On hypothetical consent, regret, and the capacity for autonomy: A response to Pugh's conceptual analysis of the child's right to bodily integrity

In this issue of Clinical Ethics, Jonathan Pugh rejects hypothetical consent-based conceptions of the child’s right to bodily integrity (RBI). Pugh also questions the relevance of adults’ regret of past bodily infringements in evaluating potential violations of children’s RBI. Pugh then argues that autonomy serves as the justification for our power to waive our bodily rights. Finally, Pugh claims that the child’s interest in developing the capacity for autonomy is key to evaluating potential RBI violations. In this article, I challenge each of these arguments. First, I argue that it is the circumstances of parents vis-a-vis their children (rather than the difficulties in determining hypothetical agents' values) that should lead us to reject hypothetical-consent-based conceptions of the child’s RBI in favor of best-interests conceptions. Second, I argue that adults’ regret of childhood bodily interventions is highly relevant for evaluating these interventions’ permissibility. Third, I reject the claim that autonomy is the primary justification for our power to waive our bodily rights. Finally, I argue that Pugh overstates the importance of the child’s interest in developing the capacity for autonomy, at least when it comes to debates in contemporary liberal democracies over interventions in children’s bodies.

Duke Scholars

Author Joseph Mordechai Mazor DKU Faculty