Maturing the Minor, Marginalizing the Family: On the Social ...

Journal of Medicine and Philosophy Advance Access published April 24, 2013 Journal of Medicine and Philosophy doi:10.1093/jmp/jht016

Maturing the Minor, Marginalizing the Family: On the Social Construction of the Mature Minor

Jeffrey P. Bishop* Saint Louis University, St. Louis, MO, USA *Address correspondence to: Jeffrey P. Bishop, MD, PhD, Tenet Endowed Chair of Health Care Ethics, Director, Albert Gnaegi Center for Health Care Ethics, Saint Louis University, 3545 Lafayette Avenue, Suite 27, St. Louis, MO 63104, USA. E-mail: [email protected]

The doctrine of the mature minor began as an emergency exception to the rule of parental consent. Over time, the doctrine crept into cases that were non-emergent. In this essay, we show how the doctrine also developed in the context of the latter part of the 20th century, at the same time that the sexual revolution, the pill, and sexual liberation came to be seen as important symbols of female liberation—liberation that required that female minors be granted the status of a mature minor. To do so moves sexual morality out of the domain of the family, where it had always been situated, and into the domain of the state. We also show how a phenomenological account of the care of the body in the family conforms to the latest in neuroscientific understandings of adolescent brain development. The family attenuates the dependency of adolescents and provides an important social contextualization for the care of the body, including the inculcation of sexual mores in adolescence. We conclude that the drive to push sexual decision making as a matter of state concern further undermines the foundations of the moral meanings of sex and sexuality. Keywords: adolescent sexuality, child sexuality, emancipated minor, emergency contraception, mature minor I. Introduction On November 26, 2012, the American Academy of Pediatrics (AAP) released a new policy statement on Emergency Contraception (EC). The stated purpose © The Author 2013. Published by Oxford University Press, on behalf of the Journal of Medicine and Philosophy Inc. All rights reserved. For permissions, please e-mail: [email protected]

Downloaded from http://jmp.oxfordjournals.org/ at Health Sciences Center Library on April 29, 2013

Rachelle Barina Saint Louis University, St. Louis, MO, USA

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Rachelle Barina and Jeffrey P. Bishop


of the statement was three-fold: (1) to educate pediatricians and other physicians on available emergency contraceptive methods; (2) to provide current data on safety, efficacy, and use of EC in teenagers; (3) to encourage routine counseling and advance EC prescription as one part of a public health strategy to reduce teen pregnancy (Committee on Adolescence, 2012). The new recommendation on EC states that a prescription for levonorgestrel should be routinely provided to all sexually active female teenagers because they are more likely to use EC in the event of unprotected sex if they already have it on hand. In other words, in addition to recommending preventative contraceptives, EC ought also to be provided to teenage girls (Committee on Adolescence, 2012, 1179). Implied in the recommendation, and foundational for its justification, is the doctrine of the mature minor. Since many jurisdictions de jure and many other jurisdictions de facto deploy emancipation to children around all questions of sexual health, oral contraceptives do not require parental consent. Thus, the Committee on Adolescence of the AAP also presumes that EC would not require parental consent.1 The medical justification for this new recommendation is that levonorgestrel is safe, effective, and does not require pregnancy testing before usage. Moreover, the recommendation finds its ultimate justification in the consequentialist public health initiatives to reduce teen pregnancy. While the family has traditionally been the locus for the cultivation of the mores and meanings of sex and sexuality, the state has become the locus of an increasingly thin notion of sexuality. Reflecting this shift, the AAP’s new recommendation that EC be prescribed at the same time as oral contraceptives neglects any mention of the patient’s or the family’s moral commitments with regard to pregnancy or sexual activity. The thin commitment of the polis to promote public health by reducing teen pregnancy takes precedence over the thick metaphysical moral content surrounding sex and sexuality typically cultivated in children by the family. The AAP’s new policy recommendation, grounded in the doctrine of the mature minor, is part and parcel with Western political philosophy that seeks to move moral decisions outside the unit of the family and to bring it into the domain of the polis. A short survey of Western political philosophy demonstrates this erosion. In the Republic, Plato describes the just city as requiring the removal of children from traditional families (which at the time were not nuclear families, even though they were still biologically related families) and placed in the care of the guardians (Plato, 1991, 375a–383d). The same holds for Rousseau who must remove Emile from his family and society and to raise him in virtual isolation (Rousseau, 1979). Even as recent as John Rawls, we find that the family is thought to be a threat to equality of opportunity (Rawls, 1999, 64, 265, and 448). Aristotle’s view on the family is slightly more nuanced. Aristotelian philosophy has a kind of organic notion of the state grounded in families,

