Legal Applications of the “Best Interest of the Child”Standard: Judicial Rationalization or a Measure ofInstitutional Competence?

abstractThis article explores the use of the best interest standard in the contextof third-party interventions in ongoing parent-child relationships. Istart by examining the history of the best interest standard and showthat it has had different meanings in different eras. I then address thenature of the family and the question of whether interests beyondthose addressed in the child’s best interest standard are a legitimatepart of family decision-making. I conclude that ongoing families areentitled to at least a measure of deference in their decisions abouttheir children. Third-party interventions, such as those of doctors orjudges, should require something more than simply a difference ofopinion about where the child’s interests lie. Pediatrics 2014;134:S111–S120

AUTHOR: June Carbone, JD

University of Minnesota Law School, Minneapolis, Minnesota

KEY WORDSchild, ethics, best interest, family, law

www.pediatrics.org/cgi/doi/10.1542/peds.2014-1394G

doi:10.1542/peds.2014-1394G

Accepted for publication Jun 10, 2014

Address correspondence to John D. Lantos, MD, Children’s MercyHospital, 2401 Gillham Rd, Kansas City, MO 64108. E-mail:jlantos@cmh.edu

PEDIATRICS (ISSN Numbers: Print, 0031-4005; Online, 1098-4275).

Copyright © 2014 by the American Academy of Pediatrics

FINANCIAL DISCLOSURE: The author has indicated she has nofinancial relationships relevant to this article to disclose.

FUNDING: Supported by the Claire Giannini Fund.

POTENTIAL CONFLICT OF INTEREST: The author has indicatedshe has no potential conflicts of interest to disclose.

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The “best interest of the child” is theiconic standard courts use to resolvedisputes about children. It took hold inthe context of 2 proceedings in whichjudicial intervention is not at issue. Thefirst involves disputes among partieswith equal standing. If the father wantshis son circumcised and the motherdoes not, the parents may appeal to thecourts and the courts typically resolvethe matter in accordance with theirassessment of the child’s best interest.The second involves cases in whichthere is no custodian with the authorityor the will to make a decision. Consideran orphaned child who would like toparticipate in an experimental cancertreatment. No official may be willing tomake a decision that might expose theofficial or the state to liability if thingsgo badly. The agency might ask thecourts to decide, and they would againdo so in accordance with the child’sbest interest.

The harder cases involve the use of thestandard either to determine when thecourts should intervene in an intactparent-child relationship or whatstandard to use when they do. What ifthe parents, for religious reasons, re-fuse to vaccinate a 3-year-old in themidst of a pertussis outbreak? Canobjecting doctors ask the courts to in-tervene on the basis of a best interestanalysis? Opponents to such inter-ventions frequently invoke the idea of“family privacy.” Family privacy, in turn,is often conflated with the notion ofparental rights and, indeed, in a num-ber of cases, the Supreme Court hasheld that parents have a fundamentalliberty interest in “the care, custody,and management” of their children.1

Yet, the idea of family privacy is notidentical to the notion of parents’ rightsand parents’ rights, where they doexist, are not absolute. Instead, thecourts struggle with 2 ideas in decidingwhether third parties should be al-lowed to intervene in existing family

relationships. The first involves the in-trusiveness of the intervention itself.Interventions into ongoing familiesmay have negative consequences forchildren because of the form the in-tervention takes. Consider, for exam-ple, the state response to parents whorefuse to vaccinate their 3-year-old. Ifthe courts rule that the parents mustfacilitate the vaccination and the par-ents refuse to comply, the courts couldauthorize state officials to remove thechild from the parents’ custody andallow the doctors to give the child theshots. Involuntarily taking a 3-year-old,however, may inflict terror on the childand, even if the child takes the events instride, the state officials carrying outthe court orders may find them dis-tasteful. Such an intervention may wellinfringe on notions of “personal dig-nity,”2 including the dignity of the childand the enforcing officials, even incases in which the parents’ behavioris unreasonable.

The second consideration involves theparents’ ability to balance concernsthat courts and other third partiesmaynot identify with the child’s interests.In deciding to forego vaccinations forreligious reasons, the parents may beconcerned about their and their child’sparticipation in a religious community.Suppose, for example, that the parentshave older children who benefit frominclusion in the community and theparents risk ostracism if they vaccinatetheir children? The parents’ decision,whether it advances the 3-year-old’snarrow interests, may benefit the familyas a whole.

This article will explore the question ofthebest interest standard in thecontextof third-party interventions in ongoingparent-child relationships. It will startby examining the history of the bestinterest standard, which has had dif-ferent meanings in different eras. Sec-ond, the article will address the natureof the family as an ongoing unit and the

question of whether interests beyondthose addressed in the best intereststandard are a legitimate part of familydecision-making. The article concludesthat ongoing families are entitled toa least a measure of deference in theirdecisions about their children and thatthird-party interventions should requiresomething more than simply a differ-ence of opinion about where the child’sinterests lie. Insisting on vaccination ofa child in the midst of a pertussis epi-demic may well be appropriate, butcare should be taken to minimize dis-ruption of ongoing families.

