Children, Cosmetic Surgery and Perfectionism: A Case for Legal Regulation?

Chapter 12
Children, Cosmetic Surgery and Perfectionism: A Case for Legal Regulation?

Jean V. McHale

Introduction: The Rise and Rise of Perfectionism

The first years of the twenty-first century have seen a huge expansion in the use of cosmetic procedures. From the exceptional face-lift procedure that used to be the purview of the rich (conducted quietly in Harley Street), today cosmetic surgery and related procedures have become mainstream. The use of breast enlargements and botox is increasingly seen as a life-style choice. Cosmetic procedures are used by some citizens as a means of postponing the ageing process. For others, the use of such procedures is very much a means of making themselves ‘look’ better or ‘feel’ better. New and enhanced surgical techniques and procedures have been accompanied by the rise of providers offering cut-price surgery to an increasingly mobile patient population. From ‘botox parties’ to ‘cosmetic surgery holidays’, the landscape has radically changed. Of course, perfectionism is by no means the exclusive concern of this century. From Ancient Greece and the celebration of the idealised male form, what constitutes the ‘perfect’ human form has varied over time and social context.1 Perfectionism in human forms is innately culturally determined, and this is reflected by the diversity today of images of putative perfect form across cultures and jurisdictions. The broader trends in such imagery and the debates concerning their legitimacy have been the extensive work of sociologists and feminist theorists in recent times.2

The influence of cultural norms accompanied with advances in clinical technologies has proved to be a powerful cocktail. The movement towards uniformity in the human form, it being a means through which individuals may be perceived as being able to gain legitimacy and cultural acceptance, has nonetheless worrying undertones and consequences, albeit that to a certain extent the phenomenon is inevitable. The individual or sub-group may be the subject of stigma and discrimination, and indeed of persecution, for failing to conform to the accepted norm. Events such as the compulsory sterilisation of adults in the USA and Nazi Germany continue to cast a long shadow.3 The ease of dissemination of information via the Internet has, moreover, changed the dialogue concerning body image. Images of exceptionally beautiful, and increasingly digitally enhanced, people form part of common cultural representations. This can be seen as particularly problematic when this contributes to shape children’s preconceptions of what exactly is ‘normal’.

A further dimension to the enhancement debate is the issue of safety. What was downplayed at the end of the last century, and in the early years of the last decade in relation to cosmetic procedures, was the question of risk. Cosmetic surgical procedures can come at a very high price if things go wrong. This was illustrated starkly, recently, by the problems experienced by women who were the recipients of Poly Implant Prosthesis (PIP) breast implants.4 This provoked an international scandal involving the use of low-grade silicon in implants, gravely endangering the health of women who unknowingly had been in receipt of the implants. Such concerns regarding the safety of such implants and related correspondence led to a recent report in the UK chaired by Professor Bruce Keogh.5

A single chapter would not be sufficient to attempt to address thoroughly all of the related issues. Rather, here the focus is upon one particularly challenging aspect of the debate concerning regulation in this area, namely, the use of cosmetic surgery and minors. There has been a gradual rise in access to such procedures by adolescents on both sides of the Atlantic.6 In 2013, the American Society of Plastic Surgeons reported that the most common cosmetic surgical procedures for teenagers were ear correction, nose reshaping, breast reduction, correction of breast asymmetry and gynecomastia (reduction of excessive breast tissue in teenage boys).7 The most common non-surgical procedures were laser hair removal, microdermabrasion and chemical peels. In some senses none of this is new: the dialogue around ‘perfect children’ has generated heated ethical debate since the advent of IVF technology and pre-implantation genetic diagnosis.8 However, perfecting before conception has now been translated into perfecting once born. Is this simply going too far? Has a concern to promote individual autonomy simply reached its limits in this context? What is conspicuous though by its absence from recent reviews of cosmetic surgery in the UK is any attempt to ban the practice itself. This might seem a radical step to address the risks of cosmetic surgery, but it is something that has been under consideration for some time in the Antipodes. Concern in the southern hemisphere has centred upon the impact of the drive to ‘perfectionism’ in relation to adolescents, and the rising use of cosmetic procedures on young people driven by a perceived ‘body beautiful’ culture. Such concerns have led not simply to a lively debate upon these issues but actual legislation regulating these questions. If these concerns are so real and so pertinent, should the UK then follow its Australian cousins and statutorily regulate or indeed ban the use of invasive cosmetic procedures upon minors? Is this really instead a question of autonomy – something which should be left to the individual to determine – or are children and adolescents themselves at least different in these circumstances? Where should the boundaries lie?

This chapter first examines the normalising of perfectionism as evidenced through what appears to be increased social acceptability of bodily modification for cosmetic purposes, in general, and in the context of children and adolescents, specifically. Secondly, it examines whether a case for the regulation or prohibition of cosmetic surgery concerning children and adolescents can be made, and it explores issues around societal harm. Thirdly, it examines if such procedures should be restricted wholly or in part then before considering what possible regulatory models could be adopted.

