A right to bodily integrity – Some complications

Abstract

A recent thematic issue of Clinical Ethics contains a number of papers on bodily integrity in paediatric populations. The papers assume that defining ‘bodily integrity’ is a simple matter, and that the main ethical and legal issue is to define when breaches of bodily integrity in pre-autonomous children can be justified. This paper will argue that defining bodily integrity raises specific problems in the paediatric context because the child has a body that is continually developing. The problems will be illustrated by analysing one of the commonly used definitions in the literature, and by considering the developing brain as a body part.

They fuck you up, your mum and dad.

They may not mean to, but they do.

They fill you with the faults they had

And add some extra, just for you. ¹

I’ll pour this pestilence into his ear ²

A recent thematic issue of Clinical Ethics contains a number of papers on bodily integrity in paediatric populations. ³ In these papers, it is implicitly assumed that it is a relatively simple matter to define bodily integrity and to identify the kinds of actions that infringe the right to bodily integrity, and the papers are primarily concerned with (1) elucidating when an infringement of this right can be justified, that is, when an infringement constitutes a wronging, and (2) analysing the correct legal response when a wronging has been identified.

In this short paper, I will first argue that neither the definition of bodily integrity nor the identification of actions that infringe the right to bodily integrity is straightforward, and that specific problems arise in the paediatric context because the child has a body that is continually developing. In the second part of the paper, I will then briefly consider some complications that arise if we focus on a specific sub-part of bodily integrity, that is, brain integrity. The paper will focus on the right to bodily integrity as a moral right, since any analysis of the corresponding legal right would have to be at least partly jurisdictionally specific. ⁴ Many of the arguments presented here will, however continue to be valid in relation to Herring & Wall's preferred legal definition:

The right to bodily integrity is the right to exclude all others from the body, which enables a person to have his or her body whole and intact and free from physical interference. ⁴ (pp 580–581)

The definition of bodily integrity

A commonly used definition of bodily integrity in medical ethics is the stipulative definition provided by Earp in a highly cited 2019 paper:

Let's say that bodily integrity (BI) refers to the physical state of being all in one piece, unbroken, undivided, intact. So, skin puncturing of any kind would negate this. What about borderline cases, like if I jam my finger in your ear? I’d have entered your bodily sphere, in some sense, and if you don’t want my finger there, I am most likely wronging you in some way. But it isn’t clear whether I am actually infringing on your ‘bodily integrity’ as we have defined it. So let's just stipulate that any intentional (or negligently accidental) penetration into a bodily orifice, breaking of the skin, or alteration of your physical form, counts as a BI infringement . ^{5 (p218), first emphasis in original, second emphasis mine}

There are at least two ambiguities in this definition, that is, (1) what counts as a ‘penetration into a bodily orifice’, and (2) what counts as an ‘alteration of [a person's] physical form’?

A penetration plausibly has to be physical, but it does not have to be done with a body part of another person, it can be done with a solid or liquid object. To continue with Earp's example, I can, for example, penetrate your ear with an otoscope or with olive oil to loosen your ear wax. Slightly more interesting is that it is also possible to penetrate your ear physically with airwaves (i.e. sound). If an external explosion causes your eardrum to rupture, it is because your ear has been penetrated by a physical force. And, other forms of physical waves can penetrate more or less directly through the skin and tissues (e.g. ultrasound, electromagnetic radiation at appropriate wavelengths), as can very small physical objects like the particles constituting alpha and beta radiation. There seem to be no in principle reason why only ‘penetration into a bodily orifice’ should count as potentially wrongful penetration, and not, for instance, any penetration through the skin even if it causes no breaking of the skin.

Similarly, there is a specific interpretative problem in relation to what counts as an alteration of a person's physical form in the paediatric case. The form of your body when you reach adulthood will be determined by the totality of the environmental influences during your gestation and childhood, and their interaction with your genome and epi-genome. Your adult height will, for instance, to a large extent be determined by nutrition and childhood diseases, but does that mean that current Dutch 21-year-old men who are on average the tallest in the world have an unaltered form, and those in 1858 who were on average 21 cm shorter an altered form, or should the physical form of a child that is relevant to a determination of BI infringement be understood relative to the child's environment ⁶ ? Or what about physical activity and training? Some forms of physical activity and training are directly aimed at altering your physical form, body-building being the most obvious example, but many others alter your physical form as an, at least to some degree, unintended side-effect of the activity. Such changes can even be recognised and utilised when analysing skeletal remains in archaeology.^7,8 There is no uninfluenced or neutral path to body development in childhood, and at least some of these influences will necessarily be intentional. All parents either encourage or discourage particular forms of physical activity and thereby affect the physical form of their child. This seems to indicate that it would be absurd to claim that all of these alterations of physical form are BI infringements that are prima facie rights violations unless they can be justified. They may, of course, be rights violations if they are harmful, but in that case, it is the harm that is doing the normative work and not BI.