THE BEST INTEREST TEST

Historical Origins

Thebest interest of the child standard iscenturies old.3 It begins as a trump thatsupersedes parental authority. None-theless, invocation of the standard tosubstitute the views of a third party,such as the courts, over the views ofotherwise fit parents remains limited.On the relatively few occasions whenthe US Supreme Court has addressedthis issue, it has been more likely tolimit than expand application of thestandard.4 Nonetheless, the distinctionsbetween use of the standard to justifyintervention and use of the standardto resolve a case once intervention hasoccurred have never been clearly de-lineated.

The standard clearly begins as a jus-tification for intervention. The firstreported cases come from the 18thcentury. English law permitted fathersto appoint guardians with decision-making power over their children, andthe Chancery courts had authority tooversee the guardians “for the benefitof the infant.”5 Conflicts arose whentestators conditioned inheritances onthe father’s appointment of a guardianfor the child. If the father accepted theinheritance, he ceded his authority overthe child; if he did not accept, the Englishcourts concluded that he hadwaived his

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parental rights by failing to show “dueattention to the interests of the child.”6

These rulings articulated a potentiallysweeping justification for intervention,allowing the courts to substitute theirjudgment for the fathersas towherethechild’s interests lay.5 Yet, in other re-spects, they were limited. The conflictsover appointment of a guardian aroseeither when the father was no longerable to act or in the context of a probatedecision in which the courts were al-ready overseeing disposition of an es-tate. In addition, the father who refusedto appoint a guardian in such contextsarguably had a conflict of interest, al-though one we would think strangetoday.5 Nonetheless, these rulings gaverise to 2 subsequent lines of cases ofgreater import: custody cases that in-volved conflicts between fathers andmothers and abuse and neglect cases.

Custody

The best interest of the child standardhas had its greatest influence in cus-tody cases, initially as a doctrine thatallowed courts to recognize the im-portance of the mothers’ role in thechild’s life and more recently as away to mediate between mothers’ andfathers’ competing claims. Even in thiscontext, however, the courts have re-mained wary of completely open-endedapplications of a best interest standard.

Early English and American laws weresaid to treat children largely as their“father’s property.”3 The earliest casesto recognize mothers’ interests did soas an extension of the early Englishcases that justified intervention wherethe father had failed to act in the child’sinterests, such as cases in which thefather was abusive, unfaithful, or failedto support the family.7 Over time, how-ever, the best interest standard becamethe more general test for custody dis-putes, curbing the primacy of the fatherto recognize mothers’ interests.3 Al-though the test gave courts greater

ability to make individualized determi-nations, most courts apply mechanicalrules to interpret children’s interests.8

First, by the beginning of the 20th century,the courts began to identify the best in-terest of a child of “tender years” withmaternal custody.8 Then, as divorce be-came more common, the courts iden-tified children’s interests with thecontinued involvement of both parents.9

To be sure, courts retained the ability todepart from these expectations to protectchildren’s interests, but such departuresare the exception rather than the rule.8

The Constitutionalization of theParental Preference Standard

The Supreme Court has been reluctantto grant children rights that couldjustify third-party intervention over-riding parental preferences. Althoughtheprecise contoursof thebest intereststandard have been left to the states,10

the court’s recent pronouncements re-affirm the propriety of restricting ap-plication of the best interest standard.

In Michael v Gerald,11 for example,Justice Antonin Scalia’s plurality opinionfor the Court upheld the constitution-ality of the marital presumption and,in doing so, ruled that unmarried bio-logical fathers have no constitutionallyprotected rights to assert paternityover the wishes of the mother and herhusband and the child had no separate,constitutionally protected interest ina relationship with the man she called“Daddy.” The states were thus free toadopt statutes that limited the standingof third parties, including unmarriedbiological fathers, to assert any relation-ship to a child.

Justice Scalia similarly refused to usea best interest test to justify challengesto immigration procedures regardingchildren who might be deportable. Inruling on the case, he distinguishedthe role of the best interest test incustody cases from other potentialapplications:

“The best interests of the child,” a ven-erable phrase familiar from divorceproceedings, is a proper and feasiblecriterion for making the decision as towhich of two parents will be accordedcustody. But it is not traditionally the solecriterion—much less the sole constitu-tional criterion—for other, less nar-rowly channeled judgments involvingchildren, where their interests conflict invarying degrees with the interests ofothers. Even if it were shown, for exam-ple, that a particular couple desirous ofadopting a child would best provide forthe child’s welfare, the child wouldnonetheless not be removed from thecustody of its parents so long as theywere providing for the child adequately.Similarly, “the best interests of the child”is not the legal standard that governsparents’ or guardians’ exercise of theircustody: so long as certain minimumrequirements of child care are met, theinterests of the child may be sub-ordinated to the interests of other chil-dren, or indeed even to the interests ofthe parents or guardians themselves.12

Scalia’s opinion underscores the specialcircumstances of divorce proceedingsand it rejects the idea of a best intereststandard per se as justification eitherfor intervention in an ongoing family oras the substantive standard by whichsuch interventions are to be judged.

