Legal Issues in Neonatal Intensive Care

Extract

The United States, unlike most European countries, has had substantial legal, regulatory, and legislative activity concerning treatment decisions for newborns. This activity began as a result of the highly publicized “Baby Doe” case, in which parents of a child born in 1982 with Down syndrome and esophageal atresia refused consent for surgery, and the Indiana state courts refused to intervene (1). Initially, the Department of Health and Human Services promulgated a series of “Baby Doe” regulations intended to prohibit nontreatment. The regulations were at all times invoking the theory that it is discriminatory to fail to provide treatment to a handicapped infant if such treatment would be provided to a child without such handicap (2). This theory worked well for the department's paradigm case, where the handicap was one such as Down syndrome, and there was an associated physical defect that could be corrected and that would be treated were the infant of normal mental capacity. But a nondiscrimination theory here is extremely rigid: it appeared that even devastating levels of handicap— indeed, even the most extreme “handicap” of unconsciousness — would be irrelevant to treatment decisions.