Joseph Mazor: On the Child’s Right to Bodily Integrity

David H September 17, 2021 at 9:21 AM

Rights Grounded in Interests or Will:

If rights have to be grounded in will (autonomy) or interests, then of course, a pre-autonomous child’s rights will be grounded in interests than encroachment that makes no reference to interests. So the author has interpreted encroachment theory in a way that leaves his favored “best interests” account without a rival

Stephen Kershnar September 17, 2021 at 12:30 PM

I AM NOT AN ANIMAL

David:

By limiting the right to children rather than other incompetents - for example, animals - Mazor avoids the argument applying to animals. This is ad hoc.

Do you think that mutilating animals is bad as mutilating children?

Should Mazor think this?

Best,

Steve K

David H September 17, 2021 at 9:23 AM

Misinterpreting Encroachment Theory?

First, a strange sense of “defining feature: when Mazor writes “However, the defining feature of encroachment conceptions is that “physical seriousness’ is not defined in terms of the effects on the child’s interests.” p. 453. But then his quote illustrating encroachment theory speaks of the right in terms of harm which is typically fleshed out in terms of frustration of interests. Mekel and Putzke are said to be endorsing encroachment conceptions but they write “Any substantial and permanent lesion upon the physical gestalt of a child is rights considered an unjustified harm.” (453)

David H September 17, 2021 at 9:25 AM

Health-based Interventions don’t encroach on bodily integrity:

Mazor's next quote illustrating encroachment suggests a healthy orientated intervention isn’t even an encroachment that is a pro tanto violation of right to bodily integrity. Rahman and Touba write “The cutting of healthy genital organs for non-medical reasons is at its essence a basic violation of girls and women’s right to physical integrity.” So it might be that amputation are not even pro tanto violations for they are not done for non-medical reasons. But even if they are, they are not problematic when they are violations of right to ensure the protection of the right of bodily integrity against more serious violations of the right to bodily integrity

David H September 17, 2021 at 9:29 AM

Encroachment theory is an interest account – an interest in bodily integrity construed as healthy function:

Given the quotes above, it is safe to assume that encroachment theory is an interests theory - an interest against unhealthy (dysfunctonal) bodily interventions. So, we are left considering the merits of two interests theories – one all things considered interest and the other an interest in healthy functioning. The encroachment theory then escapes certain problems – explaining life saving amputation vs. life saving organ transplant; cleft lip vs. Asian eye lid surgery. However, perhaps the more charitable read is that Mazor doesn't have in mind a case of cleft lip that is a dysfunction and thus unhealthy.

David H September 17, 2021 at 9:32 AM

Life saving amputation vs. Life saving organ transplant.

Mazor claims it is puzzling that a right to life is infringed for sake of a right to life in amputation but not in organ transplant. IN bothe cases there is a right to bodily integration in conflict with a right to life. In amputation, the right to life is weightier, but in the organ transplant case, the right to bodily integrity trumps the right to life. But the difference is the right to bodily integrity is pro tanto intervention and override of a right of bodily integrity for the same right of avoiding a more serious loss of bodily integrity. A right to life is not needed to override a right of bodily integrity against bodily intervention

Stephen Kershnar September 17, 2021 at 12:07 PM

NO CONFLICT VERSUS OVERRIDER

David:

You make an excellent point. It is worth noting that on Mazor's account, the benefit of lifesaving surgery overrides the child's right rather than it being not infringed. As a result, compensation or at least an apology would be owed. Intuitively, it is not. This shows how implausible the right against encroachment theory.

Here is the argument.

(1) If one person infringes a second's (moral) right, then the first owes the second compensation or an apology.

(2) If the encroachment theory were true, then the surgeon or the person who hires him owes the child compensation or an apology.

(3) The surgeon or the person who hires him does not owe the child compensation.

The general problem is that the best interest theory has a narrower scope in that it is not infringed for body-invasions that are in the child's interest.

The encroachment theory has a wider scope because every body invasion is either all-things-considered wrong or overrides the right. This is what generates the compensation-problem for encroachment theory.

Best,

Steve K

David H September 17, 2021 at 9:34 AM

Cleft Lip is a medical condition:

On the Rahman and Touba account of violation of bodily integrity a cleft lip surgery may not even be a pro tanto violation of bodily integrity. But if it is, then it is done for the same of greater bodily integrity. Cleft lip and palate cause problems speaking, feeding, and problems for one's teeth, hearing, and ear infections https://www.cdc.gov/ncbddd/birthdefects/cleftlip.html Again, the more charitable interpretation is that Mazor has in mind such minor cases where the only interest in the surgery is cosmetic, doing so is aesthetic and will avoid teasing

Phil Reed September 17, 2021 at 4:18 PM

Couldn't the more minor cases still be dysfunctional on a Boorsean account (not species typical)?