Finally, there is a problem in counting even minimal breaking of the skin as a BI infringement if we want to argue, as many want, that any BI infringement in childhood needs a very strong justification. The problem occurs if we accept an account of moral responsibility where an agent is morally responsible for the foreseeable consequences of their actions. Parents allow and, in some cases, encourage their children to participate in sports and other physical activities where there is a non-negligible chance of a breaking of the skin occurring. The skin might be broken by contact with another player, by contact with the playing surface, by contact with an external object (e.g. a thorn or a splinter), or by the bursting of a blister caused by the activity, etc. In such cases, the parent would be responsible for the BI infringement because it would not have happened had they not permitted and/or encouraged the child to engage in the activity. But it seems odd to require a particularly high level of justification for allowing your six-year-old to join the scouts on a hike through the forest. A parent seems to have perfectly adequate justification if they have balanced the risk of a minimal break in the skin against the enjoyment of the activity, and possibly in English weather, its character-building effects.

Brain integrity

In the following section, I will assume that the encoding of long-term memories and any kind of (semi-)permanent learning necessarily involves physical changes in the brain and that motor learning involves physical changes in the brain and the peripheral nervous system. Most of these changes are microscopic and occur at the synaptic and neuronal levels, but some may cumulatively cause macroscopic brain changes.^9,10 This should be a relatively uncontroversial premise, except for those who hold dualist views in relation to the mind-brain problem. I will also assume what I take to be a completely uncontroversial premise, that is, that the brain is part of the body.

The implications of accepting these premises are, however, far-reaching in relation to an analysis of a principle of bodily integrity because they entail that (1) the principle of bodily integrity is (almost) continuously infringed by parents in relation to their pre-autonomous children, and (2) some of the accounts of when an infringement constitutes a wronging become less plausible.

Let us, for instance, consider an immigrant, bi-lingual couple who decide to bring up their children as monolingual speakers of the majority language in the country they now live in. ¹¹ They have made this decision because they think it will advantage their children in the long run, perhaps because of the existence of widespread xenophobic views in the majority population. Let us assume that they are successful and that their children do not learn the native language of their parents during childhood. This means that the children enter adulthood with significantly different brains than they would have had if they had been brought up to be bi-lingual or exclusively in their parent’s native language. Their brains will literally have a different physical form. And, many of the brain changes and the resulting changes in accessible memories and mental content are practically irreversible. It is obviously possible as an adult to become a fluent speaker of a second language, even though that in itself requires very substantial effort, but it is almost impossible to become a fluent, accent-free, and fully idiomatic speaker of a second language. ¹² It is also possible, but extremely difficult to erase deeply embedded childhood memories created and strengthened by repetition, and childhood language learning comes automatically with a large repository of sayings, nursery rhymes, schemata for classification, etc. ¹³

What this example shows is that the brain of a child is continually and irreversibly physically changed during childhood. This is unavoidable and desirable since normal childhood development requires such changes, for example, the child has to learn at least one language, but the specific changes are, to a large extent, determined by the actions of the parents and other adults with whom the child interacts. Or, to put it differently, the parents continually cause irreversible changes to the physical form of a part of the child, that is, its brain and thereby continually affect its bodily integrity.

This again seem to indicate that if we have a principle of bodily integrity that includes the integrity of the brain, it is only harmful infringements of that principle that raise significant issues of justification.

Counterargument and coda

There is an obvious counterargument to the line of argument pursued above, that is, that physical changes to the brain do not fall under the definition of bodily integrity and therefore not under a right to bodily integrity, for instance, because bodily integrity only pertains to the outer borders of the body. Let us accept that counter for the sake of argument. It then raises the question of whether proponents of a right to bodily integrity ought also, on pain of inconsistency, accept a separate right to brain integrity. I will not belabour the point, but it seems that they ought to. Your parents can mess you up in many ways. They can wrongfully mess up your body (e.g. by penetrating your ear), but they can also wrongfully mess up your brain (e.g. through your ear). Real poison was poured into the ear of Hamlet's father, but Iago poisoned Othello with words. If what is important is that you arrive at the point of full autonomy as an intact human being with a suitably open future and not have reason to regret what has been done to you or the effects of what has been done to you, then the preservation of the integrity of your brain must be at the very least as important as the preservation of the integrity of (any other part of) your body. Your full expression of embodied autonomy requires both. ¹⁴

If this is broadly right, and we ought to respect a right to brain integrity as an important, separately identifiable right, all of the issues about the stringency of rights to integrity elaborated above come back into play, but now in a comparative manner. Why should we think that a right to bodily integrity has a higher bar for the justification of infringements than the right to brain integrity or that the sub-right to genital integrity is literally inviolable while the right to brain integrity is not ¹⁵ ? We (necessarily?) allow parents extensive latitude in relation to how they bring up their children and shape their brains. We generally only intervene in this aspect of upbringing when parents affect the development of their children to such an extent that there is not just an irreversible effect, but there is significant, demonstrable harm. Why should we think differently about other, arguably less important parts of the body?