Abstract

This article questions the assumption of parental rights that frames the current legal paradigm for medical decisionmaking for children in the United States. Focusing on cases in which parents exercised their power to size, shape, and sculpt children's bodies through non-therapeutic surgical and medical interventions, I argue that the current paradigm distorts the parent-child relationship and objectifies children by allowing parents to subordinate their children's interests to their own. Such assertions of power violate the moral principle, deeply embedded in American legal tradition, that no person, even a parent, may subordinate the life, liberty, or body of another for her own purposes. I propose an alternative. Pushing the analogy of parent as trustee developed in family law and moral philosophy, I use principles of trust law to define and apply a trust-based construct of the parent-child relationship that limits parental power over children's bodies. Application of the trustee-based construct separates medical decisions that belong to parents, from decisions that belong to children and those that should be made by a neutral third party.