David H September 20, 2021 at 8:49 AM

Phil

Yes, you are right, on a Boorsian account of disease/pathology/disorder, even one dead cell makes the entire person unhealthy. So there will be something pathological about cleft lip even if there is no harm other than social (teasing, embarrassment etc.) To avoid annexing mild cleft lip to an infringement of bodily integrity for the sake of bodily integrity, Mazor must accept a normativist or Wakefield style hybrid account of pathology

David H September 17, 2021 at 9:36 AM

Overriding anti-encroachment rights vs. best interests bodily integrity rights:

Why can’t the the interests that make something an all-things- considered right not serve to override the serious intervention right? What is important enough to be a constituent of the all things considered right should be enough to override the lesser right of serious encroachment. I take it that Mazor thinks a rights violation needs a weightier cause than a rights constituent. I see them as the same, the only difference is in labeling – the best interests override in one case but are constitutive of the right in the other case

David H September 17, 2021 at 9:38 AM

Nitpick - All thing considered interests account of rights means no override:

How could one ever override an all things considered in one’s best interests right. Well, I suppose it can be overridden by societal gain but never overridden by another interest of the individual. But there will be no conflicts of rights involving the same individual. Maybe Mazor will reply that is a good thing about his account. And it does sound strange to say one's right to bodily integrity is overridden by one's right to life

David H September 17, 2021 at 9:39 AM

Rights as all things considered interests also mean no pro tanto rights violation for the sake of another right of the individual. Of course, with adults, there is no override as there are right waviers. But with non-autonomous perhaps there are pro tanto right intereventions

David H September 17, 2021 at 9:40 AM

A problem case for the all-things-considered conception of the right to bodily integrity:

All things considered conception has problem with donation for sibling: That may be in best interests of child but violates right of bodily integrity. Intuition of problematic best captured by encroachment account of the right to bodily integrity

David H September 17, 2021 at 9:44 AM

Contentious interpretation of informed consent’s role in adult right to bodily integrity:

Mazor writes “in the case of adults, informed consent is fundamental to the right to bodily integrity, while physical seriousness (in the sense used by the proponents of encroachment conceptions) plays at most, a minor role.” (p. 461) However, informed consent just plays a role in waiving rights of adults. It is not fundamental or constitutive or definitional of the adult right to bodily integrity. So I don't think Mazor can claim his all things considered interest account of pre-autonomous right of bodily is more consonant with autonomouos adult right to bodily integrity than the encroachment account

David H September 17, 2021 at 9:47 AM

Mazor's contentious interpretation of physical seriousness role in adult right to bodily integrity:

Serious bodily intervention has the same role in the pre-autonomous as the autonomous, pace Mazor's claim. Thee word "seriousness" serves to indicate a more harmful intervention that sets back more important interests. Violating or ignoring informed consent for a light touch on the arm vs. cutting the arm off shows that seriousness of the encroachment is crucial. It is just the child has to rely upon a proxy to waive or override right

Stephen Kershnar September 17, 2021 at 12:24 PM

SURELY, YOU CAN'T BE SERIOUS

Here is a Mazor-like statement of the best interest theory.

(1) A child’s right to bodily integrity is a right against an intervention that is not substantially in a child’s best interest.

Leaving aside Mazor's claim, I do not see what would justify the substantially-condition. That is, if a best interest justifies a right, then a less-than-best-interest invasion infringes it, regardless of whether it is substantial or not.

Perhaps there are reasons of blame, efficiency, or knowledge to have a substantially conditions, but these concerns our best guess at how best to satisfy the right, not the demand of the right itself.

Best,

Steve K

David H September 17, 2021 at 9:49 AM

best interests vs. informed consent:

Mazor wants to show his account of the non-autonomous right to bodily integrity is is consonant with adult right to bodily integrity because the role of interests in both. The adult right stresses informed consent which is undertaken for the sake of the patient's interests. However, they can be at odds, that is why informed consent rose to hold paternalistic pursuit of best interests in check. So it is a mistake or a bit tendentious to claim best interests account of bodily integrity is more consonant with adult right to bodily integrity

Stephen Kershnar September 17, 2021 at 12:20 PM

ON THE ALLEGED GREATER SIMILARITY OF THE BEST INTEREST THEORY TO THE INFORMED CONSENT THEORY THAN ITS COMPETITOR

David:

I fear that you're being too polite.

