Proposed Research Paper Title
Research Outline
Proposed Research Paper Title
Legal and Ethical Implications of Gender-Affirming Hormone Therapy for Minors: Balancing Autonomy and Protection.
Research Questions and Main argument of the Proposed Paper
What are the legal frameworks that provide minors the capacity to consent in UNCRC, Canada and Australia?
How do ethical theories such as deontology and utilitarianism justify the decision-making process for providing gender-affirming hormone therapy given to minors?
How is the reconciliation of legal and ethical implication justifiable in providing the minor the authority to consent?
The inherent and primary legal framework and ethical consideration in relation to minors is protection of them. However, the changing times have led to the concept of protection, a very generic and subjective proposition. In a strict sense, protection of a child conventionally means deciding on behalf of a minor whose decisions are thought to be immature. The dynamism had led to have a liberal thought where views of the children must be respected. The concept of rights has instilled in our children some kind of authority to respect their views. Gender affirming hormone therapy is semi-permanent changes that can impact the life of the minor both in the present and future. On the other hand, if a child has substantial knowledge with regard to the impact of such hormone therapy and broader ideas of future consequences, a minor has every right to make informed decisions and consent. This research papers main argument is that the law must meet the dynamism of bioethics in providing healthcare services that are in the best interest of the patient. The intersection of the age of majority and the provision of the childs right to make informed consent must be flexible.
Brief Literature Review
All minors and adults, in their best interest, possess inherent dignity, intrinsic value, and a claim to respect, protection, and medical treatment irrespective of their physical or mental ability (Canadian Paediatric Society, 2004). Numerous international legal frameworks provide importance in developing autonomy in decision making with regard to treatment and research including minors. Nonetheless, there is no universal agreement on what age of minor can be deemed competent in decision making (Grootens-Wiegers et al. 2017). The UNCRC provides the pertinent rights such as right to non-discrimination, right to life, survival and development, right to respect for the views of the child and the best interest of the child (UNCRC, 1989). It serves as a basis for the legislative frameworks globally.
Any human being whose age is below 18 years is considered a minor (UNCRC, 1989). Minors seeking gender affirming hormone therapy frequently experience challenges related to decision-making capacity and legal limitations regarding age of consent (Clark & Virani, 2021). The capacity of the minor to consent for hormone therapy are related to age, cognitive development and mental health which determine maturity and insight (Clark & Virani, 2021). Minors prerequisite to consent for the hormone therapy is the insight ability of the minor to understand the consequence of the therapy. While, in consonance with the minors aspiration of the healthcare service, the healthcare providers are often found in the dilemma of whether the minor has the actual capacity to comprehend the hormone therapy effects (Clark & Virani, 2021). However, it is often reconciled through the informed consent model of care.
The informed consent model of care is often used widely to support autonomy, reduce harm and promote justice. This model comes in aid for the healthcare providers to better acknowledge and support patients rights, their capability for personal autonomy in choosing their healthcare treatments. This is considered appropriate for even the minors seeking hormone therapy (Clark & Virani, 2021). Minors with a fair amount of ability to make decisions should be given some authority over their own healthcare. When a minor is given the appropriate information and the minor understands the appropriate choice of their treatment, the authority of the minor to decide on its treatment is satisfied and a minors consent can be obtained (Canadian Pediatric Society, 2004). A mature minor doctrine provides that an individual under the age of majority qualifies for mature minor status, recognized as capable of consenting to a given medical treatment (Schwartz et al. 2018).
A case of this nature was adjudicated before the Family Court of Australia in Re Imogen in 2020. The Re Imogen sets out the question concerning Imogens, a minor, capacity to consent. The Family Court determined that Imogen had the capacity to consent, Gillick competent, to provide consent for a gender affirming treatment. The Family Court regarded the best interest of the child and authorized the treatment (Re Imogen, 2020). Australian jurisdictions recognize the Gillick competence in considering the minors consent capability.
