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Letting Defective Babies Die: Who Decides?

Published online by Cambridge University Press:  24 February 2021

T. S. Ellis
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Abstract

This Article explores who, in the first instance, should decide whether to withhold or withdraw treatment from a defective newborn. The Article begins by defining the term “severely defective newborn” and discussing potential sources of liability for persons who decide to withhold or withdraw treatment. It next analyzes the ability of parents, physicians, and courts to make these treatment decisions. The Article concludes that, although parents and physicians may eventually make the specific determination, the legislature should at least set guidelines so that the decisions will be, in some measure, consistent, predictable, adequately informed, and in accord with community values.

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Articles
Information
American Journal of Law & Medicine , Volume 7 , Issue 4 , Winter 1982 , pp. 393 - 423
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1982

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References

* Much of the material in this article was included in a presentation to physicians and other health care professionals at the Medical College of Virginia on April 14, 1978. Since that time, I have benefitted from numerous discussions with several physicians and I am especially indebted to Edwin C. Myer, M.D., Chairman, Pediatric Neurology, Medical College, of Virginia, for his incisive comments and invaluable suggestions. I am also indebted to my colleagues W. Taylor Reveley, III and D. Alan Rudlin for many helpful suggestions. But, of course, the responsibility for this article and any errors remain solely mine. Copyright © 1981 by T. S. Ellis, III.

l Estimates of this number vary, but most appear to approximate 30,000 per year. See 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. 26 (1974) [hereinafter cited as 1974 Hearing]; based on figures compiled from the United States Census, 1975, and R. BEHRMAN, PERINATAL MEDICINE—DISEASES OF THE FETUS AND INFANT (1975), two commentators have estimated that approximately 275 defective or malformed children are born in this country each day. Brown & Truitt, Euthanasia and the Right to Die, 3 OHIO N.U.L. REV. 615, 630-35 (1976).

2 For a thorough discussion of these various conditions, see K. SWAIMAN & F. WRIGHT, THE PRACTICE OF PEDIATRIC NEUROLOGY (1975); HANDBOOK OF CONGENITAL MALFORMATIONS (A. Rubin ed. 1967) and NELSON, TEXTBOOK OF PEDIATRICS (10th ed. 1975). No effort is made in this Article to describe the conditions in exhaustive, technical medical terms. Rather, the objective is to give a nontechnical, brief description which, while less precise, is more comprehensible to non-health care professionals.

3 This assumes routine provision of food and water.

4 Edwin C. Myer, M.D., Chairman, Pediatric Neurology, Medical College of Virginia, reported anecdotal instances of serious psychological and social maladjustment in myelomeningoceles. But see Nielsen, A Longitudinal Study of the Psychological Aspects of Myelomeningocele, 21 SCANDINAVIAN J. PSYCHOLOGY 45-54 (1980). Note, however, that these psychological conditions may have resulted from, or been exacerbated by, a lack of timely treatment, and also may be amenable to treatment in the future.

5 See Booker, You Still Get Up the Next Morning …., Richmond Times-Dispatch, Aug. 24, 1980, at Gl, col. 1.

6 See Mueller & Phoenix, A Dilemma for the Legal and Medical Professions: Euthanasia and the Defective Newborn, 22 ST. LOUIS L.J. 501 (1978).

7 See, e.g., Birth Defect Doesn't Stop Boy, 7, Richmond Times-Dispatch, Jan. 10, 1982, at Dl, col. 1; Boy Finds Surplus of Affection, Norfolk Virginian Pilot, Sept. 3, 1979; at Cl, col. 1.

8 Perlman, Koulack, & Tinney, Developmental Defects, in R. GRAY, 1C ATTORNEYS’ TEXTBOOK OF MEDICINE ¶ 17.53(5e) (3d ed. 1981).

9 Because medical advances in the last few years brighten the outlook for some myelomeningoceles, the focus of future debate over treatment decisions relating to defective newborns may shift to other neonatal dysfunctions and defects.

10 B., MALOV, MEDICAL DICTIONARY FOR LAWYERS 49 (1960)Google Scholar. Note, however, that none of the newborns discussed in this Article meet the statutorily defined criteria for brain death. See VA. CODE § 54-325.7 (1979).

11 Personal communication with Edwin C. Myer, M.D., Chairman, Pediatric Neurology, Medical College of Virginia.

12 This is not an exhaustive listing of perinatal conditions and diseases that without treatment result in death, and even with treatment result, at best, in a diminished life quality and term. For example, Trisomy 18 occurs approximately once in every 4,000-5,000 births and the majority of babies so afflicted die within the first three months of life. In a 1976 survey, over half of the San Francisco Bay area physicians polled indicated that they would not treat Trisomy 18 newborns. See Treating the Defective Newborn: A Survey of Physicians’ Attitudes, 6 HASTINGS CENTER REP., Apr. 1976, at 2. Tay Sachs is a severe neurological disorder passed genetically that results in blindness and loss of motor function and ultimately an insensate existence. Victims usually die by age four. Life sustaining care can sometimes prolong their existence. Lesch-Nyhan syndrome, an incurable genetic defect, is a particularly pathetic condition. Babies afflicted with this condition suffer mental retardation, inability to walk or sit up unassisted, uncontrollable spasms and once teeth appear, an irresistible impulse to gnaw their own hands, lips and shoulders. See W. NELSON, TEXTBOOK OF PEDIATRICS (10th ed. 1975). But this syndrome arguably is not germane to this subject because it typically is not diagnosed until the child is at least six months old and even then, parents and physicians usually are not presented with a life or death treatment decision.

