Protecting Intimate Relationships: Children's Competence and Children's Rights

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<ul><li><p>Protecting Intimate Relationships: Children's Competence and Children's RightsAuthor(s): Ferdinand SchoemanSource: IRB: Ethics and Human Research, Vol. 4, No. 6 (Jun. - Jul., 1982), pp. 1-6Published by: The Hastings CenterStable URL: http://www.jstor.org/stable/3564335 .Accessed: 12/06/2014 18:56</p><p>Your use of the JSTOR archive indicates your acceptance of the Terms &amp; Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp</p><p> .JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.</p><p> .</p><p>The Hastings Center is collaborating with JSTOR to digitize, preserve and extend access to IRB: Ethics andHuman Research.</p><p>http://www.jstor.org </p><p>This content downloaded from 185.44.78.113 on Thu, 12 Jun 2014 18:56:32 PMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/action/showPublisher?publisherCode=hastingshttp://www.jstor.org/stable/3564335?origin=JSTOR-pdfhttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp</p></li><li><p>|r </p><p>A?evewo </p><p>HmanSujet </p><p>Iesar- </p><p>Volume 4 Number 6 June/July 1982 </p><p>Children's Competence and Children's Rights by Ferdinand Schoeman 1 </p><p>CASE STUDY: How an Investigator and an IRB Cooperated in Research Design by Joseph R. Benotti and Thomas A. Shannon 6 </p><p>Random-Sampling: A Modest Proposal for Reforming IRB Review by Arthur L. Caplan 8 </p><p>According to Protocol by Robert J. Levine 9 </p><p>LETTERS 9 </p><p>ANNOTATIONS 11 </p><p>PROTECTING INTIMATE RELATIONSHIPS: </p><p>Children's Competence and Children's Rights by Ferdinand Schoeman </p><p>DHHS proposed regulations for re- search involving children provide this statement of their purpose (proposed Section 46.402): </p><p>Children are normally legally incapa- ble of consenting to their own par- ticipation in biomedical or behav- ioral research and may also be unable to comprehend fully the conse- quences and risks which might be in- volved .... This subpart provides ad- ditional safeguards for the protection of children involved in ... research. These statements reflect a view of </p><p>what it is about the child that requires special attention by the IRB as it re- views proposals to involve children as research subjects. In this essay, I shall argue that the IRB, by excessive or ex- clusive concentration on the child's au- </p><p>tonomy and comprehension, may take actions that are detrimental to other even more important values. </p><p>Family autonomy and children's rights issues involve subtle empirical and moral problems. The empirical is- sues relate to children's judgmental ca- pacities in both general and specific contexts. The moral issues are wide- ranging and relate to some of the most fundamental issues in moral philoso- phy. While the impetus for much of the social interest in children's rights is- sues is the depressing incidence of child abuse and neglect, rethinking of social relationships and a concern for social justice have also contributed to the intensity of the debate and the range of alternatives proposed. </p><p>Legal and social institutions are in- creasingly integrating children's ex- pressions of their preferences into the catalogue of interests that the institu- </p><p>tions consider meaningful. This change reflects a reevaluation of the child's so- cial status as something more than an extension of parental interests. While this reevaluation is commendable, it calls into question the place of the child in the family--the child's pri- mary environment. I want to focus on the relationship between parents and children, especially pre-adolescent and early adolescent children. </p><p>I shall develop these points: First, there is apparently good evidence that the judgmental capacities of children through age fourteen are biased in ways that are significant and germane to autonomy issues; however, such biases have no immediate public policy implications since we lack a precise theory supporting any particular ca- pacities-baseline as a precondition for full autonomy status. Second, the terms in which the autonomy/paternal- ism debate have been argued have been misguided from a moral perspec- tive in assuming that the only relevant issue is children's judgmental capaci- ties. Third, orienting the way we think about the morality of intimate rela- tionships in ways more sensitive to the essential personal meaning of these re- lationships helps us see that the protec- tion of relationships, and not just the issue of judgmental capacity, is an im- portant factor to take into account when considering'the moral status of the child. We achieve this reorientation by focusing more on ideals of relation- ships than by focusing on the rights of children and the duties of parents. This refocusing has public policy implica- tions in that on certain empirical as- sumptions it lends support to treating families as private, autonomous, and responsible