Legal Implications of Baby Doe

ROBYN S. SHAPIRO, JD**Milwaukee, Wisconsin


Usually parents have a right to make treatment decisions for their children. This right is not absolute and courts have ordered treatment over parental objection when necessary for the child's best interests. Determining the infant's best interests is often problematic, however, because of uncertainties regarding diagnosis and prognosis.

The federal government has responded to concerns about inappropriate nontreatment of impaired infants with Amendments to the Child Abuse Act. On April 15, 1985, the Department of Health and Human Services published regulations implementing the Amendments which require treatment unless: 1) the infant is irreversibly comatose; 2) treatment would be futile in terms of the infant's survival; or 3) treatment would be virtually futile in terms of the infant's survival and, under such circumstances, inhumane. Nontreatment in all other cases is medical neglect. State child protection agencies must have procedures for identifying and investigating such instances.

These regulations are inadequate if not harmful. They offer little guidance regarding appropriate nontreatment because the treatment exceptions are so vague. Physicians may deal with such ambiguity by treating over-aggressively. Furthermore, since redress for violation is merely withholding of federal child abuse funding, the regulations do not directly ensure appropriate medical decision making. Other solutions, such as ethics committees, must be explored. Issues which engage the attention of health care personnel, lawyers, philosophers, theologians, social scientists, journalists, lawmakers, and the public include withdrawal of life support, allocation of scarce resources, nontreatment of impaired infants, right to health care, genetic engineering, impact of health care delivery systems on quality of care, and new reproductive technologies.

**Medical College of Wisconsin, Regional Center for the Study of Bioethics, 8701 Watertown Plank Road, Milwaukee, WI 53226