Maturing the Minor, Marginalizing the Family

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which, when they have grown large enough, bind together into a polis. The “state comes into existence, originating in the bare needs of life, and continuing in existence for the sake of the good life” (Aristotle, 1984, 1252b29– 30). The material needs of bare life are the domain of the family, which seems to exist only for the purpose of procuring and sustaining the material needs of human life. The polis is the domain of the good life, the life of eudaimonia as described in the Nicomachean Ethics (Aristotle, 1987). The “earlier forms of society” in the family are natural to the human animal, just as politics is natural to humankind (Aristotle, 1984, 1252b31). So, just as life within the family or household is natural, so it is that the bios politikos is natural to man. Aristotle also distinguishes zoē and bios in the Politics—zoē is bare life, the life we have by virtue of being alive; bios politikos is that form of life that is always qualified as the good life. The despotēs (the head of the family) and the oikonomos (the head of a household/estate) are each concerned with the siring, birthing, and raising of children and the material sustenance of the members of the family or household (Aristotle, 1984, 1252a25–35). Thus, the realm of the family is zoē, bare life, the material necessities of existence. The good life—the moral life—is the domain of the polis. Several philosophers like Michel Foucault (1988, 2004) and Giorgio Agamben (1998) have pointed out that, in modern politics, bare life—formerly the domain of the family—has become the domain and concern of the state. Yet, there is a corollary to this point that has not been made explicit in the philosophical literature: the polis or state has also crossed over into a domain that had been implicitly the realm of the family, namely, the material conditions of life itself. In this paper, we will argue that the doctrine of the mature minor, once intended to permit exceptions to parental consent requirements for emergency medical interventions, has become justification for the provision of routine reproductive health care services without parental consent. We will do so by placing the mature minor doctrine in a wider history of shifting sexual mores being cultivated by secular society. In this shift, the cultivation of sexual mores is increasingly becoming the domain of a state primarily concerned with public health outcomes. Then, we will argue that it is typically within the family that thick metaphysical moral content around sexuality is implicitly and explicitly cultivated in the practices of caring for the bodily needs of children. Appreciating moral content about the meaning of the body and integrating this content into complex decision making are abilities that, according to new scientific evidence, adolescents do not yet fully possess. The application of the mature minor doctrine to reproductive health services encourages separating decisions about sexuality from the context within which the meaning of sexuality has been understood. In doing so, the doctrine of the mature minor facilitates the erosion of the goods internal to the family, where bodily needs, including needs of intimacy, are met and understood.

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II. Social History of Adolescent Sexuality


