Engineering Perfect Offspring: Devaluing Children and Childhood
![handle is hein.journals/hascq24 and id is 853 raw text is: Engineering Perfect Offspring: Devaluing
Children and Childhood
By WENDY ANTON FITZGERALD*
American law permits withholding otherwise life-saving medical
treatment from newborn children who are seriously ill or disabled when
treatment is virtually futile or inhumane in prolonging the child's life.,
Hence, when newborn children's genetic or congenital abnormalities would
so impair them, or their lives would be so fleeting in all events, parents and
physicians may legally choose the child's likely near-term death over life-
prolonging treatment.2 When exercising this choice, parents and physicians
estimate the degree of impairment and likely duration of an abnormal
child's life They can abide by the law, though, only by comparing these
* Associate Professor of Law, University of Florida College of Law. I wish to thank
Nancy E. Dowd, Gilbert A. Holmes, Elizabeth McCulloch, Mark Miller, Winston P. Nagan, Lynn
D. Wardle, and Barbara Bennett Woodhouse for their helpful comments and insights; the organiz-
ers of the International Society of Family Law 1996 Conference on Parent and Child in North
American Family Law, Laval University, Quebec City, Canada, where I presented an earlier ver-
sion of this Essay; the organizers of the 1997 Hastings Constitutional Law Quarterly's 24th An-
nual Symposium where I presented this Essay; Steven B. Anderson, Executive Editor of the Hast-
ings Constitutional Law Quarterly and Quarterly staff members for their editorial work on this
Essay; Caitlin F. Bellis, Circe Bermudez, Betty 3. Donaldson, Mary Elen DuPuis, Christine Eck-
stein, and Pamela Susil Smith for their continuous support during the completion of this project
and the University of Florida College of Law Foundation for the funding enabling the writing and
presentation of this Essay.*
1. See Child Abuse Prevention and Treatment Act, 42 U.S.C.A. §§ 5101-02,
5106a(b)(2)(B), 5106g(6) (West Supp. 1997). The Act requires states to respond to reports of
medical neglect, including instances of withholding of medically indicated treatment from dis-
abled infants with life-threatening conditions but the term 'withholding of medically indicated
treatment' ... does not include the failure to provide treatment... to an infant when... (B) the
provision of such treatment would... (ii) not be effective in ameliorating or correcting all of the
infant's life-threatening conditions, or (iii) otherwise be futile in terms of survival of the infant
and the treatment itself under such circumstances would be inhumane. 42 U.S.C.A. § 5106g(6).
2. For this interpretation of the effect of the federal legislation, see, for example, Bowen v.
American Hosp. Ass'n., 476 U.S. 610 (1986); Steven R. Smith, Disabled Newborns and the fed-
era[ Child Abuse Amendments: Tenuous Protection, 37 HASTINGS L.. 765, 822 (1986); Devel-
opments in the Law-Medical Technology and 7he Law, 103 HARV. L. REV. 1519, 1584-614
(1990) [hereinafterDevelopments in the Law].
3. See Developments in the Law, supra note 2.
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Engineering Perfect Offspring: Devaluing Children and Childhood
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