Bodily Integrity, Embodiment, and the Regulation of Parental Choice

Publication Date01 Dec 2017
AuthorMichael Thomson,Marie Fox
DOIhttp://doi.org/10.1111/jols.12056
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 4, DECEMBER 2017
ISSN: 0263-323X, pp. 501±31
Bodily Integrity, Embodiment, and the Regulation of
Parental Choice
Marie Fox* and Michael Thomson**
In this article we develop a new model of bodily integrity that we
designate `embodied integrity'. We deploy it to argue that non-
therapeutic interventions on children should be considered within a
decision-making framework that prioritizes embodied integrity. This
would counter the excessive decision-making power that law currently
accords to parents, protecting the child's immediate and future
interests. Focusing on legal responses to genital cutting, we suggest
that current legal understandings of bodily integrity are impoverished
and problematic. By contrast, adoption of an `embodied integrity'
model carves out a space for children's rights, while avoiding these
negative consequences. We propose that embodied integrity should
trump competing values in any best-interests assessment where a non-
therapeutic intervention is requested. Drawing on Drucilla Cornell
and Joel Feinberg's theories we argue that protecting a child's
embodied integrity is essential to guarantee his/her right to make
future embodied choices and become a fully individuated person.
501
*School of Law and Social Justice, Eleanor Rathbone Building, University
of Liverpool, Liverpool L69 7ZQ, England
marie.fox@liverpool.ac.uk
** School of Law, Liberty Building, University of Leeds, Leeds LS2 9JT,
England
m.a.thomson@leeds.ac.uk
We wish to thank Charlotte Elves, Tina Martin, and Joshua Warburton for research
assistance, and Jo Bridgeman, John Danaher, Maneesha Deckha, Chris Dietz, Esther
Erlings, Emily Grabham, Michelle Farrell, Ruth Fletcher, Marie-Andree Jacob, Matthew
Johnson, Isabel Karpin, Bob Lee, Sheelagh McGuinness, Jean McHale, Kirsty Moreton,
Muireann Quigley, Rebecca Steinfeld, Mitch Travis, Julie Wallbank, and the anonymous
referees for insightful feedback on earlier drafts.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
INTRODUCTION
While children's rights are now well established in United Kingdom and
international law, there remains uncertainty about their parameters. In
particular, controversy continues to surround the right of parents to take
irrevocable non-therapeutic decisions on behalf of children who lack com-
petence to decide for themselves. In this article we explore the limits that law
does, and should, impose on parental rights to make irreversible decisions
about surgically modifying their children's bodies in the absence of a clear
therapeutic rationale.
1
Specifically, we seek to contest `the extraordinary
power'
2
that law accords parents in this situation, and, in so doing, to examine
the potential of bodily integrity discourse to constrain or limit such power,
thereby generating the space for a more complete realization of children's
rights. The concept of bodily integrity underpins a range of legal doctrines and
this discourse has been prominent in recent legal debates at national and supra-
national level, and in the framing of professional guidance. Indeed, Margaret
Brazier has suggested that bodily integrity may constitute the `core legal
value' underpinning contemporary health law.
3
While recognizing the power
of this discourse, we argue that it is problematic to position bodily integrity as
conventionally understood as a core legal value given its indeterminacy and
cultural contingency, as well as the gendered and racialized ways it operates in
practice. We suggest that many non -therapeutic `embodied practice s'
4
including removal of reproductive orga ns, non-therapeutic normalizing
surgery on intersex bodies, blepharoplasty, limb lengthening, modifying the
facial features of children born with Downs Syndrome, and so forth, prompt
concern about the surgical shaping of children. However, we agree with
Francesca Ammaturo that `the ramifications of the ``right to bodily integrity''
in connection to FGC, circumcision and intersex ``normalising surgeries'' are
numerous and deserve particular attention.'
5
Consequently, in this article we
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1 Clearly the designation therapeutic or non-therapeutic is contested. For example,
whilst some cases of male genital cutting (considered below) are performed for
therapeutic reasons (notably phimosis), in other instances the claims of therapeutic
benefit have been seen to be heavily culturally dependent: see, for example, M.
Frisch et al., `Cultural Bias in the AAP's 2012 Technical Report and Policy
Statement on Male Circumcision' (2013) 131 Pediatrics 796.
2 A. Ouellette, `Shaping Parental Authority over Children's Bodies' (2010) 85
Indiana Law J. 955, at 956.
3 M. Brazier, `Introduction: Being Human: Of Liberty and Privilege' in The Legal,
Medical and Cultural Regulation of the Body: Transformation and Transgression,
eds. S. Smith and R. Deazley (2009) 1, at 7.
4 The term is Carolyn Pedwell's. She uses it to interrogate `those habits, rituals or
performances that are oriented specifically towards intervening in and/or altering the
body': C. Pedwell, Feminism, Culture and Embodied Practice: The rhetorics of
comparison (2010) 132, n. 1.
5 F. Ammaturo, `Intersexuality and the ``Right to Bodily Integrity'': Critical
Reflections on Female Genital Cutting, Circumcision and Intersex ``Normalising
Surgeries'' in Europe' (2016) 25 Social & Legal Studies 591, at 598.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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