Do you see the best-interest theory as more similar to an informed-consent-based right than the encroachment theory?

I do not and did not see how Mazor shows this. He does cite the presumed consent, but this is (a) default rule to set up antecedent consent or (b) an exception to informed-consent theory. Neither shows that the best-interest-based right theory is more similar to an informed-consent-based right theory than its competitor.

Best,

Steve K

David H September 17, 2021 at 9:52 AM

Nitpick - does Mazor misunderstand substitute judgment?

substitute judgment of what a kid would choose as an adult just collapses substitute judgment into best interests theory for choosing for the non-competent. Substituted judgment is supposed to be loyal to idiosyncratic value systems. That is why Childress and Beauchamp said it makes no sense to speak of substitute judgment for those who are congenitally incompetent - and so I would add "likewise for very young." There is nothing unique to them given their absence of idiosyncratic values - or at least values that diverge from some other people even if not idiosyncratic - to justify trying to choose as they would have chosen. That only makes sense for those who were once developed and competent.

David H September 17, 2021 at 9:57 AM

Appeal to Sandel to explain away case of growth hormone:

Mazor considers that the encroachment theory is more plausible for the youngster on the low end of normal height whose parents want him to receive growth hormone. Mazor appeals to Sandel's argument against enhancement from his against perfection article that this will lead to an arms race. That is very implausible. We are talking here about going from the low end of normal height to normal height, not making BB players or pursuing perfection or going beyond the healthy norm. If all athletes are transformed so they become 7 Ft tall, then there will be no advantage of such enhancement and we have an arms race. This use of Sandel, like many of Sandel's own claims (says Buchanan in his book "Beyond Humanity") is empirically ungrounded.

Stephen Kershnar September 17, 2021 at 12:16 PM

AND NOW FOR SOMETHING COMPLETELY DIFFERENT

The best interest theory says the following.

(1) A child’s right to bodily integrity is a right against an intervention that is not substantially in a child’s best interest.

Let us assume that a particular hormone treatment is significantly in the child's interest.

Side note: Taller men have more children and more sex than shorter men.

https://www.independent.co.uk/news/science/tall-men-likely-to-have-bigger-families-173262.html

https://www.menshealth.com/sex-women/a19548145/tall-men-more-sex/

Hence, hormone treatment does not infringe the male child's right on the best interest theory.

Here are two objections to such treatment.

(2) The treatment might harm other children via a HGH arms race.

(3) The treatment might be inefficient because it leads to a Red-Queen-like effect.

Even if these things were true, they are irrelevant to whether such a treatment infringes the treated child's right. On the best-interest theory, it does not.

Best,

Steve K

Stephen Kershnar September 17, 2021 at 11:55 AM

CLEARLY WRONG RESULT ON DISGUSTING-MUTILATION CASES

(1) There are cases when involuntary mutilation is strongly in a child’s interest (see, for example, foot-binding).

(2) If (1), then if Best Interest Theory (BIT) is true, then involuntary mutilation of a child is not a right-infringement.

(3) Hence, if BIT is true, then involuntary mutilation of a child is not a right-infringement. [(1), (2)]

(4) Involuntary mutilation of a child is a right-infringement.

(5) Hence, BIT is false. [(1), (2)]

The same thing is true with regard to female genital mutilation of girls that is in their net interest given the structure of the society in which they live.

BIT also gets other cases wrong. Consider, for example, HGH for short male children and double-eyelid case for East Asian girls when these are in the net interest of the child and future adult.

Mazor claims that these should not be done or are not easy cases. Yet under BIT, they should be done and are an easy case.

His position weakens even further when you see that his response involves values unrelated to the child’s best interest. Consider, for example, avoiding an arms race regarding other children in the future. This is clearly irrelevant as competing values are independent of what is in a child’s interest.

Stephen Kershnar September 17, 2021 at 11:56 AM

THE BEST-INTEREST THEORY OF A CHILD’S BODY INTEGRITY IS A VERSION OF THE BENEFIT THEORY

(1) If the Best Interest Theory of a child’s body integrity is true, then the benefit theory of a right is true (otherwise the right is unconnected to how rights in general work).

(2) The benefit theory is false.

(3) Hence, the Best Interest Theory is false. [(1), (2)]

The benefit theory is false because rights and interests diverge.

a. A person can have an interest in a doctor serving her but does not have a right to it.

b. A person can have a right to an old, rusted hammer, but no interest in it.

The benefit theory gives rise to outrageous rights.

a. A rapist of a passed-out woman has an interest in raping her (she won’t find out about it), but clearly does not have a right to rape her.