The concept of adolescence as a developmental stage is of recent invention. Psychologist Granville Stanley Hall is often credited as the first to describe the developmental stage of “adolescence” at the beginning of the 20th century. For Hall, adolescence was not merely an age-bound, biological time, but also a cultural phase of “storm and stress” associated with conflict with parents, mood disruptions, and risky behaviors involving crime and sex. Jon Savage points out that Hall’s theory responds to the infiltration of Darwinism into sociology and psychology and subsequent assumptions that laissez faire competition best leads to progress. In a time when teenagers often entered the workforce, Hall’s coining of “adolescence” aimed to differentiate the adolescent from the adult. Hall believed that ongoing education and formation during adolescence was necessary to cultivate maturity and ultimately to promote social progress (Savage, 2008). Hall’s sentiments regarding the importance of protecting and guiding adolescents coincide with a set of 19th- and 20th-century legal developments regarding the regulation of child labor, requirements of school attendance, child abuse laws, and separation of juvenile and adult criminality (Oberman, 1996, 130). These scientific and legal sentiments emphasize that the adolescent maintains a developmental proximity to the child and that, like the child, the adolescent necessitates special regulation. In contrast, another strand of nearly simultaneous legal developments emphasizes the adolescent’s adult-like qualities. Lowering of the voting age and age of majority as well as increasing tendencies to prosecute minors as adults exemplify this trend (Oberman, 1996, 130). In the same light, the concept of the mature minor recognizes that the adolescent has developed beyond the naïveté of early childhood and thus, in certain emergent conditions, can consent to medical procedures without parental involvement. The earliest legal reference to the concept seems to date back to an early 20th-century case where a 17-year-old boy consented to the removal of an ear tumor that was deemed to be somewhat emergent. Interestingly, he was accompanied by an aunt and an adult sister at the time of his consent to the surgery (Bakker v. Welsh, 144 Mich. 632, 18 N.W. 94 [1906]). Thus, it appears that the doctrine of the mature minor began and persisted into the 1970s to permit exceptions in consent procedures for minors in need of emergent surgeries when parents or guardians are absent (Wilkins, 1975, 52). In rare cases, the minor’s proximity to adulthood and individual imminent needs warranted an exception to parental authority. Over time, this judicial doctrine began to expand, allowing medical decision making of a minor independent of an emergency setting, assuming that the child has “maturity, intelligence, and ability to understand the medical procedures and alternatives involved” (Note, 1974, 310). “Maturity,” however, is an undeveloped concept meaning something like emotional or psychological maturity. “Age


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is merely an additional element to be weighed, and is not alone dispositive” (Note, 1974, 310). As the doctrine of the mature minor evolves in the 20th century, another concept undergoing development is the emancipated minor. While states have different requirements for emancipation, the minor is usually considered emancipated if the minor (1) has ever entered into a valid marriage, (2) is on active duty in the armed forces of the United States, (3) has received from a court a “declaration of emancipation,” (4) has graduated from high school, or (5) is living separate and apart from the parents or guardian while managing his own financial resources (Partridge, 2013). With the concept of emancipation, a legal space evolves that includes the authorization of minors to make medical decisions, quite apart from emergencies in the absence of parents. The doctrines of the mature minor and of the emancipated minor find an important source of their evolution in the sexual revolution underway from the 1950s onward. With the publication of Sexual Behavior in Females in 1953 and the various books published by Masters and Johnson from 1966 to 1994, combined with the rise of the feminist movement and equal rights, the norm of female sexuality began to be challenged (Kinsey et al., 1953; Masters and Johnson, 1966, 1970, 1974, 1979, 1994). During this time, oral contraceptives became more readily available. In its initial introduction to the market, the pill was quickly adopted by married women such that by 1965, 41% of married women under 30 who were attempting to prevent pregnancy were on the pill (Westoff and Ryder, 1977, 19). Until the late 1960s, however, single women were often unable to obtain the pill and it was illegal in all states to prescribe an oral contraceptive to an unmarried minor without parental consent (although no prosecution is recorded). In efforts to curtail use of the pill, prohibitions on advertisements and restrictions on sales were also common. In order to obtain the pill in the face of restrictive state laws, many women claimed to be engaged to marry or have menstrual irregularities (Goldin and Katz, 2000, 732–34).2 In the late 1960s and early 70s, use of the pill expanded to unmarried women and shifted the life-decisions and hopes of women. Especially as universities began to provide contraception, younger and unmarried women enjoyed increasing sexual freedom and control over pregnancy. Women’s career decisions changed abruptly and admissions to law and medical schools skyrocketed. The age of first marriage and childbearing increased, while the age of first-time sexual relations outside of marriage and the number of desired children decreased (Goldin and Katz, 2000, 748–52). With the pill, women gain efficacious control over their bodies, careers, and relationships. With a new sense of autonomy and independence made possible by the pill, a new vision of the ideal woman emerges. No longer is this woman subservient and subject to the uncontrollable functions of her body. Instead, she becomes master of her body, and so of her life. Mastery over

