Cosmetic surgery for minors: legal and ethical considerations in breast augmentation

Teenage Breast Augmentation

This is a guideline and template. Please do not use as a final turn-in paper.

A Death Causes Debate

Stephanie Kuleba, 18, went in for a breast augmentation procedure in March, 2008. She died. Though many blamed the surgery itself for her death, it was later discovered that Stephanie had a rare genetic disorder brought on by anesthesia, and that is what killed her. That did not stop the issue from becoming a national debate about minors, which Stephanie wasn't, having such cosmetic surgery. That issue has developed into a discussion of whether or not minors should have any cosmetic surgery, or is it unnecessary and, in some cases, dangerous.

On the Other Hand

Jamie is now a happy, 26-year-old mother who, 10 years ago suffered emotionally with low self-esteem caused by the fact that she was "flat-chested." She counseled with her parents and her doctor for a year before going ahead with breast augmentation surgery.

"It just completely changed my life," she says now. "I went to college just feeling good about myself" (Clough).

About 50% of the augmentation procedures that were accomplished on women and girls under the age of 18 in 2007 were for purely cosmetic reasons. Overall, two percent of the 400,000 women who had breast augmentation procedures in that year were minors (Clough). That's 8000 "girls," or about 4000 who had the surgery for cosmetic reasons alone when you combine those statistics. it's not a huge number. However, if we look at the numbers of minor teenagers who had cosmetic surgery in 2006, including all types, that number expands significantly to just under 100,000 (Mann).

And, perhaps, the most shocking number is that several thousand teenage boys each year have breast reduction procedures -- most purely cosmetic (Duenwald F5).

The question is what are the legal and ethical guidelines, rules, and laws that control medical procedures on minors. We will focus on cosmetic surgery for minors and, more specifically, breast augmentation procedures on minor teenage girls, but many rules apply across the board and affect the rights of minors and parents regarding any medical procedure.

What Are the Issues?

There are a number of considerations when discussing medical procedures on minor children, even though they may be "mature minors" almost merging into adulthood. The issues we will spend the most time on are: parental rights and responsibilities, the minor patient's rights, physician responsibilities/ethics, the medical necessity for the procedure, and the subject of choice when it comes to medical care.

May "mature minors" consent to medical treatment? If a parent refuses a minor, a medical treatment, can a hospital treat the minor anyway? If a parent consents, can the child refuse the treatment? If a minor does not want their parents to know of their medical treatment, can the hospital tell them anyway? These are just a few of the questions we will address.

There are, of course, medical issues, legal considerations, and ethical and moral concerns to deal with when we discuss an issue such as medical treatments, and especially surgeries, for minors, whether "mature" or not. For purposes of our paper, we will spend the most time on legal and ethical concerns.

Focus Statement: Breast augmentation procedures for minors, whether for purposes of low self-esteem or purely cosmetic, are not healthy and should be stopped, or a "cooling off" period should be required prior to a minor receiving the surgery with permission of a parent.

Regarding cosmetic surgery for minors, Dr. Steven Shelov, chairman of pediatrics at Maimonides Medical Center in Brooklyn, says this: "In extreme situations where the size or shape of the nose or ears is really affecting a child's self-image, I believe surgery may be an appropriate thing to do. But with teenagers, in my mind, breast implants have no place whatsoever" (Duenwald).

Parental Legal and Ethical Rights and Responsibilities

U.S. Law does recognize the right of any "right-thinking" competent adult to make their own decisions about their health and any medical procedures or treatments performed on their own body. A child is not a "competent adult" and therefore it is not legal for a child to make such a decision. Modern day specialists in ethics would argue that younger children have the right to say yes to medical procedures, and teens must consent to them. However, laws and court proceedings clearly place the decision-making rights in the hands of the parents.

The law states that the competent parent or guardian is free, and is expected to, choose among whatever medical procedures or treatments are available and select the most appropriate one for the circumstances, and the one that is in the best interests of the child.

This can be both good and bad. It is inherent in the right of a parent to make choices for their minor children including medical procedures and so it is good that it is the parent who must make the decision. On the other hand, it is possible that a parent is making decisions that they feel are in their own best interests according to how they would like their child to look or behave.

