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Children, Families, and Health Care Decision MakingReview - Children, Families, and Health Care Decision Making
by Lainie Friedman Ross
Clarendon Press, 1998
Review by JDM
May 3rd 2000 (Volume 4, Issue 18)

We can think of political philosophy as a set of principles that circumscribe the legitimate power of the state. A basis of democratic liberalism is that legitimate state interest is triggered by human interactions that seriously affect non-consenting parties. It is for this reason that government exercises a conspicuous role as parens patriae, overseeing parental child rearing practice. In opposition to this oversight is a long history of privacy or "family autonomy" that shields parents from too close a government inspection, ensuring them wide latitude to make choices for the child.

In medical decisions made for children, this conflict between state interest and parental autonomy comes into very sharp focus, raising issues about the grounds and limits of state vs. parental authority, and the proper criteria for deciding for children. Lainie Friedman Ross’ Children, Families, and Health Care Decision-Making is an important contribution to this tangle of issues.

Ross is a medical doctor and philosopher who has reworked her Yale dissertation for this book. It is divided into a theoretical section that develops a "health care decision making model for children" and an application section dealing with four topics, the child as research subject, organ donor, patient, and sexually active adolescent.

As a good philosopher Ross begins with the fundamentals, in this case, " ... a theory of the family, or at minimum, with a theory of how families should make decisions ... "(8). There is a thought that the traditional ethical approaches that one would find in theories of economic justice, of business ethics, or of criminal punishment, do not translate well to intra-family ethics. For example, fairness principles for the distribution of goods in a market economy would be inappropriate within families. The reasons for this are somewhat obscure but center upon the fact that the family is an intimate grouping and the other treatments concern impersonal groupings. Ross evaluates Laurence Houlgate’s treatment of the family as a pure community (Family and State , Rowman and Littlefield, 1988) as opposed to a mere organization. She criticizes each of the three distinguishing traits offered by Houlgate as they relate to clarifying the uniqueness of the family group, or even the distinction between intimate versus non-intimate groupings. Still she commits to the moral relevance of the distinction, one that she bases on Justice Potter Stewart’s famous, " ... I know it when I see it ... ".

The theoretical core of the book is chapter three, which provides a theory of "Constrained Parental Autonomy". The central principle is that a parent should act to procure the child’s basic needs (defined as rather minimal prerequisites for later autonomy) constrained by the Kantian principle of never using another as a means only. It resembles Charles Fried’s "Principle of Constrained Maximization" (Right and Wrong, 1978), except that (i) Ross rejects any parental requirement to "maximize" childhood good, and (ii) eschews any appeal to rights in favor of respect for personhood.

The refusal to delineate a specific set rights for the child, the parent, siblings, and others, seems weakly justified, perhaps motivated by the attempt to emphasize the "intimate versus impersonal" distinction. It is a staple of Marxist, feminist and postmodernist thought that rights-based morality was developed to adjudicate the impersonal interactions of economics and politics, and perhaps to maintain the exploitations of sex, race, and class. By not resorting to claims about rights however, Ross places a great burden on the otherwise blurry "respect for persons" constraint to head off the conclusions of a full-blown utilitarianism. One need only look to the hullabaloo surrounding Peter Singer’s conclusions on infanticide in Practical Ethics (Cambridge University, 1993) to see where an unrestricted commitment to "produce the greatest happiness" can lead.

In explicating her central principle, Ross becomes unexpectedly relativistic. What is abusive, and by extension treats another as a means only, is defined by cultural norms and personal motive. It is abusive for a teacher but not a parent to nap with a child. Why? Because "our society" says so. (I would claim that neither is abusive no matter what "our society" says.) In determining a child’s "basic needs" parents should have wide latitude. Why? "[T]here is no agreed-upon definition of the good ...". Surely the lack of an agreed-upon definition of "full human being" in the U.S. in 1840 did not provide wide moral latitude to slave traders. This relativistic turn is used to justify the heavy handed and autonomy-limiting child rearing practices of the Amish. Ross claims the collective good of the community justifies this forced narrowing of a child’s focus since, having rejected the "best interest of the child" decision rule, it is legitimate to introduced the self-defined interests of family and community (50). Moral relativism gets more severely tested, and by most reasonable accounts fails, by the infamous practice of female genital mutilation. I don’t believe that it’s too much to ask a philosopher to employ a theory of "childhood good" that is independent of what is "agreed upon" in some community.

