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37 U. Miami L. Rev. 43 (1982-1983)
Let Live and Let Die: Disabled Newborns and Contemporary Law

handle is hein.journals/umialr37 and id is 55 raw text is: Let Live and Let Die: Disabled Newborns
and Contemporary Law
JEFFREY A. PARNESS* and ROGER STEVENSON**
I.  INTRODUCTION  ........... .......... .................................  43
II. THE UNSATISFACTORY STATE OF PREVAILING LAW .......................... 45
III. ADJUSTING LEGAL GUIDELINES FOR DETERMINATIONS OF MEDICAL TREATMENT
OF  D ISABLED  N EWBORNS  ................................................  48
A.  The Disabled  Newborn's Right to Live  .............................  49
B.  The Disabled  Newborn's Right to Die  ..............................  54
C.  The  Relevant  Interests  ............................................  60
1.  PARENTS  AND  FAMILY  MEMBERS  ..................................  60
2.  MEDICAL  PROFESSION  ...........................................  64
3.  THE  INTERESTS  OF  THE  STATE ....................................  65
IV. SUGGESTIONS FOR DETERMINING MEDICAL TREATMENT OF DISABLED NEWBORNS      66
V .  C ON CLUSIO N  ...........................................................  69
I. INTRODUCTION
Every child which is born into this world shall be reared, bap-
tized, and carried to the church except that. . . which is born so
deformed that the mother cannot give strength to it . . . . It
shall be carried to a beach and buried where neither men nor
cattle go; that is the beach of the evil one.'
Although this ancient Norse law           seems barbaric in modern
times, several thousand infants die in the United States each year
as a result of parental2 decisions to withdraw or withhold necessary
medical treatment.3 Physicians implement these decisions in treat-
* Associate Professor of Law, Northern Illinois University; J.D., University of Chicago;
B.A., Colby College.
** Associate, Roetzel & Andress, Akron, Ohio; J.D., University of Akron; B.A., Kent
State University.
1. Rickham, The Ethics of Surgery in Newborn Infants, 8 CLIN. PEDIATRICS 251, 253
(1969) (quoting J.W. BALLANTINE, MANUAL OF ANTENATAL PATHOLOGY AND HYGIENE (1904)).
2. The term parental includes guardians and those who are not the natural parents
but are nonetheless responsible for the care of newborns.
3. MEDICAL ETHICS: THE RIGHT TO SURVIVAL, 1974: HEARINGS ON EXAMINATION OF THE
MORAL AND ETHICAL PROBLEMS FACED WITH THE AGONIZING DECISION OF LIFE AND DEATH
BEFORE THE SUBCOMMITTEE ON HEALTH OF THE SENATE COMMITTEE ON LABOR AND PUBLIC
WELFARE, 93d Cong., 2d Sess. 26 (1974) [hereinafter cited as 1974 HEARINGS] (statement of
Dr. Robert E. Cooke). Dr. Cooke extrapolated the several thousand figure based on a
report that between January 1, 1970 and June 30, 1972, 43 out of 299 (14%) infant deaths in
the Yale-New Haven Hospital Intensive Care nursery were associated with discontinuance
or withdrawal of treatment. Id. at 26. Duff & Campbell, Moral and Ethical Dilemmas in

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