In other words, parents can make decisions in favor of unneeded or cosmetic surgeries like correcting a facial feature or giving a boy breast reduction surgery, or a girl breast augmentation surgery just because they think it is best to do so. That is why, it is the responsibility of the parent to allow the teen to come to them first. The American Society of Plastic Surgeons recommends that the teenager initiate any such request. The support of parents is important, but it is the teen who must "own" it. It is something that the teen must have thought about over an extended period of time and strongly desire to do for the right reasons.

This broad authority for parents has been recognized by the U.S. Supreme Court and is deeply-rooted in the concept of family autonomy -- the family as a unit must retain control of decisions regarding the raising of a child. It gives the parents the right, and responsibility, to raise their children without government interference.

However, there are limits to this right. If the state finds that the child is not being raised "in his own best interests," then it can step in and abrogate the parental rights. The state can take children away that have been abused, and it can ensure that minors are vaccinated. It can also take control of a situation where the child is being used by his parents for his or her labor value.

It is becoming clear that, outside of healthcare, children's rights are being expounded, politicized and, to some extent, taken more seriously, particularly in the area of family law.

Legal experts can see the advance of a situation where, in some cases, the child' rights outweigh parents, and the children are beginning to be considered as "independents," instead of dependents.

However, when it comes to healthcare, the Supreme Court has firmly ruled that despite any circumstances, the parents must be the ones to make decisions concerning their child's medical care:

"Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. The child's wishes are essentially irrelevant. The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parents' authority to decide what is best for [a] child" (Parham v. J.R., 442 U.S. 584, 603, 604

(1979)).

There does exist precedent for the limiting of parental rights in this area of healthcare decision-making. Parents do not always have the right to refuse life-sustaining treatment for their child. Their right to say whether a minor child has an abortion is limited. There are some states that give minors the right to make decisions about contraception and drug treatment, and there are a few states who give full decision-making rights to those minors that have been legally freed of control by their parents or guardians (emancipated minors). And there are federal laws that prohibit parents making the final decision in any number of other medical situations.

The point of all this is that, yes, there is precedent, even in healthcare, for some liberalization of parental control and decision-making.

Although the FDA approved saline breast implants only for women ages 18 and older and silicone gel breast implants for women ages 22 and older, it is legal for doctors to perform breast augmentation using either type of implant for teens under 18, as an "off-label" (i.e., not approved) use with parental consent. It is FDA policy to approve medical products for specific uses for which they are proven safe and effective, and to allow physicians to determine if they want to use those products for other medical purposes (Zuckerman and Abraham 318-319).

Parental rights to control medical treatments for their minor children are clear and specific.

The responsibilities of the parent to use that authority properly and in the best interests of the child are just as important. In the case of breast augmentation, the parent must guide the minor to the right decision -- and that is usually not to have the surgery unless it is necessary for the teen's overall health. It is up to the adult to think responsibly. There are dangers to any surgery and infections are not among the least of them. Perhaps low self-esteem is a reason for counseling by a professional, but not necessarily reason to alter one's body artificially.

The ethical responsibilities of the parent in a discussion with their underage teen regarding whether or not to have her breast augmented, are even greater and more impacting than the legal issues.

The 1800 girls under the age of 18 who had their breasts augmented last year alone are under the ethical (and rational) reasoning of the parent. These are the parents who are taking out financing to do the surgery -- which costs in the thousands to do. When ethics and morality enter the picture it is difficult to comprehend all the ways this is wrong-thinking.

Teenagers are at a very vulnerable age, and, for the most part, an immature stage in their lives. They are in the process of acquiring an identity and a set of values which they acquire from their parents for the most part. They also want to be liked and even admired, but definitely respected. The parent has a responsibility here to model some behaviors such as showing and teaching them how to accept who they already are and modeling how to focus on their strengths.

