HEALTH-CARE DECISIONS ACT Sec.1(3), 9 U.L.A. 148 (1999) (defining “capacity” as “an individual’s ability to understand the significant benefits, risks and alternatives to proposed health care and to make and communicate a health-care decision.”)
[5] Alan Meisel et al., Toward a Model of the Legal Doctrine of Informed Consent 134 Am. J. Psychiatry 285 (1977).
[6] Alan Meisel, The “Exceptions” to the Informed Consent Doctrine: Striking a Balance BetweenCcompeting Values in Medical Decisionmaking ## Wis. L. Rev. 413 (1979).
[7] Nancy E. Walker et al. Children’s Rights in the United States (1999).
[8] Jennifer L. Evans, Are Children Competent to Make Decisions About Their Own Deaths? 13 Behav. Sci. & L. 27 (1995).
[9] Troxel v. Granville, 530 U.S. 57, 68 (2000) (observing that “the interest of parents in the care, custody and control of their children…is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court.”)
[10] Walker et al. supra, note 7
[11] Rochelle D. Jackson, The War over Children’s Rights: And Justice for All? Equalizing the Rights of Children 5 Buff. Hum. Rts. L. Rev. 223 (1999).
[12] Walker et al. supra, note Error! Reference source not found.; see also Rochelle D. Jackson, The War over Children’s Rights: And Justice for All? Equalizing the Rights of Children 5 Buff. Hum. Rts. L. Rev. 223 (1999).
[13] Martha Minow,. Rights for the Next Generation: A Feminist Approach to Children’s Rights 9 Harv. Women’s L.J. 1 (1986).
[14] 347 U.S. 483 (1954).
[15] 387 U.S. 1 (1967).
[16] 393 U.S. 503 (1969).
[17] Minow, supra note 13.
[18] Carl M. Rogers & Lawrence S. Wrightsman, Attitudes Toward Children’s Rights: Nurturance or Self-Determination? 34 J. Soc. Issues at 59-68 (1978).
[19] Sharon Elizabeth Rush, The Warren and Burger Courts on State, Parent, and Child Conflict Resolution 36 Hastings L.J. 461 (1985).
[20] Minow supra, note 13.
[21] 262 U.S. 390 (1923).
[22] 268 U.S. 510 (1925).
[23] 406 U.S. 205 (1972).
[24] 321 U.S. 158 (1944).
[25] 387 U.S. 1 (1967).
[26] 390 U.S. 629 (1968).
[27] 393 U.S. 503 (1969).
[28] 403 U.S. 528 (1971).
[29] 406 U.S. 205 (1972).
[30] 442 U.S. 584 (1979).
[31] 467 U.S. 253 (1984).
[32] Sharon Elizabeth Rush, The Warren and Burger Courts on State, Parent, and Child Conflict Resolution 36 Hastings L.J. 461 (1985).
[33] Katheryn D. Katz, The Pregnant Child’s Right to Self-Determination 62 Alb. L. Rev. 1119 (1999).
[34] Walker et al supra, note 7
[35] Minow suprs, note 13.
[36] Id.
[37] Katheryn D. Katz, The Pregnant Child’s Right to Self-Determination 62 Alb. L. Rev. 1119, 1127 (1999).
[38] Barbara Bennett Woodhouse, Children’s Rights: the Destruction and Promise of Family. 1993 BYU L. Rev. 935 (1998); Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents’ Rights 14 Cardozo L. Rev. 1747 (1993).
[39] 444 N.Y.S.2d 545 (N.Y. Fam. Ct. 1981).
[40] Katz, supra, note 33
[41] 445 S.W.2d 145 (Ky. 1969).
[42] 289 A.2d 386 (Conn. Super. Ct. 1972).
[43] Walter Wadlington, Medical Decision Making for and by Children: Tensions Between Parent, State, and Child ## U. Ill. L. Rev. 311 (1994).
[44] Susan C. Lonowski, Recognizing the Right of Terminally-Ill Minors to Refuse Life-Sustaining Medical Treatment. 34 U. Louisville J. Fam. L. 421 (1996).
[45] Id.
[46] 549 N.E.2d 322 (Ill. 1989).
[47] 557 N.Y.S.2d 239 (N.Y. Sup. Ct. 1990).
[48] Jean Piaget, The Construction of Reality in the Child (1954).
[49] Louis A. Weithorn, & Susan B. Campbell, The Competency of Children and Adolescents to Make Informed Treatment Decisions 53 Child Dev. 1589 (1982); Steven Bates Billick, Developmental Competency 14 Bull. Am. Acad. Psychol. & L. 301 (1986).
[50] Keating, Adolescent thinking. In J. Adelson (Ed.) Handbook of Adolescent Psychiatry (pp. 211-246). N.Y.: Wiley; 1979; Morrison, K, Morrison, JK, Holdridge-Crane, S. The child’s right to give informed consent to psychiatric treatment. J Clin Child Psych; 1979; 8(1). 43-47.
[51] Thomas Grisso & Linda Vierling, Minors’ Consent to Treatment: A Developmental Perspective 9 Prof. Psychol. 412 (1978).
[52] Weithorn & Campbell IsupraI note 49
[53] Lewis, MA & Lewis, CE. Consequences of empowering children to care for themselves, Pediatrician; 1990, 17, 63-67.
[54] American Nurses Association. Code of Ethics with Interpretive Statements; 1987, Washington, DC.
[55] Winick, B on Autonomy: Legal and Psychological Perspectives, Villanova L Rev; 37, 1705, 1755-1768; 1992.
[56] Hillary Rodham, Children Under the Law 43 Harv. Educ. Rev. 487 (1973).
[57] Winick, B on Autonomy: Legal and Psychological Perspectives, Villanova L Rev; 37, 1705, 1755-1768; 1992.
[58] Wallace J. Mlyniec, A Judge’s Ethical Dilemma: Assessing a Child’s Capacity to Choose 64 Fordham L. Rev. 1873, 1914 (1996).
[59] Id.
Despite the dearth of empirical data establishing competence and the capacity to make reasoned decisions, there is wide agreement that nervous systems and cognitive structures mature over time. While maturation and the acquisition of stage-salient competencies may theoretically be attenuated by certain factors, such as physical injury or exposure to noxious environmental influences; nevertheless, maturation generally proceeds incrementally. Although the law finds it convenient to establish ages at which certain abilities can be presumed, neither developmental theory nor empirical evidence supports this position. Rather, both theory and research demonstrate that children who at one time cannot comprehend the facts and issues on which consent must be granted do become able to do so, or at least as able as adults, at some point in their adolescence.