Let Live and Let Die: Disabled Newborns and Contemporary Law
Parness, Jeffrey A.
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Several thousand infants die in the United States each year as a result of parental decisions to withdraw or withhold necessary medical treatment. Physicians implement these decisions in treating infants born with disabilities that impose severe limitations on mental and physical capacities but do not shorten the infant's potential life span. Although medical technology can now prevent the early deaths of these infants, the necessary medical treatment is often withdrawn or withheld. The Vikings addressed the problem of deformed children by statute. Their law dictated that certain children would live, while others would die; the state, rather than the physician or parent, was the determining voice. Contemporary American policy, expressed in homicide, child abuse and child neglect statutes is contrary: American laws protect all forms of human life. Yet, such laws are not always followed in situations involving disabled newborns. Both the ancient Norse law and contemporary American policy view different treatment of disabled newborns to be appropriate. Once a society adopts this view, it must then develop rational categorizations of those who are to be subject to differing treatment. The Norse law attempted to provide a standard for distinguishing between those infants who were to live and those who were to die. The distinction was whether the infant was so "deformed" that the mother could not give it strength. In a sense, the mother had the decisionmaking authority, since it was her ability to give strength that was determinative. Unlike the Norse law, contemporary American policy evinces no standards as to the infant's treatment. Although precise equality of treatment is neither workable nor warranted, the contemporary unbridled discretion in the treatment of disabled newborns raises serious constitutional and ethical questions. In recent years, our society has begun to address these questions. Advances in the degree of state protection afforded children and incompetents, and the emerging protections afforded by the federal constitutional right of privacy, necessitate further legal recognition of the rights and needs of disabled newborns.