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17 Med. L. Int'l 3 (2017)

handle is hein.journals/medclint17 and id is 1 raw text is: MEDICAL LAW Article INTERN ATION AL Medical Law International 2017, Vol. 17(1-2) 3-42 Best interests: The 'best' way @ The Author(s) 2017 Reprints and permission: for courts to decide if young sagepub.co.ukl/journalsPermissions.nav DOI: 10.1177/0968533217694218 children should act as bone journals.sagepub.com/home/mli marrow donors? OSAGE Shih-Ning Then Queensland University of Technology, Australia Abstract Young children who are called upon to donate regenerative tissue - most commonly bone marrow -to save the life ofa sick relative are in a unique position. The harvest of tissue from them is non-therapeutic and carries the risk of physical and psychological harm. However, paediatric donation is relatively common medical practice around the world. Where some doubt exists over the legality of allowing a child to donate, courts can be asked to authorize the procedure and in doing so will apply the 'best interests' test in making their decision. How are a young child's rights recognized in such a situation? This article considers whether the best interests test is the 'best' test to be applied by courts when cases of potential child donors come before it. The approach of courts in three jurisdictions is analysed, and problems in the application ofthe test in this context are discussed. While the continued use of the test by courts is supported, the way the test has been used by courts is critiqued and recommendations made to better respect the rights of the potential donor child. Keywords Best interests, bone marrow donor, child donors, children's rights, court cases Received 13 March 2016; Revised 7 January 2017; Accepted 26 January 2017 Introduction Children who act as regenerative tissue donors - providing bone marrow or periph- eral blood stem cells (PBSCs) - can potentially save the life of another. The great Corresponding author: Shih-Ning Then, Australian Centre for Health Law Research, Faculty of Law, Queensland University of Technology, GPO Box 2434, Brisbane, QLD 4001, Australia. Email: shih-ning.then@qut.edu.au

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