Americans United for Life published “Studies in Law and Medicine” in the 1970s and 1980s, spotlighting issues pertaining to the human right to life across the bioethics spectrum. As Americans United for Life celebrates our 50th anniversary, we are making these issues available for the first time since their print publication.
Infant Doe and Baby Jane Doe: Medical Treatment of the Handicapped Newborn by Dennis J. Horan and Burke J. Balch
Do children born with severe handicaps have a right to live, to receive the food and medical treatment necessary For them to live, as would a child born without handicaps? Or should the parents of such children be given the private decision to choose whether the child should live or die, on the basis of their judgment of the quality of the child’s life and of the degree of burden he or she will pose for their family or society?
That is the issue at heart of the great national debate now raging over the fate of handicapped children and over what role, if any, government and the law should have in protecting their lives. At stake in that debate is the continued variability of one of the most cherished principles in American jurisprudence: the equality of all persons before the law. Are persons with disabilities to be treated as equal before the law?
This is not really a debate over the respective rules of the state and parents in making decisions about and for their children. That issue has been long settled, as is decidedly shown by the recently publicized cases involving court-ordered treatment for “normal” children over the religious objections of their parents. Parents have traditionally been accorded great autonomy in making decisions for and about their offspring, because it has been presumed that they act for the benefit of their children. But when that presumption is disproved by their conduct—when they engage in child abuse or neglect—the state, in the exercise of its parens patriae power, has always had the authority to intervene on behalf of the best interests of the child. The issue for the law, then, is whether the child with a disability ought to be treated the same as or differently from the child with no disability when his parents want to let him die and there is an effort to use the power of the state to let him live. This article will review the legal precedents and principles at stake.