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Published online by Cambridge University Press: 03 February 2016
The highly publicized cases of Indiana's Infant Doe, Tennessee's Pamela Hamilton, New York's Baby Jane Doe, and California's Elizabeth Bouvia raise a series of questions about the proper relations of legal, medical, and moral expertise in our society which are being forced upon us with increasing urgency. Indeed, the daily papers, radio, and television news and special reports flood us with instances of pressing moral dilemmas being played out in courtrooms before bevies of expert witnesses on both sides of issues which only a generation ago would have been virtually unheard of (e.g., genetic counseling and engineering, organ donation and transplantation, the use and abuse of life-sustaining technologies, and so forth). In this article I wish to explore several of the legal, medical, and moral ambiguities surrounding these proceedings by focusing on the first two cases mentioned above.
I wish to thank professors Roger Dworkin (Indiana University Law School), Robert Burt (Yale University Law School), W. D. White (St. Andrews Presbyterian College), Allen Verhey (Hope College), A. Sadeghi-Nejad, M.D. (New England Medical Center), and David H. Smith and Judith Granbois of the Poynter Center (Indiana University) for their generous assistance with earlier drafts of this essay.
2. Cf. Gustafson, , Mongolism, Parental Desires, and the Right to Life, 16 Perspectives in Biology and Medicine 529–77 (Summer 1973)CrossRefGoogle ScholarPubMed, and Pless, , The Story of Baby Doe, 309 New England Journal of Medicine 664 (09 15, 1983)Google ScholarPubMed.
3. Verhey, , The Death of Infant Doe, 32 Reformed Journal 12 (06 1982)Google ScholarPubMed.
4. 27 Stanford Law Review 213–69 (01 1974)Google Scholar. For a briefer statement of Robertson's position, see Robertson, , Substantive Criteria and Procedures in Withholding Care from Defective Newborns, in The Law-Relation: A Philosophical Exploration, 217–24 (1981)CrossRefGoogle Scholar.
5. Robertson, supra note 4, at 217.
6. Id. at 267. Robertson suggests that perhaps ‘profoundly retarded, nonambulatory hydrocephalics who are blind and deaf or infants who are unlikely to survive beyond a year are not owed ordinary treatment. …’ The fundamental difficulty I have with these criteria is that they are both too narrow and too vague. Surely some other cases might properly be included (e.g., various forms of spina bifida, anencephalia, heart disease, etc., and the class of ‘infants who are unlikely to survive beyond a year’ is medically very difficult to identify.
7. Momeyer, , Medical Decisions Concerning Noncompetent Patients, 4 Theoretical Medicine 281–82 (1983)CrossRefGoogle ScholarPubMed
8. Cf. Bayles, M., Reproductive Ethics 80–105 (1984)Google Scholar.
9. Gustafson, supra note 2, at 2. However, I do not mean to suggest that Gustafson accepts this ‘liberal’ premise.
10. Verhey, supra note 3, at 13. See also the eloquent testimony of Ms. Terry Schupbach, a victim of spina bifida, who teaches art at Kenyon College in Science '81,97 (April, 1981); and Hentoff, Nat, The Awful Privacy of Baby Doe, 200 Atlantic Monthly 54–62 (01 1985)Google Scholar.
11. Reagan, R.. Abortion and the Conscience of the Nation, IX Human Life Review, 7–16 (Spring 1983)Google Scholar.
12. Burt, R., Taking Care of Strangers 169–70 (1979)Google Scholar. Cf. P. Glick, et al., Pediatric Nursing Homes: Implications of the Massachusetts Experience for Residential Care of Multiply Handicapped Children, New England Journal of Medicine, supra note 1, at 640-46.
13. I am aware that the constitutionally based ‘privacy’ doctrine has come under considerable fire of late, but would rest my claim on the practical necessity of a significant element of privacy in human relations if individuals and groups are to preserve their sense of moral intego rity and responsibility. In this context I should perhaps indicate that I believe the morally optimific solution of the Infant Doe case would have been adoption. Unfortunately, to my knowledge this possibility was not presented to the parents until very late in what, by then, had become a public and very painful process of deliberation.
14. Chattanooga Times, January 19, 1985 (confirmed by telephone with Professor Glenn Graber, University of Tennessee-Knoxville, January 25,1985). [EDITOR'S NOTE: Pamela Hamilton died on March 28, 1985.]
15. Holder, , Parents, Courts, and Refusal of Treatment, 103 Journal of Pediatrics, 520 (10 1983)CrossRefGoogle ScholarPubMed.
16. More recently, see the extraordinary case of handicapped minor Phillip Becker: In Re Phillip B., 2 Cal. App. 3d 796,150 Cal. Rptr. 48,1979; and W., & Becker, P., Mourning the Loss of a Son, Newsweek 17 (05 30, 1983)Google Scholar. The unpublished court opinions, including the reversal of the appeals court decision,are reproduced in Wadlington, W., Whitebread, C. & David, S., Children in the Legal System 921–23 (1983)Google Scholar. I owe this example to Professor Burt.
17. American Academy of Pediatrics Policy Statement: Treatment of Critically Ill Newborns, 34 AAP News and Comment 5 (10, 1983)Google Scholar.
18. Statement by C. Everett Koop, Surgeon General, Press Conference, DHHS? Washington, D.C., January 9, 1984.
19. Cf. Holder, supra note 15, at 518.
20. Norman Fost has recently suggested that we must be prepared to move beyond the ‘best interests of the child’ standard to something more rigorous as a threshhold for state intrusion into family medical decisions, such as a ‘clear and probable threat to the child's physical well-being. Whether serious emotional trauma, in the absence of physical injury, warrants intervention is more controversial.’ Parental Control Over Childrent 103 Journal of Pediatrics, 571 (10 1983) (emphasis added)CrossRefGoogle Scholar.
21. Cf. Bayles, supra note 8, at 105.
