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Lessons from My Sister’s Keeper:
A Minor’s Right to Refuse Lifesaving
Treatment
STEPHANIE S. O’LOUGHLIN*
“Do you think it would work?” I asked. “A kidney transplant?”
Kate looked at me. “It might.”
She leaned over, her hand on the light switch. “Don’t do it,”
she repeated, and it wasn’t until I heard her a second time that I
understood what she was really saying.
—Jodi Picoult, My Sister’s Keeper1
Introduction
Jodi Picoult’s My Sister’s Keeper is a novel that explores the difcult
topic of the terminal illness of a sixteen-year-old girl and the lengths her
family goes through in order to preserve her life. Much of the literature
written on this novel focuses on Anna, the sister who was born in order
to become a donor for her sister, Kate, and the ethics of forcing such
donations from a child.2 Anna hires a lawyer to sue her parents for the
1. Jodi piCoUlt, my sister’s keeper 389–90 (2004).
2. See Amy T.Y. Lai, To Be or Not to Be My Sister’s Keeper?, 32 J. leGal med. 261
(2011); Michele Goodwin, My Sister’s Keeper?: Law, Children, and Compelled Donation, 29
w. new enG. l. rev. 357 (2006).
* Second place, 2018 Howard C. Schwab Memorial Essay Contest; University of
Connecticut Law School, J.D. 2018; judicial law clerk, Mashantucket Pequot Tribal Nation,
Mashantucket, Connecticut; admitted to practice in Connecticut and the Mashantucket Pequot
Tribal Nation. Thank you to Professor Anne C. Dailey for her guidance in the writing of this essay.
Published in Family Law Quarterly, Volume 52, Number 1, Spring 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
204 Family Law Quarterly, Volume 52, Number 1, Spring 2018
“rights to [her] own body” so that she cannot be forced to donate a kidney
to her sister.3 While Anna is providing testimony in court, however, it is
revealed that Kate had appealed to Anna and asked her to let her die.4 This
revelation not only transforms Anna’s seemingly selsh act but also raises
two important questions: What lengths must a minor go through in order
to die with dignity, and when is it possible for a minor to refuse lifesaving
treatment?
Generally speaking, minors are presumed to be incompetent to consent
to their own medical treatment, but some states accept the mature minor
doctrine, which allows minors to independently consent to certain medical
procedures if certain criteria are met.5 But even in the states where this
doctrine is accepted, there is no universal standard that dictates when a
minor is mature enough to consent to medical procedures without the
involvement of her parents.6 Although My Sister’s Keeper is a work of
ction, it presents a compelling narrative of a minor who is desperate
to have agency over her body and the medical treatment that her body
undergoes. Minors who are terminally ill may feel trapped in their bodies
and feel forced to prolong what is ultimately their physical suffering.
Based on the constitutional right to bodily integrity, a minor should have
the right to invoke the mature minor doctrine in order to refuse lifesaving
medical treatment.
I. The Development of the Mature Minor Doctrine
A. The Emergence of the Doctrine
Reproductive rights have been imperative to the formation of the mature
minor doctrine. One of the earliest authoritative decisions using the mature
minor analysis was Smith v. Seibly.7 In this case, the plaintiff had elected to
undergo a vasectomy at eighteen years old, which at the time in Washington
State law was in the age of minority.8 When the plaintiff reached the age
of majority, he led suit against the physician who had performed the
procedure, claiming that he had been unable to consent to the surgery
because of his age.9 The Washington Supreme Court held that the plaintiff
3. piCoUlt, supra note 1, at 19–21.
4. Id. at 377–78.
5. See Shawna Benston, Not of Minor Consequence?: Medical Decision-Making Autonomy
and the Mature Minor Doctrine, 13 ind. health l. rev. 1, 3 (2016).
6. See infra Part I.A.
7. 431 P.2d 719 (Wash. 1967).
8. Id. at 721.
9. Id.
Published in Family Law Quarterly, Volume 52, Number 1, Spring 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