13 Brown & Truitt, supra note 1, at 615 (citing 3 ENCY. BRIT. MICROPAEDIA 1006 (1974)).

14 Tooley & Phibbs, Neonatal Intensive Care: The State of the Art, in A. JONSEN & M. GARLAND, ETHICS OF NEWBORN INTENSIVE CARE (1976).

15 TIME, Mar. 25, 1974, at 84.

16 Brown & Truitt, supra note 1, at,634 (citing Chicago Tribune at 5).

17 Id. (citing Williams, Our Role in the Generation, Modification and Termination of Life, 124 ARCHIVES INTERNAL MED. 215 (1969))

18 Editorial, Euthanasia, 218 J.A.M.A. 249 (1971).

19 1974 Hearing, supra note 1, at 9.

20 Doctors Ponder Ethics of Letting Mongoloid Die, Washington Post, Oct. 15, 1971, at Al, col. 1. It should be recognized that it was the infant's condition, rather than the “nothing by mouth,” that starved Jiim. If hospital personnel had fed the infant, he would have vomited the food. “Nothing by mouth” saved him from the discomfort and possible pain of vomiting.

21 Id.

22 Brown & Truitt, supra note 1, at 633.

23 See Freeman, The God Committee, N.Y. Times, May 21, 1972, § 6 (Magazine), at 84. The forum or committee consisted of a pediatrician, a surgeon, a psychiatrist, a clergyman, and an attorney who were to advise the medical staff and parents in the difficult treatment decisions presented by severely defective newborns. See also Waldman, Medical Ethics and the Hopelessly 111 Child, 88 J. PEDIATRICS 890 (1976) (Nassau County Pediatric Society recommended establishment of a standing committee in hospitals to assist families and, where appropriate, petition the Family Court of New York to withdraw “extraordinary measures to sustain life“).

24 Shaw, Doctor, Do We Have a Choice?, N.Y. Times, Jan. 30, 1972, § 6 (Magazine), at 44.

25 Id. The physician in charge reported the event. “Baby G's pediatrician expected me to perform this ‘simple operation.’ The intern and residents were eager to assist; the anesthetist was standing by. Then [the father] asked ‘Don't we have any choice?’ and, indeed, I felt they did. The choice they made was—no surgery.” Id.

26 See Lorber, , Results of Treatment of Myelomeningocele, 13 DEV. MED. CHILD NEUROL. 279 (1971)CrossRefGoogle ScholarPubMed; Lorber, Selective Treatment of Myelomeningocele: To Treat or Not to Treat, 53 PEDIATRICS 307 (1974); Lorber, Early Results of Selective Treatment of Spina Bifida Cystica, 4 BRIT. MED. J., Oct. 1973, at 201.

27 See Freeman, The Short Sighted Treatment of Myelomeningocele: A Long Term Case Report; 53 PEDIATRICS 311, 374 (1974). Dr. Freeman argued that myelomeningoceles selected for nontreatment might survive nonetheless and be worse off due to the absence of treatment. Freeman, Is There a Right to Die Quickly?, 80 J. PEDIATRICS 904 (1972). Other critics worried that technical language would be used to avoid or mask what was really a moral choice. See Veatch, The Technical Criteria Fallacy, 7 HASTINGS CENTER REP., Aug. 1977, at 15. See also Cooke, Whose Suffering, 80 J. PEDIATRICS 86 (1972).

28 Duff & Campbell, Moral and Ethical Dilemmas in the Special Care Nursery, 289 NEW ENG. J. MED. 890 (1973).

29 1974 Hearing, supra note 1, at 2.

30 See 1974 Hearing, supra note 1, at 1-32.

31 These include local district attorneys.

32 Recently, the State of Illinois sought to remove seriously deformed Siamese twins from their parents by charging that the parents and the physician had conspired to let the twins die by withholding treatment. The twins were joined at the waist, shared lower stomach and bowels, and had three legs and other serious abnormalities. The court upheld the State's contention that care had been withheld, but did not find that this had been done at the behest of the parents. No criminal charges have yet been brought although they are under serious consideration by the Vermilion County State's Attorney. N.Y. Times, July 19, 1981, at 7, col. 5.

33 TIME, Mar. 25, 1974, at 84.

34 See Horan, Euthanasia, Medical Treatment and the Mongoloid Child: Death as a Treatment of Choice, 27 BAYLOR L. REV. 76, 78 (1976); Foreman, The Physician's Criminal Liability for the Practice of Euthanasia, 27 BAYLOR L. REV. 54 (1976); Robertson, Involuntary Euthanasia of Defective Newborns: A Legal Analysis, 27 STAN. L. REV. 213 (1975); Mueller & Phoenix, supra note 8, at 501; Note, Euthanasia: Criminal, Tort, Constitutional and Legislative Considerations, 48 NOTRE DAME LAW. 202 (1973).

35 VA. CODE § 18.2-32 (Supp. 1981) defines first and second degree murder as follows:

Murder other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing … is murder of the first degree, punishable as a Class 2 felony.

All murder other than capital murder and murder in the first degree is murder of the second degree and is punishable as a Class 3 felony.

36 Williamson v. Commonwealth, 180 Va. 277, 23 S.E.2d 240 (1942).

37 People v. Conley, 64 Cal. 2d 310, 322, 411 P.2d 911, 918, 49 Cal. Rptr. 815, 822 (1966); see State v. Ehlers, 98 N.J.L. 236, 240, 119 A.. 15, 17 (1922) (intentional killing “is murder in the first degree, no matter what defendant's motive may have been“); Turner v. State, 119 Tenn. 663, 671, 108 S.W. 1139, 1141 (1908) (“Murder is no less murder because the homicide is committed at the desire of the victim“). See also Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d 517 (1980), modified, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981) where the court approved removal of a respirator for an 83-year-old who was incurably ill and in an irreversible vegetative state. In reaching this decision, the court noted that euthanasia is “proscribed by criminal law” and “any physician who, acting on his own, removes a life sustaining respirator arguably commits some form of homicide.” Id. at 450, 426 N.Y.S.2d at 533. See also Note, Humanitarian Motive as a Defense to Homicide, 48 MICH. L. REV. 1199 (1950)….