Although Scalia’s musings in Reno vFlores may be mere dictum, the Su-preme Court’s subsequent decision inTroxel v Granville 4 is entitled to greaterweight. In Troxel, the court consideredthe constitutionality of a Washingtonstatute that permitted the courts to“order visitation rights for any personwhen visitation may serve the best in-terest of the child whether or not therehas been any change of circumstances.”13

Justice O’Connor’s plurality opinionemphasized the constitutional protec-tion accorded to “the interest of par-ents in the care, custody, and control oftheir children.”4 In identifying the pro-blems with the Washington statute,O’Connor underscored its breadth, not-ing that the statute allowed “any per-son” to petition “at any time” (italics inoriginal)4 and that the statute applied abest interest standardwith no deference

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whatsoever to the parents’ views.O’Connor wrote that this “places thebest-interest determination solely inthe hands of the judge.”4 Although thejustices did not necessarily agree onthe reasoning, a majority of the Su-preme Court concluded that the statuteviolated the mother’s constitutionalrights in the case by imposing grand-parent visitation without giving any pre-sumption of validity to her views.

The decision in Troxel has reinforcedstate decisions that limit the standingof third parties to challenge familydecisions and to restrict use of open-ended best interest determinations.The subsequent decisions require apresumption in favor of the views of a fitparent, with many states mandatinga showing of detriment to the child toovercome the presumption.10

Abuse and Neglect

The cases to descend from the earlyEnglish best interest decisions areabuse and neglect cases and thesecases, although they continue to justifyintervention in accordance with abroader conception of the child’s in-terests, have a deservedly mixed rep-utation. The cases rest on the principlethat outside parties should be able toprevent harm to a child and that a bestinterest analysis should govern thatintervention.

Reasons for concern begin with thefirst cases. The English judges, afterall, thought that a wealthy and involvedfather who had an affair could not beafit parent, even though themotherhaddied.4 The most common cases in-volved poverty or bankruptcy. MarshaGarrison observed that “[d]uring thenineteenth century, poverty remainedvirtually synonymous with neglect andpermanent separation of parent andchild continued to serve as the pre-ferred remedy for need.”14 Inadequatefood, substandard housing, and in-sufficient supervision justified state

intervention and removal of childrenfrom their parents.14

Today, courts have become more likelyto intervene to prevent neglect andphysical and sexual abuse.15 Critics ar-gue, however, that such interventionscontinue to reflect a “dual system” offamily law that defers to the well-off andintervenes in the families of the poor,particularly single-parent families re-ceiving state aid.16

Law professor Cynthia Godsoe ob-served that findings of child abuse orneglect often focus on “parental con-duct that, while perhaps undesirable,does not cause proven harm to chil-dren.”17 A study in Washington, DC,found that 75% of children removedfrom their parents did not meet thenecessary standard of risk.17 Instead,children are routinely removed in partfor “dirty houses” or parental marijuanause so minimal that the amounts do notmerit a misdemeanor criminal charge.17

The courts have acknowledged thesereservations. In1982, theSupremeCourt,in a 5 to 4decision, ruled thatNewYork’s“fair preponderance of the evidence”standard was insufficient and that thedue process clause required that thestate support its allegations “by atleast clear and convincing evidence” toterminate parental rights.1 The courtobserved that “[b]ecause parentssubject to termination proceedingsare often poor, uneducated, or mem-bers of minority groups, such pro-ceedings are often vulnerable tojudgments based on cultural or classbias.”1 There is no reason to believethat such determinations would beany different today.18

HEALTH CARE DECISIONS AND THEBEST INTEREST STANDARD: THEROLE OF INSTITUTIONALCONCERNS

Health care decision-making takesplace in between the custody and thetermination of parental status arenas.

On the one hand, health care decisions,unlikecustodyhearings, donot typicallytake place within an ongoing judicialproceeding. Review occurs either whenthe parents do not agree with eachother or when a third party questionsthe parents’ wishes.

On theotherhand,healthcaredecisionsdo routinely involve health care pro-fessionals. Like the social workers whoinitiateabuseandneglectcharges, thesethird parties may initiate actions whenthey disapprove of parents’ decisions.

The application of a best intereststandard in these cases is likely toparallel thesame institutionalconcernsthat occur in the context of custody andneglect decisions. First, the courtsrarely apply an open-ended best in-terest standard that allows thirdparties to determine the child’s inter-ests independently of parents’ prefer-ences; instead, an open-ended bestinterest standard is most likely to beapplied when the courts do not trustparental decision-making. Second, inapplying a best interest test, courts canand do consider the impact on thechild’s caregivers. The deference givento parental authority is not just amatterof parental rights. It also reflects thecourt’s consideration of the impact onthe child of imposing an outcome on anunwilling caretaker. Finally, courts maydefine the child’s interests in terms ofa larger set of societal concerns.

