The late discovery of adoptive and donor insemination offspring status : ethical implications for conceptual understandings of the ‘best interests of the child’ principle

Late discovery is a term used to describe the experience of discovering the truth of one’s genetic origins as an adult. Following discovery, late discoverers face a lack of recognition and acknowledgment of their concerns from family, friends, community and institutions. They experience pain, anger, loss, grief and frustration. This presentation shares the findings of the first qualitative study of both late discovery of adoptive and donor insemination offspring (heterosexual couple use only) experiences. It is also the first study of late discovery experiences undertaken from an ethical perspective. While this study recruited new participants, it also included an ethical re-analysis of existing late discovery accounts across both practices. The findings of this study (a) draws links between past adoption and current donor insemination (heterosexual couple only) practices, (b) reveals that late discoverers are demanding acknowledgment and recognition of the particularity of their experiences, and (c) offers insights into conceptual understandings of the ‘best interests of the child’ principle. These insights derive from the lived experiences of those whose biological and social worlds have been sundered and secrecy and denial of difference used to conceal this. It suggests that acknowledging the equal moral status of the child may be useful in strengthening conceptual understandings of the ‘best interests of the child’ principle. This equal moral status involves ensuring that personal autonomy and the ability to exercise free will is protected; that the integrity of the relationships of trust expected and demanded between parent/s and children is defended and supported; and that equal access to normative socio-cultural practices, that is; non-fictionalised birth certificates and open records, is guaranteed.

The best interests of the child? The stolen generation in Canada and Australia

Key cases in Australia and Canada dealing with litigation undertaken by members of the stolen generations - considers vicarious liability, non-delegable duties and duty of care - while plaintiffs in leading Canadian cases were successful under at least one of their heads of claim, there were inconsistencies - Crown's liability for the Aboriginal residential school experience is unresolved - key Australian decisions where plaintiffs' claims against the Crown for vicarious liability and breaches of duty of care were rejected.

Foucauldian analysis and 'the best interests of the child'

In this thesis I have developed a theoretical framework using Michel Foucault’s metaphor of the panopticon and applied the resulting discursive methodology to prominent risk assessment texts in Tasmanian Government child protection services. From the analysis I have developed an innovation poststructural practice of discursive empathy for use in child protection social work. Previous research has examined discourses such as madness, mothering, the family and masculinity using Foucault’s ideas and argued that each is a performance of social government. However my interest is in ‘the best interests of the child’ as governmentality; risk as the apparatus through which it is conducted and child abuse its social effect. In applying a discursive analysis, practices of risk assessment are therefore understood to actually produce intellectual and material conditions favourable to child abuse, rather than protect children from maltreatment. The theoretical framework produces in this thesis incorporates three distinct components of Foucault’s interpretive analytics of power: archaeology, genealogy and ethics. These components provide a structure for discourse analysis that is also a coherent methodical practice of Foucault’s notion of ‘parrhesia’. The practice of parrhesia involves social workers recognised that social power is subjectively dispersed yet also hierarchical. Using this notion I have analysed ‘the best interest of the child’ as a panopticon and argued that child abuse is a consequence. This thesis therefore demonstrates how child protection social workers can expose the political purpose involved in the discourse ‘the best interests of the child’, and in doing so challenge the hostile intellectual and material conditions that exist for children in our community. In concluding, I identify how discursive empathy is a readily accessible skill that social workers can use to practice parrhesia in a creative way.

Family breakdown, the best interests of the child concept, and the legal system

It appears that the legal system's response to the issues relating to family breakdown and "the best interests of the child" concept can sometimes be inadequate. There also appears to a lack of consistency with regards to enforcing the best interests of the child concept in legal proceedings concerning children.

An evaluation of the implications of the best interests of the child principle in the context of same-sex parenting in Ireland

Same-sex parenting is by no means a new phenomenon but the legal recognition and acceptance of gay and lesbian couples as parents is a relatively recent development in most countries. Traditionally, such recognition has been opposed on the basis of the claim that the best interests of children could not be met by gay and lesbian parents. This thesis examines the validity of this argument and it explores the true implications of the best interests principle in this context. The objective is to move away from subjective or moral conceptions of the best interests principle to an understanding which is informed by relevant sociological and psychological data and which is guided by reference to the rights contained in the UN Convention on the Rights of the Child. Using this perspective, the thesis addresses the overarching issue of whether the law should offer legal recognition and protection to gay and lesbian families and the more discrete matter of how legal protection should be provided. It is argued that the best interests principle can be used to demand that same-sex parenting arrangements should be afforded legal recognition and protection. Suggestions are also presented as to the most appropriate manner of providing for this recognition. In this regard, guidance is drawn from the English and South African experience in this area. Overall, the objective is to assess the current laws from the perspective of the best interests principle so as to ensure that the law operates in a manner which adheres to the rights and interests of children.

Is providing elective ventilation in the best interests of potential donors?

