Nontreatment Decisions for Defective Newborns:
Moral, Ethical, and Legal Dilemmas
Alice Nystel
Bioethics
December 9, 198 2
- 00562
It has been said that "[t]he law always lags behind
the most advanced thinking in every area.
It must wait until
the theologians and the moral leaders and events have created
some common ground, some consensus." 1
Euthanasia is one such
area in which the law has lagged behind the medical profession
since new technology and new advances in medical science
present the medical profession with moral and ethical dilemmas
demanding immediate resolution; the cumbersome machinery of
the law does not decide important questions of life and death
with such immediacy.
The moral and ethical dilemmas of
euthanasia have become increasingly problematical as new
advances in medicine allow doctors to intervene in situations
formerly thought hopeless and to prolong life in many such
cases, particularly in the area of pediatrics.
In the words
of one physician:
The care of the newborn infant has become increasingly complex. As knowledge and technology
advance, the pediatrician is able to intervene
and improve the chances for survival of the highrisk newborn.
Formerly, nature took its course uninfluenced
by medical treatment. Now, active treatment may
lead to survival. The withholding of treatment
may lead to death. The physician now must make
a moral decision to treat or not to treat in
such cases.
The decision for nontreatment is not an easy one to make,
and reluctance to make the choice of nontreatment has been
explained by reasons of the realization of the finality of
the decision for death, the fear that any choice for death
- 00563
will eventually result in the strong indiscriminately
killing the weak (the "slippery slope" argument), the
possibility of nontreatment as discrimination against the
defective child, and the physician's perception of death
3
as failure.
A short discussion of what euthanasia is is a
necessary introduction to the arguments and analysis this
paper presents.
The word itself is derived from two Greek
words, "eu" meaning easy or painless, and "thanatos",
meaning death.
Euthanasia has been described as "death
5
6
with dignity" and "natural death".
The different types
of euthanasia are active, passive, voluntary and involuntary.
Active euthanasia is the commission of a positive death7
. . .
producing act , such as administering a lethal dose of a
drug.
Passive euthanasia is the failure to take certain
measures necessary to prolong life:
omission.
causing death by
Voluntary euthanasia is euthanasia committed at
the patient's request or with his consent, and involuntary
is that committed without the patient's consent.
This
paper will explore the questions and ethical problems raised
by involuntary, passive euthanasia in the context of the
defective newborn.
Passive euthanasia has been described by one
commentator in the following way: "sustaining life is a
g
good but not an absolute good."
The issue is an extremely
- 00564
controversial one and raises many questions, including those
of criminal liability,^ civil liability, 10 ethics, 11 decisionmaking problems, including that of determining quality of
life, and the possibilities for abuse.
As stated by Justice
12
Paul J. Lxacos, author of the Saikewicz opinion,
"these
decisions .[on the meaning of life and death, when life
starts and when it ends, on the use of the new technologies
to maintain and create life] are not purely medical questions;
they are not purely questions of science and technology,
but rather they are questions involving ethical considerations, social considerations, moral considerations,
as
13
well as medical and legal questions."
The law has been slow in catching up with the
medical profession in making these important decisions on
life and death; no reported cases directly on point could
be found for the issue of nontreatment of the defective
newborn.
However, a discussion of related case law may
prove to be helpful in evaluating the law's possible position
on this issue.
The right to refuse treatment is an important part
of the issue of euthanasia in general, and the cases which
speak of this right may indicate how the courts will deal
with nontreatment decisions.
The right to refuse medical
treatment can be said14to have arisen out of the doctrine
of informed consent.
In Schloendorff v Society of New
"3"
00565
York Hospital,
15
a landmark case on informed consent,
Justice Cardozo stated that the principle of informed
consent protected the right of self-determination for
individuals of sound mind and that every adult of sound
mind had the right to determine what should be done with
16
his body.
The right to consent to decisions on treat-
ment logically extends to the right to refuse treatment as
well, since the right to consent is meaningless without
the right to refuse. 17
18
In
Ronnie v. Klein,
the court held that the
patient, who was undergoing psychotropic drug therapy for
schizophrenia, had the right to refuse treatment in the
absence of a strong countervailing state interest.
The
court balanced the state's interests, in confining a mentally
ill person who presents a danger to himself or society and
in exercising the state's parens patrie power to care for
those unable to care for themselves, against the patient's
interest in exercising individual autonomy, and held that
whether the potential benefits of treatment are worth the
risks is a purely personal decision of the patient's which
should be free from state interference in the absence of a
strong state interest.
This protection of individual
self-determination was also stated m
a 1960 decision.
19
Natanson v. Kline,
The court in Natanson held that every
individual should be considered the master of his own body
- - -
0i
and therefore able to refuse medical treatment, even that
20
necessary to save his life, if he is of sound mind.
The right to refuse life-prolonging medical
treatment was recognized for the competent
terminallyill patient in Satz v. Perlmutter 21 and for the incompetent
terminally-ill or vegetative patient in a line of cases
22
beginning with the much-publicized In re Quxnlan.
One court has held that the right to refuse life-prolonging
medical treatment, in certain circumstances, must extend
to the incompetent patient as well as the competent patient
23
because "the value of human dignity extends to both."
