A response to these varied criticisms of children’s rights is to recognise the concerns and respond by arguing that there are family rights91. The family must be given rights,
91 Claims for Family Rights come from a wide variety of sources. Erickson argues that the
core of humanity is relationships, not rationality or agency, and that as a consequence families, but not individuals, have rights [Erickson, 2010]. In traditional – Confucian – Chinese
medicine, clinicians interact with the family by choice, not as in the West by default when the patient is incompetent. Chen gives examples of Chinese ethical guidelines including “…it is still better to tell the diagnosis of cancer to his or her family members first; only after…should the physician select a suitable time to tell the patient…” [Chen, 2010: 575]. The Irish
Constitution “…recognizes the Family…as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.” [Article 41 the Irish
so that the family can perform its various functions (amongst which are child rearing, and providing fulfilling intimate relationships for children and adults).
Family rights are a particular form of group rights. Group rights are not rights that individual members of the group have because they are members of the group (for example that the members of the cricket club have the right to play at the club). Group rights are rights that the group as a whole have and are exercised only by the group, but if so the group must be constituted in particular ways so that it would be
meaningful to talk of group rights [Jones]. It makes sense to talk of some groups as right holders. Examples of these groups include some sporting teams, or some cooperative movements. Other groups do not have group rights: for example a bus- stop queue isn’t a group that could be a rights holder (the examples are from Jones, 2014).
The groups that are potential rights holders function in ways that may make them akin to people: they have agency, continuity and responsibility amongst other attributes. If any groups were to claim the sort of cohesion that could justify the claim to be a rights holder, then families would seem to be a paradigm. Most families are tight knit
groups, with individuals with a strong interest in each other’s welfare. The family as a group persists through time, with a sense of common purpose to family goals. And if so, it may be that young children themselves do not have individual rights, but that children (as part of the family) have a share of family rights. The family rights ensure that the family as an entity flourishes and that children flourish within the family.
One question is whether the family is the sort of group that has rights. I have given some arguments why the family should have group rights, but I do not believe these arguments are decisive. Remembering that group rights are rights that the group as a whole has and which the group exercises, families are different from most of the groups for which group rights can plausibly be claimed. There are two powerful objections. Firstly, that the family is not a group of equals with shared-decision
Constitution]. Schoeman argues that “…the family is to be understood as entitled to certain rights of privacy and autonomy...” [Schoeman, 1980: 10].
making responsibilities. Parents have authority in families92. Some parents may choose to share responsibility taking consensual decisions with their children’s involvement, but this remains the parent’s choice: parents need not pay attention to their children’s wishes or welfare. And even if decisions are made consensually, the parents will almost certainly have influenced the children’s choices. The idea of group rights sits more easily with the sort of group constituted of equals who share decision-making. A second feature of groups where plausible claims for group rights can be made is that the group is constituted voluntarily. Members can choose to join (though individuals may be selected) and choose to leave (though there may be penalties). This means that groups will be composed of like-minded people, sharing goals, participating
voluntarily. This is not true of families, which are usually made by biology not by choice. And if there is choice, it is choice by the adults (in having or adopting
children). Adults may choose to leave families (for example by divorce) that they find unsuitable, but this option is not open to children, children must be cared for. These two concepts: participation in shared decision making and choice in participation are important when the tension between an individual’s rights and group rights are kept in mind. For these reasons, although some families are constituted in ways that make claims for family rights tenable, most are not. And in particular families with young, incompetent, children are not structured so that claims for family rights are tenable. When claims are made for family rights, they are claims not for rights that the family as a whole exercises, but for the right of parents to make decisions. Family rights may be taken to be different from parental rights in two ways. Firstly because the claim is for family rights they may be taken to be more holistic than parental rights, but for young children this is not true as I have argued. The second difference of family rights from parental rights is that as some families extend further than the Western nuclear family more distant relatives, an uncle or grandparent, may make decisions for other relatives. In these cases parental authority is just transferred to another relative within a more extended family. Either way, if my criticism is correct, then claims for family rights fall foul of the criticism that I have already made of parental rights.