38 People v. Conley, 64 Cal. 2d 310, 322, 411 P.2d 911, 918, 49 Cal. Rptr. 815, 822 (1966).

39 state v. Francis, 152 S.C. 17, 60, 149 S.E. 348, 364 (1929) (quoting 21 A. & E. ENCY. OP LAW 92 (2d ed.)).

40 See AMA Statement on Euthanasia (Dec. 4, 1973); Horan, supra note 34, at 80. Contra Rachels, Active and Passive Euthanasia, 292 NEW ENG. J. MED. 78 (1975).

41 This conclusion, in the author's view, results from a recognition that in both active and passive euthanasia the intent and end are the same, only the means differ. But differences in the means do not justify the act; they may, however, prompt society to vary its response or punishment.

42 According to this defense, criminal liability attaches only when a physician or parent violates a duty to the newborn patient. Because the physician or parent owes only a duty to provide ordinary care to the infant, which is satisfied without surgery, liability cannot attach. See Horan, supra note 34, at 80-81; Robertson, supra note 34, at 235-37. See also People v. Beardsley, 150 Mich. 206, 113 N.W. 1128 (1907) (manslaughter conviction of man who negligently permitted his paramour to die reversed because their relationship gave rise to no duty to care for her); Pope Pius XII, The Prolongation of Life, 4 OSSERVATORE DOMANO 393-98 (1958) (“It is not obligatory, however, [for the physician] to continue to use extraordinary means indefinitely in hopeless cases. But normally one is held to use only ordinary means … that is to say, means that do not involve any grave burden for oneself or another.“).

43 Interestingly, the ground breaking California euthanasia legislation authorizing so-called “living wills” defines “extraordinary care” as procedures which would only serve to prolong or delay the inevitable moment of death. CAL. HEALTH & SAFETY CODE § 7185-95 (1977). Under this rather broad definition, even the most common care might possibly be termed “extraordinary” under certain circumstances. Equally broad and vague is the definition proferred by the Nassau County Pediatric Society: ordinary measures are food, fluids, oxygen, antibiotics, and painkillers. Waldman, supra note 23, at 890, 892.

44 See Robertson, supra note 34, at 235-37; Gurney, Is There a Right to Die?—A Study of the Law of Euthanasia, 3 CUM.-SAM. L. REV. 235, 247-48 (1972). For a discussion of the moral bases of this distinction, see Kelly, The Duty to Preserve Life, 12 THEOL. STUDIES 550 (1951); P. RAMSEY, ETHICS AT THE EDGES OF LIFE (1978). But whatever the legal efficacy of these distinctions as defenses to criminal homicide, they probably have played some role in discouraging criminal prosecutions in cases of pediatric euthanasia. No doubt public sensibilities are aroused more by the deliberate starving of a defective newborn than by the withholding or withdrawal of heroic measures in apparently hopeless situations.

45 Recently, though, doubts over causation apparently resulted in the acquittal of a nurse accused of murder in the euthanasia death of a 51-year-old terminal cancer patient in Massachusetts. The defense called only three witnesses, all medical specialists who testified that the cancer and severe heart and kidney problems, rather than the morphine overdose administered by the defendant, were the cause of death. Jurors interviewed after the verdict indicated that this lack of causation, and not any belief that euthanasia was justified under the circumstances, was the basis for their verdict. See Richmond News Leader, Oct. 24, 1981, at 4.

46 State v. Francis, 152 S.C. 17, 60, 149 S.E. 348, 364 (1929). See supra note 40 and accompanying text.

47 See In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert, denied, 429 U.S. 922 (1976); see also Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965).

48 See, e.g., In re Severns, 425 A.2d 156 (Del. Ch. 1980) (authorization for no code order for 55-year-old automobile accident victim in vegetative state); Satz v. Perlmutter,’ 362 So. 2d 160 (Fla. App. 1978), aff'd, 379 So. 2d 359 (1980) (respirator removal authorized as desired by competent, terminally ill, 73-year-old patient); In re Spring, 1980 Mass. Adv. Sh. 1209, 405 N.E.2d 115 (1980) (authorization to withhold hemodialysis treatment from incompetent, incurably ill 79-year-old man); Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977) (authorization to withhold chemotherapy from incompetent, profoundly retarded, terminally ill 67-year-old man); In re Dinnerstein, 6 Mass. App. Ct. 466, 380 N.E.2d 134 (1978) (court upheld physician's standing order not to resuscitate 67-year-old patient in vegetative state); Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d 517 (1980) modified, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981) (respirator removal authorized for 83-year-old patient in irreversible vegetative state). But see In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266 (1981) (court overrode mother's decision to halt treatment and authorized blood transfusions for a 52-year-old profoundly retarded man suffering from metastasized terminal bladder cancer). However factually similar Storar may be to the Quinlan line of cases, the court in Storar chose to view the case in a different light. There, the cancer threat to patient's life was deemed untreatable but the bleeding was deemed a treatable threat. The court analogized the treatment, blood transfusions, to food rather than to major surgery or respirators. Thus, whether justified or not, the Storar court apparently viewed this case as another in the long line of Jehovah's Witnesses cases in which courts have consistently overridden decisions by Jehovah's Witnesses to withhold blood transfusions from their children.