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the body begins to be seen as the moral good and even the moral imperative for women. Failure to master the female body leads to a downward spiral of dependency, lack of education and careers, unsatisfying sex lives, and unwanted pregnancy. In short, failure to master the female body becomes irresponsible; autonomy attains normative primacy for adult female sexuality. The transformations in norms of adult female sexuality trickled down to unemancipated adolescents. In 1968, 16- and 17-year-olds had legal access to contraception without parental involvement in only three states (Guldi, 2008, 819). But in the 1970s and 1980s, there was a clear drive to shape all decisions about sexuality, including those of adolescent girls, according to feminist visions of autonomy over the body, and thus over sexuality. Nevertheless, in the shadow of the glorified ideal woman free to excel in the world and control her future, unemancipated adolescents suffered from troublesome STDs and pregnancy rates. In the emerging feminisms that characterize female bodily ideals, adolescent girls are subject to become irresponsible if they are not allowed to have access to birth control and EC. They too must be made into the ideal woman who embraces the patterns of later marriage, later childbearing, and increased control over life events, which are all symbolized in the pill. Accordingly, legal norms reflect recognition of the economic and health benefits of encouraging minors’ use of the pill. By 1975, 24 states permitted access to the pill by adolescents (Guldi, 2008, 819–20). And in 1976, the US Supreme Court invalidated a Utah requirement of parental consent for federally funded family planning services on the basis that it was an unconstitutional condition of providing contraception (T-H- v. Jones, 425 F. Supp. 873 [D. Utah 1975] aff’d in part 425 U.S. 986). In a clear trend, the state granted minors increasing access to contraception and, in doing so, began to assert that the state and the medicine it promotes have a better sense of the child’s best interests than parents. In the midst of the legal trend that grants minors increased access to the pill, the 1973 Roe v. Wade decision did not specify the consent requirements for abortions performed on minors. But just three years after the ruling, the US Supreme Court established the permissibility of abortion to minors without parental consent in Planned Parenthood of Central Missouri v. Danforth. The Court ruled that “The State may not constitutionally impose a blanket parental consent requirement, such as §3 (4), as a condition for an unmarried minor’s abortion during the first 12 weeks of her pregnancy for substantially the same reasons as in the case of the spousal consent provision, there being no significant state interests, whether to safeguard the family unit and parental authority or otherwise, in conditioning an abortion on the consent of a parent with respect to the under-18-year-old pregnant minor.” As stressed in Roe, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician” (428 U.S. 52). Yet, the 1976 and 1979 Bellotti v. Baird cases ruled that states can opt to require parental consent to abortion as long as an alternative option exists—namely,


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that a judge can also order the abortion if it is in the child’s best interests in the case that parents refuse to or are not present to consent (428 U.S. 132 [1976] and 443 U.S. 622 [1979]). In permitting states to require parental consent, this ruling strengthened the authority of the state over parents. Parents never have absolute parental authority over a child’s reproductive decisions. And if states choose to promote parental authority, they must explicitly state not only that this authority is not absolute but that it is the state which is always able to take the place of parental authority, or to override it. With this, a clear legal space has been carved out for the reproductive rights of minors, including the right to contraception and abortion. As the subspecialty of adolescent medicine emerged alongside the legal rights of mature minors, many national medical organizations stood behind the push for increased minor access to contraception and abortion. In the medical community, the push for increased access to reproductive health services focuses narrowly on the outcomes of sexuality rather than on the maturity of minors. For example, Alderman, Rieder, and Cohen (2003) report a 1989 joint statement issued by the AAP, American Academy of Family Physicians, and American College of Obstetricians and Gynecologists, which states, “Ultimately, the health risks to the adolescent are so impelling that legal barriers and deference to parental involvement should not stand in the way of needed care” (144–5). By framing teen pregnancy as a public health crisis, the provision of reproductive health care with or without parental involvement has become an unconditioned good recognized by major medical associations. Although the adolescent should be encouraged to invite parental involvement, medicine’s good of reproductive health care unquestionably overrides the good of parental authority when the two come into apparent conflict. This evolution of the doctrine of the mature minor and support for adolescent access to reproductive health services are shockingly neglectful of robust discussions of the doctrine’s most intrinsic concept—maturity. It seems that, legally and medically, the concept of the mature minor does not actually depend on the notion of maturity. Instead, the invocation of the doctrine of “mature minor” in the context of adolescent reproductive health has become a means to assert better health outcomes for the state. A careful consideration of maturity is unnecessary because contraception is an unqualified good in the case of every teen. Socially destructive and expensive health risks, more than the adolescent’s mature ability to understand and appreciate health information, merit the provision of reproductive health services without parental consent. Thus, while the doctrine of mature minor appears to be another iteration of the primacy of autonomy, the principle of autonomy may only have been the justifying spark that began the practices and legal norms of providing contraception to minors. In all reality, the public good and the goods imposed uniformly on every minor (avoid pregnancy and STDs) are equally central forces in the development of the mature minor.