92 In Schoeman’s argument “The right to autonomy entitles the adults of the family to make
A second question is that if there were family rights, what would the content of family rights be? There seem to be two broad areas to family rights, a right to freedom from interference in the affairs of an intimate family from the outside, and a right of family members to make decisions for those within the family93. I have already argued that a family right to make decisions collapses into an equivalent parental right. I will now consider a family right to privacy
That an intimate family should have privacy from external scrutiny seems reasonable. However, in considering healthcare decisions, the family has already opened up to outsiders, the healthcare professionals who will deliver the interventions. These are then not decisions that can be left just to the family, as those outside the family are already involved. Secondly, if a family right to privacy is respected, there is a tension between the rights of an individual family member and the group rights of the family, thereby allowing potential rights violations of individual members of the family to be ignored94. So as Schoeman recognised: “Neither the right to privacy nor the right to autonomy associated with the family is absolute.” [Schoeman, 1980: 10].
Can family rights contribute to the analysis of medical treatment decisions? I argue that they do not. Firstly, family rights could be taken to replace parental rights. When treatments are disputed, what help could family rights offer? At best it would seem to be a right that the family should make the decisions. Family rights in this context are subject to the criticisms that I made of parental rights. Secondly, if family rights are
93 Schoeman argues for “…the family is to be understood as entitled to certain rights…The
right to privacy entitles the adults of the family to exclude others from scrutinizing obtrusions into family occurrences. The right to autonomy entities the adults of the family to make important decisions about the kinds of influences they want the children to experience and entitles them to wide latitude in remedying what they regard as faults in the children’s behaviour.” [Schoeman, 1980: 10].
94 An extreme example of family rights conflicting with the human rights of individuals within
the family are ‘honour’ killings where (particularly but not exclusively) women who have offended against the family’s code (perhaps by making an unsuitable match) are killed. More than 5000 women each year are killed in honour killings, and this is almost certainly an under estimate with many deaths going unreported and others being misdescribed as suicides [van Eck, 2003; Solberg, 2009]. Another example where a family right to privacy conflicts with human rights is demonstrated by younger children who are harmed by neglecting parents or through wilful ill treatment One child a week is killed in Britain by their carers or parents [Milmo, 2009].
taken to encompass the child’s human rights then parents will assert the family’s rights and this runs the risks that a child’s interests (or the child’s rights) would be ignored.
Furthermore, as with children’s rights, family rights do not contribute to the analysis of contentious medical decisions for children. For example, remembering MB (who was ventilated with a diagnosis of SMA) MB has rights to life, and a right to avoid inhuman treatment. His parents wanted treatment to continue, but the treating team thought treatment should be limited. Does a family right override the individual rights of MB? I would argue that it does not and it cannot without a clear explication of what family rights are and how they interact with an individual’s rights. Here the use of family rights is unhelpful.
I have argued that there are good reasons why family rights should not be recognised and that even if they were recognised, they would not resolve the way that medical decisions should be made for young children. For all these reasons, family rights are unhelpful in general for children.
3.7 CONCLUSIONS
I have argued that the justification of human rights in general is unclear, and that there are particular problems in formulating and justifying rights for children. These
particular problems for children have not been successfully overcome. I have argued that rights-based approaches are not the best way to understand our interactions with children and that specifically they are not useful in resolving medical decisions for young children. Rights-based approaches may even worsen disagreements. I argue that family rights are as unsuccessful as children’s rights in contributing to the analysis of medical decisions for children. As rights are not the best way to characterise our interactions with children, we should join Griffin in recognizing that “…once we recover a sense of the full range of our moral vocabulary, we shall no longer feel the need to turn all important moral claims into claims of rights” [Griffin, 2008; 95]. Given these problems with rights, and given the way in which interests may guide medical decisions when rights conflict, I will argue for an interest-based approach in the next chapter.
CHAPTER 4: CHILDREN’S INTERESTS