The right theorist might respond by focusing on the interest of a population over a significant amount of time. This makes the right of A against B depend on facts about C. This is an incorrect ground. It is instead a rule-utilitarian theory of rights.

The right theorist might say that only children’s body rights depend on their best interest, but no other rights work this way. It is hard to see what would ground such an account. If best-interest grounds one individual’s rights, it is hard to see why it does not ground other individual’s rights, regardless of whether they are autonomous.

Stephen Kershnar September 17, 2021 at 11:57 AM

RIGHT OVERDETERMINATION

(1) If both the parents and the child have a right to control his body, then the child is jointly owned.

(2) A child is not jointly owned.

(3) Hence, both the parents and the child do not have a right to control his body. [(1), (2)]

(4) If a child owns his body, then a parent has no say on whether her child is circumcised or has left-lift surgery.

(5) A parent has a say on whether her child is circumcised or has left-lift surgery.

(6) Hence, a child does not own his body. [(3)-(5)]

There is no plausible model for parent-child joint ownership of the child’s body.

Assumption: Ownership Types.

(1) Sufficient Claim/Power to Control. If each owner has sufficient control, then parents have a right to have their child mutilated or used for sex. Each person by herself has a say on what happens to the child’s body.

(2) Necessary Claim/Power to Control. If each owner has necessary control, then parents cannot make their child go to school or the Temple. They have no right over what she does with her body.

The honest thing to say here is that what we do to children should be governed by consequentialist considerations. Kantianism for people, utilitarianism for animals.

Stephen KershnarSeptember 17, 2021 at 11:57 AM

FACTORY FARMING ANIMALS AS THE MORAL EQUIVALENT OF MUTILIATING NEWBORN BABIES

(1) If a child has a best-interest-based right to body integrity, then so does an animal.

(2) An animal does not have a best-interest-based right to body integrity (or killing animals would be as wrong as killing or mutilating children).

(3) Hence, a child has a best-interest-based right to body integrity. [(1), (2)]

An attempt to bring in a deprivation theory results in (a) children who will live lives not worth living having no right to body integrity and (b) children having rights of unequal stringency based on their differently valuable futures.

Stephen Kershnar September 17, 2021 at 12:39 PM

A PELICAN IN THE FAMILY

Assume that a surgery on a very young child will not affect his well-being one way of the other.

Consider cosmetic nose surgery. The surgery will make the future adult more attractive, but prevent him from playing football or basketball. As a result, it neither increases nor decreases his lifetime well-being.

The parents consent to the surgery.

Question: Is the surgery right-infringing?

This raises the issue of who really owns the child's body.

(1) Parents. Can they also consent to their having sex with the child if, again, it has no effect or a positive effect on the child's lifetime well-being? This also looks like slavery.

(2) Child. If the child owns himself, then he has a right to switch families, be given drugs or food that violates his family's religious beliefs, and have sex with adults (even if this outrages his parents) so long as these things increase (or perhaps substantially increase) his well-being. If an individual owns his body, then this should affect where it is located and what the owner does with it.

Best,

Steve K

Phil Reed September 17, 2021 at 4:22 PM

Concern about significance

(this might repeat somewhat David's comment "Overriding anti-encroachment rights vs. best interests bodily integrity rights", but I wasn't sure so am listing it as a separate post.)

The argument aims to show why the best-interest conception (BIC) is superior to the encroachment conception (ENC). But to make this argument, everything hinges on the importance given to the weightiness of rights, what it takes to infringe a right, and what it means to determine a child’s best interest. If we take these things into account, the two conceptions might come to all the same conclusions on any given case (by Mazor’s own admission, I think). Mazor says on p. 452 that this isn’t merely a minor conceptual disagreement, but I’m not sure the argument bears that out.

Mazor claims that the two conceptions offer diverging judgments on male infant circumcision. Do they really? Mazor seems to grant that circumcision might be in the child’s best interest and might not be (455). After all, the benefits are “relatively minor” (455). ENC insists a right is infringed, but the benefits might be sufficient to infringe the right and might not be. So why isn’t this just a conceptual disagreement?

Whether we call something a “rights infringement” is not important. What we really care about in the circumcision case e.g. is the child’s best interests, given the pro tanto harm.

Stephen Kershnar September 18, 2021 at 10:42 AM

ON WHY IT MATTERS IF A RIGHT IS NOT INFRINGED AS OPPOSED TO INFRINGED BUT OVERRIDDEN

Phil:

I think it matters as to whether something is a right-infringement or not a right-infringement.

In general, the distinction between a right with a narrow scope versus one that has a broader scope but is overridden matters for the following reasons.

(1) It tells us what justifies the right.

