Emergency Medical Care and Treatment for Infants

  • Bruce Dennis Sales
  • D. Matthew Powell
  • Richard Van Duizend


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


Medical Care Supra Note Criminal Liability Court Order Parental Counselling 
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  1. 1.
    See Duff and Campbell, Moral and Ethical Dilemmas in the Special-Care Nursery, 289 NEW ENG. J. MED. 890 (1973).PubMedCrossRefGoogle Scholar
  2. 2.
    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.Google Scholar
  3. 2a.
    See, e.g., F. Ingraham and D. Matson, Neurosurgery of Infancy and Childhood, 35–39 (1954)Google Scholar
  4. 2b.
    Lorber, Results of Treatment of Myelomeningocele, 13 DEVELOP. Med. and Child Neurol. 279–303 (1971).Google Scholar
  5. 3.
    Robertson, supra note 2, at 214 n.8.Google Scholar
  6. 4.
  7. 5.
    Severe cases of anencephaly and hydrocephaly are the primary conditions which will, in and of themselves, prove fatal.Google Scholar
  8. 6.
    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)Google Scholar
  9. 6a.
    Ames and Schut, Results of Treatment of 171 Consecutive Myelomeningoceles—1963–1968, 50 Pediatrics 466 (1972)Google Scholar
  10. 6b.
    but see Lorber, Selective Treatment of Myelomeningocele: To Treat or Not to Treat, 53 Pediatrics 307 (1974).Google Scholar
  11. 6c.
    See also Gustafson, Mongolism, Parental Desires and the Right to Life, 16 Perspectives in Biology and Medicine 529 (1973).Google Scholar
  12. 7.
    See, e.g., Fletcher, J. Indicators of Humanhood: A Tentative Profile of Man, Hastings Center Report (November 1972).Google Scholar
  13. 8.
    Id. See also, Carney, Medical Standards for Deformed Newborn, WASH. POST, (Mar. 20, 1974), A 15, col. 1.Google Scholar
  14. 9.
    See text accompanying note 6, supra. Google Scholar
  15. 10.
  16. 11.
    See Kamisar, Some Non-Religious Views Against Proposed “Mercy Killing” Legislation, 42 MINN. L. REV. 969, 1012–37 (1958).Google Scholar
  17. 12.
    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).Google Scholar
  18. 13.
    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.Google Scholar
  19. 14.
    Robertson, supra note 2, at 217–44.Google Scholar
  20. 15.
    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).Google Scholar
  21. 16.
    ARK. STAT. ANN. §§82–3801 to 3804 (Supp. 1978).Google Scholar
  22. 17.
    See text accompanying note 3, supra. Google Scholar
  23. 18.
    N.M. STAT. ANN. §§24–7–1 to 11 (1978).Google Scholar
  24. 19.
    Id. at §24–7–3.Google Scholar
  25. 20.
    IND. CODE §35–1–58.5–7 (1975).Google Scholar
  26. 21.
  27. 22.
    Ross Dolloff had primary responsibility for drafting this model statute.Google Scholar
  28. 1.
    See Tooley, Abortion and Infanticide, 2 Phil. and Pub. Affairs 37 (1972).Google Scholar
  29. 2.
    Matson, Surgical Treatment of Myelomeningocele, 42 Pediatrics 225, 226 (1968).Google Scholar
  30. 3.
    Robertson, Involuntary Euthanasia of Defective Newborns: A Legal Analysis, 27 STAN. L. REV. 213, 214 (1975).Google Scholar
  31. 4.
    Id., at 258.Google Scholar
  32. 5.
    SeeDuff and Campbell,Moral and Ethical Dilemmas in the Special Care Nursery, 289 NEW.ENG. J. MED. 890 (1973).Google Scholar
  33. 6.
    See J. Warkany, Congenital Malformations 324–31 (1971).Google Scholar
  34. 7.
    SeeFreeman, The Shortsighted Treatment of Myelomeningocele: A Long-Term Case Report, 53 Pediatrics 311 (1974).Google Scholar
  35. 8.
    Treatment without consent, in emergency situations, has long been authorized under the common law. See Physicians and Surgeons 70 C.J.S. §48 (1951).Google Scholar
  36. 9.
    This aspect of the physician’s duty is analagous to that contained in many state child abuse and neglect laws.Google Scholar
  37. 10.
    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).Google Scholar
  38. 11.
    See Duff and Campbell, Supra note 5.Google Scholar
  39. 12.
    E.g., MD. ANN. CODE art. 59, §19 (Supp. 1979–80).Google Scholar
  40. 13.
    Robertson, supra note 3, at 224–35.Google Scholar
  41. 14.
    Id., at 217–24.Google Scholar

Copyright information

© Springer Science+Business Media New York 1982

Authors and Affiliations

  • Bruce Dennis Sales
    • 1
  • D. Matthew Powell
    • 1
  • Richard Van Duizend
    • 1
  1. 1.Developmental Disabilities State Legislative Project of the American Bar Association’sCommission on the Mentally DisabledUSA

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