chapter  10
21 Pages

Pediatrics, the law, and bioethics


With the goal of protecting children from making unwise decisions, the

medico-legal model used in the United States traditionally has allowed

parents to make all health care decisions for their minor children. Children

are presumed to be incompetent to make their own decisions in all arenas,

including health care, due to cognitive limitations and immaturity. While

this legal presumption has been relaxed in recent decades as common law

and statute have created exceptions, the courts originally were quite strict in

their refusal to grant any rights, including constitutional rights, to children. This chapter addresses medical decision making in the pediatric population

with attention to important legal cases concerning the role of parents, chil-

dren, and the state in making treatment decisions. Historically, children

were considered chattel and states were reluctant to intervene in the parent-

child relationship. In an 1874 case, a young girl was discovered chained to a

bed, having been fed only bread and water by her parents. The American

Society for the Prevention of Cruelty to Animals succeeded in removing her

from her parents’ home ‘‘on the ground that she was a member of the animal kingdom and that therefore her case could be included under the

laws against animal cruelty.’’1 The law had to resort to animal protection

laws as no child protection laws existed at the time.