Published online December 1, 2005
PEDIATRICS Vol. 116 No. 6 December 2005, pp. 1600-1601 (doi:10.1542/peds.2005-2002)

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Baby Doe Rules

Irene Hurst, RN, PhD
Department of Nursing,
New Mexico State University,
Las Cruces, NM 88003

To the Editor.—

As a nurse whose background is in newborn intensive care, I deeply appreciate the guidelines^1–3 of the American Academy of Pediatrics (AAP) that address the issue of appropriate care for imperiled newborns. I thank Pediatrics for encouraging the recent debate on the Baby Doe rules to clarify differing viewpoints on the real impact that these rules pose to the best-interest standard. To this end, I write further⁴ on why I believe that the advice of Drs Clark⁵ and Kopelman,^6,7 that the AAP publicly find that its guidelines are inconsistent with the so-called Baby Doe rules, is misguided. In the August 2005 issue of Pediatrics, Clark⁵ supports Kopelman's⁷ call for the AAP to "withdraw its apparent support of the ‘Baby Doe’ rules"^7(p514) because those rules "do not allow the discretion our leadership believed and have demonstrated that they [the rules] have been strictly interpreted against our current practice of supporting parents who make a reasonable medical decision in the best interests of their infant."^5(p514) Although I wholeheartedly support the use of the best-interest standard that the AAP has incorporated in its guidelines, I believe that Clark and Kopelman miss the target in calling for a direct challenge to the Baby Doe rules and in their remarks on the significance of the Baby Doe rules in the Wisconsin Appellate Court decision in the Montalvo v Borkovec case.

First, the Baby Doe rules are enforceable by a legal action initiated only by a state's child protective agency,⁸ an action that no state's child protective agency has ever taken. Clark⁵ and Kopelman's⁷ references to the discussion of the rules in the Montalvo v Borkovec case fail to point out that, even in the Montalvo case, there was no prosecution by the state of Wisconsin's child protective agency.⁹ The Wisconsin Appellate Court's discussion of Baby Doe was gratuitous and not necessary to the decision in the case (often referred to as "dicta"),⁹ as I have said elsewhere.¹⁰ That court wrote a strident decision determined to uphold vitalism (life at all costs) and eliminate the use of the best-interest standard in Wisconsin and would have reached the same conclusion even if the Baby Doe rules had not existed.

Second, because the holding in the Montalvo case relied on a state law concerning informed consent,⁹ it only establishes precedent for the state of Wisconsin. No other state has taken the extreme position of the Wisconsin courts, and the best-interest standard remains the law overwhelmingly throughout the country.

Third, what is gained if the AAP directly states that the Baby Doe regulations bar the use of the best-interest standard? In my opinion, such an action would further weaken health care professionals' ability to use the best-interest standard as they do today throughout the country. The AAP has shown deep courage in incorporating the best-interest standard into its practice guidelines.^1–3 It would be foolish to concede, unilaterally, that there is no ambiguity in the Baby Doe rules that allows for such guidelines. This would be akin to shooting one's self in the foot.

Finally, there can be no doubt that the struggle to defend the best-interest standard and the fundamental privacy right that underlies it, and other important conflicts in our society (the right to birth control, safe and legal abortion, etc), is intense and continuing. Wisconsin's courts have staked out a position on the extreme, ultimately challenging all the fundamental privacy rights. That does not mean the battle is lost, but it does mean that the struggle will proceed state by state and will not be easy. Conceding an important legal defense to any action that a state's child protective agency might bring under the Baby Doe regulation by arguing that the Baby Doe rules do not allow the use of the best-interest standard simply plays into the hands of those who support Montalvo-like decisions.

I applaud the AAP and hope that it will continue to provide health care professionals with the best possible defense to deal with the assault on the fundamental right of parents and families to determine the best interests of their children. To date, the AAP has done just that by recognizing the professional and humane responsibilities of its members and incorporating the best-interest standard into its practice guidelines.

REFERENCES

1. American Academy of Pediatrics, Committee on Bioethics. Guidelines on forgoing life-sustaining medical treatment. Pediatrics. 1994;93 :532 –536[Abstract/Free Full Text]
2. American Academy of Pediatrics, Committee on Fetus and Newborn. The initiation or withdrawal of treatment for high-risk newborns. Pediatrics. 1995;96 :362 –363[Abstract/Free Full Text]
3. American Academy of Pediatrics, Committee on Bioethics. Ethics and the care of critically ill infants and children. Pediatrics. 1996;98 :149 –152[Abstract/Free Full Text]
4. Hurst I. First rule: choose your battles wisely [letter]. Pediatrics. 2005;116 :288[Free Full Text]
5. Clark F. Baby Doe rules have been interpreted and applied by an appellate court [letter]. Pediatrics. 2005;116 :513 –514[Free Full Text]
6. Kopelman LM. Are the 21-year-old Baby Doe rules misunderstood or mistaken [commentary]? Pediatrics. 2005;115 :797 –802[Free Full Text]
7. Kopelman L. Baby Doe rules have been interpreted and applied by an appellate court [letter]. Pediatrics. 2005;116 :514 –515[Free Full Text]
8. 45 CFR 1340, 1340.15 ( 2005)
9. Montalvo v Borkovec, 2002 WI App 147; 256 Wis. 2d 472; 647 N.W. 2d 413 (2002).
10. Hurst I. The legal landscape at the threshold of viability for extremely premature infants: a nursing perspective, part I. J Perinat Neonatal Nurs. 2005;19 :155 –166[Web of Science][Medline]

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PEDIATRICS (ISSN 1098-4275). ©2005 by the American Academy of Pediatrics

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