The focus for the parent has to be on the child's -- and yes, they are still children -- self-worth, not on whether they are an a or B. cup. What happens, according to the experts, is that parents who buy into breast augmentation for their teen, who is going through all of this, are helping them to adapt a shallow picture of who women are in society and what their depth of value is to themselves, to others, and to the world.

It is true that, ethically, it is always best to focus on all sides of an issue, and to listen to the validity of all those reasons and arguments that oppose our own. However, it is difficult to understand what the "other" side might be in this argument. And it equally as easy to see that, though the emotional issues for a teen girl are great and easy to succumb to, the ethics -- substitute morality -- call for cool heads and firm leadership on the parents' part.

Minor's Legal and Ethical Rights and Responsibilities

In the medical decision-making world, there are minors, mature minors, and emancipated minors. If a minor is found to be a competent "mature minor" or "emancipated minor" by the courts, they may make certain decisions concerning their own healthcare with or without the consent of parent or guardian.

The courts, over time, have established a policy that allows them to evaluate the status of a minor as to his or her maturity and/or emancipation status: "A minor who is deemed able to understand short- and long-term consequences is considered to be mature and thus able to provide informed consent/refusal for medical treatment. This maturity authorizes the minor to make decisions regarding his or her medical treatment" (Hickey 102). It is a policy that, due to courts in many states following legal precedent, has been adopted by most states, but not all. It is not, by any means, comprehensive permission for a minor to make any and all healthcare decisions for themselves, but it does allow certain freedom of consent to mature teens that had not been existant before.

And when we look at the specific criteria the court has established to determine the capability of a mature minor to make these decisions, it too seems open-ended: a minor must be a minimum age of 14; the minor is capable of giving informed consent; the treatment will benefit the minor; there is no significant risk to the patient; the treatment is an established medical protocol (Hickey).

It is not that these definitions allow too much freedom right now to teens to make their own medical decisions in an area such as breast augmentation, but it leaves an open path to get there in the future. These guidelines, as they exist today, could easily be interpreted to allow a teen to make an independent decision to have breast augmentation with or without parental consent.

Right now, this policy may be put into effect by the courts for venereal disease treatment, contraception, prenatal care, abortion, mental health treatment, emergency care, and alcohol or drug abuse (Hickey 102). As we study this list, we can see that, since mental health treatment is one of those circumstances where a "mature teen" may make their own medical decisions, it is not a far stretch to say that the effects of not getting a breast augmentation can be low self-esteem, loss of self-confidence, and those two can lead to depression -- a mental health issue.

Does a minor have the right to make his or her own medical decisions? Based on our research, in certain cases, the response would have to be "yes." Does a minor have the right to decide for herself whether or not to have breast augmentation surgery without parental consent?

The answer is no, they do not. But the future may hold a different answer.

Ethical rights and responsibilities of the minor as it concerns breast augmentation surgery are significant. As a matter of fact, it is these ethical considerations that go towards determining if a teen is "mature" or "emancipated." Though a teen of this status is able to reason maturely and has the thinking capacity and skill of an adult, what about the ethical and moral implications of breast augmentation that must be a part of any such decision to modify the human body.

Does the teen have the moral responsibility, judgement, and experience to understand the outcomes of their actions and decisions? Teens are volatile emotionally, especially girls. How does this impact their inclination to make a "short-term" emotional decision vs. A longer term, more reasoned, well thought-out approach to the decision?

The legal determination of a teen's capability to make their own decisions about healthcare is relatively straight-forward. Age, competence, and maturity or emancipation status are considered and a decision rendered by the courts. However, the determination is not so easy with the ethical evaluation of the minor's decision-making capabilities.

Shouldn't a responsibility of the "mature teen" be to display an understanding of the purpose of the breast augmentation, its risks, and more importantly, its short- and long-term consequences, and benefits? Isn't it an obligation for the teen to know and understand the alternatives to the procedure? And isn't it imperative that the minor display evidence that they are making an informed decision?

The answer has to be "yes." While the minor patient has certain rights to ethical and legal medical treatment, it would seem that, even in the presence of parental consent, the patient must understand the purpose, risks, and consequences of whatever is being done to his or her body.