institutions to be interfered with only when imminent serious dan- ger to one of the members becomes publicly manifest. </p><p>Children's Judgmental Capacities </p><p>While there is considerable contro- versy over the question of whether chil- dren's needs or children's autonomy ought to predominate in the making of social policy, it is generally agreed that this question is ultimately to be settled by discovering which emphasis better promotes children's interests. Those who advocate equal rights for children speculate that the emancipation of children will benefit children.1 Those who stress children's needs deny this. I wish to show that even if the factual is- sue of children's interests were re- solved, important moral questions would remain. </p><p>Though liberal political theorists Ferdinand Schoeman is Associate Professor of Philosophy, University of South Carolina. </p><p>1 </p><p>A publication of The Hastings Center, Institute of Society, Ethics and the Life Sciences, 360 Broadway, Hastings-on-Hudson, NY 10706 @1982 </p><p>This content downloaded from 185.44.78.113 on Thu, 12 Jun 2014 18:56:32 PMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/page/info/about/policies/terms.jsp</p></li><li><p>MY0 0 </p><p>DY~3 </p><p>2 </p><p>place a high value on individual lib- erty, they tend to think that it is impor- tant to save people from the conse- quences of their own immaturity. While this attitude surely dominates our thinking about the moral status of children, it is at times applicable to adults as well. But it is important to differentiate in this context immature behavior from immature capacities. While adults often act immaturely, this type of behavior does not typically stem from diminished capacities. Any- one in a position to act maturely is also in a position to act immaturely. So we should formulate the liberal position as follows: it is important to protect peo- ple from the significant deleterious consequences of their own immature capacities, but not necessarily from the consequences of their own immature behavior. </p><p>Thus, from a liberal perspective, there is at least a necessary condition on the exercise of autonomy rights: provided that the domain of choice is one in which serious harm may result to the acting agent or to others as a re- sult of bad choices, agents have auton- omy rights only if they have the relevant mature capacities. </p><p>Applying this result now to children aged nine through fourteen, we can ask: what is known about their judg- mental capacities? In the writings of developmental psychologists one finds relatively consistent evidence that there is a correlation between age, on the one hand, and judgmental capaci- ties on the other; that is, someone at- tuned to basic noncontroversial as- pects of logical reasoning, moral rea- soning, and prudential reasoning would find systematic shortcomings in the reasoning processes of the child. These differences are age-related and bear on the adequate functioning of the individual.2 </p><p>Recognition of developmental differ- ences does not entail, however, that adults are wholly rational or unbiased in their judgments. Recent studies, summarized by Richard Nisbet and Lee Ross in their book Human In- ference,3 catalogue the myriad ways in which adults-even intelligent and ed- ucated ones-systematically make er- rors of judgment, especially in inter- preting the relevance of new informa- tion. Apparently not just children, but adults too, have difficulty in integrat- ing all the information that is relevant to a decision. But again we must distin- guish between capacities and perform- ance and between differences in per- formance levels. Adults systematically err in judgment. But many such errors are correctable and explainable to </p><p>adults because the basic capacity to appreciate the error as error is present in the adult to a higher degree than it is in the adolescent. According to the de- velopmental psychologist, however, the errors involved in adolescent and preadolescent thinking are not in gen- eral correctable or comprehensible to the agent. </p><p>Even though we acknowledge that judgmental capacities are relevant to recognition of rights to self-determina- tion, we don't know, short of the grossest incompetence, what exact level of incompetence should be related to cutting off specific rights. Whatever level is chosen will be selected on the basis of various factors in addition to the empirical ones psychologists can inform us about. Other factors will in- clude the society's tolerance of risk and the overall social context of the deci- sion. </p><p>Some other issues besides judgmen- tal capacities are relevant to chil- dren's rights issues. First, one might argue that independent of abstract ca- pacities children generally lack the ex- perience to judge sensibly certain major kinds of issues. It may be that one reason children do not have the requisite experience, if in fact they lack it, is that their social status shields them from it. On