In this paper, we examine the lawfulness of a proposal to provide elective ventilation to incompetent patients who are potential organ donors. Under the current legal framework, this depends on whether the best interests test could be satisfied. It might be argued that, because the Mental Capacity Act 2005 (UK) (and the common law) makes it clear that the best interests test is not confined to the patient's clinical interests, but extends to include the individual's own values, wishes and beliefs, the proposal will be in the patient's best interests. We reject this claim. We argue that, as things currently stand, the proposal could not lawfully be justified as a blanket proposition by reference to the best interests test. Accordingly, a modification of the law would be necessary to render the proposal lawful. We conclude with a suggestion about how that could be achieved.

Management renewal? Consequences of the new conception of the “best interests of the corporation” in North American and French Corporate Law

Corporate law integrates a stakeholder conception through the comprehensive meaning of the best interests of the corporation. In this paper, I address criticisms about classical definition of the firm’s purpose. Even if American law is more discreet and uncertain, it is possible to defend a broad conception of the best interests of the corporation. The interests of Canadian and French firms include their partners. While the notion of intérêt social is debatable in France, Canada has recently modified its point of view regarding the purpose of the firm. Indeed, the decision of the Supreme Court of Canada Magasins à rayons Peoples Inc. (Syndic de) v. Wise in 2004 changed the concept of corporate law. With respect to fiduciary duties, the Supreme Court set aside the traditional interpretation of the “best interests of the corporation” which gave primacy to shareholders’ interests. The Court held that the expression “best interests of the corporation” refers to the maximization of the corporation’s value. This innovative vision of the best interest of the corporation introduces stakeholder theory and corporate social responsibility (CSR) into corporate law and provides a new field for the firm’s management to frame their responsibilities. This paper concludes with an extended discussion of the implications of stakeholder and CSR influence for the future of corporate law, economy and financial researches.

Living with Uncertainty: Acting in the Best Interests of Women

A recent multi-country study on hormonal contraceptives (HC) and HIV acquisition and transmission among African HIV-serodiscordant couples reported a statistically significant doubling of risk for HIV acquisition among women as well as transmission from women to men for injectable contraceptives. Together with a prior cohort study on African women seeking health services, these data are the strongest yet to appear on the HC-HIV risk. This paper will briefly review the Heffron study strengths and relevant biological and epidemiologic evidence; address the futility of further trials; and propose instead an alternative framework for next steps. The weight of the evidence calls for a discontinuation of progestin-dominant methods. We propose here five types of productive activities: (1) scaling injectable hormones down and out of the contraceptive mix; (2) strengthening and introducing public health strategies with proven potential to reduce HIV spread; (3) providing maximal choice to reduce unplanned pregnancy, starting with quality sexuality education through to safe abortion access; (4) expanding provider training, end-user counseling and access to male and female barriers, with a special renewed focus on female condom; (5) initiating a serious research agenda to determine anti-STI/HIV potential of the contraceptive cervical cap. Trusting women to make informed choices is critical to achieve real progress in dual protection.

“Best interests” and withholding and withdrawing life-sustaining treatment from an adult who lacks capacity in the parens patriae jurisdiction

Disputes about withholding and withdrawing life-sustaining treatment are increasingly coming before Australian Supreme Courts. Such cases are generally heard in the parens patriae jurisdiction where the test applied is what is in the patient’s “best interests”. However, the application of the “best interests” test, and its meaning, remains unclear in this context. To shed light on this emerging body of jurisprudence, this article analyses the Australian superior court decisions that consider an adult’s best interests in the context of decisions about life-sustaining treatment. We identify a number of themes from the current body of cases and consider how these themes may guide future decision-making. After then considering the law in the United Kingdom, we suggest an approach for assessing best interests that could be adopted by Australian Supreme Courts. We argue that the suggested approach will lead to a more structured and systematic decision-making process that better promotes the best interests of the patient.

Pediatric donation after circulatory determination of death: Respecting the interests of children through routine consideration of donation opportunities

Overby and colleagues (2015) highlight the complexities of consent to or authorization for organ procurement in the setting of controlled donation after circulatory determination of death (cDCDD). They note that decision making about cDCDD is complicated by clinical uncertainties and ethical controversies regarding protocols for the determination of death by circulatory criteria and the use of perimortem interventions to support organ procurement, and that these uncertainties and controversies may be exacerbated in the pediatric context. Suggesting that parents and clinicians may “unconsciously” compromise the best interests of their own children and patients in order to achieve organ procurement goals, Overby and colleagues argue that children are at risk of instrumentalization when the option of cDCDD is presented. This claim is further grounded in their belief that children lack autonomy and can have no interest in becoming organ donors. In this commentary, we contest these assumptions, the implications of which extend beyond cDCDD and threaten to undermine programs of pediatric deceased donation, including donation after the neurologic determination of death (DNDD). We argue that routine consideration of the possibility of organ donation by critically ill children is consistent with respect for children’s best interests and, most importantly, their human dignity.

The Best interests duty in the future of financial advice reforms : striking a balance between certainty and flexibility

Presentation delivered to the Australian and New Zealand Consumer Law Roundtable held at the University of Melbourne Law School on Friday, 16 November 2012. The paper covers the background to the 'Future of Financial Advice' reforms and their context. In addition to this the scope of best interests duty is discussed. The paper concludes with an assessment of the likely effectives of best interest duty as a consumer protection measure.