Can I see some ID? Banning access to cosmetic breast implant surgery for minors under eighteen.

• Author: Cooper, Katherine Cohen

1. INTRODUCTION II. BACKGROUND ON BREAST IMPLANT SURGERY AND ITS PREVALENCE AMONGST MINORS A. The Basics of Breast Implant Surgery B. Prevalence of Breast Implant Surgery in the United States C. Prevalence of Breast Implant Surgery Amongst Minors in the United States III. REPRESENTATIVE SITUATIONS IN WHICH THE FEDERAL GOVERNMENT MAINTAINS AGE-BASED REGULATIONS A. Tobacco Products B. Human Subjects Research on Minors C. Female Genital Mutilation IV. SITUATIONS IN WHICH AGE-RELATED ACCESS CONTROLS ARE INAPPROPRIATE A. Over-the-Counter Diet Drugs B. Indoor Tanning Beds C. Caffeine in Food, Beverages, and Dietary Supplements V. A NATIONAL MINIMUM AGE REQUIREMENT FOR BREAST IMPLANTS SERVES THE SAME POLICY GOALS THAT OTHER AGE-RELATED ACCESS CONTROLS ARE DESIGNED TO FURTHER A. Similarities to Federal Age Restrictions on Tobacco Products B. Similarities to Federal Age Restrictions in the Context of Human Subjects Research Involving Children C. Similarities to Federal Age Restrictions on the Practice of FGM D. Differences from Permissive Access to OTC Diet Drugs E. Differences from Permissive Access to Consumer Products Such as Tanning Beds and Caffeine VI. PROTECTING MINORS FROM ACCESSING BREAST IMPLANT SURGERY WARRANTS IMPINGEMENTS ON PHYSICIAN AND PARENTAL AUTONOMY A. Deference to Physicians Is Inappropriate in the Context of Breast Implants for Minors 1. There Is No Evidence Breast Implant Surgery Is Safe for Minors 2. Cosmetic Breast Implant Surgery Is, by Definition, Not Medically Necessary 3. The Medical Profession May Be Amenable to Enhanced Regulation of Breast Implants for Minors B. Deference to Parents Is Inappropriate in the Context of Breast Implants for Minors VII. CONCLUSION I. INTRODUCTION

   Under U.S. law, parents are granted broad power and control over their children's bodies. In the healthcare setting, the law vests parents with decision-making authority for most medical decisions. (1) This general rule applies when minors seek to undergo body modification through cosmetic surgery, such as breast implants. (2) Thus, a consenting parent who finds a willing provider to perform breast implant surgery on a minor can authorize this invasive, but elective, surgery on the child's behalf.

   Omnipresent media reports and other cultural portrayals of cosmetic surgery performed on youth indicate that the parental authority to consent to breast implant surgery on behalf of minors is real and exercised, rather than simply theoretical. One news report, for example, profiled several teenaged girls who received breast implants. (3) These teens were sometimes offered breast implants as gifts from parents to celebrate a momentous birthday or a graduation. (4) Others indicated that their parents had consented to the procedure to help the teen remedy issues with low self-esteem, or to improve her overall happiness. (5)

   Regardless of what motivates parents to consent to breast implant surgery for their children, the available data show that parents are doing so in growing numbers. For example, between 2010 and 2011 the number of breast implant surgeries performed on young women ranging from ages thirteen to nineteen increased four percent. (6) In a nation where hundreds of thousands of breast implant surgeries are performed each year across the general population, (7) year-to-year increases of this magnitude can equal thousands of additional surgeries performed each year.

   In many situations it is perfectly reasonable, and in fact preferable, to allow parents to consent to medical interventions on the behalf of their minor children. Parents enjoy a constitutional liberty interest in directing the upbringing of their children; it is presumed that parents will act in the best interests of their children when they substitute their experiences and judgment for a child's in making important life decisions. (8) This article highlights, however, that when it comes to providing consent for their children to undergo medically unnecessary breast implant surgery, the rationales underlying the presumption of deference to parents and medical providers fail. Because there are reasons to believe this traditional consent framework will not protect the best interests of minors who seek breast implants, this article argues that it is appropriate for the federal government to mandate a national minimum age of eighteen for receiving breast implants.

