The best interest standard and the ethical work it does in making medical and public policy decisions for children

By Johan Bester

For a while now, I’ve been interested in ethical questions in medicine and public policy concerning children. It started with my work on vaccination ethics, which continues to raise ethical questions of various kinds. Things like: What is the source and limits of parental authority over children? What do we do when we know that something is good for a child but parents are unwilling or unable to provide it? What do we do when there are disagreements between clinicians and parents cannot be resolved?

Exploring these questions meant I had to study the best interest standard (BIS) and its role in decision-making for children. I discovered that the BIS is predominant and influential in ethical issues regarding children. The BIS is so prominent and widely accepted that it forms a central tenet in the UN’s Convention on the Rights of the Child. According to the BIS, parents, clinicians, and law courts should be guided by what best protects the interests of children. Public policy, medical decisions, and legal decisions that affect the child should take the interests of the child as starting point and place it as the central consideration. In this way, it puts the child first in decisions about the child and forms a bulwark against older views that children are the property of their parents.

But I also stumbled upon controversy. Some critics have written scathing condemnations of the BIS and its shortcomings. Such work has appeared both in the medical ethics literature and the legal literature. The BIS, we are told, is vague, ill-defined, too demanding, divisive, and not suited to place limits on parental authority. These criticisms have been influential and persuasive to many ethicists and clinicians. It almost seems in vogue to start off one’s work in pediatric ethics by proclaiming the shortcomings of the BIS and one’s skepticism of its role. A plethora of alternative decision-making standards have appeared to replace the hopelessly ineffective BIS or some of its functions. Indeed, given these devastating criticisms, it is a wonder that the BIS has had any traction as ethical standard at all and that it has endured for well over 100 years.

I must admit, at first glance the critiques of the BIS look quite convincing. Many of the suggested replacements or augmentations of the BIS look simpler and appealing. And I can imagine that it is doubly so for a busy clinician or judge embroiled in disagreements with parents on what should be done for the child. But as I read and re-read some of the critiques of the BIS, I noticed a few things.

For one thing, the BIS attacked by critics looks very different than the BIS found in the work of those who develop and defend the BIS. Critics tend to present a different version of the BIS and then attack that version mercilessly. Another thing, many of the critics use moral dilemmas to show how flawed the BIS supposedly is. Because the BIS cannot give us a satisfactory answer to resolve an intractable moral dilemma, we are told the BIS is defective. But that does not follow: we know moral dilemmas stretch our moral principles and our moral reasoning.

I came to suspect that the actual moral work done by the BIS is underestimated by its critics. The BIS implores us to place a child’s moral claims and concerns as the central consideration in all decisions about the child.   It forms an ethical foundation on which the obligations of parents, clinicians, and courts rest. But we are so used to the moral work that it does that we can be tempted to take it for granted and overlook it. I also came to suspect that there is wide-spread misunderstanding about how the BIS works, particularly in medical ethics, with consequent misuse of the concept in practice.

For these reasons I wrote an article which seeks to clarify the role of the BIS in medical practice, particularly in medical decisions regarding children. In this article I seek to remind and clarify, bringing to mind the moral work done by the BIS and what we risk losing should we neglect it. It is my hope that we will strengthen the bulwark that protect the moral claims of children as we provide care for them in a complex and pluralistic world.

Paper: The best interest standard and children: Clarifying a concept and responding to critics

Author: Johan Bester

Affiliation: UNLV School of Medicine, University of Nevada.

Competing interests: None declared










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