The Exceptions: Intervention andthe Detriment Standard

The treatment of children starts withdeference toward parental prefer-ences.19 Yet, parental rights are notabsolute. In Prince v Massachusetts,a member of the Jehovah’s Witnesseshad her 9-year-old niece selling news-papers in violation of state labor laws.In upholding the aunt’s conviction, theSupreme Court observed that

The right to practice religion freely doesnot include liberty to expose the com-munity or the child to communicable

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disease or the latter to ill health ordeath . . . . Parentsmay be free to becomemartyrs themselves. But it does not fol-low they are free, in identical circum-stances, to make martyrs of theirchildren before they have reached theage of full and legal discretion when theycan make that choice for themselves.20

Judicial intervention is most commonwhen the courts do not trust parentaldecision-making. The clearest exam-ples involve a risk of harm to the child,particularly when the parents indicatethat they are willing to sacrifice thechild’s interests to vindicate theparents’ beliefs or commitments. Com-mon law courts have historically exer-cised a parens patriae power, that is, “asovereign right and duty to care fora child and protect him from neglect,abuse and fraud during his minority.”21

Parents have been held to a similar duty“to provide reasonable care, protection,maintenance and education for theirchildren.” If the parents were unable orunwilling to discharge that duty, thecommon law courts could “act to pro-tect the interests of the child, take cus-tody from the parents and appointa guardian.”21 Indeed, one of the earliestinterventions justified by a best intereststandard involved a father who failed tosecure appropriate medical care for hischildren.22

The most straightforward applicationof these principles with respect to medi-cal decisions has come in the casesinvolving Jehovah’s Witnesses who re-fuse to consent to blood transfusionsfor their children on religious grounds.An empirical review found that in allbut 2 cases, the courts ordered thetransfusions over parental objec-tions.23 The 2 exceptions involved olderteens, close to the age of majority, whoshared the parents’ religious beliefsand agreed with the parents’ decision.Although a showing of detriment to thechild is relatively easy to make in mostof these cases, the courts varied in thestandard they applied. A closer ex-amination of one of the cases in which

court applied a lower standard, however,illustrates just why the courts are par-ticularly willing to intervene in thesecases as a matter of institutional allo-cation of decision-making responsibility.

In In re Sampson, a 15-year-old suf-fered from a rare neurofibromatosisdisease that caused extreme disfig-urement of the face and neck.24 Themother, a member of the Jehovah’sWitnesses, had consented to surgery tocorrect the child’s appearance but notto the blood transfusions likely to benecessary in surgery of this kind. Thesurgery was risky in any event; it wasdramatically more likely to cause deathif transfusionswere ruled out. The caseis unusual in a number of respects.First, the boy’s condition was not life-threatening; the primary benefit of thesurgery was likely to be its impact onthe boy’s appearance. Second, thesurgery, although it could improve theboy’s quality of life, would neither curethe disease nor eliminate the disfig-urement. Third, the surgery could bepostponed until the boy reached theage of majority and could make hisown decisions. Indeed, the doctor tes-tified not only that the surgery could bepostponed without worsening thelikelihood of its success, but that it waslikely to be safer at an older age be-cause the risk of bleeding would bereduced. In short, the testimony in thecase indicated that reasonable peoplemight disagree on the timing and themerits of the surgery altogether.

The court nonetheless appointed aguardian for the purpose of ensuringconsent to the surgery and, if needed,the blood transfusions. In doing so, theNewYorkcourt rejected thepropositionthat the courts could intervene only in“‘drastic situations’ or . . . those whichconstitute a ‘present emergency’.”24

Instead, the court held that it had “a‘wide discretion’ to order medical orsurgical care and treatment for an in-fant even over parental objection, if in

the Court’s judgment the health, safetyor welfare of the child requires it.”24

I suspect that the court at least im-plicitly applied the following calculus tothe decision. The mother had approvedthe surgery but not the transfusions;therefore, the court could conclude thatthere was no objection to the surgeryitself. Thedecision topermit thesurgerywithout transfusions, however, was ei-ther irresponsible because of thegreatly increased risk to the child ora failure to make a decision at all be-cause the mother’s position left it up tothe doctors to determine whether thesurgery without transfusions was toorisky to undertake.

Thatmade it relativelyeasy for thecourtto substitute its judgment for themother’s. The family and the doctorsall wanted the surgery. The motherobjected to the transfusions for re-ligious reasons and her son concurredin her judgment. For either the parentor the child to authorize the transfusionsmeant a break with their church, andboth believed that such a break imper-iled their spiritual lives. The court couldspare them the agony of a painful choiceby making the decision for them. Thejudge was not endangering his soul bymaking such a decision and the mothergave no indication that she or her churchwould reject the son because of court-ordered blood transfusions.25 The result,although it could be said to violate thefamily’s autonomy, could be seen as awin-win scenario: the surgery could goahead without the family having to con-front a choice between their religiousscruples and the quality of the son’s life.