49 70 N.J. at 40, 355 A.2d at 663 (1976) (emphasis added).

50 ld.

51 In re Spring, 1980 Mass. Adv. Sh. 1209, 1214, 405 N.E.2d 115, 119 (1980) (emphasis added). The court in Satz v. Perlmutter, 379 So. 2d 359, 360 (Fla. 1980), also limited its decision to the particular facts presented.

52 See Annas, Quality of Life in the Courts: Earle Spring in Fantasy land, 10 HASTINGS CENTER REP., Aug. 1980, at 9. The phrase “quality of life” has an intrapersonal sense. Used in the intrapersonal sense, it refers to a comparison between the patient's former quality of life and the same patient's likely quality of life with and without treatment. In the intrapersonal sense, it is irrelevant that the patient is retarded and deformed except insofar as these conditions may be exacerbated by treatment or failure to treat. Also, in the intrapersonal sense, comparisons to other persons and their qualities are inappropriate. By contrast, quality of life in the interpersonal sense implies a comparison with others and includes assessment of deformities and mental retardation. The Quinlan line of cases admits only to making quality of life judgments in the intrapersonal sense. See Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 753, 370 N.E.2d 417, 431 (1977). Arguably, though, the interpersonal sense of the phrase may have had a subtle, if unarticulated, role in the thinking of courts. Doubtless, this sense of the phrase plays a role in many defective newborn treatment decisions.

53 In some instances, courts were also impressed by competent pre-illness expressions of view of the patient that he or she would decline life prolonging treatment” in the circumstances presented. See, e.g., Eichner v. Dillon, 73 A.D.2d 431, 470-72, 426 N.Y.S.2d 517, 546-47 (1980), modified, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981). Of course, no such expressions would be available in the case of infants or lifelong incompetents and in the latter case, the absence of such expressions has been judicially noted. See In re Storar, 52 N.Y.2d 363, 380, 438 N.Y.S.2d 266, 274 (1981).

54 The patient in Saikewicz, a profoundly retarded 67-year-old, suffered from acute myeloblastic monocytic leukemia. Chemotherapy, which would not cure the disease, but at best result in a temporary remission, would cause substantial pain, discomfort and other side effects, including loss of hair, nausea, numbness, and severe anemia, the latter of which can lead to death from infection. Without chemotherapy, the patient would likely live only weeks or months and then die painlessly and without discomfort. The patient in suffered from end-stage kidney disease and organic brain syndrome. Hemodialysis, the life prolonging (but not lifesaving) treatment involved, would not cure the patient and was painfully intrusive. The patient suffered dizziness, leg cramps and headaches and physically resisted the treatments. In Perlmutter, the treatment was neither intrusive nor risky. There, the patient was a 73-year-old victim of amyotrophic lateral sclerosis, a fatal degenerative nerve disease. The disease had progressed, irreversibly, to the point that the patient was paralyzed, could speak only with extreme effort, and breathe only with the aid of a respirator. Even with the respirator, death was expected within a short time. But the Perlmutter case is distinguishable because the patient was a competent adult and a competent adult can refuse life prolonging treatment under these tragic circumstances.

55 The courts in Quintan and its progeny considered four factors in deciding whether a patient could refuse life sustaining treatment: (1) the interest of the state in preserving life versus the individual's right of privacy, (2) the state's interest in protecting third parties such as a patient's dependent children, (3) the state's duty to prevent suicide, and (4) the state's policy of maintaining the ethical integrity of the medical profession. See Satz v. Perlmutter, 362 So. 2d 160, 162 (Fla. App. 1978), aff'd, 379 So. 2d 359 (Fla. 1980). As the decisions reflect, the first factor is the most important and it is therefore the focus of attention here. The second and third factors have no relevance in the defective newborn context. The significance of the fourth factor is less clear. The integrity of the medical profession may be threatened if. the law required some action at odds with generally accepted medical ethics. Whether all or certain no treatment decisions in the defective newborn context conform to generally accepted medical ethics is debatable. This factor, then, may play a larger role in the defective baby context than in the context of no treatment decisions for terminally ill elderly patients or patients in irreversible vegetative states. The current state of medical ethics in this area is that life need not be artificially prolonged if recovery is hopeless. Recovery, in this context, means life without intolerable suffering. See Lewis, Machine Medicine and Its Relation to the Fatally III, 206 J.A.M.A. 387 (1968).

56 A possible exception is the severe anencephalic child.

57 This belief is no doubt supported by the inspirational lives of handicapped persons such as Helen Keller. It is also supported by the possibility of future medical advances, a prospect our society has come to expect.

58 See, e.g., Phillips v. United States, 508 F. Supp. 537 (D.S.C. 1980); Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979); Speck v. Finegold, 268 Pa. Super. 342, 408 A.2d 496 (1979); Turpin v. Sortini, 119 Cal. App. 3d 690, 174 Cal. Rptr. 128 (1981); Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 807 (1978). Contra Curlender v. Bio-Science Labs., 106 Cal. App. 3d 811, 165 Cal. Rptr. 477 (1980) (rejecting Turpin). See also Trotzig, The Defective Child and the Actions for Wrongful Life and Wrongful Birth, 14 FAM. L.Q. 15 (1980); Comment, Wrongful Life: The Right Not to be Born, 54 TUL. L. REV. 480 (1980).

59 The principal ground usually cited is the difficulty of assessing or measuring damages. It is said that it is impossible quantitatively to compare defective life with nonexistence or death. In fact, such quantitative comparisons are not uncommon in courts. The more likely, unarticulated underlying rationale for these decisions is simply the shared sense among many that life, whatever its condition, is preferable to death or no life at all.

