Sunday, March 14, 2010
Koller: "Government as God: An Update on Federal Intervention in the Treatment of Critically Ill Newborns "
Dionne Koller (University of Baltimore School of Law) has posted "Government as God: An Update on Federal Intervention in the Treatment of Critically Ill Newborns" (forthcoming New England L. Rev.) on SSRN. Here is the abstract:
Whether a severely impaired or critically ill infant should receive lifesaving, and sometimes extraordinary, medical treatment, or be allowed to die, is hotly debated. The issue initially garnered public attention in 1982, when an infant who was born with Down's Syndrome, “Baby Doe,” was allowed to die from a correctable birth defect. Following this, the federal government took a lead role in determining the fate of critically ill newborns. In the meantime, doctors, philosophers, and others have debated whether federal interference in this area is appropriate.
This essay will bring the reader up to date on the “Baby Doe” issue by summarizing the contours of the debate and explaining the legislation, in the form of amendments to the Child Abuse Prevention and Treatment and Adoption Reform Act of 1978 (CAPTA), that ultimately resulted from the initial “Baby Doe” controversy. This essay also will add an additional voice to the discussion by criticizing federal intervention in this area on three main grounds. The first ground is that the federal government purports to solve a problem that largely does not exist, and in so doing, it oversimplifies the profound moral questions that surround the issue of whether to aggressively treat a severely impaired newborn. Secondly, federal intervention in this area through the CAPTA Amendments is bad policy because it eliminates parents from the treatment decision. Thirdly, the policy fails on a philosophical level because it does not square with our intuitions. Finally, this essay will highlight a view that is largely missing from the debate on this issue - that of the practicing physicians who work with critically ill, severely impaired newborns and their parents every day. The essay will conclude by briefly suggesting an alternative policy approach, which would presume that parents, in consultation with their doctors, are the appropriate decision-makers in these cases unless circumstances warrant otherwise.