Religiously-Motivated Medical Neglect: A Response to Professors Levin, Jacobs, and Arora

This Response to Professors Levin, Jacobs, and Arora’s article To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties? focuses on their claim that the law governing religious exemptions to medical neglect is messy, unprincipled, and in need of reform, including because it violates the Establishment Clause. I disagree with this assessment and provide support for my position. Specifically, I summarize and assess the current state of this law and its foundation in the perennial tussle between parental rights and state authority to make decisions for and about the child. Because these are featured as examples in their work, I also summarize and assess the current state of the law on vaccinations and male circumcision. I conclude with some thoughts on Levin, Jacobs, and Arora’s provocative suggestion that the law governing religious exemptions to medical neglect (as reformed according to their terms) might provide a template for addressing other accommodation claims such as those of religiously-motivated opponents of gay marriage

The Legal Ethics of Pediatric Research

Since the mid- to late 1990s, the scientific and medical research community has sought to increase its access to healthy children for research protocols that involve harm or a risk of harm. This move reverses longstanding policy within that community generally to exclude healthy children from such protocols on the grounds that the research as to them is non-therapeutic, that they are particularly vulnerable to research-related abuses, and that they are unable themselves to give informed consent to their participation. The research community\u27s new posture has been supported by prominent pediatric bioethicists who have argued that unless healthy children are included as research subjects in harmful or risky research, the pediatric population will continue to suffer relative to the adult population in the extent to which it benefits from modern advances in science and medicine. In their view, it is possible for the research community to self-administer a rule that strikes a balance between protecting healthy children from research-related abuses and allowing their inclusion in cutting-edge pediatric research. In this scheme, parental consent is central to the research community\u27s claims about child protection. This Article explores the flaws inherent in this ethics of pediatric research. Specifically, it challenges the view from ethics that the law permits parents to consent to their children\u27s inclusion in harmful or risky research to the extent that related invasions would meet legal maltreatment standards. More broadly, it challenges the movement to increase access to healthy children for harmful and risky research on the ground that it risks two important regressions: First, in its willingness to risk harm to individual children in the interests of the group, it threatens the progress the law has made in its development of the concept of the child as an individual worthy of respect in his or her own right, a concept that imagines parents as fiduciaries and that includes strong protections against invasions of bodily integrity. Second, in its failure to assure that the burdens of non-therapeutic research are not placed disproportionately on children of lower socioeconomic and minority status, it violates the antidiscrimination principle, which has only begun to make good on its promise of equal treatment for all children. Ultimately, this Article argues that harmonization of the rules governing pediatric research with the law of child protection and parents\u27 consent authority is the best way to assure that children are protected in the research setting in these respects and to the same extent they are otherwise in the society

Testing the Boundaries of Family Privacy: The Special Case of Pediatric Sibling Transplants

A six-year-old girl suffers third-degree burns over eighty percent of her body. Her chance of survival with minimal scarring is said to depend on her identical twin sister’s availability as an organ source. There are other transplant options—including the parents—but because the twins’ skin is “equivalent,” a “sibling transplant” is likely to result in a better medical and aesthetic outcome for the burned twin. Her doctor thus proposes to harvest her healthy sister’s skin on “her backside from her bra line down to the bottom of her buttocks or possibly her thighs.” This procedure would be repeated up to three times in as many weeks. It would cause “‘permanent discoloration,’” and would feel like “‘a severe sunburn with blisters’” for “3–5 days with return to normality with[in] 10–12 days.” Concerned about the legal implications of harvesting skin from a healthy minor child, the hospital consults with outside advisors, including at the local juvenile court, who suggest that the procedure might constitute child abuse. Anxious to proceed, the parents thus choose to bypass that forum and file an action in probate to establish their right to use their healthy daughter’s skin to benefit her injured sister. There, they argue that the grafts are in the healthy child’s best interests, presumably because of the sisters’ close relationship. Her guardian ad litem argues otherwise: “[U]nder no circumstances will this ‘well-child’ . . . escape these surgeries without immediate physical pain and trauma in addition to life-long physical skin damage appearance issues that create probable severe psychological and emotional damage.” The court, which goes to extraordinary lengths to establish its equitable jurisdiction, finds that, on balance, given the risks and benefits to both sisters, the parents have the right to authorize the surgeries

Storming the Castle to Save the Children: The Ironic Costs of a Child Welfare Exception to the Fourth Amendment

This article first sets out the child welfare system\u27s assumption that there is a child welfare exception to the Fourth Amendment and then describes the ways it is used to facilitate child maltreatment investigations. It goes on to analyze the validity of this assumption according to current Fourth Amendment doctrine including under the special needs administrative exception. (This analysis may be particularly useful to both family/children\u27s law scholars as well as to Fourth Amendment scholars, as it examines all of the state and federal appellate cases addressing the subject, and provides a most up-to-date evaluation of the Supreme Court\u27s special needs doctrine.) Finally, the article makes the normative argument that a child welfare exception under any guise is unreasonable because it is both unnecessary to accomplish the desired ends and causes harm to more children than it helps