60 Berman v. Allan, 80 N.J. 421, 429, 404 A.2d 8, 12 (1979).

61 Gleitman v. Cosgrove, 49 N.J. 22, 30, 227 A.2d 689, 693 (1967) (mother of infant plaintiff had German measles during pregnancy and infant plaintiff had serious sight, hearing and speech defects).

62 The best example of this is the celebrated litigation concerning Chad Green. See Custody of a Minor [Green I], 375 Mass. 733, 379 N.E.2d 1053 (1978); Custody of a Minor [Green II], 1979 Mass. Adv. Sh. 2124, 393 N.E.2d 836 (1979).

63 Quinlan and its progeny certainly do not tell parents and others just where on the quality of life continuum the right begins to select death over life for defective newborns. But Quinlan does warn those planning to invoke a Quinlan type defense to seek a court declaration of the quality of life to be sacrificed before withdrawing or withholding life sustaining treatment. An intermediate appellate court in Massachusetts held that prior judicial approval was not required to validate an order not to resuscitate a patient in an irreversible vegetative coma. In re Dinnerstein, 6 Mass. App. Ct. 466, 380 N.E.2d 134 (1978). This result was noted without approval by the supreme court of that state in In re Spring, 1980 Mass. Adv. Sh. 1209, 405 N.E.2d 115 (1980). Thus, prior court approval remains the prudent course of conduct for parents and physicians contemplating withholding or withdrawing life sustaining treatment. Cf. In re Storar, 52 N.Y.2d 363, 382, 438 N.Y.S.2d 266, 276 (1981) (court approval is optional).

64 For example, the defense of necessity exists at common law and by statute in at least three states. W. LAFAVE & A. Scorr, HANDBOOK OF CRIMINAL LAW § 50 (1972) [hereinafter cited as LAFAVE]. It applies in an emergency situation when the commission of a crime is the sole means of avoiding an imminent harm which exceeds the harm caused by the crime, and the emergency is not defendant's fault. Sec, e.g., Browning v. State, 31 Ala. App. 137, 13 So.2d 54 (1943). This “lesser evil” defense, while interesting, should not give a feeling of security to anyone contemplating pediatric euthanasia. At best it would apply only in the implausible case where the decision not to treat is necessary to save another life. See LAFAVE at 386.

Also, in some instances, withholding treatment or care, such as surgery, may be justified because of the risks inherent in that treatment or care. See In re Phillip B., 92 Cal. App. 3d 796, 156 Cal. Rptr. 48 (1979), cert, denied, 445 U.S. 949 (1980) (court upheld parental refusal to permit heart surgery for 12-year-old Down's Syndrome child because the surgery had a 5-10% mortality risk and without surgery, the child would be progressively incapacitated and would die in 20 years).

65 See Lewis v. Commonwealth, 211 Va. 684, 179 S.E.2d 506 (1971) (involuntary manslaughter requires more than ordinary negligence).

66 206 Va. 14, 141 S.E.2d 710 (1965).

67 See also Eaglen v. State, 249 Ind. 144, 231 N.E.2d 147 (1967); Stehr v. State, 92 Neb. 755, 139 N.W. 676 (1913); compare Matthews v. State, 240 Miss. 189, 126 So.2d 245 (1961) with Bradley v. State, 79 Fla. 651, 84 So. 677 (1920).

68 VA. CODE § 18.2-371.1 (Cum. Supp. 1981). The penalty is one year to ten years or, in the discretion of the judge or jury, up to 12 months in jail and a fine of no more than $1,000. Parents or others who withhold care in good faith reliance on religious views are exempt from this statute.

69 VA. CODE §§ 63.1-248.3 (1980).

70 VA. CODE § 18.2-22 (1975).

71 An aider or abetter (principal in the second degree) is one who is not the perpetrator but who was present and who aided and abetted in committing the act. Ward v. Commonwealth, 205 Va. 564, 138 S.E.2d 293 (1964).

72 An accessory before the fact is one who, being absent at the time of a crime, procures, counsels, or abets another to commit the crime. 21 AM. JUR. 2D Criminal Law § 172 (1981).

73 VA. CODE § 18.2-18 (Cum. Supp. 1981).

74 While there have been no prosecutions as yet for perinatal euthanasia, there have been successful prosecutions for euthanasia involving defective children. In 1943, a wealthy attorney was convicted and sentenced to death for the electrocution death of his six-month old Down's Syndrome son. The sentence was commuted and reduced to six years to life, and he served four years. Brown & Truitt, supra note 1, at 618-19. Another father was convicted of manslaughter and placed on probation for the mercy killing of his blind, deaf, mute, and deformed child. This conviction, however, did not prevent the father from obtaining citizenship after a five-year waiting period. See Repouille v. United States, 165 F.2d 152 (2d Cir. 1947). In another celebrated incident, the parents and a physician in Belgium were acquitted in the homicide of a deformed thalidomide baby. Brown & Truitt, supra note 1, at 620.

75 The state prosecutor with jurisdiction over the recent celebrated case of attempted euthanasia of Siamese twins may bring criminal charges against parents or physicians. This prosecutor is reported to have described the incident emphatically as “murder … without justification” and to have noted that “not to bring charges would be to condone such acts.” N.Y. Times, July 19, 1981, at 7, col. 5. Presumably this prosecutor has in mind a charge of attempted murder because the twins, at last report, were still alive.

76 Treatment in the absence of informed consent is an actionable battery. See Canterbury v. Spence, 464 F.2d 772 (D.D.C. 1972); Bly v. Rhoads, 216 Va. 645, 222 S.E.2d 783 (1976).

