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Abstract

During childhood, individuals present some special needs as objects of care, as subjects of universal and unalienable rights, and as agents of singular morality. The particular conditions of childhood merit providing a system of protection that allows children to have their needs covered and assures their development.

Today children have a special legal system based on human rights. However, despite the progress made in the protection of children, since the introduction of the Convention of the Rights of the Child in 1989, the debate is still open on whether children are exempt from these rights, the degree thereof and their applicability.

In this chapter, building on the rights that UNICEF highlighted as core values and considering the focus of rights, ethics and the particular conditions of children, certain key questions are addressed which may be useful in the remaining social debate on the applicability of the rights of children from the basic principles of bioethics. With the input and ideas presented in this chapter the aim is to give a voice to the child, implicating her as a moral subject in processes relating to her welfare, development, health and care.

Introduction

Bioethics as a ﬁeld of applied ethics encompasses reﬂections on and the search for the best decisions regarding to ethical-philosophical problems concerning morality, life, and human relations, revolving fundamentally around the basic principles presented by Beauchamp & Childress, based on justice, autonomy, beneﬁcence and non-maleﬁcence for those involved in a moral dilemma (Beauchamp and Childress 2009).

These principles have evolved over the years and inspired new methods of ethical and philosophical deliberation, moving towards other spheres of bioethics such as civil education, inter-subjectivity of moral concepts, human dignity, and the environment. These methods certainly work for “morally developed” people. For some theorists, such as Kohlberg, moral development is a complex process learned over the course of a lifetime, passing through various stages in which the subject recognizes the social contract. Moral principles of the community require the individual to reach the sixth stage of moral development that pertains to the “morality of universal ethical principles.” The individual deﬁnes ‘good’ and ‘bad’ based on ethical principles chosen by him or herself and is capable of taking moral stances that allow the person to fully experience social rights (Kohlberg 1981).

Analyzing childhood from an ethical philosophical perspective, this stage has been described as being of vital moral consideration, during which time humans display potentiality but still lack self-awareness and rationality, in a philosophical sense. The main thesis driving the formulation of ethical principles is based on the premise of providing a normative framework to protect an individual from threats stemming from human development, especially in modern life (Kohlberg 1981). The brief reﬂection on morality, childhood and rights presented here aims to offer a bioethical perspective on the current value of childhood and the need to consolidate the rights of children, by means of a convergent approach between biolaw, morality, and human development.

Ethicality And Rights In Childhood

When the question is raised in any sphere about what childhood is, one immediately thinks back to that ﬁrst stage of life, of children as developing human beings. Ethicality, as a dialectic unit of morality with sociality, recognizes in childhood its ontological and constitutive freedom leading to a pertinent questioning of the morality of childhood and the theory of rights. The human act is not only subject to the right but also the moral. Both the moral as law, in effect, constitute a normative order, express what must be done, i.e., belong to the category of what should be, and this raises the relative question the rights of children, whose recognition does not arise of conventional morality, in which the individual goodness is provided to the extent that it is able to make use of reason to get a consistent ethical thinking to social norms (Beauchamp and Childress 2009).

The concept of human development goes back to our interest in human needs and capacities. Since antiquity, numerous needs have been described that underlie the human condition, such as: freedom, dignity, and equality. In the Western world, there is a long tradition of philosophers (Aristotle, Plato, Saint Augustine, Saint Thomas, John Locke, Immanuel Kant) who insist that man possesses certain characteristics that, although varied, set him apart from other living beings. For Marx, what sets human beings apart from other living beings is the capacity to create needs and carry out actions to meet them.

However, it was not until the twentieth Century that the ﬁrst systematic and multidisciplinary studies were conducted on human needs. The different strands of psychology have examined the motivations of human behaviour, including, of particular note, the work of Maslow, who set out ﬁve types of basic needs (biological, safety, love/belonging, esteem, and self-actualisation). These studies provide the foundation to theories of human development considered from a general perspective that seek to understand not only the individual human being but also the development of nations and peoples.

The evolutionary theories of Piaget and Kohlberg consider that maturity and moral conscience are acquired during the maturing process and do not appear at a speciﬁc time as deﬁned by law (e.g., 18 years of age). This has given rise to the theory of the “mature minor”, which recognizes the existence of certain rights in children according to the level of observed maturity. The moral subject and the concept of autonomy in minors is a notion that calls upon ethicists to reﬂect on the nature of rights in childhood.