The Best Interest Standard andParental Prerogatives

A second type of case, which producesfarmoredeference toparental decision-makingon institutional grounds, involvesdonation to siblings. In Curran v Bosze,the Illinois Supreme Court refused to ap-prove a bone marrow donation because

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of the donor children’s best interest.26 Thecase, however, can also been seen as aclassic interpretation of the children’sinterests in accordancewith an allocationof decision-making power to the primarycustodial parent.

In this 1990 case, the father, TamasBosze, had a 12-old-year son, JeanPierre Bosze, diagnosed with leukemia.Bosze had also fathered 3.5-year-oldtwins in a different relationship. Boszeand the twins’ mother, Nancy Curran,had never married and he had initiallydenied paternity. When the twins were 2years old, the parents agreed to a par-entage order that gave Curran solecustody. It also stated that “In all mat-ters of importance relating to the health,welfare and education of the children,Mother shall consult and confer withFather, with a view toward adopting andfollowing a harmonious policy.”26

After Jean Pierre’s doctors recom-mended a bonemarrow transplant andJean Pierre’s other relatives turned outnot to be compatible donors, the fatherasked the twins’ mother to havea blood test performed to determinewhether the children were compatible.The intrusiveness and discomfort ofthe blood test would be minimal, butthe twins’ mother refused to permit itbecause she objected to the bonemarrow transplant. The father soughta court order compelling the tests.

In the hearing, the father asked thecourt to apply a “substituted judgment”test that would attempt to replicate thedecision the twins would make if theyhad reached the age of majority. Themother asked the court to apply a “bestinterest” test that would determinewhether the bone marrow transplantwould be in the twins’ best interests be-fore compelling the test for compatibility.

The court rejected the application ofa substituted judgment test on thegrounds that it required findingsomething that did not exist: thechildren’s likely preferences based on

their “philosophical, religious and moralviews, life goals, values about the pur-pose of life and the way it should be lived,and attitudes toward sickness, medicalprocedures, suffering and death.”26

The twins simply had not had the op-portunity to develop moral worldviewsand any substituted judgment wouldtherefore have to rely on the decision-maker’s “speculation and conjecture.”26

Instead, the court applied a best in-terest test.26 It observed that themother, as the twins’ sole custodian,could under Illinois law “determine thechild[ren]’s upbringing, including butnot limited to, [the] education, healthcare and religious training, unless thecourt, after hearing, finds, uponmotionby the noncustodial parent, that theabsence of a specific limitation of thecustodian’s authority would clearly becontrary to the best interests of thechild[ren].”26 In defining the children’sinterests, the court noted that donationcould be considered to be in a child’sbest interests when the donor hada close relationship with the recipientand the recipient’s death would havea significant effect on the child’s qualityof the child’s life.26 In the Curran case,however, the twins had met their olderhalf-brother only twice, for brief periods.26

The court effectively sealed the out-come once it decided to base the de-cision on the best interest of the twins.A bone marrow donation would beuncomfortable for the donor and posesignificant risks because of the generalanesthesia necessary for the proce-dure.26 Moreover, although the medicaltestimony indicated that Jean Pierrewould almost certainly die without thetransplant, some testimony indicatedthat his prospects were poor in anyevent.26 The court required a clearshowing that the transplant would ad-vance the donor child’s interests withoutconsideration of the benefit to the sickchild, and no such case could be made.The Illinois courts refused to order the

tests or the bone marrow donation andJean Pierre died 2 months after thecourt ruling.27

Although this decision was a particu-larly painful one, the outcome resem-bles more prosaic custody decisions.In these decisions, the courts typicallydefer to the preferences of the primarycustodian. Consider, for example, adispute between 2 parents overwhether a child should have electivesurgery to correct an obstruction to thedaughter’s nose that occurred as a re-sult of a bicycle accident.28 The fatherobjected that the surgery was un-necessary; the mother (and the treatingphysician) thought it would improve thechild’s quality of life. The New Jerseycourt applied the same test as theCurran court; it concluded that over-ruling the preferences of the custodialparent required a clear showing thatthe custodial parent’s decision was notin the child’s interest.