These decisions have typically stated that the
right to refuse treatment is part of the constitutional
right of privacy, recognized by the Supreme Court as being
applicable to family and personal matters in such cases as
24
25
Griswold v. Connecticut
, Roe v. Made
, and Prince v.
Massachusetts.
absolute,
27
26
However, as this right of privacy is not
.
.
.
the courts have used a balancing test, weighing
the asserted state's interests against the individual's
interest in individual autonomy:
A person has a strong interest in being free
from nonconsensual invasion of his bodily
integrity, and a constitutional right of
privacy that may be asserted to prevent unwanted infringements of bodily integrity.
Thus a competent person has a general right
to refuse treatment in appropriate circumstances, to be determined by balancing the
individual interest against countervailing
- 5 - 00567
State interests, particularly the State interest
in the preservation of life. In striking that
balance, account is to be taken of the prognosis
and of the magnitude of the proposed invasion.
The same right is also extended to an incompetent
person to be exercised through a "substituted
judgment" on his behalf. The decision should
be that which would be made by the incompetent
person, if he were competent, taking into account
his actual interests and preferencesgand also
his present and future incompetency.
As one commentator stated, however, the developing
case law on the right to refuse treatment and the constitutional right of privacy may not be applicable in all
cases, particularly in the context of a nontreatment decision
29
for the defective newborn.
This position is based on the
language in the Quinlan decision, and in the cases following
Quinlan, limiting the right to refuse life-prolonging or 3 0
life-sustaining treatment to "appropriate circumstances"
and on the fact that the patients in those cases were
adult patients afflicted with either terminal illnesses
or permanent vegetative conditions.
These decisions were all quality of life decisions
in which the courts balanced the patient's right to refuse
treatment against the quality of life to be preserved,
taking into consideration the patient's prognosis with or
without the treatment, the intrusiveness and discomfort
31
of the treatment, and the accompanying risks of treatment.
32
For example, xn the Saikewicz
. .
decision, the court stressed
the patient's inability to understand his present situation
005
or prognosis or the purpose of the chemotherapy that he
would undergo if treated, due to his profound mental retardation; the court stressed also the seriousness of the
side effects (severe nausea, loss of hair, bladder irritation,
anemia) and the limited prognosis even with treatment
33
versus the prognosis without treatment.
The situation
of the defective newborn is arguably different from that of
a patient such as Joseph Saikewicz since the quality of
life for defective newborns seems more hopeful with the
possibility of future medical advances to correct defects.
Even if the life of the defective newborn is grievously
afflicted, some believe that it may be preferrable to no
life at all to one who has never experienced a life free
3H
from such defects.
However, quality-of-life may be a consideration
in the decision of treatment or nontreatment of defective
newborns. There are approximately 30,000 severely defective
35
and deformed babies born each year xn the Unxted States.
Ellis, in his article
Letting Defective Babies Die:
Who
36
Decides? ,
describes a severely defective newborn as
"one who is not likely to survive without surgical and
medical intervention and whose prognosis, even assuming
this intervention, may be poor in terms of cognitive life
and minimal functioning."37
The types of severe defects are
varied, but some of the more common are anencephaly,
7
00569
hydocephaly, Down's syndrome (mongolism), spina bifida,
and encephalomeningocele.
Aneeephaly is one of the most severe birth defects,
being partial or total absence of the brain.
38
A baby
with this condition has been termed by one medico-legal
39
dictionary "a fetal monster without a brain."
A newborn
with this condition has little if any chance for cognitive
function; Ellis comments that newborns with anencephaly
are rarely treated and are sometimes
not even fed so that
HO
death may come more quickly.
Hydrocephaly is characterized by increased free
fluid in the cranial cavity, resulting in enlargement of
the head.
HI
The symtoms are quite severe and are described
as follows:
Bulging of the forehead, protrusion of the
parietal areas and extension of the occipital
region are characteristic changes.... The
skin of the scalp is thin and stretched and
its veins are dilated.... The head cannot be
held up, and walking and talking are delayed.
The legs are spastic, the tendon reflexes increased and convulsions may occur. Anorexia,
vomiting, and emaciation complicate severe
cases. As a rule, hydrocephalic children are
dull and lethargic. Blindness can develop,
but hearing and the auditory memory may be
good. Physical and mental development depend
on several factors, such as rapidity of onset,
intracranial pressure, compensatory growth of
the head, nature of the basic malformations and
progress or arrest of the progress. Such
variability makes the prognosis and^evaluation
of therapeutic measures difficult.
Thus, although mental function may be impaired, the degree
01)570
of mental impairment may not be predictable at birth.
Down's syndrome is a chromosomal disorder producing mental retardation and is marked by a distinctive
43
physical appearance.
The
mental retardation can be
severe, with an average I.Q. of anywhere from 3 5 (for
trisomy 21 mongolism) to 62; it has however, been said that
mongoloid children are typically the trainable mentally
handicapped and can be taught simple skills.
Mongolism
is often accompanied by other serious physical defects,
such as heart defects and bowel obstructions, which require
surgery to prevent death of the newborn; these accompanying
45
defects may
provoke a decision not to treat the newborn.