77 There are two legal rules concerning the kinds of information that must be given to validate consents to treat. In Virginia and a number of other states, consent is not invalidated unless the standard of medical practice in the state required disclosure of certain information that was withheld. See Bly v. Rhoads, 216 Va. 645, 222 S.E.2d 783 (1976) (expert testimony required on state disclosure standard). In many other states, however, the standard is more stringent; required disclosure is based upon the needs of a reasonable patient and is not limited by the actual practice. II HOSPITAL LAW MANUAL, Consents ¶ 2-2 at 35 (1980). Under this reasonable person informed consent standard, even apparently minor failures to disclose can invalidate consent. See Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977). See also Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) (consent voided by physician's failure to disclose to 19-year-old ruptured disc patient that surgery carried with it a 1% risk of paralysis); Cobbs v. Grant, 502 P.2d 1, 104 Cal. Rptr. 505 (1972) (known risk of death, however slight, must be disclosed); Cooper v. Roberts, 220 Pa. Super. 260, 286 A.2d 647 (1971) (physician liable for failure to warn of.04% risk of stomach perforation during semirigid fiberscope gastropic examination).

78 “[O]n the first few days following delivery [of a mylomeningocele] most parents were in such a state of shock and bewilderment that they were … [likely] to reject or to misinterpret most of the information given to them.” Nielsen, supra note 4, at 49.

79 Consider, for example, the birth of a myelomeningocele child to economically disadvantaged parents who have little understanding of the situation. A physician predisposed to a no treatment decision would explain that the child faced a 90% chance of death absent surgery, but that surgery involved a substantial risk of converting partial paralysis into total paralysis and might also cause the onset of hydrocephalus. The physician would then state that with or without treatment, the child might never walk, and would be incontinent and socially unacceptable. The physician might also legitimately stress the tremendous economic and psychological burdens involved, but he may omit to discuss or be unaware of the possibility of state agencies assuming some of the burden.

Given this information, the parents may choose to refuse treatment. Later, though, the parents might regret this decision. They may learn that many myelomeningoceles survive with surgical treatment and some of these may manage through heroic efforts to lead productive lives. Parents who later are unable to have other children might be particularly resentful.

A second physician predisposed to sustain life at all costs would also explain that absent surgery there is a 90% chance of death. The physician might not mention that surgery in these circumstances could change the partial paralysis to total paralysis and cause the onset of hydrocephalus. If consent is given and the surgery results in total paralysis and brain damage, the parents might then contend that their consent was uninformed and therefore ineffective. For one couple's view of and recommendations for the decision-making process, see Bridge & Bridge, The Brief Life and Death of Christopher Bridge, 11 HASTINGS CENTER REP., Dec. 1981, at 17.

80 Virginia has a state-wide standard of care unless a more local one is proved appropriate. VA. CODE § 8.01-581.20 (1977). Other jurisdictions apply national standards for specialties. The venerable locality rule rarely prevails today.

81 It is interesting to contemplate whether physicians might use Professional Standards Review Organizations (PSROs) as a means of establishing a standard of care in this area and avoiding liability. PSROs are organizations formed pursuant to federal statute to establish and apply suitable standards to promote effective, efficient, and economical delivery of health care services to be paid for by Medicare or Medicaid. 42 U.S.C. §§ 1320c to 1320c-19 (1974). Under Section 1320c-5, PSROs are empowered to ascertain professionally developed norms of care, diagnosis, and treatment based upon typical patterns of practice in its regions. Adherence to PSRO norms immunizes a provider from malpractice liability for failure to pursue procedures beyond PSRO norms. 42 U.S.C. § 1320c-16 (1974). There do not apear to be any published PSRO norms regarding treatment or nontreatment of seriously defective newborns. :J

82 The most promising case for a standard of care defense might be a nontreatment decision by a physician in a rural area who can persuade a court that the local standard is “more appropriate.” VA. CODE § 8.01-581.20 (1977). Even here, however, experts may disagree, and moreover, the prudent physician must anticipate that courts, eager to promote a higher standard of care, will be reluctant to accept a local standard as more appropriate.

83 Lawyers may even attempt to fashion an action and remedy on behalf of existing siblings for economic hardship. While no court has ever sanctioned such a claim, in one reported instance, such a claim was filed and then withdrawn in a wrongful life case. See Speck v. Finegold, 268 Pa. Super. 342, 408 A.2d 496, 500 (1979).,

84 Freeman, Is There A Right To Die Quickly?, 80 J. PEDIATRICS 904, 905 (1972). Defective newborns with other conditions might also survive decisions not to treat and have a basis for a suit.

85 Cf. Curlender v. Bio-Sdence Laboratories, 106 Cal. App. 3d 811, 165 Cal. Rptr. 477 (1980) (Court recognized infant's “wrongful life” claim against medical laboratory that negligently conducted genetic testing on plaintiff's parents where proper testing would have revealed likelihood of Tay Sachs disease). Virtually all other courts have rejected “wrongful life” claims by defective children based on such negligent acts as failure to advise of amnioscentesis and inadequate genetic counseling. See Phillips v. United States, 508 F. Supp. 537 (D.S.C. 1980) (Down's Syndrome child); Eisbrenner v. Stanley, 106 Mich. App. 357, 308 N.W.2d 209 (1981) (newborn with rubella-caused defects); Berman v. Allan, 80 N.J.L. 421, 404 A.2d 8 (1979) (Down's Syndrome child); Speck v. Finegold, 268 Pa. Super. 342, 408 A.2d 496 (1979) (newborn with neurofibromatosis); see also Trotzig, supra note 58. In rejecting these actions, the courts have relied upon a strong public policy favoring affirming life rather than negating life, however impaired that life might be. This rationale would not apply in the case of a suit by a severely defective child who survived a decision not to treat and was injured by it.