In other states, the trial courts arerequired to make independent findingsas to where the child’s interests lie.29

Even then, the courts often considerthe role of the custodial parent inimplementing a court’s decision. In theCurran case, for example, experts in-dicated that the twins’ response to thedonation would depend to a large de-gree on their mother’s reaction. A psy-chologist asked specifically what factorswould determine the potential psycho-logical effects on a 3.5-year-old child frombeing a bone marrow donor respondedthat “first and foremost” is support fromthe important adults in the child’s life.29

The psychologist observed that

The mother’s inability for whatever rea-son to concur and to support this pro-cess probably puts the—not probably,almost certainly puts the children atvery serious risks for having adversepsychological consequences or resultsof this procedure.29

Headded further that even if themotherpretended to support the twins duringthe procedure, the twins might sense

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her ambivalence and the twins “wouldnot know if they can rely on the moth-er’s emotional expression as a guidefor things that would be safe or dan-gerous for them or good or bad forthem.” The psychologist concluded thatthe result could “compromise her re-lationship with the children and leavethem floating in a nether land in thismatter.”29

In the Curran case, it is of course hardto know whether the mother acted outof genuine concern that the twins besubjected to a risky procedure withonly a small chance of helping theirhalf-sibling or whether she acted tospite the father. Either way, the Currancourt’s conclusion, both in terms of theway it structured the legal test and interms of its analysis of the children’sinterests, identified their well-beingwith the preferences of the custodialparent. The court might well reacha different result had the custodialparent approved.

State Wariness and the JudicialRole

A third category of cases involves stateconcern about the nature of the pro-cedure evenwhen the parent’s decisionmay arguably be in the child’s interest.

Vaccinations, for example, presenta free-rider problem.30 Because vacci-nations typically involve some risks,the ideal for every individual childwould be if the others around the childwere vaccinated but not the child her-self. Yet, the courts routinely overrideparental objections to mandatory vac-cinations.31 In this context, the parents’preferences for the child and, indeed,the individual child’s interests arelargely irrelevant.

Sterilization has been associated withtheories of eugenics that justifiedcompulsory sterilization of thosethought of as “defective” in an effort toimprove the gene pool.32 A total of60 000 Americans were sterilized at the

height of the movement, and Hitler,using language from the Americanefforts, sterilized millions more.32 Inaddition, fears of promiscuity havesometimes led to sterilization, partic-ularly in women with disabilities. In1927, the US Supreme Court upheld theconstitutionality of a Virginia statuteauthorizing sterilization of institution-alized mental patients without theirconsent.33 The court famously declaredthat “[t]hree generations of imbecilesare enough.”33 Yet, Carrie Buck hadbeen institutionalized after a rape andlater writers would show that neithershe nor her honor student daughterwere either promiscuous or “imbeciles.”32

Given this history, the courts are un-derstandably wary of authorizing steril-izations, whatever the parents’ wishes.The Colorado Supreme Court held in1981 that

Simply allowing theparentsor guardiansof the mentally retarded person to sub-stitute their decision and consent tosterilization for that of the incompetentperson is not an adequate solution tothe problem. Consent by parents to thesterilization of their mentally retardedoffspring has a history of abuse whichindicates that parents, at least in thislimited context, cannot be presumed tohave an identity of interest with theirchildren. The inconvenience of caring forthe incompetent child coupled with fearsof sexual promiscuity or exploitationmaylead parents to seek a solution whichinfringes their offspring’s fundamentalprocreative rights.34

The Colorado court accordingly adop-ted a particularly strong statement ofthe best interest test, holding thatsterilization could only be justifiedwhen a court found by clear and con-vincing evidence that “the sterilizationis medically essential” and medicallyessential was defined to mean “clearlynecessary, in the opinion of experts, topreserve the life or physical or mentalhealth of thementally retarded person.”34

The result, however, does not neces-sarily lead to more searching inquiriesinto an individual’s particular interests.A recent study found that of 8 cases

addressing the proposed sterilizationof mentally disabled children, thecourts permitted the sterilization in2 cases, did not permit the sterilizationin 4 cases despite similar facts, anddeferred decision in the other 2.23 Theauthor concluded that invocation of thebest interest standard often obscuredrather than illuminated the basis forthe decisions.23

THE BEST INTEREST REDEFINED:ADDING THE FAMILY BACK IN

The best interest standard, bothwhen itis strictly applied and when it isn’t,reflects institutional concerns. Theseconcerns involve the family as a unit. Itis not just that parents can ordinarilybe expected to take children’s interestsinto account to a greater degree thanother decision-makers; it is also thatparents’ attitudes and behavior affectthe children even when the parents arenot necessarily acting in the children’sinterests. Moreover, however easy it isto posit cases in which the courts andother third parties should intervene toprotect children’s interests, it is equallypossible to point to other cases inwhich such interventions reflect judi-cial bias.

This section will reexamine the role ofbest interest considerations that in-volve the family as an institution, look-ing first at cases in which parentswithhold lifesaving treatments; second,the tradeoffs among different familymembers in donation cases; and third,caretaker concerns in modern sterili-zation cases.