Spina bifida is one of the most common birth defects
and generally involves a defective closure of the vertebral
column, which increases the risk of
46 meningeal infections
leading to death or b r a m damage.
Symptoms of this
condition include a malformed and exposed spinal cord,
paralysis of the lower extremities, bowel and bladder
47
•
dysfunction, and hydrocephalus.
As with the condition
of hydrocephalus alone, predictions of mental impairment
cannot be accurately made at birth.
One child who survived
this condition committed suicide at the age of twelve as
a result of emotional scars caused by the birth defect;
his physical defects had been skillfully treated but the
operations had left him with an unsteady gait and a hunchback
posture. 48
-9"
00571
Encephalomeningocele, like anencephaly, is an
extremely severe birth defect.
Newborns with this con-
dition have brains that protrude from the skull, and surgery
often means removing substantial portions of the brain
49
to close the cranial vault.
Therefore, severe mental
and motor dysfunction is symptomatic of this condition.
All of these conditions are severe enough to make
the question of nontreatment arise.
Nontreatment in such
situations has apparently not been uncommon.^
Many
physicians have admitted 51
practicing passive euthanasia
or being in favor of it.
Results of a 1971 poll of
physicians at the University of Washington Medical School
showed that 80% had practiced passive euthanasia and 8 7%
favored it.
52
A reason for this is suggested by the court
in Saikewicz:
Prior to the development of such new techniques
[i.e. chemotherapy] the physician perceived his
duty as that of making every conceivable effort
to prolong life. On the other hand, the context
in which such an ethos prevailed did not provide the range of options available to the physician today in terms of taking steps to postpone death irrespective of the effect on the
patient. With the development of the new
techniques, serious questions as to what may
constitute acting in,-^he best interests of the
patient have arisen.
Such an argument, that treatment may not be in
the best interests of the patient, may also be used in the
context of the defective newborn.
Quality of life has
been a consideration of what is in the "best interests"
~
1 0
"
00572
of the patient, not in the sense that a life was not worth
saving because of economic or societal
reasons but in the
sense that a life might be so grievously afflicted that
the one afflicted would not want to live in such a fashion.
In Saiewicz, the court stated that rather than viewing
"quality of life" as demeaning the value of the life of
one who is mentally retarded, the term should be viewed
as referring to a continuing state of pain and disorientation inflicted by treatment on one incapable of understanding, and the court questioned whether such "quality
of life" was m
the best interests of the patient.
Robertson, in his article
Defective Newborns:
54
Involuntary Euthanasia of
A Legal Analysis ,55 also presents
such a position:
Thus the strongest claim for not treating the
defective newborn is that treatment seriously
harms the infant's own interests whatever may
be the effects on others. When maintaining his
life involves great physical and psychological
suffering for the patient, a reasonable person might conclude that such a life is not worth
living. Presumably the patient, if fully Informed and able to communicate, would agree.
One then would be morally justified in withholding lifesaving treatment if such action
served t^gadvance the best interests of the
patient.
The quality-of-life argument, as Robertson asserts,
is strongest in the case of the profoundly retarded or
grossly deformed newborn.
In his article,
Treatment of Myelomeningocele,
57
Results of
Lorber asserts that
- 00573
quality of life for a newborn facing a long succession of
operations, hospital admissions, and other deprivations,
with the end result being a combination of gross physical
defects and retarded intellectual development, is such
that many people would deem such a life not worth saving
(presumably if they themselves were facing such a life).
However, judging the quality of life for another
raises serious questions.
If the person making the judg-
ment is a parent, a conflict of interest is obvious.
The
parent cannot be an objective, disinterested decisionmaker (like the judge in Saikewicz) because the parent
will be directly affected by a nontreatment decision.
A
parent may be considering, in making such a decision, the
high cost of treatment (it can be astronomical if the
infant is in a special neo-natal intensive care unit),
the family financial situation, stability or lack thereof
in the marriage, career responsibilities, and the emotional
burdens of raising a severely handicapped child.
Even if
the decision-maker is neutral, problems of actually knowing
what is in the best interests of another and what another
would want for himself exist, in addition to the difficulty
58
of making an accurate prediction of the extent of disability.
The infant's quality-of-life, if the infant is treated,
seems minimal compared to a reasonably normal person, but
to one who has never known anything else and cannot know
- 0574
what he is incapable of experiencing, such a life may be
preferrable to no life at all.
a position:
One court has stated such
"[o]ne of the most deeply held beliefs of our
society is that life —
whether experienced with or without
59
a major physical handicap —
is more precious than non-life."
Opposing this view, that a severely afflicted
life is better than no life at all, is a view that personal
function, rather than biological function, is what determines quality of life and humanness and that one who is
without cognitive ability "is no longer really
6 0 a human being,
no longer a person, no longer really alive."
This argu-
ment may have some validity in the context of a person
like Karen Quinlan
who lapses into an irreversible vege-
tative coma, because comparisons can be made between former
quality of life and present or future quality of life and
the person, as she had been, may no longer exist.
However,
in the context of the defective newborn, to say that such an
infant is not a person raises serious questions of the
possibility of abuse of such non-person classifications.