One reason for Ross’ rejection of the "best interest of the child" standard is that it does not allow the parents, "... to be guided by family interests, even those interests that are not necessarily reducible to the interests of the individual family members, as long as those interests do not prevent the parents from fulfilling each child’s basic needs" (51). There are two reasons for red flags here. The first is the earlier suggestion that meeting basic needs is sufficient to satisfy the Kantian rule of respect for persons, and the second is the long and disastrous career of the idea of emergent, independent, and duty-generating group goods. It seems enough to mention Nazism and Stalinism with their roots in Rousseau and Hegel to make the case against such moral holism, especially when coupled with a refusal to develop a clear set of human rights.

Whether these red flags actually signal serious problems could be tested by the chapter on pediatric organ donation, where she considers a case where a child’s extra kidney or bone marrow is taken for the benefit of a sibling. Ross agrees with parentally-approved bone marrow harvesting from the very young who cannot understand the process. I probably agree with her conclusion, but I would not employ her reasoning. "The modified principle of respect permits parents to use their child as a means as long as they simultaneously respect the child as the developing person that she is. ... Ann [the six year old donor] is being used as a means to promote her brother’s well-being, but this serves to promote the well-being of the family (on which her own well-being depends)." (114) Thus her well-being is enhanced, "albeit indirectly" (114).

A case could certainly be made that Ann’s donation was in Ann’s interest since it’s generally better to have living rather than deceased siblings. This is more or less the court’s reasoning when such procedures have been approved. Ross objects to this direct approach because it relies upon a "best interest" standard, considering only the donor’s good. But it seems a mistake to claim that because parents are not required to act always in the "best interest" of their child, that something’s being in that child’s best interest is not a reason to do it. Further, Ross’ conclusion could have been arrived at on general utilitarian grounds based upon the overwhelming of Ann’s rather small good (avoiding the procedure) by the good of her brother’s continued life and the happiness of her parents. Why the need to invoke "the family’s interests"? Finally, it is surely too strong to say that Ann’s well-being depends upon this family, though it may depend upon having a family.

Ross considers the case where the sibling donor is a competent fourteen-year-old, understands the situation, and has refused to donate his marrow. Ross denies that it would disrespect his personhood to require him to submit to the procedure. Why?

(i) It’s in his long term interest, and

(ii) the parents can, " ... shape him into the person he is becoming. ... actively shape and steer the child’s long-term identity (117 - 118)"
This is a new claim. Parents can (have a right to?) shape or force a child to have a morally good identity, and for that reason can (have a right to?) force a competent child to sacrifice for the good of the family, as long as the child’s basic needs are being met. But there is something Orwellian about the claim that an essential goal of parenting involves protecting the later autonomy of a child while also recommending that parents shape that child’s long term identity. If the parents could in fact shape the child’s later moral goodness, for example through aversive shock therapy derived from A Clockwork Orange (A. Burgess, Norton, 1995) or by requiring the donation of bone marrow, in what sense would the later developed child actually be morally good? In any case, it seems that appeals to rights find their way in when issues get sticky.

The conclusion of these points about Ross’ reasoning is to question whether her principle of constrained parental autonomy is articulated enough to be useful in the process moral reasoning. This is in part to suspect that Ross’ refusal to develop a theory of specific childhood rights has left her at a serious disadvantage when specifics are called for. For example, her claim that parents can shape the identities of their children is not intended as an empirical claim about parenting efficacy (in which case I think it would be false), but is meant as a moral claim about parental rights (in which case I continue think that it is false). In addition, the idea of "childhood good" that her principle requires parents to promote seems developed only in a culturally relativistic way that invites rather standard criticisms.

The conclusion of this review, however, is that this is a very fine book. It is well researched, contains a great deal of medical and legal reference, is chock full of interesting arguments that are clearly stated, and contains many interesting cases. Its arguments and points of view are as applicable to practitioners in the mental health fields as in the fields that Ross addresses. I would look forward to her treatments, as a pediatrician and philosopher, of issues surrounding childhood prescription drug use, of parental decisions to have the cochlear implant inserted, or of childhood commitment to psychiatric wards or rehab institutions.

John Mullen is Professor of Philosophy at Dowling College, Long Island. He is author of Hard Thinking: The Reintroduction of Logic into Everyday Life and Kierkegaard's Philosophy: Self-Deception and Cowardice in the Present Age.He is currently working on a book on ethical issues in the family.

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