I know Peter Singer’s assertion that children with profound mental disabilities are not entitled to “moral status”. I remember Dr. Diekema argued defending the Ashley case that Ashley is not entitled to the same dignity as others are because she is just like a baby. Now I’m shocked to read a paper written by a lawyer named Christine Ryan that says profoundly incompetent persons may not be entitled to the basic rights protected by the Constitution because they can be non-persons depending on the definitions of persons.
Revisiting the legal standards that govern requests to sterilize profoundly incompetent children: in light of the “Ashley Treatment,” is a new standard appropriate?
Christine Ryan, Fordham Law Review, September 26, 2008
This is a long article of about 40 pages. Starting with a detailed review of the Ashley case and its development, the first thing the author does is to point out that profoundly incompetent persons are not entitled to the basic individual rights acknowledged by the Constitution based on the definition of personhood. It also mentions the UN Convention on the Rights of Persons with Disabilities and states that constitutional protections attached to persons with disabilities by the Convention require consciousness as the minimum condition of personhood, though I don’t understand how it is relevant here in that children with profound mental disabilities are not unconscious, even if Ryan does not gravely misunderstand the Convention itself.
After that, the author discusses the legal standards currently used in reviewing requests of sterilization of profoundly incompetent individuals. It is a lengthy and complicated review quoting many scholars and mentioning previous court decisions with profoundly incompetent persons involved. Ryan concludes the current hybrid standard using both “surrogate decision making” and “best interest” standards is confusing and is not good enough. I think she means it is at least not good enough for courts to approve “the Ashley Treatment”. She writes, “For a court to legally approve of the application of the “Ashley Treatment” there needs to be a flexible, yet constitutional model in place that does not create confusing legal precedent, ” and proposes that courts should take Dr. Rebecca Dresser’s “revised best interests test” instead. Dr. Dresser recognizes, just like Dr. Diekema, profoundly incompetent persons like Ashley as inhabitants of “different worlds than competent individuals.” What Ryan says here is in short: children like Ashley with profound disabilities are totally different from us. Just imagine “the small subjective world in which the incompetent person lives”, and consider “extrinsic interests” such as psychological, emotional, familial or societal benefits, Oh, and don’t forget quality of life considerations. “These considerations are more important in the particular situation than the fundamental rights which are threatened by the proposed treatment.” Applying this new standard to the “Ashley Treatment”, you will know it can be a reasonable choice for profoundly incompetent children.
The paper concludes saying, “If the parents have presented sufficient clear and convincing evidence before a court showing that administering the “Ashley Treatment” is more important to the child than her fundamental interest in procreation and bodily integrity, then the request is extreme, but nonetheless reasonable, and courts should carefully examine whether the procedure is permissible in the particular case”.
What I find really interesting is that the author admits that it is impossible for parents with the burden of proof to argue successfully that the “Ashley Treatment” would be in the best interest of their disabled child by the current legal standards. (I wonder if there have already been any unreported requests turned down by courts.) But then, I imagine it would be a reasonable attitude for any unbiased lawyers to conclude that the “Ashley treatment” is too extreme to be legally appropiate, therefore something that we should abstain from. What kind of lawyer would say, “OK, then, let’s think of a new standard to facilitate courts to approve it”?