Some commentators stress the abuse of the concept of
"humanity" in historical practices of discrimination and
atrocities, such as slavery, witchhunts, and the mass
extermination of non-Aryans denied person status by the
Nazis. 61
-00S55
POTENTIAL CRIMINAL LIABILITY
In addition to the ethical questions raised by a
nontreatment decision, a parent who decides that nontreatment
is in the best interests of the Infant runs the risk of
incurring criminal liability.
The courts have not yet
ruled directly on the question of criminal liability for q
nontreatment decision affecting defective newborns, but a
62
lack of case law on point
does not necessarily indicate
that criminal liability will not follow a nontreatment
decision.
Statutory law on criminal homicide, and injury
to a child is still applicable, as is case law under these
. . .
63
statutes.
A person commits criminal homicide in Texas if
he intentionally, knowingly, recklessly, or with criminal
67
negligence causes the death of an individual.
homicide is broken down into several offenses:
Criminal
murder,
capital murder, voluntary manslaughter, involuntary
man65
slaughter, and criminally negligent homicide.
The offense of murder is defined as intentionally
66
or knowingly causing the death of an individual.
A person
may be criminally liable for murder by omission if he has
a legal duty to protect another, with knowledge or gross
negligence he fails to act, andg nsuch failure proximately
gg
causes the death of the other.
In Martinez v. State
, the
court held that "[mlurder can be committed by voluntary and
- 00576
malicious neglect.
The omission or neglect to perform
a duty resulting in death, such as of a mother failing to
feed her child, may constitute murder where the omission
was willful and there was a deliberate intent to cause
69
death [emphasis added]."
The much-publicized incident at
Johns Hopkins University Hospital, in which a mongoloid
newborn was allowed to starve to death as a result of the
parents' refusal to consent to surgery to correct an intes70
t m a l obstruction,
.
.
.
seems alarmingly similar to the situ-
ation in Martinez since the infant was not fed (it could not
be because of inability to digest food), and starved to
death,and the parents had been informed that nontreatment
would result in death.
There would be, however, a question
71
of causation
:
whether death was caused by starvation
or the defect itself.
7 2The Martinez decision was followed in Harrington
v. State' , in which the parents were jointly convicted of
the murder of their two year old daughter by starvation.
The court held that each parent has a duty to support
his/her minor children, and that both parents may be guilty
of an intentional failure to provide sufficient food and
care for a child unless it is shown that one parent has
sole and exclusive custody.
Therefore, both parents risk
criminal liability for a nontreatment decision resulting
In the infant's death.
Failure to provide medical care, hinted at by
the court in Harrington, has also been held to be a breach
of the parental duty to support minor children.
In Dillon
73
v. State,
the parents were convicted of involuntary
manslaughter for starving their daughter to death; they
had been indicted for murder for failing to provide food
and medical care in breach of their parental duty, which
resulted in the infant's death.
The court found that the
parents recklessly disregarded a substantial risk that the
infant's death would result from lack of feeding, of which
they were or should have been aware
(this is the standard
74for involuntary manslaughter).
In a case more relative to the situation of the
defective newborn (the above cases involved normal children),
a mother was convicted of murder of her newborn daughter
by starvation; the infant was born with a cleft palate
and a harelip.
impossible.
The defects made feeding difficult but not
The mother stated that she felt that the child
would be "better off" dead than alive because she felt the
child would be tormented all her life because of her defects.
The mother's decision to starve the child was apparently
motivated by emotional and family pressures:
she had an
insecure marriage, caring for the child was a strain, her
husband
disavowedthe
parentage
of the
and all
her pressures
adoptive
7 5 child,
mother rejected
child also.
These are
- 16 -
00578
which the parents of severely defective newborns may face.
Of course, in this case there was no question of causation
of death since the infant was able to eat relatively normally,
unlike the Johns-Hopkins mongoloid infant.
Criminal liability other than criminal homicide
may exist for the nontreatment decision:
parents could
incur criminal liability for injury to a child.
Texas
76
Penal Code Ann. Sec. 22 . 04-
provides that a person commits
the offense of injury to a child if he intentionally,
knowingly, recklessly, or with criminal negligence, by
act or omission, engages in conduct that causes serious
bodily injury, serious physical or mental deficiency or
impairment, disfigurement or deformity, or bodily injury to
a child fourteen years of age or younger.
This provision
is broad enough to cover the situation of nontreatment
of a defective newborn, in which the infant dies as a result
of nontreatment or is injured by nontreatment (if the
infant survives).
Here again, causation is a problem; it
may be questionable whether the defect
7 7 itself or nontreatment caused the statutory "injury."
78
The court in Ahearn v. State
held that "[w]here
the parents' omission or neglect to perform a duty results
in a serious physical deficiency, such as failing to provide
adequate food or medical care to an obviously emaciated
child, they must be guilty of injury to a child where the
omission was intentional, knowing, reckless or with criminal
- 16 -
00579
negligence."
79
•
•
Thus, failure to provide medical care can
result in criminal liability for injury to a child if the
failure to provide medical care aggravates the injury
(starvation and sores of the skin because of poor hygeine
in this case).