The Family as the Crucible ThatDetermines the Child’s “BestInterests”

When the Jehovah’s Witness familyapproved surgery but not the bloodtransfusions, the court perceived win-win possibilities. Other scenarios poselose-lose propositions. Newmark vWilliams35 presents such a case. The

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child, Colin Newmark, was a 3-year-oldwith a deadly, aggressive, and advan-ced form of pediatric cancer known asBurkitt lymphoma. The doctors pre-scribed chemotherapy; the parents,Christian Scientists, preferred to relyon spiritual aid and prayer.35 Theparents, who had consented to anearlier surgery, opposed the proposedtreatments as a violation of theirbeliefs. The trial court, concluding thatspiritual treatment was an inadequatealternative to chemotherapy, ruled thatthe failure to provide medically ap-proved treatments constituted neglectunder Delaware law.35

The Supreme Court of Delaware re-versed the decision. The justices chidedthe family court for failing to consider“the special importance and primacyof the familial relationship,” empha-sizing that in “many circumstances theState simply is not an adequate sur-rogate for the judgment of a loving,nurturing parent. . . . As one commen-tator aptly recognized, the ‘law doesnot have the capacity to supervise thedelicately complex interpersonal bondsbetween parent and child.’”35

The court justified its conclusion that thedecision to rely on prayer was in Colin’sbest interests because of the nature ofthe treatments involved. The doctorshad advocated an extremely aggressivecancer regimen that could permanentlydamage the child’s kidneys, cause neu-rologic side effects, and risk exposureto infection.35 Even if successful, thetreatment offered at best a 40% chanceof survival and Colin would have to beplaced with foster parents who couldmonitor and supervise the procedures.The court explained:

The egregious facts of this case indicatethat Colin’s proposed medical treatmentwas highly invasive, painful, involvedterrible temporary and potentially per-manent side effects, posed an un-acceptably low chance of success, anda high risk that the treatment itselfwould cause his death. The State’s au-thority to intervene in this case, there-

fore, cannot outweigh the Newmarks’parental prerogative and Colin’s in-herent right to enjoy at least a modicumof human dignity in the short time thatwas left to him.35

Colin died shortly after the DelawareSupreme Court announced its decision.Court-ordered chemotherapy was un-likely to have saved him.36

Family Trade-offs and the IndividualChild

Newmark involved family preferencesas a factor in the individual child’s bestinterests; family preferences presenta more difficult issue when they involvetrade-offs among family members. TheCurran court nonetheless found thateven when the parents consent, theprocedure should only be performedwhen it is in the donor child’s inter-ests.36 To make that determination, thecourts look for a close relationshipbetween the donor and the recipient.This psychological benefit “is not sim-ply one of personal, individual altruismin an abstract theoretical sense, al-though that may be a factor”; instead, itcomes from a continuing relationshipbetween the siblings and the potentialimpact of the recipient sibling’s deathon the donor.36 Practically, however, thecourts often do not intervene when thecase involves consenting parents andan intact family. They are more likely todo so if the hospital objects or if thedonor is mentally disabled.

In Strunk v Strunk,37 for example, theKentucky Court of Appeals authorizeda kidney transplant from a mentallydisabled adult to his 28-year-old brother.The 27-year-old donor had the mentalcapacity of a 6-year-old. The court, afterhearing testimony that the recipient’sdeath would be extremely traumatic forthe donor, concluded that “it would notonly be beneficial to [theward’s brother]but also beneficial to [the ward] be-cause [the ward] was greatly dependentupon [his brother], emotionally andpsychologically, and that [the ward’s]well-being would be jeopardized more

severely by the loss of his brother thanby the removal of a kidney.”37

Even though the parents and the De-partment ofMental Health agreed that theoperation should take place, the court ofappeals split 4 to 3 in authorizing the op-eration. JusticeSteinfeld’sdissentreferredto his “indelible recollection of a govern-ment which, to the everlasting shame ofits citizens, embarked on a program ofgenocide and experimentation” and de-scribed himself as torn between the de-sire “to aid anailing youngmanandadutyto fully protect unfortunate members ofsociety.”37 He doubted that the court hadthe power to authorize the donation at all.

This judicial disagreement about thelegal status of organ donors with dis-abilities leadstoanumberof ironies.Adultsiblings can reach their own decisionsand doctors testified in the Curran casethat they typically agree to donate.26 Withminor donors without disabilities, thecourts often defer to the parents’ deci-sions.38 With the mentally disabled, thirdparties are almost inevitably involvedand they may view the case through thelens of mental disability. As a result, thedisabled donor is more vulnerable bothto parental and third-party decisions.Justice Steinfeld, for example, dismissedthe conclusions of the psychologistswho supported the donation decision,observing that “[i]t is common knowl-edge beyond dispute that the loss ofa close relative or a friend to a six-year-old child is not of major impact.”37

The dissent’s observations, even if theyare true, give no weight to the donor’sinterest in the survival of his sibling orthe impact of the court’s decision on thefamily relationships. The donor in thiscase had a close relationship with his illbrother, his only sibling. Moreover, thebrother’s death would certainly have animpact on the parents that might affecttheir relationship with the donor. Thedissent’s failure to consider the familycontext in a case like this substitutes thecourt’s distaste for authorizing the

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procedure for serious consideration ofthe donor child’s interests as a memberof an ongoing family.39

Determining When Best InterestsDepend on the Capacity of theCaretaker

If broader family interests are groundsfor deference inmany cases to parentalwishes, there arealso circumstances inwhich they are cause for concern. Thesterilization cases, for example, bothpresent circumstances in which theparents’ desire to sterilize a teenagermay be misguided and circumstancesin which the benefits to the teenageroutweigh her interests in retaining theability to procreate.