Children currently have a special legal system emanating from human rights and the need to consolidate special needs in this stage of human development, highlighting the child as the subject of care, of inalienable universal rights, and as an individual moral agent. There are situations that warrant providing children with a system of protection that enables them to achieve autonomy and to have their basic needs met in their process of development (Kohlberg 1981).

What Are Human Rights?

Rights are universal, and are valid for all members of humanity, as a family. They are not dependent on gender, race, social class or how useful someone is to society. Rights are indivisible and interdependent, and include all human dimensions, be they civil, political, social, economic or cultural. They become the means by which States and the international community recognise all human beings equally and without distinction, respecting the ideas of human dignity and equality (Sabatello 2009; Jones and Walker 2011). Rights are important, and mark respect for their holders. To deny rights is to question humanity and integrity. For Immanuel Kant, individuals are ends in themselves, and not the means to the ends of others (Invernizzi and Williams 2011).

According to certain theorists the concept of a right is an agreement or “social contract” established between the person who has a right (considered rights holders) and the person or institution with obligations and responsibilities relating to the realisation of this right (duty bearer). An example of this contract and the relationship between rights and responsibilities is represented in the fact that children have the right to an education, but they cannot exercise this right; rather, local and national governments assume responsibility for this provision (Save the Children 2005; Franklin 2002).

Rights are also understood as the power held by a person to do or demand something. Attention has focused on rational and autonomous beings who have the capacity to make decisions and demands in their own name. This theory of power/will is related with a certain level of competency required for the individual to be considered a rights holder; therefore, rationality is deemed to go hand in hand with capacities such as self-sufﬁciency and autonomy. In other words, only those who are capable of claiming, demanding, or relinquishing rights can be holders of said rights (Sabatello 2009).

When speaking of rights, it becomes apparent that these possess certain implicit values. If rights are considered an integral part of human dignity, then equality, respect and the right to freedom must also be advocated. In this respect, there is concern is to ensure that all social agencies adopt the goal of safeguarding equal rights and respect, based on the understanding that one individual’s possession or enjoyment of these does not conﬂict with those of another human being (Invernizzi and Williams 2011; Sabatello 2009).

The rights of children protect the life, freedom, and development of minors. From a moral perspective, these rights are a language used to enable their development in favorable conditions. According to the theory of rights, any democratic society must protect individuals and give them the possibility of achieving their personal life projects. Hence, throughout history this language of rights has served to attain equality, promote fairness, social welfare and the protection of people such as children who deserve to be protected, until they are able to avoid the threats posed by modern society (Elias 2011).

The rights of children are demands prima facie. Some authors assert that rights, at least in some contexts, are absolute. Ronald Dworkin is known for his thesis that rights are “political trumps” of individuals and that social interests cannot subjugate them. Although political decisions generally favor the interests of the community, this author states that the main objective of rights is to prevent the community from acting against individuals. In these current times, there can be no doubt about the important role played by rights when it comes to protecting children from social intrusions. This assumption is endorsed by the idea that rights constitute the foundation of ethical and political theory (Beauchamp and Childress 2009).

On the basis of the previous assumption, one must examine the moral nature that human beings consider that gives the right to life, protection, education, food, health, water, freedom, making no distinction between men and women (Sabatello 2009).

An analysis of this could be explained using the Convention on the Rights of the Child (year?) that deﬁnes a child as a “human being below the age of 18 years” with the same spectrum of rights as adults: civil and political, social, cultural, and economic. In the of children’s rights, a distinction must be drawn between rights of autonomy (also known as rights of participation) and rights of wellbeing (sometimes termed socioeconomic rights) (Roger 1997).

Currently, there is still an on-going debate about whether children are entitled with rights, the degree of such rights, and their applicability. The discussion revolves, speciﬁcally, around the meaning of rights and their function in the context of childhood. There are traditional concepts about “power vs. will” that the child possesses, with advocates for each of these concepts from a theoretical standpoint (Sabatello 2009).