One commentator suggests that under a
statutory scheme for injury to a child or criminal neglect
of a child, refusal to operate on, for instance, a Down's
Syndrome infant with other serious physical defects like
hydrocephalus and an intestinal obstruction is a criminal
offense, "a willful and knowing refusal to provide care
80
necessary to avoid serious injury to health."
Although there is clearly the potential for
criminal liability, there is a lack of reported decisions on
the question of criminal liability for nontreatment decisions
in the defective newborn context.
It has been suggested
that the lack of prosecution reflects
a moral ambivalence
81
about nontreatment decisions.
Several reported decisions
on euthanasia of older handicapped children seems to support
this view.
In a case reported in the New York Times in
19 39 , a man chloroformed his imbecile teenage son to death-,
the boy had the mentality of a two year old.
The man said
he did it because he loved the boy, that "it was the will
82
of God."
He was acquitted of first degree manslaughter.
In another case, Louis Repouille chloroformed his thirteen
year old son, who was blind, bedridden since infancy,
- 16 -
19
deformed and profoundly retarded.
Repouille was convicted
of manslaughter but freed on a suspended sentence of five
to ten y e a r s . ^
This conviction surfaced again in a natural-
ization proceeding in which Repouille was denied naturalization
on grounds of moral character because of this conviction.
The court said he was to be allowed to apply for naturalization again after a period of five years, reasoning that:
[w]e all know that there are great numbers of
people of the most unimpeachable virtue, who
think it morally justifiable to put an end to
a life so inexorably destined to be a burden
to others, and -- so far as any possible interest
of its own is concerned — condemned to a brutish
existence, lower indeed than all but the lowest
forms of sentient life. Nor is it inevitably
an answer to say that it must be immoral to do
this, until the law provides security against the
abuses which would inevitably follow, unless
the practice were regulated.... It is reasonably clear that the jury which tried Repouille^
did not feel any moral repulsion at his crime.
Another man was found not guilty of murder by reason of
insanity when he withdrew his twenty-nine year old daughter,
"a spastic incapable of speech," out of a sanitorium and
shot her to death because he feared what would happen to
85
her if he should die.
Because of the potential criminal liability for
nontreatment, even though the possibility of nonenforcement
exists, parents may wish to choose alternatives to nontreatment.
One alternative is institutionalization of the
defective newborn.
Parents may decide that they cannot cope
with such an infant, emotionally or physically.
- 16 -
00581
Raising
such a child at home can be extremely demanding because
parents must learn to care for the disabled child, meet
the needs of siblings, confront feelings of anger, guilt,
86
or shame, and face probable financial hardship.
Keeping
a severely defective infant at home may put serious strain
on even the best marriages, cause behavioral problems in
siblings, or cause financial ruin for a family if frequent
hospitalization and special medical attention is necessary.
Institutionalization may be the best option in such cases.
Parents may also exercise the option of terminating
parental rights and obligations (or the option may be
exercised for them).
In Texas, this procedure is found in
87
Chapter 15 of the Family Code.
For a voluntary termination
under Section 15.01, the petition may be granted if the court
finds that it is in the best interest of the child.
It may
be assumed that a court will find that termination of
parental rights is in the best interest of the child, since
the alternative may be nontreatment and death.
Under
Section 15.02, there may be an involuntary termination of
parental rights when the parent has knowingly placed or
knowingly allowed the child to remain in conditions which
88
endanger the physical or emotional well-being of the child.
Parental refusal of medical treatment for the defective
newborn arguably fits within the provisions of Section 15.02
since the purpose of the nontreatment decision is the death
- «0582
of the child.
Under this provision, a hospital or physician
who disagreed with the parents' decision not to treat could
have the parent-child relationship terminated and the child
made a ward of the state, so that treatment could be
administered.
Two recent court decisions indirectly support
this position of involuntary termination of parental rights
for this purpose by holding that medical treatment of a
child can be ordered over the objection of parents when
the parental conduct threatens a child's well being and
is against the best interests of the child.
In Custody
89
of a Minor,
the court held that "where...the child's
very life is threatened by a parental decision refusing
medical treatment, this State interest [in protecting the
welfare of children] clearly supercedes parental prerogatives.
The court in so deciding stated that parental rights do not
give parents life and death authority over their children
and that "the parental right to control a child's nurture
is grounded not in any 'absolute property right' which
can be enforced to the detriment of the child, but rather
is akin to a trust, subject to...[a] correlative duty to
care for and protect the child, and...[terminable] 91
by [the
parents'] failure to discharge their obligations."
The
92
court m
In re Storar
held that although a parent or
guardian has a right to consent to medical treatment on
behalf of a child, a parent may not deprive a child of
" : 00583
life-saving treatment, even if well mtentioned,
93
and
that a court may not permit a parent to deny a child all
treatment for a condition which threatens the life of the
child.
These two recent decisions may indicate how the
courts would deal with a decision for nontreatment of the
defective newborn, and if these cases are reliable indicators, the parents' right to decide for nontreatment and the
extent of parental control in medical treatment situations
may be seriously limited.
Because of the lack of a general
judicial consensus and definitive case law, the issue of
nontreatment of the defective newborn may be more appropriately decided by the legislature than the courts.
