The Culture Differential in Parental Autonomy
When the laws of a community reflect a dominant culture and yet many of its members are from other minority cultures, there is often conflict. When this conflict occurs in the legal regulation of the parent child relationship, the consequences are tremendous for the children, the parents and the State. In this Article, I focus on the federal statute criminalizing female genital cuttings and make two major claims. The first claim is that the decisions of minority parents are scrutinized and regulated to a greater degree than the decisions of parents from the dominant culture, even when their decisions are strikingly similar. For example, breast implant procedures, intersex surgeries and the administration of growth hormones are arguably analogous to female genital cuttings and yet they are severely under regulated. The result is a differential in the autonomy of parents that is explained more by cultural differences than by an objective interest in the protection of children. The second claim in the Article is a prescription for how the law can minimize this culture differential. Social psychologists have studied the interactions of human beings from different cultures and have developed principles and tools that seek to improve these interactions. This Article advocates for the adoption of procedural reforms to ensure cultural mindfulness or "hard second looks" at both the administrative and legislative levels in child welfare.