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III. A Phenomenological Account of the Family and Sexual Mores It seems to us that the state-sanctioned ideal of a “mature minor” is socially constructed so as to promote the notion of a free individual isolated from social, especially familial, relations. Nevertheless, this socially constructed ideal of a “mature minor” flies in the face of the realities of human dependency. A child is born into a family, not of her own choosing. In fact, it is odd to think of a child that could choose her own family because a particular child is created by particular gametes having been joined together in a particular context. While the conception of children does not require much more than those gametes joining, typically, cultures have always stipulated


Ironically, in failing to build the doctrine of mature minor on a well-defined concept of maturity and instead by focusing on the health consequences of risky adolescent behavior, law and medicine attest to and then compensate for the immaturity and neediness of minors. In short, the immaturity of minors leads to the assertion of their maturity for making decisions around sexuality. In the context of contraception and abortion, the invocation of the “mature minor” appears as an effort to cope with the minor’s immature and detrimental effect on public health by unqualifiedly moving the adolescent into the realm of adulthood when it comes to sex and sexuality. Thus, the real dilemma is not about adolescents’ ability to consent, because contraception is perceived as beneficial and good regardless of consenting ability. The real conflict is between state interests in public health and parental authority. Under the guise of the adult-like developmental stage of adolescence, health outcomes have clearly been prioritized above parental authority and the primacy of the family structure without significant attention to what maturity is or if adolescents actually possess it. Once a doctrine to allow for emergency exceptions in life-and-death situations when a parent happened to be absent, the doctrine of mature minor has evolved into a medicolegal foundation to emancipate minors for the purposes of sexual health, further inculcating a new norm of sexuality for adolescents. Now, the doctrine enables adolescents to make decisions about sexual health with the intention of excluding their parents. The state, in its alliance with medicine, provides the consequentialist moral content for decontextualized goods of sexuality—to allow sexual gratification and liberation, while avoiding pregnancy and disease. With the systematic implementation of mature minor into reproductive health care, parents no longer have—or need—a say in their children’s decisions. Parental authority has become dislodged by the presumed higher sexual morality of the state, allied with a medicine that leads to the propagation of the ideal controlled female body, isolated from her family and placed within the governance of the state.