And, particularly, in the case of breast augmentation or any surgery, the patient has a responsibility to know the alternatives, such as counseling, to having a surgeon apply the knife and alter her body. Psychiatrists, psychologists, and other professional counselors deal with the trauma of low self-esteem all the time. To use that as the soul excuse for breast augmentation, which is what is often done, surgery seems premature at best.

The American Society of Plastic Surgeons' (ASPS) "Statement of Principle on Informed Consent" lists in detail all of the considerations we mentioned above. It is the doctor's ethical responsibility to ensure the patient has been read or has heard all of that information prior to consenting to the surgery. It is NOT the physician's responsibility to force the teen to understand all that she has been told. Yes, she must sign the document, or the parents or guardian in her stead, but does that fulfill the teen's ethical responsibility?

The reason it is so crucial, especially to a teenage girl, that she understand everything she is being told about the breast augmentation, is that there can be serious complications -- not often -- but any surgery brings risk. And being caught up in the moment of emotion in which she pictures herself with the perfect body and ignores all else, is irresponsible.

As we saw in the beginning of our paper, it is possible that the surgery may have triggered a reaction that caused Miss Kuleba to pass away after having the breast augmentation surgery. We will never know. And that is an extreme to be sure. Potential problems with surgery always include: a bad reaction to anesthesia, bleeding, and infection -- notorious in hospitals.

But there are also surgery specific consequences for breast augmentation: asymmetrical breasts, uneven nipple height, loss of feeling or sensitivity in the breast, loss of capability to breastfeed or limited capacity to do so.

Realizing these are neither legal or ethical considerations, which are the substance of this paper, it is important to realize, without the ethical responsibility on the patient's part to understand all of the consequences, she can be putting herself into jeopardy. By the way, since the informed consent form must be signed indicating these things are understood, this is also a legal responsibility.

More than 9,000 girls between the ages of 13-19 had breast augmentation surgery in 2006.

Almost 14,000 males in this same age group had breast reduction surgery that same year. About 1700 girls went under the knife to have their breasts lifted. Have we discussed surgeons' ethics?

Is There a Medical Necessity for This Procedure...Really?

April 24, 2008. The groundwork was laid today for a legislative ban on cosmetic surgery of teens. Rising numbers of medically unnecessary procedures for minors is cited as the reason to introduce the new law. "I believe that the beauty ideal, mostly for teenagers, but also for children, has gone astray," said health expert Carl Lauterbach (Agence France-Presse Newswire Service).

April 28, 2008. The AMA finally announces its position of teenage breast implants and other cosmetic surgery: "The government will introduce new legislation in July forcing teenagers seeking cosmetic surgery to observe a three-month cooling-off period -- a move it says is aimed at curtailing unnecessary surgery" (Nelson 26). Dr. Andrew Keegan, AMA branch president, said a cooling-off period was 'heading in the right direction', but a total ban was preferable when it came to teenagers.

At last, recognition that breast augmentation surgery and other cosmetic procedures for teens is not medically necessary and will finally be prohibited? Well...yes...but in the first case above, in Germany, and in the second case, Australia. Italy is soon to follow the same path.

But, it is positive evidence that physicians around the world are saying "enough." In the U.S., there are no such movements afoot to halt the procedures on minor girls.

Leo McCafferty, MD, a spokesman for the American Society of Plastic Surgeons (ASPS),

says of the procedure: "We want to make sure that the patient, rather than her mother, say, wants the procedure. I typically meet with patients more than once, to make sure this is what they want, to find out if there are any underlying issues" (Nelson 26). He notes further that if it is the teen pushing for the surgery, it "may" be better to make sure the patient knows that it might be better for her if she waited a few years.

The U.S. standard is: no silicone implants for females under the age of 22, and no breast augmentation for girls under 18. There is no FDA regulation or law regarding breast augmentation for girls under 18, and thousands continue to be done every year.

Frankly, a 30-day cooling off period sounds like a much better solution to a growing and dangerous problem, especially since there has been one indirectly attributed death from the procedure already. And when other advanced countries like Germany, Australia, and Italy determine that banning the procedure is better for its teenagers, perhaps the U.S. should find out what these other countries know and we don't.

