Advancing the Rights of Children and Adolescents to Be Altruistic: Bone Marrow Donation by Minors
9 Journal of Law and Health 213 (1994-95)
33 Pages Posted: 15 Aug 2013
Date Written: 1995
Abstract
Bone marrow transplants from siblings are often the last and best chance to save the lives of children and adolescents with leukemia and a variety of other serious diseases. However, the legal basis for allowing minors to donate bone marrow to their brothers and sisters, a procedure that entails some risk to the donor, has not been satisfactorily articulated. Most courts faced with the question have relied on the best interests of the child standard to ground the authorization of these transplants and have, therefore, required a showing that the donation was in the donor's best interest. These courts have emphasized the psychological benefit that redounds to the minor donor who participates in the procedure and potentially saves the life of his or her sibling. However, a pure best interests standard does not fully capture the nature of the decision to donate bone marrow, nor does it incorporate a respect for persons that would protect the rights and dignity of the donor child. This article examines the standards used for answering the question of whether minors should be allowed to donate bone marrow. Part II introduces the legal background and the standards currently used by courts. Part III explores the unsatisfactory nature of these standards. Part IV presents an empirical study that is intended to provide some help in understanding what might be a useful and respectful standard. Part V concludes the article with a discussion of two alternative revised standards grounded in the doctrines of substituted judgment and the best interests of the child.
JEL Classification: K00
Suggested Citation: Suggested Citation