Abstract
With increasing frequency parents of infants born with a variety of physiological “defects” are, with the consent or on the advice of a physician, refusing to allow the treatment necessary to ensure the child’s survival.1 Among the conditions sometimes deemed to justify non-treatment are myelomeningocele, Down’s syndrome, anen-cephaly, hydrocephaly and a variety of other central nervous system defects.2
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References
See Duff and Campbell, Moral and Ethical Dilemmas in the Special-Care Nursery, 289 NEW ENG. J. MED. 890 (1973).
Robertson, Involuntary Euthanasia of Defective Newborns: A Legal Analysis, 27 Stan. L. Rev. 213–14 (1975). That the practice of withholding care is widespread is evidenced by entries in recent medical textbooks and journals outlining specific clinical signs suggesting non-treatment as the appropriate response.
See, e.g., F. Ingraham and D. Matson, Neurosurgery of Infancy and Childhood, 35–39 (1954)
Lorber, Results of Treatment of Myelomeningocele, 13 DEVELOP. Med. and Child Neurol. 279–303 (1971).
Robertson, supra note 2, at 214 n.8.
Id.
Severe cases of anencephaly and hydrocephaly are the primary conditions which will, in and of themselves, prove fatal.
Evidence suggests that at the time a non-treatment decision must be made current diagnostic procedures cannot accurately evaluate the extent of later disability the individual will show. Particularly in the case of infants with mongolism and myelomeningocele the condition may result in only moderate disability with or without proper treatment. See Freeman, The Shortsighted Treatment of Myelomeningocele: A Long-Term Case Report, 53 Pediatrics 311 (1974)
Ames and Schut, Results of Treatment of 171 Consecutive Myelomeningoceles—1963–1968, 50 Pediatrics 466 (1972)
but see Lorber, Selective Treatment of Myelomeningocele: To Treat or Not to Treat, 53 Pediatrics 307 (1974).
See also Gustafson, Mongolism, Parental Desires and the Right to Life, 16 Perspectives in Biology and Medicine 529 (1973).
See, e.g., Fletcher, J. Indicators of Humanhood: A Tentative Profile of Man, Hastings Center Report (November 1972).
Id. See also, Carney, Medical Standards for Deformed Newborn, WASH. POST, (Mar. 20, 1974), A 15, col. 1.
See text accompanying note 6, supra.
Id.
See Kamisar, Some Non-Religious Views Against Proposed “Mercy Killing” Legislation, 42 MINN. L. REV. 969, 1012–37 (1958).
See Robertson, supra note 2, at 255–62. For a discussion of the psychological effect on parents of the birth of a disabled infant, see also Giannini and Goodman, Counseling Families During the Crisis Reaction to Mongolism, 67 AM. J. MENTAL DEFICIENCY 740 (1962); Cohen, The Impact of the Handicapped Child on the Family, 43 SOCIAL CASEWORK 137 (1962).
An infant’s right to life is a fundamental right under constitutional analysis. See Roe vs. Wade, 410 U.S. 113, 157–67 (1973). As such it would be inconsistent with basic principles to allow deprivation of the right on the basis of purely economic justifications. Memorial Hospital vs. Maricopa County, 415 U.S. 250, 263 (1974). Essentially a decision to allow non-treatment based on economic cost would be tantamount to sanctioning a rule requiring one individual to sacrifice his life for the good of society; a precedent with almost unimaginable implications.
Robertson, supra note 2, at 217–44.
Physicians and parents ordinarily make the non-treatment decision autonomously without peer review or any administrative process. See Duff and Campbell, supra note 7. Only when the physician or hospital disagrees with the parental decision is a judicial proceeding likely to be initiated. See Maine Medical Center vs. Houle, No. 74–145 (Maine Super. Ct. Feb. 14, 1974).
ARK. STAT. ANN. §§82–3801 to 3804 (Supp. 1978).
See text accompanying note 3, supra.
N.M. STAT. ANN. §§24–7–1 to 11 (1978).
Id. at §24–7–3.
IND. CODE §35–1–58.5–7 (1975).
Id.
Ross Dolloff had primary responsibility for drafting this model statute.
See Tooley, Abortion and Infanticide, 2 Phil. and Pub. Affairs 37 (1972).
Matson, Surgical Treatment of Myelomeningocele, 42 Pediatrics 225, 226 (1968).
Robertson, Involuntary Euthanasia of Defective Newborns: A Legal Analysis, 27 STAN. L. REV. 213, 214 (1975).
Id., at 258.
SeeDuff and Campbell,Moral and Ethical Dilemmas in the Special Care Nursery, 289 NEW.ENG. J. MED. 890 (1973).
See J. Warkany, Congenital Malformations 324–31 (1971).
SeeFreeman, The Shortsighted Treatment of Myelomeningocele: A Long-Term Case Report, 53 Pediatrics 311 (1974).
Treatment without consent, in emergency situations, has long been authorized under the common law. See Physicians and Surgeons 70 C.J.S. §48 (1951).
This aspect of the physician’s duty is analagous to that contained in many state child abuse and neglect laws.
SeeCohen, The Impact of the Handicapped Child on the Family, 43 Social Casework 137 (1962); Fletcher, Attitudes Toward Defective Newborns, Hastings Center Studies, Vol. 2, No. 1 (1974).
See Duff and Campbell, Supra note 5.
E.g., MD. ANN. CODE art. 59, §19 (Supp. 1979–80).
Robertson, supra note 3, at 224–35.
Id., at 217–24.
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Sales, B.D., Powell, D.M., Duizend, R.V. (1982). Emergency Medical Care and Treatment for Infants. In: Disabled Persons and the Law. Springer, Boston, MA. https://doi.org/10.1007/978-1-4757-0794-6_7
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