86 For example, physicians and other health professionals employed by the federal government might be vulnerable under the Federal Tort Claims Act, 28 U.S.C. § 1346 (1976 & Supp. III 1979). Also, where state action is involved, parents or the infant may have a cause of action under the Civil Rights Act, 42 U.S.C. § 1983 (1976).

87 Bridge & Bridge, supra note 79, at 18. Nielsen, supra note 4, at 49.

88 Also, this period may be less than optimal because the medical picture may still be unclear. It is difficult or impossible to assess accurately the degree of long-term motor and neurological dysfunction of a defective newborn. On the other hand, some would argue that the perinatal period is the best time for decisions (for no treatment) because parents have not yet become attached to the child.

89 This, as noted previously, can be a problem in the area of consent. See supra notes 76-79 and accompanying text.

90 Interestingly, adoptive parents in some jurisdictions have the right after some considerable period of time to revoke the adoption if the child is found to be mentally retarded. Cf Gregory T. v. Vista Del Mar Child Care Serv., 106 Cal. App. 3d 860, 165 Cal. Rptr. 370 (1980) (adoption agency not liable for failure to warn that a premature infant might have future health problems though court noted that no evidence had been presented that agency's statement concerning infant's health at time of adoption was false or that inadequate medical investigation or disclosure had occurred). But this right of rejection has no application in the defective newborn context because parents there seek not to return the child to the state,.but to let the child die. In some instances, though, parents of defective newborns may have the option of institutionalizing the defective child if he or she survives. But this option is probably rarely considered when life or death treatment decisions are made in the perinatal period.

91 There is little doubt that potential economic burdens can be important, especially among poorer families with other children. See In re Spring, 1980 Mass. Adv. Sh. 1209, 1220 n.3, 405 N.E.2d 115, 122 n.3 (1980) (wife who agreed to cessation of life sustaining hemodialysis treatments admitted she did not know if removal of financial considerations would change her opinion about what her husband would want); Bridge & Bridge, supra note 79, at 19.

92 “[W]e wonder whether parents of defective newborns are ever in a position to determine what is best for their child because of their emotional state, lack of knowledge and information, and inherent conflicts of interest.” Bridge & Bridge, supra note 79, at 19 (views of parents of defective newborn).

93 See Id. at 17. In fact, we do not yet have sufficient data concerning what treatment decisions are being made and who the decision-makers are to state this more authoritatively.

94 in Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d 517 (1980), modified, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981), the lower court took almost two years to decide the case. A year before its decision, the patient died of congestive heart failure despite the assistance of the respirator. Id. at 434, 426 N.Y.S.2d at 523. Similarly, a final decision in In re Spring, 1980 Mass. Adv. Sh. 1209, 405 N.E.2d 115 (1980), required almost two years and again the patient died prior to its issuance due to arteriosclerotic heart disease rather than the patient's terminal end stage kidney disease and organic brain syndrome. Id. at 1211 n.l, 405 N.E.2d at 118 n.l. The patient in In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981), also died before the issuance of that decision.

95 One court required the following procedure to be followed in termination of care cases: (a) certification by attending physician that patient is terminally ill and in an irreversible vegetative state, (b) confirmation of this prognosis by an appropriately staffed hospital committee, (c) institution of a proceeding for appointment of committee or guardian, (d) notification to the state Attorney General or appropriate district attorney who shall have an opportunity to secure independent medical examinations and opinions, and (e) appointment of guardian ad litem who may elect to oppose the withdrawal of treatment petition. Eichner v. Dillon, 73 A.D.2d 431, 476-77, 426 N.Y.S.2d 517, 550 (1980), modified, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981).

96 Incidents in Maine and Maryland illustrate this potential. In 1972, a Maryland court refused a physician's request to appoint a guardian to override the parent's decision to refuse corrective surgery for their Down's Syndrome newborn with a duodenal obstruction. No surgery was performed and the child died fifteen days later of dehydration. Two years later, a Maine couple refused corrective surgery for their child who was born with no left eye, virtually no left ear or ear canal, deformed limbs, unfused vertebrae, other deformities, and an opening in the esophagus that leaked air into the stomach. With or without surgery, the child would be blind, palsied, deaf, and unable to communicate. In this case, the court did intervene at the behest of the hospital and overrode the parental decision. The child died before surgery. See Gimbel, Infanticide: Who Makes the Decision?, 73 Wis. MED. J., May 1974, at 10. The risk of inconsistent results also exists if the problem is handled legislatively because different states may strike different quality of life balances or adopt different solutions. Nevertheless, at least within one state, decisions will be consistent.

97 “The Legislature has far greater capabilities to gather relevant data and to elicit expressions of pertinent opinion on the issues at hand.” Higby v. Mahoney, 48 N.Y.2d 15, 18-19, 396 N.E.2d 183, 184, 421 N.Y.S.2d 35, 36 (1979). Of course, no legislative solution is likely to exclude all judicial involvement. There always will be decisions at the margin that will require judicial interpretation of the basic statutory criteria. In general, though, a statute will adequately guide, without judicial interpretation, the majority of the decisionmakers unless legislators decide to grant decision-makers too much discretion.

