Authorizing Death for Anomalous Newborns

Ten Years Later
  • Robert A. Burt


Ten years ago, at the first Symposium on Genetics and the Law, I participated in a panel discussion on withholding treatment from anomalous newborns. At that time, the issue had just come into public view, though it was common knowledge within the medical profession, and it was an open secret for anyone who chose to look at the question, that medical treatment was frequently withheld from some gravely ill newborns. The question we discussed when we met in 1974 was how public policy should respond to this practice.


Down Syndrome Supra Note Spina Bifida Judicial Decision Civil Liability 
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  1. 1.
    Authorizing death for anomalous newborns, Genetics and the Law ,Plenum Press, New York (1975), 43 5–50.Google Scholar
  2. 2.
    The rationale for this position is developed at greater length in Burt, R., Taking Care of Strangers: The Rule of Law in Doctor-Patient Relations ,Free Press, New York (1979).Google Scholar
  3. 3.
    Fox, R., and Swazey, J., The Courage to Fail: A Social View of Organ Transplants and Dialysis ,University of Chicago Press, Chicago (1974), 240–79.Google Scholar
  4. 4.
    Id. at p. 244.Google Scholar
  5. 5.
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  6. 6.
    Calabresi, G., and Bobbitt, P., Tragic Choices ,W. W. Norton, New York (1978), 186–9.Google Scholar
  7. 7.
    See Guillemin, J. and Holmstrom, Legal cases, government regulations, and clinical realities in newborn intensive care, A. J. Perinatol. 1:89 (1983).Google Scholar
  8. 8.
    Neither the trial court nor the Indiana Supreme Court published opinions attempting to explain or justify their rulings in the case. The case and the judicial rulings are described in Pless, The Story of Baby Doe, New Eng. J. Medicine 309, no. 11:664 (September 15, 1983).Google Scholar
  9. 9.
    See Burt, supra note 2, at 155–8.Google Scholar
  10. 10.
    In re Phillip B., 92 Cal.App.3d 796, 156 Cal.Rptr. 48 (Ct. of App., 1st Dist., 1979).Google Scholar
  11. 11.
    The unpublished court opinions are reproduced in Wadlington, W., Whitbread, C, and David, S., Children in the Legal System ,Foundation Press, Mineola, NY, (1983), 921–23.Google Scholar
  12. 12.
    See the parents’ article: Becker, W., and Becker, P., Mourning the loss of a son, Newsweek (May 30, 1983), 17.Google Scholar
  13. 13.
    See the report of this case in Steinbock, P., Baby Jane Doe in the courts, Hastings Cent. Rep. 14(1): 13, 19 (Feb. 1984).PubMedCrossRefGoogle Scholar
  14. 14.
    20 years after Kitty Genovese’s murder, experts study bad Samaritanism, New York Times (March 12, 1984), Bl, col. 1.Google Scholar
  15. 15.
    Id. at B4, col. 3.Google Scholar
  16. 16.
    See the discussion of this legislation and judicial responses to it in Burt, R. A., Constitutional law and the teaching of the parables, Yale Law J. 93:455, 489–500 (1984).Google Scholar
  17. 17.
    For a thoughtful, balanced exploration of this question, see Arras, J., On the care of imperiled newborns-Toward an ethic of ambiguity, Hastings Cent. Rep. 14 (2):25 (Apr. 1984).PubMedCrossRefGoogle Scholar
  18. 18.
    Weber v. Stony Brook Hospital, New York Law /. (Oct. 28, 1983), 3.Google Scholar
  19. 19.
    Weber v. Stony Brook Hospital, New York Law ]. (Nov. 1, 1983), 5.Google Scholar
  20. 20.
    United States v. University Hospital ,729 F.2d 144 (2d Cir., 1984).Google Scholar
  21. 21.
    While this chapter was in press, the U.S. Congress enacted a new law that appears consistent with my proposal. The law requires state child-protective agencies, as a condition for receiving general federal funding support, to establish procedures that would prevent the withholding of medically indicated treatment from disabled infants with life-threatening conditions. (Public Law 98–457 (Oct. 9, 1984); for the Conference Committee Report see Congressional Record ,Sept. 19, 1984, at p. H9806.) The act, in effect, permits the withholding of treatment only for inevitably dying or chronically and irreversibly comatose infants (though the specific language gives some latitude for uncertainty about the inevitability of death; treatment must be virtually futile and under such circumstances . . . inhumane). As I read the legislative history, federal agencies could police the operations of state protective agencies regarding their general implementation of these standards; but federal intervention in specific, pending cases, as previously undertaken by the Baby Doe squads, would not be permitted under this act. (See the statement of six leading sponsors in the Senate, Congressional Record ,Sept. 28, 1984, at p. S12392: This legislation does not itself authorize direct federal involvement in individual cases.)Google Scholar

Copyright information

© Aubrey Milunsky and George J. Annas 1985

Authors and Affiliations

  • Robert A. Burt
    • 1
  1. 1.Yale University School of LawNew HavenUSA

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