94
The Florida Supreme Court has stated such a position in
Satz v. Perlmutter.
95
saying:
[bjecause the issue [whether to withdraw or
withhold treatment] with all its ramifications
is fraught with complexity and encompasses the
interests of the law, both civil and criminal,
medical ethics and social morality, it is not
one which is well-suited for resolution in any
adversary judicial proceeding. It is the type
issue which is more suitably addressed in the
legislative forum, where fact finding can be less
confined and the viewpoints of all interested
institutions and disciplines can be presented
and synthesized. In this manner only can the
subject be dealt with comprehensively and the
interests of all institutions and individuals
be properly accomodated.
00584
ENDNOTES
Burger, The Law and Medical Advances, 67 ANNALS
INTERNAL MED. SUPP. 7, 15, 17 (1967), quoted in Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 370 N.E.
2d 417, 423 (1977).
^Medical Ethics: The Right to Survival, 1974:
Hearing on the Examination of the Moral and Ethical Problems
Faced with the Agonizing Decision of Life and Death Before
the Subcomm. on Health of the Senate Comm. on Labor and
Public Welfare, 93d Cong., 2d Sess. 14 (197 4) [hereinafter
cited as 1974 Hearing].
3
1974 Hearing, supra note 2, at 13.
Kutner, Euthanasia: Due Process for Death With
Dignity; The Living Will, 54INDIANA L.J. 201 (1979).
5
Id. at 20; Satz v. Perlmutter, 362 SO. 2d 160, 164
(Fla. App. 1978 ), aff'd, 379 SO. 2d 359 (1980).
5
TEX. STAT. ANN. art. 4590h (Supp.1982).
7
. . .
Sharp and Crofts, Death with Dignity: The Physician's
Civil Liability, 27 BAYLOR L. REV. 86 (1975).
g
1974 Hearing, supra note 2, at 54.
g
Foreman, The Physician's Criminal Liability for the
Practice of Euthanasia, 27 BAYLOR L. REV. 54 (1975); see also
Robertson', Involuntary Euthanasia of Defective Newborns: A
Legal Analysis, 27 STAN. L. REV. 213 (1975); Note, Euthanasia:
Criminal, Tort, Constitutional and Legislative Considerations,
48 NOTRE DAME LAW. 200 (1973).
"^Sharp and Crofts, supra note 7; see also Robertson,
supra note 9.
"^Fletcher, Ethics and Euthanasia, 2 HASTINGS CENTER
STUDIES 47 (1974), reprinted in HORAN S MALL, DEATH, DYING AND
EUTHANASIA 2 93 (1977).
- 00585
12
.
Superintendent of Belchertown v. Saikewicz,
373 Mass. 728, 370 N.E. 2d 417 (1977).
13
Liacos, Dilemmas of Dying, MEDICOLEGAL NEWS,
Fall 1979, at 4, 7.
14
Kutner, supra note 4, at 206, 207.
15
211 N.Y. 125 ; 105 N.E. 92 (1914).
16
Id. at 129, 105 N.E. at 93.
17
Kutner, supra note 4 at 207; see also Satz v.
Perlmutter, 362 SO. 2d 160, 163 (Fla. App. 1978), aff'd, 379
SO. 2d 359 (1980).
18
462 F. SUPP. 1131 (D.N.J. 1978).
19
186 KAN. 393, 350 P. 2d 670 (1960).
20
.
Kutner, supra note 4, at 210. This article
contains an extensive discussion on informed consent and
the right to refuse treatment, and development of both
at pp. 206-17.
21
362 SO. 2d 160 (Fla. App. 1978), aff'd 379
SO. 2d 359 (1980). This patient had Lou Gehrig's disease,
which is incurable and has a life expectancy of two years
from the time of diagnosis. Mr. Perlmutter was described
as being incapable of movement, unable to breathe without
a respirator, but fully competent. His family agreed with
his wishes to discontinue medical treatment.
7?
70 N.J. 10, 355 A. 2d 647, cert, denied, 429
U.S. 922 (1976 ); In re Severns, 425 A2d 156 (Del. Ch. 1980);
In re Spring, 1980 Mass. Adv. Sh. 1209, 405 N.E.2d 115 (1980);
Superintendent of Belchertown v. Saikewicz, 373 Mass. 728,
370 N.E.2d 417 (1977); Eichner v. Dillon, 73 A.D.2d 431 , 426
N.Y.S.2d 517 (1980), modified, 52 N.Y.S.2d 363,420 N.E.2d
64, 438 N.Y.S.2d 266 (1981).
23
.
Superintendent of Belchertown v. Saikewicz,
373 Mass. 728, 370 N.E.2d 417, 427 (1977).
- 00586
9U
381 U.S. 479 (1965)(right of privacy extends
to matters of contraception and similar family decisions).
25
410 U.S. 113 (1973)(right of privacy broad
enough to encompass a woman's decision whether or not to
terminate her pregnancy).