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either through customs or practices the kinds of social contexts that have been sanctioned for the licit joining together of gametes. The customs and practices are institutionalized in social and legal arrangements, such as the practice of arranging marriages in traditional cultures or through the assertion of certain understandings of romantic love in our own Western context. Whatever the social context, most societies have expectations in place, such that deeper and richer social bonds are thought to be essential for the initiation of sexual relations and for bringing forth children. In other words, much more has been thought to be at stake in traditional cultures than the mere joining together of gametes because it is understood that the bonds of the family in some way are the context not only for procreation itself but for the rearing of the child. In other words, there are many contingencies other than mere biological contingencies that are part of the process of bringing forth a child, not the least of which are social in origin. For example, a child requires that the family spend inordinate hours caring for and nurturing her; her survival depends on it. Even while a larger communal context is necessary to support the family, for the most part the child’s parents, grandparents, aunts and uncles, and older siblings are responsible for the direct care of a child. No child would ever survive without the family to offer the necessities of feeding and cleanliness. Certainly, the child will learn to feed and bathe herself by year four, but the habits for eating a healthy diet or maintaining cleanliness are usually not in place until well into the child’s adolescence. Whereas other mammals do not require long and intensive periods of care for development to full adult activity, the human animal exhibits extreme bodily dependency for at least a decade and a half, dependency that is attenuated by the social bonds of family. Thus, there is a kind of radical dependency that the child has on her family to meet each of her material needs. Care for bare material life is a condition for the possibility of the development of a robust intellectual life, which requires that even more care be provided to the minor. In most contemporary industrialized nations, education is usually funded by the state, but educators have consistently noted that familial involvement in the child’s education is one of the most important factors in the child’s intellectual development. In the early years, children do not yet have sufficient cognitive development to understand the value of education, for example, and so they require the structure of the family to ensure that education takes place. In fact, the family is essential to the cultivation of habits of education, such as reading and writing, in order to maintain those skills into adulthood. It is only after the child has reached her teenage years that her higher thinking and evaluative skills begin to develop. After the intellectual habits are acquired, the adolescent might begin to choose to engage in scholarly activities. Thus, the capacity for reason necessary for a rich intellectual life as well as the habits that sustain intellectual development are largely goods internal to the family. Without the family, a child would not reach her greatest potential for rationality, including moral rationality.

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The empirical data further demonstrate the dependency of children not only for the intellectual capacity for decision making but also for the importance of maturity in decision making. It seems clear that adolescents under the age of 16 are mostly unable to prioritize long-term goals over short-term benefits. Even while adolescents might be able to articulate intellectually the causal relations between their actions and the results of their actions, they tend to lack the emotional maturity to understand the richer complexity of decisions. For instance, several studies have shown that adolescents weigh more proximate benefits higher than distal benefits and weigh more distal costs lower than proximate costs when compared to people over the age of 21 (Reyna et al., 2005; Reyna and Farley, 2006; Galvan et al., 2007). Thus, it is apparent that the family can act as an external locus of control and contextualizing site for decision making for adolescents under the age of 21. Moreover, adolescents, whose frontal lobes are not fully developed, are known to have more impulsivity in making decisions. When compared to adults, adolescents tend to assess threat–safety scenarios very differently. Lau et al. (2011) have attributed these differences to be grounded in the lack of maturity in the subcortical and prefrontal regions of the brains of adolescents. Adolescents tend to show higher tendencies toward violence and self-destructive behaviors, again likely grounded in the immaturity of the prefrontal cortex of adolescent brains (Schwartz et al., 2009). Adults assess outcomes very differently from adolescents (Reyna et al., 2005; Galvan et al., 2007). For adolescents, the “subcortical systems will win out (accelerator) over control systems (brakes) given their maturity relative to the prefrontal control systems” (Casey, Jones, and Somerville, 2011, 22). Thus, the dependency of adolescent children is not merely one of bodily or even cognitive capacity but also of their evaluative and axiological capacities. These dependencies are best addressed in a context where families can attenuate the deficiencies of minority. Developmentally speaking, the child learns that her activities are not, or at least ought not to be, directed at some immediate material goal but are, or ought to be, directed at other higher goals and goods, and possibly even to the good for humans qua human as MacIntyre (1999) has noted. In other words, while the child and the adolescent are receiving care directed at material bodily needs, something much richer is also being communicated and cultivated about the importance and content of the intellectual and moral life, as well as the meanings of the body. The ability to weigh different goods is still developing as the child moves from childhood to adolescence to independence in reasoning, including moral reasoning. Put differently, it is within the giving and receiving of care that the child learns not only the goods of the body but also the moral, social, and existential goods that belong to the particular family within which the child’s life-world is formed. The intimacy of the care provided by the family conveys and cultivates the meaning of the body in all its facets, including the


