It looks like the Journal of Medical Ethics, which recently brought us the vocabulary item "post-birth abortion," is having a high old time.
I am relying on several summary reports, because the article in question and the responses thereto are not available in full on-line. But it appears that they have recently had a kind of mini-symposium centered around an article that advocates pulling "life support" (which, in the present legal climate in both America and Britain, includes food and water) from allegedly hopeless children against their parents' wishes.
The places where disagreement is allowed among the technicians of the culture of death are almost funny. Who is to say that no dissent is allowed? On the contrary, here we seem to have had a vigorous debate! Well, kind of...
The central article, written by Joe Brierly, et. al., evidently focuses on situations in which parents insisted on the continuation of "life support" against doctors' recommendations (in England) because the parents believed that a miracle would occur and their child would be healed. Those cases where life support was actually continued among the group of cases surveyed (a "study," they call it, as though some new scientific thing was actually discovered) against doctors' wishes was actually very small--only five cases. And one of the children actually did survive, though with "profound neurological disability" (we can't have that).
The authors' thesis is that there should be a special fast-track to death for children whose parents are resisting doctors' suggestions on religious grounds. Apparently, especially, the religious hope of a miracle. It's unclear how this would come about legally. Would England pass a law that says, "If parents are keeping a child on life support against doctors' recommendation because they hope for a miracle, the presumption shall be that they are crazy and it will be made even easier than it otherwise would be to withdraw the life support"? In America this would be a blatantly unconstitutional law, but in England, who knows?
However, some of the authors' colleagues disagree with them! Don't get too excited, though. Here is what they disagree about. Our old friend, the grisly but famous Julian Savulescu (editor of the journal) is annoyed that the authors make their argument on the basis of the best interests of the child. Darn it, says Savulescu, that's so old-fashioned! We need to get past all of that and do it all on the basis of cost-benefit analysis:
Treatment limitation decisions are best made, not in the alleged interests of patients, but on distributive justice grounds. [snip] Faced with the choice between providing an intensive care bed to a [severely brain damaged] child and one who has been at school and was hit by a cricket ball and will return to normal life, we should provide the bed to the child hit by the cricket ball.
One suspects that Savulescu was just inventing a disagreement nearly invisible to the naked eye, because the authors themselves were already advocating a cost-benefit analysis in addition to the "best interests" analysis:
One further argument for such an approach and one we do not shy away from is the resources used in maintaining children in this setting. While we feel the best interests of the child in question are paramount, the interests of society, including the other children who might have used this valuable resource, cannot be ignored, especially when non-medically indicated painful and futile therapies are continued on children due to the expectation of miraculous intervention.
I guess Savulescu didn't even like that momentary mention that the "best interests of the child are paramount." But since the authors obviously think death is in the best interests of the child, he really needn't worry. Maybe he was afraid that someone, somewhere, might decide that not dying was in the best interests of the child. Or perhaps that the parents might get an expert who testified credibly that their child had a good chance of recovery, as an argument for continuing the expensive "life support."
But there is more disagreement! This time, it's from two other ethicists, Mark Sheehan and Charles Foster, who in separate comments manifest their discomfort with the blatantly anti-religious goal of the article. After all, if it's in the best interests of the child to die, he should have access to that wonderful option whether his resistant parents are religious or non-religious, right? So they push for leaving out the religious angle and just pursuing those "best interests" even-handedly.
Now, at this point we might shake our heads at the bad-crazy among the chattering classes and walk away, but I want to back up to the main article and draw attention to a couple of things.
The authors are absolutely explicit. They consider cases where treatment to help children is forced over parents' wishes and want this extended to the principle that children should be allowed to die over parents' wishes, because both are "in the best interests of the child." (Emphasis added)
[I]t would simply become the default position in religious disagreements on end-of-life management, as it is for refusing consent for transfusion, which could also result in death. The obvious difference being the former is seeking a default position which will result in death whereas the latter is seeking to preserve life. However, we would argue that both are attempting to protect the child’s best interests. The issues revolve around the balance of sanctity and quality of life versus unbearable suffering.
There is to be no presumption in favor of life, and the experts get to decide whether aggressively treating your child over your objections or allowing your child to die is in his best interests.
But they go further:
They cite Article 3 of the Human Rights Act, which aims to ensure that no one is subjected to torture or inhumane or degrading treatment or punishment.
"Spending a lifetime attached to a mechanical ventilator, having every bodily function supervised and sanitised by a carer or relative, leaving no dignity or privacy to the child and then adult, has been argued as inhumane," they argue.
(Passing thought: Writing well does not seem to be a requirement for being published in the Journal of Medical Ethics.) So, not removing "life support" is actually torture! And in fact it's especially torture if the patient doesn't die but lives on in an "undignified" state.
Lest this all seem like a bunch of theoreticians talking, I'm going to go out on a limb and make a few predictions: First, I predict that the expressly anti-religious part of the authors' program won't be put into place. It may be in place tacitly, but it won't become part of law. What I predict will be put into place in England, if it isn't already (and one of the symposiasts implies that it already is legally possible) will be the general idea that the doctors can kill your minor child against your wishes, because that is in the child's "best interests." I predict that this will become absolutely mainstream in England. Whether the silly-clever allegation that not killing your child is torture under the Human Rights Act will play any legal role, I don't claim to say. But if it goes to court, it doesn't seem terribly implausible.
And what about America? Well, let's start with a few facts: In America it's already rather frighteningly difficult to get your child checked back out of the hospital once he's in, even if you conclude that the hospital stay is doing him more harm than good. I was recently discussing this with a fellow mother, whose child caught pneumonia while in the hospital for asthma. She had asked a nurse friend, "Is there any way I can just take him home?" She was told, "You can do that, but you will get a visit from CPS."
And of course the precedents in favor of treating children over parental objections are already in place in America for cases like Jehovah's Witnesses. Note: I'm not saying that all such precedents are always bad, though I think we should as much as possible err on the side of allowing a wide amount of parental latitude in refusing treatment. Which is to say: Blood transfusions, yes, should be given to bleeding children even over parental objections. Chemotherapy, mebbe not.
But my point here is simply that if lawyers think of it, they can try to do in America what these authors want to do in England--namely, to take the fact that treatment can be applied to a minor child against parents' wishes and to apply that to withdrawing necessities for the sustaining of life against parents' wishes. Most of bioethics law in America is precedent-driven. (Hurray for common law. Or maybe not.) Vague constitutional claims get made, and some judge or panel of judges, often at the state level, will dream up some new idea in response, making it up as they go along.
In family law, it's already possible for social workers to make an application to a court, and the court is then called upon to judge what is in the best interests of the child. It is entirely within the realm of possibility that a hospital or social workers would bring suit to curtail parental rights, that a judge would accept the argument that treating and killing are both things he can decide in terms of the child's "best interests," and that he would order that fluid and food be withdrawn so that the child will die, against parental wishes. It is, in fact, entirely within the realm of possibility that this should happen on a wide scale.
Now, I fully expect that a commentator will bring up the Terri Schiavo case. My thoughts on that case are well-known. But I want to emphasize that this is different, because this is about minor children for whom allegedly parents control medical care and treatment.
I don't have any brilliant medico-legal solutions or ways to protect your children. As often, I'm inclined to recommend state laws, where they are not already in place, that strengthen the presumption in favor of life and that preempt moves of the kind outlined here.