the other hand, it may well be that the requisite experience can't be packed into chil- dren just by giving them more of it earlier. Some theorists even suggest that the particular cognitive structure of children at various stages radically affects how the child experiences the world so that much of what we call ex- perience is theoretically as well as practically inaccessible to children.4 </p><p>Second, there is the question of potential. Perhaps even if children by a certain age are competent enough in some areas to be accorded autonomy status such recognition would impede potential development in many other areas. While a child at age fourteen may be in a position to manage mini- mally, without the pressures of such independence the child may develop further and be eventually in a position to flourish as an adult. The child as a person may benefit more in the long run as a result of temporary less-than- full status. It is difficult to compare benefits and burdens at one stage of life with those at another in assessing whether certain lost opportunities are worth the costs.5 But we can still ac- knowledge the basis of a rationale for distinguishing between a normal ado- lescent and a retarded adult even though both perform slightly above some threshold level of competence. </p><p>We may still think it legitimate to treat the adolescent differently from the retarded adult because there are developmental potentials that can be nourished in the child that cannot be enhanced in the adult. </p><p>Intimate Relationships </p><p>Thus far I have discussed the issue of children's autonomy rights in the con- text of comparisons between children's and adults' capacities and potentials. But just how decisive is the factor of competence in determining the child's legal and moral status? Does it imme- diately follow from adequate compe- tence that the law ought to treat juveniles as adults in all respects? Nearly all those who address children's rights issues have adopted this as- sumption. Writers typically treat chil- dren's rights issues as if they could be conclusively settled by proof of compe- tence or incompetence. Competence is treated generally as not just a neces- sary condition for entitlement to adult status but as a sufficient condition as well-sometimes with the provision that such recognition would be prac- tically enforceable. </p><p>But it seems implausible to assert that the mere possession of competence to act in a certain domain should suf- fice for having a right to act. For in- stance, while I have the competence to vote in Australian elections and work in Cuban factories, I do not have the right to do either. Incompetence is a special ground qualifying the relevant rights. Competence is far from the es- sence of rights in either intimate or so- cial contexts.6 </p><p>What else besides individual capaci- ties might be morally relevant to the recognition of rights? As we have seen, primary emphasis has been placed on the presence or absence of judgmental capacities, and this in turn is thought to promote one of two other desiderata: respect for a person's autonomy or in- dividual worth on the one hand and maximization of individual interests on the other. Contemporary Anglo- American social and moral philosophy have tended to treat these two consid- erations as exhaustive of the standards for evaluating social and legal institu- tions. The qualities of persons empha- sized in this tradition have either been the rights of persons or their needs and interests, individualistically conceived. With this emphasis, it is no surprise that the kinds of relationships explored have been essentially abstract or im- personal in character. Individuals have been conceived in their role as at most circumstantially related to others; i.e., </p><p>This content downloaded from 185.44.78.113 on Thu, 12 Jun 2014 18:56:32 PMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/page/info/about/policies/terms.jsp</p></li><li><p>as beings in a position to affect the overall well-being of one or more oth- ers, or as beings in a position to affect the autonomous status of others. Since the focus has been individualistic, the relationships envisioned have either been of an impersonal character or within the realm of the individual's private life and as such not open to moral or social analysis or scrutiny. </p><p>This preoccupation with impersonal relationships has had certain unfortu- nate consequences. It has meant that intimate relationships-for example, friendship and family relationships-- have been either virtually ignored or, even worse, treated as if they were a species of impersonal relationships. It has meant also that efforts to discuss these intimate relationships from a moral perspective confront a vocabu- lary and habit of professional thinking that seem quite ill-suited for the task. Rather than emphasizing the bound- aries and distinctions of persons, one may wish to explore and emphasize the identification with others, the...</p></li></ul>