26
321 U.S. 158 (1944)(right of privacy applicable
to family relationships and parental rights). See In re
Quinlan, 70 N.J. 10, 355 A.2d 647, 662-64, cert, denied,
429 U.S. 922 (1976); Superintendent of Belchertown v.
Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 424 (1977); In re
Spring, 1980 Mass. Adv. Sh. 1209, 405 N.E.2d 115, 119 (1980);
see also Andrews v. Ballard, 498 F. Supp. 1038 (D.Tex. 1980).
27
Roe v. Wade, 410 U.S. 113, 153,159 (1973).
28
In re Spring, 1980 Mass. Adv. Sh. 1209, 405N.E.2d
115, 119 (1980). Accord, Satz v. Perlmutter, 362 SO. 2d 160,
164 (Fla. App. 1978), aff'd, 379 SO. 2d 359 (1980); Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 370
N.E.2d 417, 427 (1977); In re Quinlan, 70 N.J. 10, 355
A.2d 647 , 664 , cert, denied, 429 U.S. 922 (1976 ).
29
•
Ellis, Letting Defective Babies Die:
7 AM. J. L.8MED. 393, 405 (1982).
Who Decides? ,
30
Id. See In re Quinlan, 70 N.J. 10, 40, 355
A.2d 647 , 663 , cert, denied, 429 U.S. 922 (1976 ); Satz
v. Perlmutter, 362 SO. 2d 160 379 SO. 2d 359, 360 (Fla.
1980); In re Spring, 1980 Mass. Adv. Sh. 1209 , 1214 , 405
N.E.2d 115, 119 (1980); Superintendent of Belchertown v.
Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 424 (1977).
31
32
Ellis, supra note 29, at 406-07.
373 Mass. 728, 370 N.E.2d 417 (1977).
33
Joseph Saikewicz was 67 years old, with an I.Q.
of 10 and a mental age of about 2 years and 8 months; he had
resided in state institutions almost all of his life. He
was suffering from acute myeloblastic monocytic leukemia,
which causes internal bleeding and possibly severe anemia
and high susceptibility to infection. It is invariably
fatal and remission, for 2-13 months, through chemotherapy
is achieved only in 30-50% of the cases.
- 00587
34Ellis, supra
note 29, at 407-08(citing Berman
v. Allen, 80 N.J. 421, 429, 404 A.2d 8,12 (1979); Gleitman
v. Cosgrove, 49 N.J. 22, 30, 227 A.2d 689, 693 (1969)).
35
1974 Hearing, supra note 2, at 26.
3
(1971)
^Ellis, supra note 29.
37
Id. at 394.
38
See generally J. WARKANY, CONGENITAL MALFORMATIONS
39
° B. MALOY, MEDICAL DICTIONARY FOR LAWYERS 4 9 (19 60)
(cited in Ellis, supra note 29, at 397).
40
Ellis, supra note 29, at 397.
41
Id. at 395.
WARKANY, supra note 38, at 226-27. See also
R. BEHRMAN, PERINATAL MEDICINE DISEASES OF THE FETUS AND
INFANT 817 (1975) .
43
Robertson, supra note 9, at 213.
42
44
Diamond, The Deformed Child's Right to Life,
reprinted in HORAN S MALL, DEATH, DYING, AND EUTHANASIA
127, 129 (1977).
45
Ellis, supra note 29, at 396.
46
.
Mueller S Phoenix, A Dilemma for the Legal and
Medical Professions: Euthanasia and the Defective Newborn,
22 ST. LOUIS L.J. 501, 502 (1978).
47
Ellis, supra note 29, at 395.
48
Id. at 396.
note 46, at 501.
49
See also Mueller & Phoenix, supra
Ellis, supra note 29, at 397.
00588
50
See Doctors Ponder Ethics of Letting Mongoloid
Die„ Washington Post, Oct. 15, 1971, at A1, Col. 1(about a
widely publicized incident at Johns Hopkins University
Hospital, in which the parents refused consent for surgery
to correct intestinal blockage because the child was a
mongoloid; the child was allowed to starve to death);
Shaw, Doctor, Do We Have A Choice?, N.Y. Times, Jan. 30, 1972,
6, at 44; Lorber, Selective Treatment of Myelomeningocele:
To Treat or Not to Treat, 53 PEDIATRICS 307 (1974); Duff £
Campbell, Moral and Ethical Dilemmas in the Special Care
Nursery, 289 NEW ENG. J. MED. 890 (1973)(all of the above
cited in Ellis, supra note 29, at 399-401).
51
See Lewis, Machine Medicine and Its Relation to
the Fatally 111, 206 J. A. M. A. 387 (1968); see also Rice,
Euthanasia: A Time to Live and a Time to Die - How Physicians
Feel, PSYCHOLOGY TODAY, Sept. 1974 at 2 9 (cited in Kutner,
supra note 4, at 222); 1974 Hearing, supra note 2(a doctor's
testimony before the congressional subcommittee indicated
that 3/4 of American physicians have practiced euthanasia).
52
Ellis, supra note 29, at 399.
53
Superintendent of Belchertown v. Saikewicz,
373 Mass. 728, 370 N.E.2d 417 423 (1977).
55
Robertson, supra note 9.
55
Id. at 178.
57
13 DEVELOP. MED. £ CHILD. NEUROL. 279 (1971)
(summarizing the results of treating 524 cases of
myelomeningocele).
