Loretta M. Kopelman, Ph.D
The best-interests standard is a norm intended to guide moral, social, and legal decisions for children, as well as other incompetent persons. Surrogates who employ this standard seek to maximize benefits and minimize harms for those who cannot make decisions for themselves. There is much conceptual and practical confusion regarding what on the surface appears to be a relatively clear standard. Much of this confusion can be explained by the fact that the standard has different meanings and implications in different contexts.
The first way that it is used is in the therapeutic setting as parents and clinicians grapple with what option to select for a sick child. Using the best-interests standard, parents and clinicians try to balance harms and benefits, and select the most suitable treatment plan for the child.
Second, judges use the "best interests of the child" test in trying to settle custody disputes in divorce. If the parents cannot agree, a judge decides where the child should live, based upon what is best for the child. The child must go somewhere and the judge is supposed to balance a complex assortment of considerations, tailoring the ruling to the best interests of the child's particular circumstance.
Third, policy-makers may appeal to children's best interests in evaluating health systems priorities. For example, some critics claim that the U.S. health care system does not sufficiently consider children's best interests. The U.S. spends around 14% of its Gross National Product (GNP) on health care. Despite this expenditure, the death rate for U.S. children is highest among the world's affluent countries. New laws are designed to improve the health status of children, but U.S. infant mortality, often taken as an indication of general health, is 18th among the industrialized countries. Moreover, the main health problems of children in the U.S. arise from a failure to provide basic and inexpensive care for children, including care for allergies, asthma, dental pathology, hearing loss, vision impairments and other chronic disorders.
Finally, appeals to the best-interests standard shape research policies for children. Minors, with parental consent, are permitted to participate in studies that may benefit them. A dying child might receive an investigational new drug because it offers some small chance of a rescue. Many important studies, however, do not offer direct benefits for children. For example, studies of normal children's growth and development do not necessarily help the particular children who participate in them. Yet it is in the best interests of children as a group that research is conducted with children. They sometimes react to procedures and drugs differently from adults, and some diseases of childhood could not be studied with adult subjects. Consequently, policies generally permit children to participate in studies that do not hold out direct benefits to them under some circumstances. Children, with parental consent, can participate in research studies that do not place them at unwarranted risk of harm, discomfort, or inconvenience. The goal of many research rules for children is to balance the best interests of children as a group with the best interests of potential subjects. Not surprisingly, people disagree about how to strike that balance.
Consider some examples where people use the best-interests standard to justify their recommendations for children:
CASE 1: Five-year-old Karl was in a car accident. Clinicians believe blood transfusions will save his life, but his father, who is a Jehovah's Witness, objects for religious reasons. Physicians seek a court order, and a judge rules that Karl is in danger in his father's care, and it is in Karl's best interest to have blood transfusions.
CASE 2: A national pediatric society sets as its primary legislative priority for children's best interests to improve laws to protect children from abuse and neglect.
CASE 3: Margaret's parents are involved in a custody battle in divorce. She currently lives with her mother whose smoking causes Margaret to have asthma attacks. The judge rules that it is in Margaret's best interest to live with her father.
In each of these cases, appeals are made to children's best interests to justify a course of action, yet they are used differently. In Case 1, the best-interests standard is used as "a threshold for intervention and judgment." Because clinicians believe Karl's father makes choices for Karl that fall below some acceptable cut-off, they seek state intervention to change what is the normal course of things, parents giving consent for their children. Parents who, even for religious reasons, endanger their children's health or well being, may find the courts willing to take custody temporarily or permanently to serve the best interest of the child. To override parental authority, the state must prove, often by clear and convincing evidence, that the child has suffered or is in danger of suffering serious harm. Once the threshold has been met (that of showing that the child is in danger within the parents' care), the courts apply a second test that can be couched in terms of the child's best interest to determine what to do with the child. In Case 1, the two steps would be that a judge decides first Karl is in danger within his father's care, and second, having transfusions is in his best interest.
In Case 2, the pediatric society adopts certain ideals or goals to help foster children's best interest. They may never fulfill their aim of protecting all children from abuse and neglect, yet establishing goals can help direct actions, set priorities and establish policy. Such norms are related to "prima facie" duties about what constitutes acceptable parenting, duties of the state, professional responsibilities, unacceptable danger to children, good health care, and so on.
Case 3 describes a custody dispute between parents, where placement of a child may be guided by seeking the best option for the child through a "standard of reasonableness." Unlike Case 1, where clinicians try to change the normal course of having parents give consent, in Case 3 a judge must make a decision because the child cannot live with both parents simultaneously. In a custody battle during a divorce, parental authority is not overruled. The child must go to one parent or the other, and judges, in one sense, try to assess the child's best interests. But this cannot mean literally "the best," since neither parent may be ideal. Rather, it is a practical decision based upon available options. The best-interests standard, when used as a standard of reasonableness, may be less than ideal, but it is usually better than a barely acceptable minimum.
This discussion is intended to serve as a moral and conceptual analysis, not a legal one where I wish to map some closely related appeals to children's "best interests" as used by clinicians, philosophers, policy-makers, and others. I recognize that there are differences between how I use the "best-interests standard" and how the "best-interests-of-the child" test are employed in the law. When the best-interests-of-the-child rule is applied as a technical term in the law, "the inquiry is essentially objective in nature and the decisions are made not by, but on behalf of the child...[t]he best interests analysis, like that of the substituted judgment doctrine, requires a court to focus on the various factors unique to the situation of the individual for whom it must act" ("Custody of a Minor," 375 Mass. 733, 1978). This use comes closest to what I call the use of the best-interests rule as a standard of reasonableness. Judges focus upon the needs and interests of particular children, but not to the exclusion of others' rights or interests, to determine which of the available options is best, assuming some option is minimally acceptable.
Too little attention has been given to recognizing the differences among these three appeals to children's best interests. Thresholds for intervention and judgment involve a two-step test, first, to determine that a cut-off has been reached that requires changing the normal course of things, where guardians make choices, and second, that others should determine the child's best interests.
In contrast, we use "prima facie" duties and ideals about how to improve a child's well being differently. Ideals help us shape our decisions and priorities, even if they cannot be entirely fulfilled, and balancing "prima facie" duties help forge our actual duties. Finally, those employing the best-interests test as a standard of reasonableness seek the most advantageous decisions for children, given the available courses of action. The choices should focus on children, without ignoring the needs and rights of others, and are usually less than ideal but better than barely tolerable.
Some have argued that the best-interests standard is self-defeating, individualistic, unknowable, vague, dangerous, and consequently open to abuse. I argue elsewhere that the defense of the best-interests standard against these charges may involve distinguishing its three different meanings. We should consider what is best for people in making decisions for them when they cannot make them for themselves.
(This article is based on Kopelman L. The best-interests standard as threshold, ideal, and standard of reasonableness. "J Med Phil" 1997; 22,3: 271-289; and Kopelman L. Children and bioethics: uses and abuses of the best-interest standard, introduction. "J Med & Philosophy" 1997; 22, 3: 213-217. Full references may be found therein.)