In 2004, the ASPS joined the FDA in "adopting a policy" that adolescent candidates for purely cosmetic breast augmentation should be at least 18 years old. In 2008, the ASPS, in a formal statement admitted that they have "no formal position on plastic surgery for teenagers."

And, well in excess of 3000 teenage cosmetic augmentations continue year after year.

There is a difference between plastic surgery and cosmetic surgery. Plastic surgery can be done for medical and health reasons such as removing lesions caused by cancer from the body, reshaping cleft palates, and so many other needed and honestly medical conditions. Cosmetic surgery, in my mind, is strictly for the enhancement of a person's appearance. Its main focus is on restoring "normal" appearance. Its primary target area is the face, though as we have been discussing, not exclusively. Altering the shape or size of the breasts is also considered cosmetic.

Plastic surgery involves the skin. Tummy tucks, otoplasty and removing fat from the stomach or abdomen are examples. We should note that when Australia and Germany consider banning cosmetic surgery, they refer specifically to teenage cosmetic surgery and even more specifically to teenage breast implants. There is no attempt on anyone's part to stop the use of both cosmetic and plastic surgery in cases where a person's health is concerned.

There is little argument that cosmetic breast augmentation, in the large majority of cases, is not and never has been a medical necessity, especially for underage teen girls. It has also been recognized that there are exceptions to that rule. However, those cases, evaluated by a surgeon, are handled on a case by case basis, and would be even if a ban or a 30-day cooling off period were instituted. So, the argument that there is a significant percentage of teen breast augmentation that is "medically necessary" becomes specious, and only an excuse to continue a dangerous practice.

Right to Choose?

The right of an underage girl to choose does not exist when it comes to cosmetic breast augmentation surgery. The parent or guardian, or the state, makes the decision when it comes to medical procedures for minors. As we have said, there are exceptions with mature teens and those judged to be emancipated by the courts. but, generally speaking, no, there is no right of choice for thousands of girls who need permission to have breast augmentation surgery.

If we are addressing the issue of should there be a right to choose cosmetic surgery for underage children, that is a different issue with the same answer. Does a teenage girl in the U.S. have the right to receive an abortion without parental or court consent? No. Should she? Political and religious views aside -- probably not. The same reasoning applies and it has nothing to do with partisan moral feelings. A 15 or 16-year-old girl simply does not have the maturity and breadth of experience necessary to make such a decision. So it is with surgery invading her body. That is why parents, guardians, and the courts have some rights that minors do not.

She does not have the vision, in most cases, to view all of the consequences to the procedure, whether it is abortion or cosmetic surgery. The long-term is difficult for a teen to see because they operate in the present and with emotion, and would rather not look at the negative side of the proposition because it might prove to them that the surgery is a bad idea. it's just the way teens think.

Do most teens consider the fact that the anesthesia alone carries risk? Do they realize the seriousness of perhaps needing additional surgery in 5-10 years? Even though the surgeon explains it, does a 16-year-old comprehend that she may feel hardness in her breasts, and that she could also experience nipple leakage? Is she aware that if she changes her mind and wants them removed, it might cause wrinkling, dimpling or puckering of the breast tissue?

When the surgeon, during his informed consent discussion, told her that, within two or three years her breasts could well develop fully and the surgery would not be required, did she seriously consider that advice? Probably not, because emotion ruled at the moment.

That is why the idea of giving a minor, except in special circumstances, the right to choose, independently, whether she should have cosmetic breast augmentation, is not a good idea.

Conclusion

Our original thesis called for a discussion of teenage breast augmentation towards the perspective that it is unhealthy and should be banned, or at least, the surgery should only be performed after a 30-day "cooling-off" period for the teenage patient.

Evidence and testimony has been presented here that supports that statement. Several European countries have adopted, or will adopt, legislation banning that procedure. Doctors in our own country either do not perform the surgery on minors, or ensure their underage patients understand the consequences. Professional medical associations agree.

Why then, haven't we done anything about it? Do we need another Stephanie Kuleba?