Normalising Perfectionism

The normalisation of cosmetic procedures might be a source of fascination, or of humour, or it might simply be an interesting distraction. For many years, however, such procedures were largely the provenance of the very wealthy. The questions were, to that extent, contained. But it is the mainstreaming of such procedures that can be seen as changing the nature of the debate. New and enhanced surgical procedures and treatments have been accompanied by the rise of cut-price providers offering treatments to what is an increasingly mobile patient population. The clinician seen as saviour, through the slash of the knife, is now easily able to provide succour. As Sheila McLean wrote in her book Old Law, New Medicine: ‘the translation of dissatisfaction into illness,

the tendency to turn to medicine for the cure of social and economic dysfunction, have done us no favours’.9

Furthermore, as she goes on to comment in the same volume, ‘[t]he technological impulse or imperative has come to dominate or control … those who are indisputably ill’,10 and as she says this can distort the very humanity it seeks to assist. Of course it is easy to condemn the recipients of cosmetic surgery and to vilify their choices, and indeed as McLean and others have noted elsewhere it can be argued that in the case of a competent adult this is simply a case of an individual making what is an autonomous choice. As McLean has recently cautioned in the light of the PIP implant issue against denying people ‘the liberty to do what they want with their own bodies’, she recognises that ‘… they have to be made aware of the risks’.11 There are, however, interesting questions as to the regulation (and indeed the lack of such regulation) in this area in the UK, and as to the law’s response to disability in the context of medicine more generally. Will we soon reach the point where the cosmetically unenhanced can be seen as the ‘new disabled’? As Sheila McLean and Laura Wilkinson have noted in their book Impairment and Disability,12 there are two models – two competing approaches to disability. The first is that of the ‘medical model’. The second is that of the ‘social model’. Of course, as they rightly highlight, these two models are far less distinct and different than they might be viewed at first sight. Clinical approaches to what constitutes disability are informed by the social debate in this area. Clinicians do not operate in a vacuum unencumbered by social and cultural influences. Their perceptions of disability are also informed by cultural and social norms. But, perhaps here lies a major challenge. If such cultural influences define and delineate our understanding in this way, then to what extent might this in turn help to redefine such procedures as being ‘normal’ in the future? As asked above: will the cosmetically unenhanced become the new disabled?

As part of the evidence to the Keogh review a research report was produced assessing the implications of such procedures upon younger recipients.13 Some of its findings make very uncomfortable reading:

For these girls … there is recognition that cosmetic interventions, particularly of the less serious, non-surgical type, have often because so normalised that girls are often surprised to find that procedures such as teeth whitening are classed as cosmetic procedures at all. While cost is a barrier to the more expensive surgical procedures, unsurprisingly at their age, this does not mean that they feel people do not have access to them; it is recognised that many ordinary people desire and manage to find the money to have them and this includes members of their own family as well as friends.14

The Report further goes onto state:

The girls readily admit the pressure regarding their appearance that they feel in their daily lives as they are scrutinised and judged by their peers, and they compare themselves (and others) with the ideal and perfect images presented in the media by celebrities. The pressure to compete with peers as well as envy of celebrities’ appearance and the accompanying lifestyle, combines with increasing awareness of the potential to change the way you look, and the solutions available to do so.15

As the report notes, in Essex, influenced by television programmes such as The Only Way is Essex, there was particular evidence of girls contemplating a range of procedures ‘when they are old enough’.16 Ultimately, however, the questions of adolescents and of cosmetic surgery were not discussed in the Keogh Report itself. Rather the focus of the report, understandably given its remit in relation to examining the implications of the PIP scandal, was upon those issues which were central to the backdrop as to why the Expert Group had been set up initially, namely issues of safety in relation to a range of cosmetic procedures.

While there is some evidence of increase in availability and take up of cosmetic procedures in relation to minors, one problem here is the extent to which there is research concerning the sheer number of such procedures in the UK. There is currently no central collection of such information. Moreover, such procedures are almost invariably undertaken in the private sector, thus some caution is needed. Notwithstanding, the question can be asked once again: is there a (growing) case for regulation or indeed total prohibition of such procedures in relation to minors? In some jurisdictions there are already strong calls for this, and in others legislation already exists, as we shall see below. The approach taken by some members of the medical profession and policy makers in the Antipodes is illustrated by the comments made by the President of the Cosmetic Physicians Society of Australasia who said in July 2013: ‘Children should not receive cosmetic or surgical procedures of any kind unless there are compelling medical or psychological reasons’.17

Possible analogies can be drawn here with the debates concerning the developments in relation to genetics where it has been suggested by McLean and others that the rise in genetic testing could lead to what might be, in effect, an uninsurable, unemployable underclass.18 Will it happen in the future that those who are cosmetically unenhanced become a new effectively unemployable underclass? Certainly, the pressure to conform to a certain norm is translating through into the courts in the area of discrimination litigation as highlighted by a notable employment tribunal action by the BBC TV presenter Miriam O’Reilly. O’Reilly successfully brought an age discrimination case against the BBC.19 In evidence to this tribunal it was suggested that O’Reilly’s manager had suggested that the presenter undertake cosmetic enhancements (which she did not do).

If the normalisation of the pursuit of perfection in relation to children and adolescents is, indeed, a serious concern, then it is suggested that we should at least be willing to explore the prospect of regulation. But where, precisely, should the boundaries lie here? This question is addressed in the next section.

Children, Adolescents and Cosmetic Surgery: A Case for Regulation?

There is at present no general overarching regulation of the performance of cosmetic surgery upon children and adolescents. That does not mean, however, that the law is not concerned with such procedures at all; indeed, as closer examination of such issues illustrates, the law does serve to delineate the boundaries of this area. Here we consider what cosmetic procedures a child or their parents can consent to at present, and what current legal regulation exists. Secondly, we consider whether there is a case for such regulation, either in its current form or extended to address issues that accompany the growth of the practices, as outlined above.

Much of the discussion around the formation of health law in the UK has centred on the importance of respect for decision-making autonomy. However, decisional autonomy concerning consent to treatment only goes so far in English law. The nature of consent is circumscribed. For example, English law does not allow an individual to consent to the infliction of harm, however grave.20