History Of The Implementation Of Children’s Rights

The Convention on the Rights of the Child was not the ﬁrst international instrument about how children should be treated; rather, it was a proposal to create signiﬁcant legislative reform. For example, in 1959 there was a declaration of the rights of children which recognised two rights: the right to a name and the right to a nationality (Sabatello 2009).

In 1948, the United Nations (UN) passed the Universal Declaration of Human Rights that, implicitly, included children’s rights. However, subsequently, speciﬁc needs of children needed to be studied and analyzed separately. A discussion also developed around the rights of children resulting from the 1992 ratiﬁcation of the Convention on the Rights of the Child, drawn up by the UN in November, 1989. This international process, much longer and more drawn-out than the process for individual state policies regarding the protection of children, consisted basically of a change in perspective regarding the relationship established between children and society. It evolved from thinking of children as objects of protection and special treatment to considering them as active subjects, protagonists of their own life and of society. This shift in perspective, which also encapsulated the philosophy underlying the formulation of rights in modern times, consolidated new proposals for the conception of law affecting children and adolescents, institutionalizing the perspective of rights as the way of understanding the role of childhood in society (Roger 1997).

The Convention on the Rights of the Child adopted by the United Nations on the 20th of November 1989 was the result of 10 years of discussions by a UN working group. The committee charged with drafting the text for the rights of children consisted of 43 member states. Other observer states also participated with the capacity to make notes and offer opinions against the consensus of other countries. National Government Organizations (NGOs) played a particularly important role in this process. Although in theory they did not have the right to express their opinion, in practice they made proposals that were considered, providing a neutral view, easing tensions, and creating bridges between the opinions and proposals of Eastern and Western countries (Sabatello 2009; Jones and Walker 2011).

Support for the Convention on the Rights of the Child was universal and gained importance when widespread endorsement was obtained from the countries participating in this project, consolidating a new global proposal. The Human Rights Commission approved the deﬁnitive text of the UN working group shortly after it was completed in the autumn of 1988.

The General Assembly Working Group unanimously approved the agreement, which was signed on the 20th of November 1989. Fiftyeight countries signed the Convention in January, 1990. The Convention entered into force more quickly than any other treaty on human rights, approximately 6 months later (Sabatello 2009).

Four years after the Convention was adopted, 155 States had signed. As of 1995, 170 States adhered to the Convention. By 2001, 191 states, with the exception of the United States of America (U.S.) and Somalia, signed and ratiﬁed the Convention (Invernizzi and Williams 2011).

There has been no other treaty on human rights in which the majority of countries made observations or statements about the Convention in order to reach an agreement on the ﬁnal wording of the included rights. The working group always sought consensus and a ﬁnal vote on the text (Sabatello 2009; UNICEF 2009).

The United Nations Committee on Children’s Rights is responsible for reviewing how individual countries safeguard and guarantee these rights as well as delineating speciﬁc situations presented by countries regarding the implementation of the Convention (UNICEF 2009).

With the Convention, children have a series of economic, social, cultural, civil, and political rights bestowed on all children without exception. The rights reﬂected in the Convention have been deﬁned for individuals under the age of 18 and divided into a number of articles (54 articles). The Convention has also attempted to build a model that grants children individual non-transferrable rights that can be easily understood by everyone (Jones and Walker 2011).

This present day treaty endeavours to promote a vision of child welfare from the terrain of human rights, inﬂuencing politics, legislation, and research, with repercussions on a global, national, regional, and local level (Sabatello 2009).

Development And Implementation Of Children’s Rights

The international scope of the Convention on the Rights of the Child means that governments must ratify the agreements established under the purview of the Convention in order to ensure the conditions and rights of childhood. It is important to note that the different areas envisaged within these rights are implemented differently depending on the political, social and economic context of each of the societies (Sabatello 2009; Jones and Walker 2011).

For example, in some societies, the main focus of attention is on child labor or poverty, In other contexts, debates about rights change are more closely related to the participation of children regarding access to social services and health. The actions developed achieve success through pressure and debate involving children and young people, lobbying groups, workers, and governments (Jones and Walker 2011).

By virtue of the Convention, the rights of children must be applied without discrimination of any kind. All actions and policies must be guided by the higher interest of the child; participation of children must always be sought and all actions must point towards the survival and development of children. Rights that are frequently assigned to children are universal in their scope. They are applied to all children in all jurisdictions and at all times (UNICEF 2009).

