Photo by Tammy McGary, via Flickr
Photo by Tammy McGary, via Flickr

Personhood Week: Do Kids Count?

It’s Personhood Week here on Only Human. Today’s installment is about young people: When do they get autonomy? When do their decisions count?

Yesterday’s post was about conception, and tomorrow’s will be about the identification of dead bodies. Thursday goes to non-human animals, and Friday to neuroscientists who argue that “personhood” is a convenient, if illusory construction of the human brain.

I’d love to hear about how you guys define personhood, and why. Feel free to leave comments on these posts, or jump in to the #whatisaperson conversation on Twitter.

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In 1891, the U.S. Supreme Court heard a case about negligence that was really about personhood.

The plaintiff, the Union Pacific Railway Company, was asking the court to force a woman, Clara Botsford, to submit to a surgical examination. Why? Botsford was suing the company for negligence related to a top bunk in one of its train’s sleeping cars. The bunk fell while she was under it, “rupturing the membranes of the brain and spinal cord” and causing “permanent and increasing injuries.” The company wanted its own doctors to examine Botsford and confirm the diagnoses, but she did not consent to the examination.

The Supreme Court ruled against the company. As Justice Horace Gray wrote in his opinion (emphasis mine):

“No right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law.”

This is just one of many examples from U.S. case law illustrating that a big part of personhood is autonomy. In our society, people are supposed to have control over their own bodies and make independent decisions about their lives. This idea drives the modern medical concept of informed consent, in which an individual is supposed to give permission before receiving medical therapies or participating in a research study.

That autonomy principle, though, gets sticky when applied to a subset of humans that most of us would surely call persons: minors.

Take a case from the mid-1970s, when two children living in a state mental hospital in Georgia filed a class-action lawsuit against state officials. Their guardians had committed them against their will, which the kids claimed was a violation of the Due Process clause of the 14th Amendment. The case, known as Parham v. J.R., went to the Supreme Court, which ultimately ruled against the kids. “The law’s concept of the family,” the opinion reads, “rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.”

Neuroscience research in the last couple of decades bolsters the idea that the teenage brain is not fully mature. The front of the brain — including the areas important for planning, executive function, and inhibition — develops last. This may be why teenagers tend to be risk-takers, getting in car accidents, taking dangerous drugs and having unprotected sex. They’re also not the best decision-makers, prioritizing short-term over long-term consequences, and often succumbing to peer pressure. (David Dobbs wrote beautifully about this line of research in a 2011 feature in National Geographic.)

Science doesn’t dictate law, of course. If it did, then we might not grant people full rights until around age 25, when the brain has fully developed. Instead the U.S. puts the age of majority at 18. After that, you become a person with the right to make your own choices (with the notable exception of drinking alcohol). As law professor Jonathan F. Will wrote in a 2006 paper: “In the eyes of the law, there is something magical about the stroke of midnight on the eve of one’s eighteenth birthday.”

The medical profession, however, has shown a growing respect of the rights of minors since the 1970s. Part of its rationale is practical: There are some important medical conditions that adolescents might not want to share with their parents. For example, most states today allow minors to independently seek treatment for sexually transmitted diseases, birth control, drug addiction, and sexual abuse. Similarly, most states allow pregnant girls under 18 to make decisions regarding the pregnancy.

The changing stance of the medical profession is also based on the bioethical principles of autonomy and informed consent. In order for an adult to give informed consent, she must do so voluntarily, fully understand the nature of the treatment and its possible consequences, and be deemed “competent” to make decisions.  And what is competence? As Will explains in that 2006 paper, competence means the person has the cognitive ability to communicate, understand, reason, deliberate, and “apply a set of values” to the decision at hand.

Historically, the law has assumed that adults have this competence and minors don’t. That began to change in 1987, when the Tennessee Supreme Court heard a medical malpractice case surrounding a girl with back pain. Without her parents’ permission, Sandra Cardwell, age 17 and 7 months, went to an osteopathic doctor and received neck, spine and leg manipulations. That treatment not only didn’t help, but the doctor missed the real problem, a herniated disc. So Cardwell and her parents sued the doctor, claiming that he had failed to get parental consent.

The Court ruled in favor of the doctor and specifically addressed what’s now known as the “mature minor doctrine.” It says, essentially, that some minors should have medical autonomy. As the Court stated:

“Whether a minor has the capacity to consent to medical treatment depends on the age, ability, experience, education, training, and degree of maturity or judgment obtained by the minor, as well as upon the conduct and demeanor or the minor at the time of the incident involved.”

If it sounds like a gray area that’s because it is. When I was digging into the medical literature I found papers with wildly different opinions. This one, published in 1975, favors abandoning parental consent, whereas this one, to be published next month, argues that minors should never be examined without their parents. So I asked Laura Hercher, a genetic counselor at Sarah Lawrence College, whether she thought there was any consensus on the issue of minors and informed consent.

As it turns out Hercher is quite familiar with these issues as they apply to genetic testing; she chaired the National Society of Genetic Counselors group that wrote a position statement on genetic testing of minors. As far as explicit rules, she told me, it’s clear-cut: Minors cannot consent until they’re 18, and after that, parents have no say. In practice, though, it’s a lot fuzzier.

“While minors can’t consent before 18, they can provide assent, and there is a well established consensus that assent should be sought when possible — with an increasing emphasis on assent as the child grows older,” she says.

What that leads to in practice, she adds, is a tendency toward non-action: Doctors will almost never act without parental approval, and yet at the same time, they’re also reluctant to act if an adolescent doesn’t consent. (What age counts as an adolescent is yet another wrinkle, but Hercher says consent concerns usually begin in the early teens.) “In effect, if either party says no, it often blocks treatment,” she says. “Veto power, like the UN security council.”