Back to the Network Blog

Child Obesity and Parental Rights

posted on Wed, Jun 6 2012 9:39 am by Dan Orenstein

The United States faces a major public health crisis in the form of an obesity epidemic. According to Centers for Disease Control and Prevention (CDC), nearly 60 percent of all U.S. adults are now considered obese or overweight. Perhaps even more alarming is the skyrocketing rate of childhood obesity. Only 4 percent of children and adolescents were considered overweight or obese in 1966. Today, an astounding 33 percent of boys and girls age 2-19 are so classified. Public health officials have strived for decades to reverse the trend, but American children continue to gain excessive weight. Increased rates of diabetes and risk factors for heart disease in overweight and obese adolescents point to serious forthcoming health consequences for kids.

Among many contributing factors, parents and caregivers are often accused of not doing enough to control children’s weight or of actively contributing to weight gain through poor nutrition or exercise habits in the home.

Just how far should public health and social service officials reach into the home to prevent the serious harms of childhood obesity? A recent case from Cleveland, Ohio, illustrates the debate. In October 2011, an 8-yearold boy was removed from his mother’s home due to his severe obesity and risks for serious health problems. Officials worked with the boy’s mother for over a year before determining that her failure to control her son’s weight amounted to medical neglect and removing him from the home. While living with his uncle, the boy’s weight decreased from 218 to 166 pounds (still more than double his reported ideal weight of 60 pounds based on height and age). In March, he was returned to his mother. Officials continue to monitor the home and offer nutrition and health counseling.

Legal precedents for removing children from their homes or prosecuting parents for neglect based on their child’s severe obesity exist in several states, including California, Indiana, Iowa, New Mexico, New York, Pennsylvania, South Carolina and Texas. As few of these cases have ever reached an appellate court, there is limited substantive judicial analysis of whether removal strategies are legally supportable interventions or an encroachment on parents’ fundamental right under the Fourteenth Amendment to control the upbringing of their children.

Some advocate strongly for removal-based interventions in select cases of severe pediatric obesity, arguing that where less severe interventions prove ineffective, removal from the home is preferable to surgical alternatives. Others point to cultural dimensions of the obesity epidemic and argue that efforts focused on parents of individual children have limited impact. The burden of removal of children from homes may also fall disproportionately on families with the fewest resources. Associations between severe childhood obesity and both race and poverty are particularly troubling and may implicate legal concerns grounded in the Equal Protection Clause.

In determining best courses of action to contain and reverse the American obesity epidemic, policy-makers must consider all available options. However, this process must include a frank assessment of potential legal and ethical overreach. Severe childhood malnutrition is well-established legally as a form of parental abuse or neglect. Arguments analogizing severe childhood obesity to malnutrition may have merit, at least as to potential serious negative health impacts. However, important differences may exist as to divergent societal roots of the problems and their respective prevalence amongst the general population, and these differences may be legally significant.

This information was developed by Daniel G. Orenstein, J.D., deputy director, Network for Public Health Law – Western Region at the Sandra Day O’Connor College of Law, Arizona State University (ASU), with research assistance from Lexi C. White, J.D./Ph.D. candidate and legal researcher, ASU.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

blog comments powered by Disqus