Eyes Wide Open: Surgery to Westernize the Eyes of an Asian Child

Alicia Ouellette

The Hastings Center Report. 2009;39(1):15-18. 

In This Article

The Law of Shaping

Current law affords parents broad, well-recognized rights to shape their children, whether the shaping is figurative (such as cultivating a love of music or reading through early exposure) or literal (such as cultivating a lean body through limited diet and enforced exercise). Indeed, the right of parents to shape their children's lives by deciding where they will live, how they will be educated, and what values they will be taught is so fundamental that it receives constitutional protection.[3] To the extent that the law gives parents the right to shape their children, it treats children "like a special kind of 'property'"[4] over which parents have exclusive control.[5]

Of course, the right of parents to shape their children is not unlimited. Parents cannot use excessive physical violence to teach a lesson. They must feed, clothe, and protect their children. If they neglect those duties or physically abuse their children, they can lose the right to raise them. In such cases, the law recognizes that "the parents are trustees of their children's separate welfare, not owners of their personhood."[6]

When it comes to health care decisions, the law supports a parental prerogative to make choices for children. In virtually all cases, parents are free to choose for their children among reasonable medical alternatives.[7] Indeed, the law presumes that a parent's medical decision for a child is in the child's best interests, and the presumption is difficult to overcome if a provider deems the choice medically reasonable. The parent is thought to be the person best situated to determine the child's best interests, and in making that determination, the parent is free to consider personal and familial values as well as the needs of the individual child.

To be sure, parental power over medical decisions is not unlimited.[8] Theoretically, abuse laws are available to prevent a parent from exposing a child to unnecessary procedures. Child protection laws prohibit parents from acting intentionally to cause or to risk causing physical harm to their children unless the risk is offset by a direct benefit. Cases of medical neglect for failure to treat are not uncommon, but cases in which a parent is found to be abusive for choosing to provide medical care for a child are few and far between. They involve repeated misuse of medical interventions, such as in Munchhausen's by proxy.

The more important limitations on parental choice are procedure- or intervention-specific. In some states, children must be vaccinated regardless of parental choice. In others, parents may not deny children life-sustaining treatment or sterilize a minor without express court approval. Federal law criminalizes female genital cutting, and federal and state laws strictly limit the ability of parents to enroll their children in research protocols. To the extent that the law limits parental choices for children in specific situations, it acknowledges that parents are only trustees of their children's welfare, not owners of their personhoods. Owners may freely destroy their property; trustees are legally bound to protect what they hold in trust. But because the laws limiting parental choice are procedure-specific, not based on a broader conception of the child as person or on a categorical view of parent as trustee, the rule giving priority to parental choice remains the default.

Elective shaping procedures almost always fall within the broad default rule of parental choice. Parents may elect surgery to pin back a child's ears, circumcise a newborn son's penis, repair a cleft palate, or remove a mole from a child's face. The exceptions to the rule are the procedure-specific rules mentioned above: female genital cutting and surgical sterilization of a minor. None applies to eye-shaping surgery.

Thus, unless it could be characterized as an abuse case—which would be difficult given the utter lack of supporting precedent—current law would treat the case of the father who chose to reshape his daughter's eyes no differently from those of a mother who opts to pin back her child's ears, the couple that chooses to circumcise a newborn son, or the father who agrees to hormone treatment to add height to his child. It is a matter of parental choice, limited only by finances and the availability of a willing provider. The question the case raises, then, is whether the existing paradigm is adequate.