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Georgetown Law
Journal
November, 2003
Westlaw ©2003 cite as 92 GEO L.J. 129 reprinted with permission
of the author
Note
*129 WHO DECIDES?
GENITAL-NORMALIZING SURGERY ON INTERSEXED INFANTS
Alyssa Connell Lareau [FNa1]
page 17
1261, 1270 (1996)
(noting that the "state is able to interfere with parental
control whenever there is a compelling reason to protect children,
and parental authority is diminished in an effort to recognize the
constitutional rights of children.").
[FN74]. Yoder, 406 U.S. at 233 ("[W]here nothing more than
the general interest of the parent in the nurture and education
of his children is involved, it is beyond dispute that the State
acts 'reasonably' and constitutionally in requiring education to
age 16 in some public or private school meeting the standards prescribed
by the State.").
[FN75]. Prince, 321 U.S. at 168-69 (noting that "the crippling
effects of child employment" justify "legislation appropriately
designed to reach such evils ... whether against the parents claim
to control of the child or one that religious scruples dictate contrary
action."); Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S.
320, 325 (1913) ("It cannot be doubted that the state was entitled
to prohibit the employment of persons of tender years in dangerous
occupations.").
[FN76]. Ginsberg, 390 U.S. at 643 ("We therefore cannot say
that [the statute], in defining the obscenity of material on the
basis of its appeal to minors under 17, has no rational relation
to the objective of safeguarding such minors from harm.").
[FN77]. See, e.g., In re Doe, 418 S.E.2d 3, 7 n.6 (Ga. 1992) (commenting
that parents do not have an "absolute right to make medical
decisions for their children"); Rosebush v. Oakland County
Prosecutor, 491 N.W.2d 633, 639 (Mich. Ct. App. 1992) (noting that
best interest standard should be used where a preference was never
stated or is otherwise unknown); see also Beh & Diamond, supra
note 73, at 41 nn.195-96 (citing Jehovah's Witnesses v. King County
Hosp., 278 F. Supp. 488 (W.D. Wash. 1967) (holding that the state
may intervene in parents' religiously motivated decision to refuse
a medically necessary blood transfusion for their child); A.D.H.
v. State Dep't of Human Res., 640 So. 2d 969 (Ala. Civ. App. 1994)
(ordering AZT treatment for HIV despite mother's insistence that
her child was not infected with HIV); Petra B. v. Eric B., 265 Cal.
Rptr. 342 (Ct. App. 1989) (ordering medical treatment for child's
serious burns despite parents' desire to treat with herbal remedies);
Custody of a Minor, 379 N.E.2d 1053 (Mass. 1978) (ordering chemotherapy
despite parents' pessimism and concerns about child's discomfort);
State v. Perricone, 181 A.2d 751 (N.J. 1962) (upholding guardian's
authority to consent to blood transfusion for infant over parents'
religious objections); In re Vasko, 263 N.Y.S. 552 (App. Div. 1933)
(ordering surgical removal of cancerous eye despite parental objection);
In re Sampson, 317 N.Y.S.2d 641 (Fam. Ct. 1970) (ordering surgery
against parents' wishes to correct facial deformity); In re Rotkowitz,
25 N.Y.S.2d 624 (Dom. Rel. Ct. 1941) (ordering operation to correct
child's foot deformity)). But see Beh & Diamond, supra note
73, at 41 n.196 (citing In re Seiferth, 127 N.E.2d 820 (N.Y. 1955)
(upholding parents' right to decide not to treat cleft palate and
harelip); In re Tuttendario, 21 Pa. D. 561 (1912) (holding parents
could decide to withhold surgical intervention for deformity caused
by rickets)).
[FN78]. See Beh & Diamond, supra note 73, at 41 n.198 (citing
Petra B., 265 Cal. Rptr. at 346 (holding that the state may intervene
upon consideration of the "seriousness of the harm," the
"evaluation for the treatment by the medical profession,"
the "risks involved in medically treating the child,"
and the "expressed preferences of the child")).
[FN79]. See supra notes 42-45 and accompanying text.
[FN80]. See Beh & Diamond, supra note 73, at 39 n.184 (citing
Rosebush, 491 N.W.2d at 637 ("We hold that the decision-making
process should generally occur in the clinical setting without resort
to the courts, but that courts should be available to assist in
decision making when an impasse is reached.")).
[FN81]. See id. at 39.
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