The Convention on the Rights of the Child also determines certain responsibilities and special limitations regarding the interests that socially mobilize the rights of children. Children are expected, in response to their rights, to develop respect for their parents, their cultural identity, language, and the natural environment (Sabatello 2009).

One of the needs of human beings and particularly children is to enjoy suitable conditions where they can relate with others of the same age, and with adults, giving them the opportunity to experience situations and feelings that give meaning to their life and allow them to ﬁnd meaning in their existence. Their development enables children to consider their rights and know implicitly which areas protect them at a legal level (Elias 2011).

Throughout the 54 articles that comprise the Convention, children are recognised as individuals with full rights to physical, mental and social development, and also with the right to freely express their opinions. The Convention contains four principles that should govern the implementation of all the rights it establishes. These principles are located in speciﬁc articles and are as follows:

– Non discrimination or universality (Article 2)

– Best interests of the child (Article 3)

– Right to life, survival, and development (Article 6)

– Respecting the child’s point of view (Article 12) (UNICEF 2009)

In sum, the Convention constitutes a model that provides legitimate social guidelines for safeguarding the health, survival and progress of humankind.

Principles Of Bioethics Application To Children

Based on the rights highlighted by UNICEF as the core principles, and considering the focus on rights, ethicality, and childhood applied here, the following sections focus on the basic principles of bioethics beneﬁcence and non-maleﬁcence, autonomy and justice -examining some of the questions that might be useful and shed light on the social debate often sparked by children’s rights. The participation of the child in regards to decision-making has also been included, considering this to be a fundamental aspect of bioethics giving a voice to children and involving them as moral subjects.

Beneficence And Childhood

Beneﬁcence is the obligation of any human being to do good to others, causing maximum beneﬁts and minimum harm. It is a broad principle that, on the one hand, highlights elements that imply beneﬁcial action such as preventing harm or damage, restricting damage and doing or fostering good, and on the other hand, insists on the need to omit actions that may cause damage or prejudice. This latter aspect of beneﬁcence is what some authors have expressed as a separate principle called non-maleﬁcence (non-harm). The aim is to seek the greatest possible good for human beings (Beauchamp and Childress 2009).

The principle of common good encompasses all conditions of social life with which people, families, and associations can achieve their own improvement with greater plenitude and ease (Sison and Fontrodona 2012). Childhood, as a stage in the moral development of an “imperfect” human being, is subject to moral consideration. According to Aristotle, the act of a child is the potency of a human being with conventional moral development. Based on Aristotelian metaphysics, Roger has explained that the human capacity for morality exists in childhood; this capacity represents a certain kind of non-being which is relative rather than absolute, but which is as real as any other aspect we might consider in the moral development of an individual with postconventional morality (Roger 1997).

For Beauchamp & Childress, beneﬁcence is a virtue-based principle of bioethics, although philosophers such as Bentham have employed the concept to identify positive obligations between human beings From the moral point of view, even without explaining the notion of childhood and morality, various rules of beneﬁcence make an important contribution to the construction of morality and the common good in childhood (Beauchamp and Childress 2009).

One critical aspect of modernity in relation with beneﬁcence in childhood is the question of paternalism. as trend that entails a reduction of freedom and autonomy of the person; antipaternalists consider that strong paternalistic intervention violates individual rights and limits social development and the expression of autonomy by not considering the child to be a moral being. “Hyperpaternalism”, as deﬁned by Michael Sandel, is a derivation of the overprotection expected in childhood, and formulates moral dilemmas related to the search for our own improvement as a species (Sandel 2007).

As a consequence of the traditional paternalist model imposed in the study of pediatrics (Frankel et al. 2009), based only on the notion that childhood has always been a socially moral problem, owing to the fact that it not situated in its own stage, this stage is never judged without restrictions or prejudices, with many theoreticians deﬁning it from the start as a stage of incapacity or irrationality. Only very recently has it been reinvented and innovated, by means of different ideas about ethics and morality, developed through axiological pluralism that continues to advance over time, and which broaches, for example, the doctrine of the ‘mature minor’ (Sandel 2007).