^Robertson, supra note 9, at 254-55.
59
Berman v. Allen, 80 N.J. 421, 429, 404 A.2d 8,
12 (1979)(wrongful life case in which the New Jersey Supreme
Court refused to recognize a cause of action for wrongful
life).
00589
B0
Fletcher, supra note 11, at 295. But see
Robertson, supra note 9, at 246-51 (on the difficulties
of the person-nonperson distinction).
61
See Bok, Ethical Problems of Abortion, 2 HASTINGS
CENTER STUDIES, Jan. 1974, at 33, 41(cited in Robertson,
supra note 9, at 247); Wertham, The Geranium in the Window:
The "Euthanasia" Murders, reprinted in HORAN S MALL, DEATH,
DYING AND EUTHANASIA 602 (1977); Alexander, Medical Science
Under Dictatorship, reprinted in HORAN S MALL, DEATH, DYING
AND EUTHANASIA 571 (1977).
62
Ellis, supra note 29, at 401-02; Robertson,
supra note 9, at 217.
63
For an excellent discussion on criminal liability
for nontreatment decisions, see Robertson, supra note 9.
64
TEX. PENAL CODE ANN.^19.01 (Supp. 1982).
66
TEX. PENAL CODE ANN.§19.02 (Supp. 1982).
67
W . LAFAVE S A. SCOTT, HANDBOOK OF CRIMINAL LAW
182-91 (1972).
58
498 S.W.2d 938 (Tex. Crim. App. 1973).
69
Id. at 939.
70
7 1 See
Ellis, supra note 29, at 399.
Cf. Self v. State, 513 S.W.2d 832 (Tex. Crim.
App. 1974)(State must prove that death was brought about
by the criminal act or omission of another).
72
73
547 S.W.2d 616 (Tex. Crim. App. 1977).
574 S.W.2d 92 (Tex. Crim. App. 1978). This
duty to provide medical care existed at common law as well.
See Faunteroy v. United States, 413 A.2d 1294 (D.C. App.
1980); Singleton v. State, 33 Ala. App. 536, 35 S02d 375 (1948)
State v. Clark, 5 Corrn. Cir. 699, 261 A2d 294 (1969);
State v. Williams, 4 Wash. App. 908, 484 P.2d 1167 (1971).
7U
TEX. PENAL CODE ANN.16.03 defines culpable
mental states ,% 6 . 03 (c ) defines recklessness ,<sl9 . 05 defines
involuntary manslaughter as recklessly causing the death
of an individual.
75
People v. Lynch, 208 N.W.2d 656, 657 (Mich.
App. 1973).
75
TEX. PENAL CODE ANN.$22.04(Supp. 1982).
77
Cf. Smith v. State, 603 S.W.2d 846 (Tex. Crim.
App. 1980)(denial of food and adequate medical attention
resulting in injury under % 22.04).
78
588 S.W.2d 327 (Tex. Crim. App. 1979).
79
Id. at 336.
80
Ellis, supra note 29, at 410.
82
N.Y. Times, May 11, 1939, at 10, Col. 2; N. Y.
Times, May 12 , 1939 at 1, Col. 5(cited in Sanders, Euthanasia:
None Dare Call It Murder, 60 J. CRIM. L.C.&P.S. 351, 355
(1969)).
83
N.Y.Times, Oct. 13, 1939, at 25, Col. 7; N.Y.
Times, Dec. 25, 1941, at 44, col. 1(cited in Sanders,
supra note 82, at 355).
ftU
Repouille v. United States, 165 F2d 152, 153
(2d Cir. 1947).
85
N.Y. Times, May 23, 1950, at 25, col. 4(cited
in Sanders, supra note 82, at 3 55).
86
Robertson, supra note 9, at 2 57.
- 00591
87
TEX. FAM. CODE ANN.% 15.01 (Vernon 1975) deals
with voluntary termination,§ 15.02 with involuntary termination.
88
TEX. FAM. CODE ANN.$ 15.02(1)(D) (Supp. 1982).
89
375, Mass. 733, 379 N.E.2d 1053 (1978), aff'd,
1979 Mass. Adv. Sh. 2124, 393 N.E.2d 836 (1979).
90
•
379 N.E.2d at 1066; see discussion of parental
rights and limits thereon at 1062-63.
91
Id. at 1063(citing Prince v. Massachusetts,
321 U.S. 158, 166-67 (1944); Richards v. Forrest, 278
Mass. 547, 553, 180 N.E. 508, 511 (1932); Purinton v.
Jamrock, 195 Mass. 187, 201, 80 N.E. 802 (1907); Donnelly
v. Donnelly,
Mass. App.
, 344 N.E. 2d 195 (1976)).
99
^ 5 2 N.Y.2d 363, 438 N.Y.S.2d 266 (1981).
93
438 N.Y.S.2d at 275.
94
See Ellis, supra note 29, for an excellent
discussion of a legislative solution for the nontreatment
dilemma.
q^
Satz v. Perlmutter, 362 SO.2d 160 (Fla. App.
1978), a f f M , 379 SO.2d 359 (1980).
96
379 SO.2d at 360.
- 00592