Penny K. Zhitomi
Consent is a basic requirement for medical services. Since a child cannot consent for himself, a parent or guardian must. In matters that involve medical decisions for children, parental autonomy ( see legal definitions) is not absolute. The government not only has a right, but a duty to protect children, and so it can and will intervene when the parent(s) refuse to consent to medical treatment. In my class, we will discuss children’s rights when parents refuse to authorize medical care in a variety of situations; life-threatening and nonlife-threatening.
Life-saving Treatment
Parental autonomy is sacrificed in matters that put a child’s life in danger because the denial of treatment or operations that would result in the death of a child is justifiable grounds for state intervention. The law assumes that most parents normally protect their child’s body as if it were their own. However, some parents deny themselves and their children proper medical care due to religious or ethical beliefs. Washington D.C.’s Superior Court had a case named “In re Pogue” where Judge Murphy authorized blood transfusions for an otherwise healthy newborn infant that would have died without the treatment. The mother refused transfusions for herself and her baby. The reason for the mother’s refusal was not clearly stated in the book I read but obviously religious issues could complicate matters such as this one. Judge Murphy ruled that the mother was an “adult” and could make her own decisions for herself but that the state must step in as a substitute parent to protect the child. Coercive intervention was justified and necessary in this case because otherwise the parents’ decision would have deprived that child of an opportunity to grow up and experience adulthood.
Baby Doe Cases
Other cases are more complicated and controversial. Baby Doe cases have been appearing in our courtrooms more frequently in the past two decades. These cases are difficult because the life of the child may be regarded by the parents and/or doctors as “hopeless” based on extreme birth defects or other conditions. At times, the family may wish that the baby be allowed to die. What must the state do in circumstances such as these? I would want my students to consider these options and brainstorm possible legal solutions.
Effective October 1985, states are required to intervene in cases where the infants are being denied necessary medical treatment. However, in defense of the families’ right to make a decision, the government also said that medical treatment can be withheld in the following three situations: when the child is in an irreversible coma, where death will occur quickly, and/or where the treatment is so extreme and the chance for life so remote that treatment would be considered inhumane. Students will need to debate amongst themselves as to whether or not these are “good” and acceptable standards.
Cases where death is not an issue pose more vague and difficult questions for lawmakers. I would like my students to study extensively a case where the child’s life is not in imminent danger but medical care is being refused by parent(s). For example, in “In re Green”, the Pennsylvania Supreme Court was faced with a mother’s refusal on religious grounds to consent to surgery which would have corrected her son’s paralytic scoliosis. This disease, also known as curvature of the spine, is debilitating and her son’s condition was so severe that he could not stand or walk. Without the surgery, physicians warned that the boy could become bedridden. To justify the mother’s decision, however, the operation was considered dangerous. Here the court dearly did not want to overstep the mother’s decision but it did want to determine the boy’s views since the decision would affect him for the rest of his life. The boy opted not to have the operation and the court did not intervene any further.
I would like my students to decide what should be legally done if indeed the child wants the medical treatment or surgery. What if this goes against the wishes of the parents? What should be decided if the child wants or needs some treatment but the parents refuse because they cannot afford it? In this day with millions going without the necessary healthcare, this is certainly a pertinent issue. What if the parents are divorced, have shared custody, yet disagree as to the proper medical care? Whose decision dominates here and why? How do we really know that the child’s wishes are being granted? Too many times, as we will learn about in the topic of inadequate parents, children can become intimidated and influenced by their parents. Are parents inflicting their own beliefs or opinions on the child?