Autonomy And Childhood

In the majority of societies, children, are considered subjects incapable of making decisions. In this respect, depending on the culture, there are different deﬁnitions of childhood and the age of maturity. During the period of childhood, children are assumed to lack rationality and the wisdom required to know what is best for them, in other words, to look out for their own best interests. Socially, they are considered subjects that need to be cared for and protected, sometimes even from themselves (Sabatello 2009; Save the Children 2005).

This principle of autonomy refers to the integrity of human life and the personal of a particular subject. This concept is occasionally considered and transferred within the process of informed consent. This must be considered in the case of any medical treatment. Patients must receive sufﬁcient information about the procedures to enable them to freely make a medical decision (Sabatello 2009).

The literature includes broad-reaching debates and approaches to the matter of who is the most appropriate person or body to make medical decisions on behalf of the child, looking to describe ultimately the best interests for his or her protection and wellbeing. Analysis of this matter refers to the triad of the child, parents or guardians, and the State. This prospect raises several questions about the principle of autonomy – are the parents or guardians the ‘right’ people to make decisions on behalf of the child? How can a balance be struck between the interests of the parents and the conﬂicts these interests might cause in the child? In which situations should the State assert its power and intervene in the family’s decision-making on behalf of the child? (Sabatello 2009).

In Western societies, parents have traditionally been their children’s primary caregivers, and are therefore considered as those who always defend and safeguard their interests. They are in the best position to know what is best for their children’s welfare. This premise is grounded in the concept of the family as the fundamental unit of society in which parents have the power to decide on behalf of their children, ensuring their safety, Parents are assumed to share the same interests as their children. They are given the beneﬁt of the doubt and it is assumed that they will act in the best way, watching out for the welfare and wellbeing of their children. As the main protectors of the family unit, they are considered to have the right and duty to determine family matters without the need for external intervention (Save the Children 2005; Sabatello 2009).

However, in recent decades, the decision-making power of parents over their children has been called into question, particularly in Western countries. In some circumstances, doubts have emerged about the reliability of parents as adequate proxies for their children and about the utility of their interventions. Faced with this situation, States are increasingly invoking their power as “parens patriae”, protectors of children. By virtue of this power, when the medical decision of the parents does not appear to be in the best interest of the child, the State can intervene and annul the decision (Sabatello 2009).

Questions often arise regarding the legality of informed consent and the consideration given to the authorization of the parents regarding certain procedures and medical decisions. Rationality or irrationality demonstrated by the parents who make decisions related to the health of their children frequently surfaces in controversial situations (Sabatello 2009). In this context, the literature distinguishes between three categories of negligence regarding the health of the child: parental negligence, parental use of traditional medicine, and practices ordered by religion or culture. In these three controversial situations the State can intervene. In some cases, negligence is assumed to be a symptom of parental dysfunction, and the State ﬁnds it easy to justify its intervention in family matters (Sabatello 2009). Part of the controversy stems from the lack of universally accepted criteria that determines which behaviors and practices could be considered as negligence or abuse. Different communities differ in their parenting practices and in terms of the limits of socially acceptable behaviors, which leads to a need to analyze “acts” related to abuse or negligence in the cultural context (Sabatello 2009).

Justice And Childhood

Some philosophical approaches point to justice as the ﬁrst virtue of social institutions, which leads to a consideration of the social contract as a source of agreements. Beauchamp and Childress (2009) understand justice to be fair and appropriate treatment, considering what is right and ﬁtting for a person, and the values that constitute the premises of distributive justice. According to these authors, justice refers to impartial, fair, and appropriate distribution in society, determined by justiﬁed norms that structure the terms of social cooperation. This approach constitutes the foundation of systems of social protection that represent the most common means of accessing state systems, with a view to ensuring a digniﬁed life for citizens (Beauchamp and Childress 2009).

Society is established in a unique and incommensurable way, so that there are no two societies with characteristics that mark them out as equal, especially when childhood as a social construct is measured by different habits, rituals, customs, traditions, and beliefs, with expressions of differentiation such as language, behaviors, social norms, as well as the morality. Norbert Elias, looks at the position of justice in society as a symbol of that which enables human beings to achieve self-realization, regardless of others. Discussions about the relationship of the child and society are measured by existing mechanisms of power in the community, in which tensions between childhood and society emerge, originating in the struggle for power between human groups (Elias 2011).