Consider the Connecticut case ofRuby vMassey.40 The case involved 3 girls instate facilities on the verge of adoles-cence with significant mental dis-abilities. The girl who had alreadybegun to menstruate suffered fromsevere and painful cramping, could notcare for her own hygienic needs, andexperienced psychological stress dur-ing her periods. The court concludedfurther that the girls would be subjectto grave risks if they became pregnant“because they are incapable of com-municating with a physician about theirown physical condition, i.e., whetherthey have had fainting spells, whetherthey are in pain, whether they can feelthe fetus move, whether they are in la-bor.”40 The court also found that theycould not reliably use standard meansof contraception and that regular gy-necologic checkups posed difficultiesbecause of their lack of understandingand cooperation.40 The court concludedthat the girls’ best interest justifiedsterilization. In many ways, however,the more immediate consequences oc-curred to the caretakers who wouldhave to see to the girls’ hygienic needsand supervise their behavior.

The courts have had greater difficultywith cases that raise supervisory

concerns directly. In Conservatorship ofValerie N,41 for example, the CaliforniaSupreme Court denied a parental re-quest to sterilize a mentally disabledadult daughter. The daughter, who had anIQ of 30, had been living at home, showedaggressive tendencies toward men, andrequired continual supervision to pre-vent pregnancy. The parents argued thatthe need to provide that supervision af-fected the parents’ ability to providecontinuing care. The state SupremeCourtruled that the parents had failed topresent sufficient testimony aboutwhether she could conceive and the al-ternatives to sterilization. Yet, the parentshad offered testimony about contracep-tive efforts that failed because of theirdaughter’s lack of cooperation, more ev-idence than had been offered in Ruby vMassey.41 As a practical matter, provingthat she had the ability to conceive wouldbe difficult and ruling out the possibilityof other contraceptives was close to im-possible because the court identified 49different contraceptives that could betried.41 The effect of the decision divertedattention toward hard-to-prove medicalissues instead of Valerie’s interest inavoiding pregnancy, an interest that in-cluded the impact on her caregivers andthe type of supervision that she wouldneed.42 Valerie’s interests, to a greaterdegree than the institutionalized girls inRuby vMassey, depended on her parents’ability to care for her and their confi-dence in their ability to do so.

Thesedecisionshavebeenmoreeffectiveinindicating state opposition to sterilizationthan in providing individualized determi-nations of the children’s needs. Nonethe-less, the cases reflect an appropriatedesire to avoid an automatic conclusionthat mental disability justifies sterilization.The insistence on the medical evidenceabout fertility and contraception, however,seems pointless when the parents showthat an adult daughter, for whom they arecaring in their home, will never be able toconsent to sex, marriage, or childbearing.

CONCLUSIONS

Although the best interest standard iscenturies old, its meaning has neverbeen fixed. Instead, courts often invokethe standard to justify a decision madefor other reasons.

Acknowledging these reasons may makethe decisions that affect children’s inter-ests more comprehensible. They startwith recognition that notions of familyprivacy involve not just parent’s rightsbut identification of the circumstances inwhich children’s interestsmay dependontheir relationship with their caregivers.The state ordinarily should defer toparents in an ongoing family in which theparents’ decision-making capacity hasnot been called into question.

When the state does intervene, the chil-dren’s interests still cannot be determinedin isolation. A child has an interest inbeing part of a family, of continuing rela-tionships with those who will providesupport during medical treatments, andcontributing in turnasa fullmemberof theongoing community that constitutes thefamily. Parents should be able to balancethe interests of theirmultiple children, andthe mere fact that their obligations tomultiple children conflict should not initself disqualify their judgment.

Finally, those circumstances in whichfamily judgments are suspect should beidentified. Courts should understandablybewaryof religiousconvictions forwhichparents must risk their membership ina religious community to act in theirchildren’s interests or of cases in whichparental convenience may outweighchildren’s needs. Even then, however, thepotential harms of intervention must bebalanced against the advantages.

Takinga terrifiedchild fromhisparents’arms is never an inspiring image. Thebest interest of the child standard canonly advance children’s interests whenit is sensitive to the importance of thefamily in creating the context in whichchildren experience the world.

SUPPLEMENT ARTICLE

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June CarboneRationalization or a Measure of Institutional Competence?

Legal Applications of the ''Best Interest of the Child'' Standard: Judicial

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