Two Sections from the 2018 Annual Meeting draft deal with this topic. Black letter for each Section is included below. The full draft contains Comments (with Illustrations) and Reporters’ Notes.

Section 2.30, on parental authority and responsibility for medical care, recognizes broad parental authority to make medical decisions because broad authority generally furthers children’s welfare, promotes pluralism, and avoids unwarranted state intervention. But it also limits parental authority to consent to nontherapeutic procedures that pose a substantial risk of serious harm to the child’s health or that impinge on the child’s constitutional rights. This Section also recognizes the parental duty to provide medical care when necessary to protect the child or others (including the public health) from serious harm. These limits apply even when the parent’s decision is based on religious conscience.

§ 2.30. Parental Authority and Responsibility for Medical Care

(1) Authority

(a) A parent or guardian has broad authority to make medical decisions for a child.
(b) A parent does not have authority to consent to medical procedures or treatments that provide no health benefit to the child and pose a substantial risk of serious harm to the child’s physical or mental health.
(c) A parent does not have authority to consent to medical procedures or treatments that impinge on the child’s constitutional rights to bodily integrity or reproductive privacy.

(2) Responsibility

(a) A parent, guardian, custodian, or temporary caregiver has a duty to provide necessary medical care for the child.
(b) Medical care is necessary if it is required to prevent serious harm or a substantial risk of serious harm to the child’s physical or mental health or to the safety of others.

Section 3.26, on medical neglect, should be read after § 2.30. It addresses state intervention through a criminal or civil child-protection proceeding when a parent fails to provide the child with necessary medical care. This Section also reflects the principles noted above. It recognizes the state’s interest and responsibility to intervene, through a civil child-protection proceeding, when the parent fails to exercise a minimum degree of care necessary to avoid a substantial risk of serious harm to the child. It further recognizes the state’s interest in punitive and deterrent action through a criminal proceeding in some cases, but only when the parent’s conduct is, at minimum, reckless. This high threshold for state intervention protects children from harm but also respects family integrity and minimizes the risk that the state will impose dominant parenting norms on low-income families and on racial, ethnic, cultural, and religious minorities.

§ 3.26. Medical Neglect

(a) In a criminal proceeding, medical neglect is the unjustifiable failure or refusal of a parent, guardian, custodian, or temporary caregiver to provide medical care necessary to prevent serious harm or a substantial risk of serious harm to the child’s physical or mental health.

(1) In a criminal proceeding in which the failure or refusal to provide necessary medical care results in the death of the child, the failure or refusal to provide such care is unjustifiable if it involves a gross deviation from the standard of care that a reasonable parent would observe in the actor’s situation.

(2) In all other criminal proceedings, the failure or refusal to provide necessary medical care is unjustifiable if the obligated individual purposely, knowingly, or recklessly fails or refuses to provide such care. 

(b) In a civil child-protection proceeding, the failure or refusal of a parent, guardian, or custodian to provide medical care to a child is medical neglect if the parent, guardian, or custodian fails to exercise the minimum degree of care necessary to prevent serious harm or a substantial risk of serious harm to the child’s physical or mental health.

 

Elizabeth S. Scott

Reporter, Children and the Law

Elizabeth S. Scott is the Harold R. Medina Professor of Law at Columbia Law School. Scott teaches family law, property, criminal law, and children and the law. She has written extensively on marriage, divorce, cohabitation, child custody, adolescent decision-making, and juvenile delinquency. Her research is interdisciplinary, applying behavioral economics, social science research, and developmental theory to family/juvenile law and policy issues.

Richard Bonnie

Associate Reporter, Children and the Law

Richard J. Bonnie is Harrison Foundation Professor of Law and Medicine, Professor of Public Policy, Professor of Psychiatry and Neurobehavioral Sciences, and Director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. ­­He teaches and writes about health law and policy, bioethics, criminal law, and public policies relating to mental health, substance abuse, and public health. He has co-authored leading textbooks on criminal law and public health law.

Emily Buss

Associate Reporter, Children and the Law

Emily Buss's research interests include children's and parents' rights and the legal system's allocation of responsibility for children’s development among parent, child, and state. In recent years, she has focused particular attention on the developmental impact of court proceedings on court-involved children, including foster youth and youth accused of crimes. In addition to courses focused on the subjects of her research, Buss teaches civil procedure, evidence, and family law. 

Clare Huntington

Associate Reporter, Children and the Law

Clare Huntington is an expert in the fields of family law and poverty law. Her book, Failure to Flourish: How Law Undermines Family Relationships (Oxford 2014), won an Honorable Mention for the Professional and Scholarly Excellence (PROSE) Award in Law and Legal Studies from the Association of American Publishers. She has published widely in leading law journals, exploring the intersection of poverty and families and with a recent focus on non-marital families.

Solangel Maldonado

Associate Reporter, Children and the Law

Solangel Maldonado is the Joseph M. Lynch Professor of Law at Seton Hall Law.  Her research and teaching interests include family law, feminist legal theory, race and the law, and international and comparative family law. Over the past decade, her scholarship has focused on the intersection of race and family law and the law’s influence on social norms of post-separation parenthood. She is currently working on a book for NYU Press that examines how the law shapes romantic preferences and how these preferences perpetuate racial hierarchy and economic and social inequality.

David D. Meyer

Associate Reporter, Children and the Law

David Meyer became the 22nd Dean of Tulane Law School in 2010. His expertise relates to constitutional law and family law, and he has written extensively on topics at the intersection of the two fields. He served as U.S. national reporter on family law at several congresses of the International Academy of Comparative Law, including Washington (2010), Utrecht (2006) and Brisbane (2002), and he has delivered endowed lectures or keynote addresses at BYU, Florida, Hofstra, Michigan State and other venues.

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