According to Habermas the concept of human rights and by nature the rights of children did not originate in morality, but rather in juridical sources. They belong structurally to a positive and coercive legal order, which grounds pretensions for legal actions. However, even if they originated outside of the moral sphere, this does not prevent them from being morally justiﬁed, on the basis of the principle of social justice. The meaning of “basic rights” must be taken as the starting point, on the basis of which one strives towards an absolute foundation for the majority of these rights. Habermas follows Kant’s perspective according to which men have inalienable and absolute rights, with the purpose of bestowing upon all beings the same conditions by virtue of their morality and nature, this being a general rule for the formulation of rights of children (Habermas 1984).

Minors can be consulted on issues that affect them, and so that their views are taken into account. They have the right to be protected by the social systems that support equal access to goods, in accordance with a moral force that takes vulnerability as well as the child’s best interests into account. Since part of the substantive problems of social justice concerns theories of equal justice, this principle should guide the formulation of rights and their application in an analysis of the most pressing problems of childhood (Roger 1997).

Participation And Childhood

There is increasing recognition regarding the importance of participation of children in diverse contexts and involvement in decision-making. For example, in some societies, they must currently be involved in in community development and participates in certain public services, in family relationships, and education, among others. The right to participation, elaborated in Article 12 of the Convention on the Rights of the Child, must be considered equivalent to the participation of members of minority groups (Jones and Walker 2011). In Western societies, children are becoming increasingly involved in research and their representation in the biomedical context is accepted and assumed; therefore, emphasis must be placed on the competency of the child within informed consent (Sabatello 2009).

It has been shown that from the age of 8, decision-making capacity is not substantially different from that of adults. For example the capacity to make decisions about medical treatment (non urgent) in children aged between 8 and 15 has been examined. When dealing whit these treatments certain elements should be considered (1) including adequate communication media in the process to ensure the child has understood correctly, and (2) the consent of the child, who should be encouraged to participate. In this respect, it should be pointed out that children develop this competency through relationships with others, their experiences, and knowing the limits of their behavior (Sabatello 2009).

Taking into consideration the provisions established in the Convention on the Rights of the Child, there are texts that discuss the meaning of the participation of children and propose three categories of participation are proposed, consultative and initiative participation, and self-advocacy promotion. The ﬁrst is consultative participation. Adults must initiate the process of obtaining information from children with a view to improving legislation, policies, or services. It should be noted that this process is still dominated by the conventional structure of power in relations between children and adults. Adults direct these processes and thus play a more decisive role in the outcome; consequently, when assessing the result, the child’s role is usually secondary or may seem irrelevant (Gerison 2001).

The second category is termed participation initiatives. The aim is to increase the opportunities open to children to understand and apply democratic principles and their participation in the development and impact of policies and services. In this category, even though adults are responsible for determining the initiatives, there can be a partnership of collaboration between adults and children. The third category is promoting self-advocacy. In this category, the aim is to empower children so they can identify how to achieve the fulﬁlment of goals and initiatives (Gerison 2001).

Finally, it is important to consider that the international community is responsible for establishing rules so that States can safeguard the fulﬁlment of their obligations with regard to the Convention on the Rights of the Child, including the child as a participative subject and exploring questions and matters that arise around this issue (Gerison 2001).

Conclusion

Childhood as a social concept has a historic and cultural nature; hence its different appreciations in history, in modernity, and in modern political philosophy. The issue of rights in childhood assumes infrahuman equality.

Children are the most vulnerable subgroup in society. Despite the recognition of children as holders of rights, their capacity to give their opinions and express themselves is still questioned in some spheres of twenty-ﬁrst century society. In particular, their participation in decision-making related to their health is questioned. Consequently, whilst children are the ﬁrst to be exposed to religious and cultural practices that might endanger their health, they are also the most invisible members of the family and communal group, placing them at double and triple levels of vulnerability. The discussion concerns the role of parental and/or State authority, reviewing its function and proposing strategies that promote children’s participation in everything that affects them.

The question regarding the moral status of childhood is still a critical matter in moral philosophy, in which the rights of children are viewed from a normative perspective, allowing an opening up towards an understanding of urgent and priority social issues that lead to scenarios of biological, political, and moral conﬂicts of great magnitude and which, under the deliberative methodology of Bioethics, could ﬁnd a path to conciliation.

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