Can you name the only group in the United States that is required by law to accept medical treatment? It is newborn babies.
In 1985 Congress amended the laws governing support for child abuse and neglect programs to mandate that all infants born in the United States receive medical care. No matter how sick or disabled, all newborns, according to what became known as the Baby Doe law, must be treated. That is what makes the just-issued report by the Nuffield Council on Bioethics in England so startling.
The council, a private organization whose reports are very influential in Britain, argues premature babies born before 22 weeks gestation should not be given treatment to prolong their lives. The council was not arguing for any form of active killing. Its view is that since only 1 percent of infants born between 22 and 23 weeks of age survive long enough to leave the hospital, starting aggressive treatment on babies born at 22 weeks or younger is wrong.
The report is already drawing support from many pediatricians and neonatologists. It also drew the support of religious leaders including the Church of England (Anglican) House of Bishops and the Catholic Bishops’ Conference of England and Wales.
Who is right?
So does the law in the United States requiring treatment of every infant need to be changed? Or are the Brits wrong to try and draw a clear line in the sand for when medical treatment will not be offered in the full knowledge that these preemies will die? The answer is a bit of both.
American law was intended to protect the rights of the disabled. For many years children born with Down syndrome or spina bifida were not given aggressive treatment if their parents did not want it or if doctors deemed it inappropriate. But in the early 1980s, the Reagan administration and the famous Surgeon General C. Everett Koop protested these practices, resulting in the passing of a law that stopped discrimination of the disabled in the neonatal nursery.
But the federal law went too far. In its effort to ensure that children were not allowed to die simply because they had a disability, Congress wrote a law that was overly restrictive.
A 22-week-old premature baby is not in the same medical circumstances as a child born with Down syndrome who simply requires a surgical repair of his digestive tract to survive.
Extremely premature infants are the nightmare of every neonatal hospital and obstetrician. Medicine does not know how to save them and when it tries, if often produces a child whose life is very short and whose suffering is beyond description.
The fact is that when a baby is born at less than 22 weeks gestation, all medicine can do is try experimental and unproven procedures to prolong life. I don’t say they should never be done but the Baby Doe law should be amended to permit some discretion to parents and doctors as to whether they want to try desperate, experimental interventions.
Medicine's limits
The British report goes too far in the other direction. It is true that trying to aggressively treat any baby born at less than 22 weeks results in an overwhelming number of horrible outcomes. But if parents want to try new experimental techniques knowing that the odds are very, very, very long then I don’t think public policy should prohibit that.
There is a limit to what medicine can do. Tiny preemies should not be forced to endure care that does not work and that only prolongs dying, and most major religious traditions understand that. Existing American law is too restrictive — we wind up giving treatment when common sense and basic respect for human dignity say we ought not.
The new British report has the courage to take on this problem. It may go too far in the other direction of prohibiting care. The right answer lies somewhere in between.