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IV. Conclusions The evolution of the doctrine of the mature minor in the latter half of the 20th century and the early part of this century seems at odds with the bodily, emotional, intellectual, and moral development of children. Bodily, emotional, intellectual, and moral development is required over two decades before a child can fully begin to demonstrate independently the values that have been inculcated by the family. It is only after the body is contextualized within the social mores of the family that the child develops the ability to discern moral, social, and existential meaning, including the moral, social,


sexual and reproductive. The cultivation of sexual mores does not begin as a response to the commencement of sexual attraction or decontextualized biological understandings of “teen hormones,” but, rather, grows out of lifelong experiences of embodied living and decision making. Beginning from birth with simple practices of care for the material needs of bare life, like changing a diaper or reinforcing hygiene habits, children subconsciously learn about the goods of the body. And before complex capacity for intellectual evaluation emerges, children are already infused with implicit ideas about what bodies are for in relationships. Even small children learn of acceptable kinds of play, what it feels like to be comforted after falling down, and how to touch and not touch others. As children grow, the cultivation of sexual mores progresses in more complex ways. Parents teach children explicitly about when to be cautious and protective of the body. Parents comment on what their children wear and how they comport their body in the world, suggesting that there are better and worse ways to dress and carry oneself. The kinds of visual images viewed for family entertainment and subtle parental responses to those images inform children’s relational expectations. Children begin to notice differences in gender, and parental responses to related questions carry robust content about sexuality, all while the brain has not yet achieved neurological maturity. While these neurological capacities are developing, the contextualizing actions of the family help to shape the meanings of sex and sexuality. The way that parents explain and contextualize the physical changes of puberty is tremendously formative of the child’s understanding of sexuality. The policy recommendations made possible by the doctrine of the mature minor fail to recognize that the meaning of the body is founded in these sorts of familial practices and experiences of the family. Instead, the recommendations focus on consequences to individuals and to the state. This focus on consequences becomes a justification to undermine the normal familial communication of sexual mores, eroding the contextualizing function and foundational ground played by the family.

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and existential meaning of sexuality, which has typically been the domain of the family. The social history of adolescent sexuality and decision making conflicts with both the neuropsychological development of children and the rich familial contexts within which that development has traditionally been nurtured. The medicolegal apparatus of adolescent health takes the child to be mature in making decisions, and instead of creating spaces within which families—which have traditionally attenuated the material dependency of children—can negotiate decisions together, it creates a thin ethic that attends to the consequences for the state and the promotion of the radical autonomy of the West. The doctrine of the mature minor then removes the body of the child from its social context and social meanings undermining the meaning of the body, including the meaning of sex and sexuality. The doctrine of the “mature minor” enables public health, but undermines the contextual role played by families.3 When adolescents are enabled to make decisions about contraception and abortion without the consent of parents within the context of the family, they learn that such decisions are a matter of their individual desire and the consequences for the state. Sex itself has no intrinsic meaning or value that constitutes an individual. This reinforces a chasm between sexuality and morality and teaches children that their own decisions about sex do not pertain to family life. In the last 50 years, the doctrine of a mature minor developed out of a concern for the autonomous individual’s ability to control reproduction at the expense of the individual’s experience as part of a family. The mature minor seems to have originated as an exception to the rule of minority status. It originally was articulated in a context when a child’s decisions— even an adolescent child’s decisions—were made by the family. However, in certain emergent conditions where an adolescent minor’s family could not be reached, the child was allowed to make certain bounded decisions, but again in close consultation with other adults where possible and always with adult physicians. We have shown that, given the context of the West where individualism and autonomy reign supreme, the doctrine of the mature minor has undergone mission creep. We have shown how, at least in part, the social and historical circumstances of the mid to late 20th century came to see decisions about sexual behavior as caught up with notions of the idealized woman’s body, as free by virtue of her freedom to seek contraception. The pill not only enabled sexual liberation but came to be the symbol of that freedom. The pill—that is to say, contraception—came to be seen as a woman’s right to freedom and to help to create an image of the body as one’s own possession. Despite the fact that adolescents lack robust capacities for decision making, the political ideal of the emancipated woman became identified with ideas of the emancipated minor. Thus, following in typical fashion the Western political philosophy, the family is further marginalized in order to


