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State Legislation and the Handicapped Newborn: A Moral and Political Dilemma

Published online by Cambridge University Press:  28 April 2021

Eric Feldman  and
Thomas H. Murray
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Extract

The treatment of severely handicapped newborns was, for a long time, an issue of concern only to medical practitioners and involved parents. Recently, however, it has drawn the interest of a much broader constituency. Philosophers, lawyers, politicians, and the clergy, as well as public interest groups, are but a few of the groups enmeshed in the controversy over whether all handicapped infants must be treated aggressively, regardless of their physical or mental condition. Similarly, the dispute has expanded beyond academic journals and medical rhetoric. The United States Department of Health and Human Services has issued several versions of regulations concerning the care of handicapped infants (the latest proposing voluntary Infant Care Review Committees to supplement federal and state review mechanisms).

Type
Article
Information
Law, Medicine and Healthcare , Volume 12 , Issue 4 , September 1984 , pp. 156 - 163
Copyright
© 1984 American Society of Law, Medicine & Ethics

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References

Nondiscrimination on the Basis of Handicap; Procedure and Guidelines Relating to Health Care for Handicapped Infants, 49 Fed. Reg. 1,622,1,651 (to be codified at 45 C.F.R. §84.55); Nondiscrimination on the Basis of Handicap; Proposed Rule, 48 Fed. Reg. 9,630 (1983).Google Scholar
In February 1984, the House of Representatives passed a bill that would redefine child abuse and neglect to include cases of certain disabled infants receiving inadequate care. The bill is stalled in the Senate, and a compromise measure is expected to be introduced in late summer 1984. The House bill would redefine child abuse to include the withholding of medically indicated treatment from certain disabled infants with life-threatening conditions. H.R. B. 1904 (1983) (to amend 42 U.S.C. §§510M07).Google Scholar
Weber v. Stony Brook Hospital, 456 N.E.2d 1186 (N.Y. 1983); United States v. University Hospital, No. CV83-4818 (E.D.N.Y. November 17, 1983).Google Scholar
See, e.g., Pa. Cons. Stat. Ann. tit. 18, §3212(a), (b) (Purdon 1983).Google Scholar
States that considered legislation are Arizona, Arkansas, California, Connecticut, Delaware, Illinois, Indiana, Louisiana, Maryland, Michigan, Missouri, Nevada, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Tennessee, West Virginia, and Wisconsin. In Illinois, House Bill 3092, which would amend a statute on the reporting of abused and neglected children, to require an appointed Perinatal Coordinator to evaluate reports of alleged neglect of handicapped infants, has been passed by the legislature, and awaits the Governor's signature.Google Scholar
See Ill. S. B. 563; Ill. S. B. 0369 (1983).Google Scholar
See, e.g., Cal. S. Con. Res. 75, 1982 New Laws 4207.Google Scholar
The medical and legislative communities in these states have held seminars with a pediatrician, a lawyer, and an ethicist, with the aim of better understanding the complex issues raised by treatment decisions and thereby drafting more workable legislation.Google Scholar
La. Rev. Stat. Ann. §§40:1299.36.1-40:1299.36.3 (West Supp. 1984).Google Scholar
Id. §40:1299.36.1.A.(1) (West Supp. 1984).Google Scholar
Id. §§40:1299.36.1.C, D.Google Scholar
Id. §40:1299.36.2 (West Supp. 1984).Google Scholar
Id. §40:1299 36.3 8 (West Supp. 1984).Google Scholar
Personal correspondence with Sharon Knight, Louisiana Medical Society, December 1983.Google Scholar
Personal correspondence with Nancy Chaney, Neonatologist, Woman's Hospital, December 1983.Google Scholar
Ariz. Rev. Stat. §36-2281A (West Supp. 1983).Google Scholar
Id. §36-2281B.Google Scholar