(2) It matters in terms of whether the infringer owes compensation or an apology.

(3) It matters in terms of whether the state ought to protect the right.

(4) It matters in terms of what it tells us about the stringency of rights in general.

I cannot see why a right depends on a significant condition - for example, significant harm - but this is probably a running together of epistemic or blame conditions with the metaphysics of a right.

Best,

Steve K

Phil Reed September 20, 2021 at 9:11 AM

Steve,

I didn't mean that a rights infringement is not important compared to a right not being infringed. I meant that whether we ground a moral wrong in a rights infringement or something else is not important.

Stephen Kershnar September 20, 2021 at 9:59 AM

Phil:

Great point.

Still, it seems that it does matter because of the particularly stringency of rights in non-consequentialism. To infringe a right intuitively seems to require a very strong justification. Consider, for example, the fatman-and-trolley cases and similar stringent side-constraints against force, fraud, or theft, even when force, fraud, and theft do not set back someone's interest.

I doubt harm is a pro-tanto wrongmaker. This is in part because of the pro tanto and all things considered permissibility of it when right-loss is present (for example, waiver and forfeiture) and because the permissibility of harm in ordinary life (see, for example, economic competition). Rights seem to do the work here. Harm likely comes in through rights, if at all, rather than standing on its own.

Best,

Steve K

Phil Reed September 17, 2021 at 4:25 PM

General problems with the best interest conception

Best-Interests conceptions (BIC) explain a right to bodily integrity merely in terms of best interests. This doesn’t explain what is important about bodily integrity and doesn’t explain why an intervention in the child’s body is a pro tanto harm. As such, it doesn’t really seem to be a theory of the child’s right to bodily integrity.

Here is another way of putting this point. Is the amputation of a child’s limb a rights violation? According to the BIC, it depends on other factors (viz. Is it in the child’s best interest?). But that seems not obviously what we want a theory of the right to bodily integrity to say. Moreover, we might want the theory to give a consistent answer to the question of amputation.

Characterizing what counts as “best interests” is notoriously difficult, as Mazor grants. This seems like a relative weakness of the theory, which Mazor doesn’t mention, compared to Encroachment conceptions (ENC). Take circumcision as an example. It’s controversial whether infant male circumcision is in the child’s best interest. But it’s not controversial on ENC.

Of course, ENC has to explain whether the right should be violated based on best interests, so best interests still will come into play at some point...so we’re never going to avoid this difficulty. But the relevant concept here, the one we’re trying to define, is the right to bodily integrity. I don’t see that BIC does better with that.

Phil Reed September 17, 2021 at 4:25 PM

Comparing the conceptions in section 5

Section 5 purportedly argues that best interests conceptions (BIC) do better than encroachment conceptions (ENC) with clear, intuitive cases (cleft lip). It seems odd then that in that section, Mazor discusses three cases where ENC gives the intuitively correct verdict on the cases and BIC can only get there by appealing to extra-theoretical components. (side note: my intuitions for these cases are not as clear as Mazor’s).

I fail to see how BIC is superior to ENC if both theories have to appeal to some extra-theoretical component to explain our intuitions for certain cases. ENC has to appeal to sufficient overall interests to justify surgery for cleft lip. BIC has to appeal to Sandel-style arguments in the human growth hormone case and interest in future bodily autonomy to get the “right” verdict for the piercing case. Why isn’t that more of a draw?

Stephen Kershnar September 18, 2021 at 10:47 AM

IS THE SANDEL-ARGUMENT RELEVANT?

Phil:

I do not see how the Sandel argument is relevant on BIC. Do you?

Also, the future bodily autonomy argument is an odd one because it suggests a Joel-Feinberg-like right to an open future. If Mazor is going to presuppose a Feinberg-like right or interest, this exception might follow the right, particularly in cases in which the interest in an open future is outweighed by other interests. Consider, for example, an interest in attracting a spouse and reproducing in an African nation in which female genital mutilation is widely practiced.

Best,

Steve K

Phil Reed September 20, 2021 at 9:14 AM

Steve,

My understanding of the relevance of the Sandel argument is this: Mazor argues for the superiority of the BIC. Problem: BIC gives the wrong verdict for HGH treatments for boys of below average height. Solution: BIC can appeal to other values to get the right verdict in that case.

Stephen Kershnar September 20, 2021 at 9:53 AM

Phil:

Good point.

Still, I fail to see how bringing in other values as a justificatory move is part of the BIC theory.

It might be a part of a theory that grounds rights on the basis of best interest and other values (and adjudicates between them when they conflict). Still, I don't see how this is a BIC theory.

Best,

Steve K