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Notes 1. It should be noted that the policy recommendations on EC also remind pediatricians that they have an ethical duty “to inform/educate [adolescent patients] about availability and access to emergencycontraception services” according to the policy statement on refusal to provide “relevant, legally available treatment options” (Committee on Adolescence 2012, 1179). Put differently, the new recommendation to provide EC carries with it a moral requirement to prescribe emergency contractive prescriptions to sexually active pediatric patients. 2. Together, the doctrine of the mature minor and the legalization of emancipated minors shift the parental monopoly on decision making. For example, it is not uncommon for pediatric patients who have demonstrated maturity to participate in life–and-death decisions with regard to chemotherapy. A common example encountered in clinical ethics consultation can be found on the cancer wards. A young person with a malignancy, often having undergone multiple rounds of chemotherapy, surgery, or radiation, has a relapse of his or her malignancy. The child has grown weary of repeatedly being sick from chemo or radiation and understands that his or her survival is statistically unlikely and comes to terms, as much as a minor can, with his or her death. The patient’s parents and/or extended family hold out hope that, since the child has undergone remission in the past, he or she will after the next round of therapy undergo another remission, even though statistically speaking the chance of remission—not to mention survival—is low. The child, in consultation with his or her physicians, decides that he or she is tired and does not want to undergo another round of treatment. While this description is anecdotal, it will be recognized as a not uncommon occurrence by clinical ethics consultants and by pediatric oncologists. Of course, such cases are often presented as a mature minor making a rational medical decision in the face of irrational pressures placed upon the child by his or her parents. In reality the medical team has already come to the conclusion that further medical intervention, while possible, is no longer medically warranted. The child’s “decision” is really used as leverage against parents who are unwilling or psychologically unable to hear that therapy is unlikely to help the child. We realize that this estimation of a hypothetical case is highly judgmental of both parents and physicians. However, both the scenario and the judgment are grounded in the experience of the authors, one of whom is a physician, and both of whom have served as ethics consultants in hospital—including pediatric hospital—settings. Of course, one can imagine that such claims could be empirically verified, and so we call on empirical researchers


support the state’s ideal of autonomy and the state’s desire to protect the “health” of the populace. We are not advocating an absolute withholding of contraception and other reproductive health care services without parental consent. Instead of presuming that minors should be emancipated in the context of reproductive health, we are arguing for a strong presumption against the provision of contraception/abortion/EC without or against parental consent. The expansion of the doctrine of the mature minor erodes the contextual conditions for the possibility of the moral goods of sex and sexuality, which are typically inculcated in the family. The burden of proof should be on the medicolegal apparatus and individual practitioners to show the maturity of a particular minor and the necessity of providing contraception and EC without and against the consent of that minor’s parents/guardians. Of course, some kids who would obtain contraception may now be unwilling to obtain it and suffer the negative health consequences. But, others who would otherwise pursue contraception/abortion/EC without their parents may choose to involve their parents. In doing so, the sexuality of adolescents will not be cut off from its familial context or the realm where the care of the body finds its origins and its moral significance.

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to design studies that could challenge or verify our claim. It is the opinion of the authors that, in such cases where the doctors do not desire to treat a patient based on medical factors, it would be better for the doctors to make medically authoritative decisions rather than to draw on the mature minor doctrine. 3. Certainly, utilitarian/consequentialist arguments can be made for the reduction in pregnancy; the vast majority of public health justifications are consequentialist, after all. The problem is that public health and the state usually only take into consideration those things that can be easily measured, like number of pregnancies, or the costs of pregnancy. In this framework, public health particularly and the state more generally, however, cannot bring into their calculations things like the importance of richer contextualizing features for creating meaning in sex and sexuality for an adolescent child. Because such factors as meaning, nurturing the family’s sexual mores in the child, etc., appear to have no measures, consequentialist-driven public health seems to assume that they must have no effect and no value significant enough to shape policy.

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