   This article begins in Part II by providing a brief background on breast implant surgery and its prevalence amongst minors. Part III outlines representative situations in which the federal government sets a national minimum age for access to products or procedures that can be unsafe for minors. Part IV illustrates scenarios where national age minimums are not deemed appropriate. Part V explores the rationales underlying both the use and rejection of age restrictions; it explains why a national minimum age for breast implants would serve similar policy goals as other age-based access controls. Part VI specifically addresses two primary counterarguments: highlighting why it is appropriate to impinge on both the physician-patient relationship and parental autonomy in the context of breast implants for minors. Finally, Part VII concludes the article.

2. BACKGROUND ON BREAST IMPLANT SURGERY AND ITS PREVALENCE AMONGST MINORS

   1. The Basics of Breast Implant Surgery

      Plastic surgery procedures are typically segmented into two subgroups: reconstructive and corrective. (9) Reconstructive surgery is designed to "correct a clear abnormality." (10) For example, the correction of a cleft lip or palate is considered reconstructive surgery. On the other hand, corrective or cosmetic surgery is "defined as surgery to improve a 'normal' appearance." (11) Corrective and cosmetic surgeries are performed solely for aesthetic reasons and include procedures such as rhinoplasty (colloquially called a "nose job") and breast implant surgery. (12)

      Breast implants are medical devices implanted underneath breast tissue or the chest muscle. Cosmetically, breast implants are used to increase breast size. Two types of breast implants are approved for sale by the Food and Drug Administration (FDA) in the United States: saline-filled and silicone gel-filled. (13) The FDA has formally approved saline-filled breast implants for women eighteen and older, and silicone gel-filled implants for women twenty-two and older. (14) Notably, however, it is legal for doctors to perform breast implant surgery using either type of implant in minors under eighteen as an "off-label" use with parental consent. (15)

      Breast implant surgery is typically performed on an outpatient basis and requires general anesthesia. (16) During the procedure, the breast implant device is placed inside a pocket created under the breast tissue or in the pectoralis major muscle of the patient. (17) Immediately following the breast implant surgery, patients typically experience postoperative discomfort for several days, must wear a surgical bra for two weeks, and are instructed to avoid strenuous exercise for four to six weeks. (18) Beyond the general risks of undergoing any surgery involving intravenous anesthesia, many other complications can arise from breast implant procedures, specifically. Most commonly, patients may experience capsular contracture, a tightening or hardening of the scar tissue surrounding the implant, causing the breast to feel hard and painful. (19) Also common are implant ruptures, leaking, postoperative bleeding, loss of nipple sensation, scarring, and infection. (20)

      Furthermore, the medical risks of breast implants steadily increase in the years following the implant surgery. Breast implants last approximately ten years within the body, and the likelihood of a capsular contracture or related complication requiring surgery occurring increases over time. (21) Thus, an adolescent who receives breast implants may require repeated surgeries, with all of the previously mentioned associated risks, throughout her lifetime. (22) Additionally, breast implant surgery has been shown to increase the likelihood of insufficient lactation for breastfeeding. (23) Breast implants also interfere with preventative or diagnostic mammography, as mammography procedures increase the likelihood of implant leakage and rupture, and breast implants may lead to a failure to detect approximately fifty-five percent of cancerous breast tumors. (24) Overall, the FDA has estimated that forty percent of patients who undergo breast implant surgery experience at least one serious complication within three years. (25)

   2. Prevalence of Breast Implant Surgery in the United States

      According to statistics compiled by the American Society of Plastic Surgeons (ASPS), 1.6 million cosmetic surgical procedures were conducted in the United States in 2011. (26) Breast implant surgery has held the title of most common cosmetic surgical procedure since 2006. (27) A total of 307,000 breast implant surgeries were performed in 2011, an increase of 4% from 2010. (28) The national average surgeon or physician fee for a breast implant surgery is $3,388; as such, U.S. expenditures on breast implant surgery totaled $1,040,725,840 in 2011. (29)

   3. Prevalence of Breast Implant Surgery Amongst Minors in the United States

      Although data for minors is not precisely segmented, ASPS found that people age thirteen to nineteen had the least number of cosmetic procedures in 2011, constituting two percent of total surgeries. (30) Specifically, 8,892 breast implant surgeries were performed on patients aged thirteen to nineteen in 2011, which constituted three percent of the total number of breast implant surgeries performed that year. (31) Although patients aged thirteen to nineteen may represent a small proportion of the total number of patients undergoing breast implant surgeries in the United States, the number of these breast implant surgeries performed on women thirteen to nineteen increased four...