The core value for bioethics is the respect for individual autonomy, the self determined capability and capacity to assent to the treatment with full information, understanding and voluntariness (Schwartz et al. 2018). The deontological perspective stipulates that minors should be allowed to make their own decisions regarding hormone therapy with the assertion that right to choice, self-determination, bodily integrity are some of the basic rights afforded to any human being including minors (Clark & Virani, 2021). Consequentialist concurs to the granting of autonomy to the minors to decide on hormone therapy. As a transgender, they have experienced their body and interacted within their communities, their decisions concerning the access to gender-affirming hormone therapy comes with proper scrutiny. Thus, consequences resulting from such treatment have greatest interest to themselves from their decisions (Clark & Virani, 2021).
This literature review sets out to discuss the international legal framework, domestic legal framework, doctrinal postulations and philosophy of ethics that discuss the legal and ethical understanding of gender-affirming hormone therapy on minors. It elucidates the practicality of formalizing the consent for such hormone therapy to the minors whose competence to provide a valid consent that is still debatable. While a lot of legal and doctrinal framework provides protection of minors, the autonomy of self-determination has been argued to be a dynamic development of individual rights that was set out to protect the individuals including minors. The research paper will discuss the legislative framework with a comparative analysis, both international and domestic. Further into the paper, it will discuss the practices concerning a minor and gender-affirming hormone therapy in Canada and Australia. The paper will also provide ethics and philosophical justifications to the minors rights.
Research Method
Doctrinal approach: This paper will analyze the UNCRC, Family Law Act, Re Imogen, Mature Minor Doctrine and research materials in assessing the legal aspects of the minors capacity and capability to consent and its legality.
Comparative analysis: This paper will also comparative analysis of practices in Canada and Australia. The rationale of both jurisdictions will be analyzed to conclude on the intersection of protection and autonomy of a minor in gender affirming hormone therapy.
Conceptual analysis: This paper will also discuss the utilitarianism or consequentialist approach and deontological perspective in relation to the legal and ethical implications of gender-affirming hormone therapy for minors.
Reference List
Cases
Re: Imogen (No. 6) [2020] FamCA 761 (10 September 2020).
Legislation
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
Family Law Act 1975.
Literature
Canadian Paediatric Society. 2004. Treatment decisions regarding infants, children and adolescents. Paediatrics & Child Health 9(2): 99103. Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2720471/.
Clark, B. A., & Virani, A., This Wasnt a Split-Second Decision: An Empirical Ethical Analysis of Transgender Youth Capacity, Rights, and Authority to Consent to Hormone Therapy, National Library of Medicine 18(1): 151164. Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8043901/#CR16.
Grootens-Wiegers, P., I.M. Hein, J.M. van den Broek, and M.C. de Vries. 2017. Medical decision-making in children and adolescents: Developmental and neuroscientific aspects. BMC Pediatrics 17(120): 110. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5422908/.
Schwartz, Y., T.S. Williams, S.D. Roberts, J. Hellmann, and R.Z. Shaul. 2018. Adolescent decision-making in Canadian medical contexts: Integrating neuroscience and consent frameworks. Paediatrics & Child Health 23(6): 374376. Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6234426/.
Reisner, S.L., J. Bradford, R. Hopwood, et al. 2015. Comprehensive transgender healthcare: The gender affirming clinical and public health model of Fenway Health. Journal of Urban Health 92(3): 584592. Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4456472/.
Jowett, S., & Kelly, F. (2021) Re Imogen: A step in the wrong direction. Australian Journal of Family Law, 34(1), pp. 31-56. Available at: https://eprints.qut.edu.au/210628/1/85087245.pdf.
Youth Agency and the Culture of Law, Age of Majority and Age-based Laws in Canada, 2015. Available at: https://ojen.ca/wp-content/uploads/Youth-Agency_Full-Guide.pdf.