98 Satz v. Perlmutter, 379 So. 2d 359, 360 (Fla. 1980).

99 similar statements appear in other decisions. Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 755 n.18, 405 N.E.2d 417, 432 n.l8.(1977); Higby v. Mahoney, 48 N.Y.2d 15, 18-19, 396 N.E.2d 183, 184, 421 N.Y.S.2d35, 36 (1979); Eicher v. Dillon, 73 A.D.2d 431, 454, 426 N.Y.S.2d 517, 535 (1980), modified, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981). For a forceful expression of the view favoring legislative rather than judicial treatment of a similar type of issue, see Compton, Telling the Time of Human Death by Statute: An Essential and Progressive Trend, 31 WASH. & LEE L. REV. 521 (1974).

100 “We decline the invitation of several of the amicus and party briefs to formulate a comprehensive set of guidelines applicable generally to emergency medical situations involving incompetent persons. Such a wide-ranging effort is better left to the legislative branch after appropriate study.” Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 755 n.18, 405 N.E.2d 417, 432 n.18 (1977).

101 See, e.g., VA. CODE §§ 18.2-71 to 18.2-76.1. (1975); GA. CODE §§ 26-1201 -1204 (1973); MD. ANN. CODE art 43, § 137 (1968)..

102 See, e.g., CAL. HEALTH & SAFETY CODE §§ 7185-7195 (Deering Supp. 1978) (authorizing competent adults to elect euthanasia under denned circumstances).

103 See, e.g., VA. CODE § 54-325.7 (1979).

104 See supra notes 102-04 and accompanying text.

105 The Virginia Department of Health's Plan for the Provision of Crippled Children's Services (July 1, 1981) is one example of a public defective newborn treatment decision. This plan provides public support for medical treatment of afflicted children. With respect to myelomeningocele babies, the current Plan notes that surgery is not authorized or covered in connection with babies “in which hydro/anencephaly is evidenced or in which the lesion is located in the high lumbar or thoracic region.” The Plan goes on to exclude covered surgery for myelomeningocele infants that have “(a) gross hydrocephalus, (b) kyphosis, (c) paralysis above L-2.” This plan is a governmental decision concerning allocation of funds for treatment of defective babies born to needy parents. Infants meeting the stated criteria may not receive lifesaving surgery and may die as result. Arguably this reflects not a moral consensus of society, but merely a bureaucratic reaction to a funding reduction; that is, society has made no conscious, considered decision and yet needy parents may be denied the treatment decision. On the other hand, it may be that society has chosen through its legislature, to delegate the decision to an administrative agency.

106 Doubtless some would argue that the categories along each axis are not as separate and distinct as depicted but are more in the nature of points along a continuum. Granted the matrix is a simplification of a complex problem, but it is an acceptable one.

107 See generally P. BOBBIT & G. CALABRESI, TRAGIC CHOICES 38-39 (1974); C. FRIED, ANATOMY OF VALUES (1969). Whenever legislators consider traffic and automobile vehicle safety measures such as speed limits, they frequently balance economic costs against lifesaving probabilities.

108 410 U.S. 113(1973).

109 See generally Comment, Live Birth: A Condition Precedent to Recognition of Rights, 4 HOFSTRA L. REV. 805 (1976).

110 For a criticism of this holding and a statement of the arguments for conferring personhood on the fetus, see King, The Jurisdicial Status of Fetuses: A Proposal for Legal Protection of the Unborn, 77 MICH.L..REV. 1647.(1979).

111 Cf. Roe v. Wade, 410 U.S. 113, 156-58 (1973) (the word “person” as used in the Constitution applies only postnatally).

112 For some views on this issue, see P. FOOT, VIRTUES AND VICES 33-59 (1978); J. GLOVER, CAUSING DEATH AND SAVING LIVES (1977); E-H.W. KLUGE, THE PRACTICE OF DEATH 131-209 (1975); C.E. KOOP, THE RIGHT TO LIVE, THE RIGHT TO DIE (1976); T. ODEN, SHOULD TREATMENT BE TERMINATED?—MORAL GUIDELINES FOR CHRISTIAN FAMILIES AND PASTORS (1976); P. RAMSEY, ETHICS AT THE EDGES OF LIFE (1978); F. SCHAEFFER & C. KOOP, WHATEVER HAPPENED To THE HUMAN RACE (1979); P. SINGER, PRACTICAL ETHICS 127-57 (1979); Donceel, Immediate Animation and Delayed Hominization, 31 THEOLOGICAL STUDIES, Mar. 1970, at 1; Feinberg, Voluntary Euthanasia and the Inalienable Right to Life, 7 PHIL. & PUB. AFFAIRS 793 (1978); Fletcher, , Pediatric Euthanasia: The Ethics of Selective Treatment For Spina Bifida, in (Swinyard, C. ed. 1978)Google Scholar; McCormick, The Quality of Life, The Sanctity of Life, HASTINGS CENTER REP., Feb. 1978, at 30-36 (discussing views of various authors); Tooley, Abortion And Infanticide, 2 PHIL. & PUB. AFFAIRS 1 (Fall 1972); and, Tooley, A Defense of Abortion and Infanticide, in THE PROBLEM OF ABORTION (J. Feinberg ed. 1973).

113 On April 15, 1982, a one week-old boy with Down's Syndrome and a deformed esophagus died one day after the Indiana Supreme Court allowed his parents to withhold food & corrective surgery. The infant's death occurred as the county prosecutor was preparing an appeal to the United States Supreme Court seeking an order that the boy be kept alive against his parents’ wishes. Indiana ex rel infant Doe v. Monroe Cir. Ct., No. 482 S140 (Ind. Sup. Ct. Apr. 16, 1982); Baby Dies Before Court Could Be Asked to Save It, The Boston Globe, Apr. 16, 1982, at 7, col. 1.