Medical Decision-Making on Behalf of Children in China: A Multi-dimensional Analysis of Parental Authoritarianism

Abstract

The issue of medical decision-making on behalf of children has attracted extensive attention due to the English cases of Charlie Gard or Alfie Evans. Although there are close to 400 million children in China, the following issues have not been much discussed among scholars and the public in the country: Do Chinese children have the right to patient autonomy? Given the developing autonomy of children associated with their age and maturity, to what extent should they participate in medical decision-making? How should disagreements between minor patients, their guardians and medical practitioners be solved? How should their parents or guardians as legal representatives make proxy medical decisions when children are unable to decide for themselves? What are the proper roles of the state (the judiciary in particular) in protecting children in cases involving medical decision-making on behalf of children? Had cases similar to those of Charlie Gard or Alfie Evans occurred in China, would courts intervene in parental decisions? And if so, how? Under Chinese law, as children lack full legal capacity to make medical decisions, it is their guardians (in most cases parents) as legal representatives who make a proxy decision on their behalf. Although Chinese law explicitly requires guardians to exercise their responsibilities of guardianship in accordance with the child’s best interests and also requires the child’s will to be respected in the light of the child’s age and intelligence when making a proxy decision, in reality, the parents retain authoritarian power and there has been no case of judicial intervention even when the parental medical decision appears prejudicial to the child. This paper reports a multidimensional analysis of the gap between the law and the practice of medical decision-making on behalf of children in China. A number of factors combine to contribute to parental authoritarianism, including the medical care insurance system, the sociolegal responsibility for protecting child welfare, utilitarian familism, the strained patient–doctor relationship, and the civil procedure law. It also argues that the Chinese government (through the judiciary in particular) should meet its responsibilities and serve as a safety valve to protect children when medical decisions are made on their behalf.

Keywords: Medical decision-making on behalf of children, parental authoritarianism, responsibility for protecting child welfare, utilitarian familism, judicial intervention, China

JEL Classification: K36