Children and the doctrine of substituted judgement

Abstract

The common law in the United Kingdom dictates that children facing medical treatment should be treated in accordance with their best interests. The Children Act 1989 also demands that the welfare of the child is paramount. However, in light of the creation of saviour siblings after the case of Quintavalle, it is disputed that the donor child is treated in accordance with his/her best interests when undergoing a non-therapeutic procedure for the benefit of another. The Human Tissue Authority (HTA) can, for example, validate a bone marrow harvest on a child created specifically for harvest without the consent of the High Court. The doctrine of substituted judgement was developed in the United States to substitute a previously competent adult decision, but it is proposed that parents of saviour siblings are reviving it in a modified form to install a speculative psychological benefit into the saviour child to satisfy the criteria for a harvest in common law. As a result, there is a glaring discrepancy between the objective jurisdiction of the courts and the validation of non-therapeutic harvesting procedures upon children by the HTA, opening the door to potential legal action.