THE BEST INTERESTS STANDARD AND ANTI-DISCRIMINATION IN PAEDIATRIC BIOETHICS AND CANADIAN LAW

This paper considers the application of the best interests standard (BIS) by clinicians, substitute/surrogate decision makers, and judges in what I refer to as "hard cases" in paediatric bioethics and Canadian law. A "hard case" is a case in which a physiologically optimal course of health care is proposed for a child, but the child or their parents object to that care on the ground that it is incompatible with the values associated with the child's cultural, racial, or religious heritage or identity. Hard cases pose a dilemma for clinicians, substitute/surrogate decision makers, judges, and other decision makers between, on one hand, recommending or deciding on health care for a child that promotes the child's best physiological interests and, on the other hand, avoiding discrimination against the child on the basis of the child's heritage or identity. I make two main contributions in this paper. First, I argue that Canadian law on applying the BIS in hard cases is normatively consistent with a widely-accepted analysis of this issue that has developed in the Anglo-North American bioethics literature - what some bioethicists refer to as the "negative analysis" of the BIS. Second, I draw upon Canadian anti-discrimination law and theory to clarify how the value of equality shapes decision making under the negative analysis of the BIS. In so doing, I address how decision makers may conceptually navigate the dilemma posed by the paediatric hard case.