Id. §36-2281C.Google Scholar
Personal correspondence with Pat Ryan, Arizona Right-to-Life, December 1983.Google Scholar
1984 Ariz. Sess. Laws, ch. 355 (to amend Ariz. Rev. Stat. §§13-3620, 362281, 36 2282 and to add §36-2284 (which creates an infant care review committee)).Google Scholar
Id.Google Scholar
Ind. Code Ann. §31-6-4-3(f) (West Supp. 1983–1984).Google Scholar
Id. §31-6-4-6 (child will be taken into state custody while another relative is located; if this is impossible, the state will retain custody).Google Scholar
In re Infant Doe, No. GU 8204–00 (Cir. Ct. Monroe County, Ind. (April 12, 1982), writ of mandamus dismissed sub nom. Infant Doe v. Baker, No. 482-S-140 (Ind. May 27, 1982) (case mooted by child's death).Google Scholar
Personal correspondence with Susan Stanis, Supervisor, Indiana Child Protection Services, December 1983.Google Scholar
Personal correspondence with Senator James R. Butcher, Indiana State Legislature, January 1984.Google Scholar
Stanis, , supra note 25.Google Scholar
Gen, R.I.. Laws §40-11-3 (Supp. 1983).Google Scholar
Id.Google Scholar
Id. §40-11-6.1 (Supp. 1983).Google Scholar
Pa. Cons. Stat. Ann. tit. 18 §3201 (Purdon 1983).Google Scholar
Id. §3212(a),(b) (Purdon 1983).Google Scholar
Id. §3212(c).Google Scholar
Id. §106(b)(4) (Purdon 1983).Google Scholar
Pa. S. 742 (1981) (to amend Pa. Cons. Stat. Ann. tit. 35, §6604 (Purdon 1977)).Google Scholar
News Release, Pa. Governor's Office, December 23, 1981, p. 4.Google Scholar
Personal correspondence with Kitty Kolbert, Women's Law Project, November 1983.Google Scholar
American College of Obstetricians and Gynecologists v. Thornburgh, No. 82-1846 (3d. Cir. May 31, 1984).Google Scholar
Tenn, S. Joint Res. 17 (April 7, 1983).Google Scholar
Id.Google Scholar
Personal correspondence with Representative McNally, Tennessee State Legislature, November 1983.Google Scholar
Personal correspondence with Ron Gant, Tennessee Medical Association, December 1983.Google Scholar
Personal correspondence with Bill Snyder, medical reporter, Nashville Banner, January 1984.Google Scholar
Cal. S. Con. Res. 75, 1982 New Laws 4207.Google Scholar
Id.Google Scholar
Id.Google Scholar
Cal. S. 1137, 1983, an act to add Article 5 3 (commencing with 376) to Chapter 2 of Part 1 of Division 1 of the Health and Safety Code.Google Scholar
Cal. S. Con. Res. 33 (introduced August 15, 1983).Google Scholar
President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment (U.S. Government Printing Office, Washington, D.C.) (1983) at 227.Google Scholar
Denton, J., Newborn Infant Protection Act, in 1983–1984 Sourcebook of State Legislation (American Legislative Exchange Council, Washington, D.C.) (1983) at 81–85.Google Scholar
La. Rev. Stat. Ann. §§40;1299.36.1—.36.3 (West Cum. 1984).Google Scholar
Demon, , supra note 50, at 83.Google Scholar
Id.Google Scholar
Md, H. 1310 (introduced February 11, 1983) (assigned to House Environmental Matters Committee).Google Scholar
W. Va. H. 1807 (1983) (House Committee on the Judiciary) (to amend W. Va. Code ch. 49) (Richie 1980).Google Scholar
N.C.H. 1029 (introduced May 11, 1983).Google Scholar
See Fost, N., Putting Hospitals on Notice, Hastings Center Report 12(4): 5–8 (August 1982).Google ScholarPubMed
Birth Defects Compendium (Bergsma, D., ed.) (National Foundation-March of Dimes, New York, N.Y.) (2d ed. 1979) at 533. Hydranencephaly occurs at birth and is evidenced by an enlarged head. The cerebral cortex is absent, although skull and cranial meninges are intact. The prognosis is poor; most infants die by the age of 4 months.Google Scholar
Denton, , supra note 50 (emphasis added).Google Scholar
Murray, T.H., Suffer the Little Children: Suffering and Neonatal Intensive Care, in Which Babies Shall Live: Ethics and the Care of Imperiled Newborns (Murray, T.H. Caplan, A.L., eds.) (Humana Press, Clifton, N.J.) (forthcoming 1984).Google Scholar