By Brian Earp

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Inking arms, piercing ears, and removing foreskins: The inconsistency of parental consent laws in the State of Georgia

Gaquan Napier watched his older brother die in Acworth, Georgia after being hit by a speeding car. He was with him in those numbing final moments. And now Gaquan wants to keep his brother close to his own heart as he picks up the pieces and moves through life: in the form of a tattoo on his upper arm. Malik (that’s his brother’s name) plus the numbers from Malik’s old basketball jersey. Rest in peace. A memorial to his sibling and best friend, whose life was cut tragically short.

Gaquan is ten years old. So he asked his mother, Chuntera Napier, about the tattoo. She was moved by the request, by the sincerity and maturity of her son’s motivations. She assented. She took Gaquan to have the remembrance he wanted etched into his arm in ink.

Now stop the presses. Chuntera was arrested last week under child cruelty laws and for being party to a crime. Someone at Gaquan’s school had seen his tattoo and tattled to the authorities. But what was the offense?

A 2010 Georgia law states that it is categorically unlawful “for any person to tattoo the body of any person under the age of 18, except a physician or osteopath.” When it comes to tattoos, that is, parental consent is legally irrelevant in Georgia.

But why should that be so? Can someone make a moral argument for this? Is it because tattoos are irreversible, and some young kid might want a really silly tattoo that he’ll later regret? And some parents are so bad at being parents that they might allow their kid to get a really silly tattoo? And then the kid might be teased? And all of that would somehow amount to child abuse? Please fill me in.

The state, of course, does in some cases have the moral authority to override a parent in the upbringing of her child. My position is not that parents should always get the final say. Where clear-cut abuse is involved (hard as it sometimes is to pin down the clear-cut-ness of alleged abuse), then in the interests of the child, the parent should be trumped. But with respect to tattoos, why should the ban be absolute? Are tattoos so inherently harmful — so self-evidently abusive to a child who possesses one — that the pendulum of power should swing so dramatically stateside?

That’s not the worst of it. The truly troubling part involves a deep inconsistency in Georgia law regarding parental consent in general. This point can be made by offering a stark point of contrast. It is perfectly OK, under Georgia law, for a parent to consent to the surgical removal of her son’s foreskin, before he is able to express an opinion, in a medically unnecessary, irreversible procedure which I have argued elsewhere is inconsistent with medical ethics, and otherwise problematic. Tattoos? No way. Surgery performed on a child’s healthy genitals? Go right ahead.

So what is going on here? How can it be that neonatal circumcision is OK, and taking your baby daughter to have her ears pierced is fine – but allowing your 10-year old to memorialize his brother in the form of a tattoo lands you jail?

Parents exercise consent on behalf of their children, and rightly so. Children’s brains are not yet fully formed, and they are notoriously bad at making long-term decisions to their own benefit. But you can’t let your son or daughter do just anything, nor can you consent to just anything’s being done to your child’s body — and that’s appropriate too. You can’t consent to your 10-year old owning a machine gun; you can’t consent to cutting off your daughter’s ears or selling her liver – there are limits, and they have to do with harm, risk to society, and so on. So far we’re safely in the territory of common sense.

But there are two big questions left over.

(1) Why should a parent be legally prohibited from consenting to her 10-year-old son’s getting a tattoo?

(2) Why should a parent not be legally prohibited from consenting to the circumcision of her healthy newborn?

I have answered (2) – at length – in an earlier post. The punchline is that — contrary to the law as it currently stands — parents should not be allowed to consent to medically non-indicated circumcision before the child himself is capable of stating his preferences about his own penis. Consent is the magic word, and the fulcrum of the whole debate. Read here for the full argument, relevant data, objections and replies.

The answer to (1) follows the same basic logic: people should be able to make decisions about what happens to their own bodies. Nobody else should be able to make decisions about a person’s body (setting aside certain de-minimis cases) unless that person is incapable of giving consent and the intervention is medically necessary (or otherwise clearly in the child’s best interests) and the person making the decision is that person’s legal caretaker.

Tattoos are (mostly) irreversible. If your child didn’t ask for it, and certainly if the child is pre-verbal, you shouldn’t be allowed to shove a tattooing needle under his skin. That much is clear. But if the child does want a tattoo, then he should be able to say so and make that decision about his own body, so long as you, as the parent, taking everything into consideration, and exercising your own best judgment, assent.

Now, if your 10-year-old wants to get a tattoo of SpongeBob SquarePants on his forehead, you should probably say no. If your 10-year-old wants to memorialize his dead brother with some ink on his bicep, then you can still be a good parent and say yes. That’s true even if I, or some other parent, or the community at large, might want our own sons to wait a few years first. It’s a judgment call, and it’s not our concern.

Same goes for ear piercing. If a little girl wants to have her ears pierced, and her parents assent, there is nothing particularly ethically problematic; the hole may close up over time, anyway, if the girl changes her mind. But if the girl can’t yet sing her ABCs, then why not hold off on the hole-punch? Similarly, if your baby boy can’t yet register an effective complaint, then why not hold off on the genital surgery? Let’s stop marking our children’s bodies for our own enjoyment. Let them speak their wants, when they’re able to speak their wants.

Like Gaquan. He expressed his desire. He wanted the tattoo. His mother thought it was a good idea. That the state should mark this out as illegal, and send in the authorities to arrest a citizen who’s done no harm is an injustice. If you don’t want a tattoo, don’t get one. If you don’t want your son to have some ink in his arm at his own request, then don’t take him to a tattoo parlor. Otherwise leave this grieving family alone.

Here is the upshot: if you can legally assent to your son’s foreskin being excised, when he is just-born and can’t yet speak — though you cannot morally assent to this, as I have argued — you should be able to assent to his getting a tattoo to memorialize his dead brother, when he specifically asks for it at the age of 10.

Follow Brian on Twitter by clicking here.

See Brian’s most recent prior post on this blog here.

See a list of all of Brian’s previous posts here.