PEDIATRICS Vol. 116 No. 2 August 2005, pp. 513-514 (doi:10.1542/peds.2005-0798)
Baby Doe Rules Have Been Interpreted and Applied by an Appellate Court
Frank Clark, MD, JDClinical Child Health
University of Missouri School of Medicine
Columbia, MO 65212
To the Editor.—
I applaud the effort of Dr Kopelman1 to call attention to the disparities inherent in applying the Baby Doe rules and her courage in calling for the American Academy of Pediatrics to withdraw its apparent backing for them. I particularly appreciate her support for the continued application of the best-interests standard as being appropriate. However, I would like to correct one small misstatement.
In Appendix 1 Dr Kopelman states that the
current Baby Doe rules "are untested by the courts" and
then provides the text of 45 CFR 
1340.15 (b)(2). This section
first mandates indicated medical treatment and then provides 3 narrow
exceptions to providing this treatment; it is these 3 exceptions that
we generally refer to as the Baby Doe rules. Although it is true that
the exceptions themselves have never been the direct target of a
challenge, this section was recently reviewed and applied in an
appellate
decision.2
The case involved an infant born at 23 or 24 weeks’ gestation who
was resuscitated at birth allegedly against his parents’ wishes.
The court first reviewed the appeal under Wisconsin law and found that
the alternative of withholding life-sustaining treatment did not exist
because the infant was not in a persistent vegetative state. The court
then noted that Wisconsin had accepted federal funding under the United
States Child Abuse Protection and Treatment Act (CAPTA) and
"its regulations are fully applicable in this state."
The court then reviewed 1340.15 (b)(1), (2), and (3)
and concluded that the "implied choice of withholding treatment
[resuscitation at birth], proposed by the plaintiffs
[parents], is exactly what CAPTA prohibits."
In her seminal treatment of newborn treatment decisions,3 Rhoden pointed out that society basically has 3 choices when prognosis is uncertain. She first discussed the approach of waiting until death was certain before withdrawing care. She noted that by "erring on the side of life," society would find a few survivors, but at the expense of creating tremendous pain, suffering, and ultimately death along the way. Specifically, she pointed out that this approach ensured that all errors were "in one direction—on the side of life. It resembles the criminal law approach, which holds that it is better to acquit ninety-nine guilty defendants than to convict one innocent person." She next reviewed the "statistical prognostic strategy," which was based on objective criteria that defined a limit of viability and denied aggressive medical treatment to those infants who failed to meet the criteria. She carefully noted that this approach denies treatment to some who might otherwise survive. The advancement of technology over time has shown that this approach is not feasible. She labeled her favored approach the "individualized prognostic strategy." As Dr Kopelman notes, it is this approach that has been adopted in guidelines published by the American Academy of Pediatrics. Singh and associates4 recently documented this practice in Chicago, Illinois. Their article also provides meaningful definitions that, for the first time, allow us to differentiate between cases in which withdrawal was undertaken because death was imminent and those cases in which quality-of-life concerns played a part in the decision.
I share Dr Kopelman’s concern that the Baby Doe rules do not allow the discretion our leadership believed and have demonstrated that they have been strictly interpreted against our current practice of supporting parents who make a reasonable medical decision in the best interests of their infant. For those who might consider the Montalvo decision an aberration, I would suggest reading Robertson’s recent article,5 in which he promotes the restrictive interpretation of the Baby Doe rules rejected by Dr Kopelman; he asserts that all infants must receive full and equal medical treatment that can only be withdrawn when an infant fails to demonstrate any cognitive ability. His words are a direct assault on the best-interests standard that the majority of us use in clinical practice.
Our society seems poised to attempt a tectonic shift in public policy. Our current policy allows the widest latitude for decision-making and respect for values between patient, parent, and caregiver. As a matter of public policy under the standard proposed by Robertson and, as noted by Dr Kopelman, supported by the Baby Doe rules, there will be no choice but to continue maximal medical treatment in any infant with the slightest degree of conscious life. I would join Dr Kopelman in urging our professional leadership to reexamine this issue.
REFERENCES
- Kopelman LM. Are the 21-year-old Baby Doe rules misunderstood or mistaken [commentary]?
Pediatrics. 2005;115
:797
–802
[Free Full Text] - Montalvo v Borkovec, WI App 147; 256 Wis. 2d 472; 647 N.W. 2d 413 (2002)
- Rhoden NK. Treating Baby Doe: the ethics of uncertainty. Hastings Cent Rep. 1986;16 :34 –42[Web of Science][Medline]
- Singh J, Lantos J, Meadow W. End-of-life after birth: death and dying in a neonatal intensive care unit.
Pediatrics. 2004;114
:1620
–1626
[Abstract/Free Full Text] - Robertson JA. Extreme prematurity and parental rights after Baby Doe. Hastings Cent Rep. 2004;34(4) :32 –39
PEDIATRICS (ISSN 1098-4275). ©2005 by the American Academy of Pediatrics
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