Journal of Law and Conflict Resolution Vol. 2(3), pp. 053-059, March 2010 Available online at http://www.academicjournals.org/JLCR ISSN 2006-9804 © 2010 Academic Journals Full Length Research Paper Withholding treatment from disabled newborns and its effect on the right to life in Nigeria Jadesola O. Lokulo-Sodipe Faculty of Law, University of Ibadan, Ibadan, Nigeria. E-mail: [email protected]. Tel: 08082497110. Accepted 8 February, 2010 The ultimate aim of medical treatment is to provide benefit for the patient and such treatment should not be prolonged if it cannot achieve this aim. Remarkable advances in neonatal care now make it possible to sustain the lives of many newborn infants who several years ago would have died in the first days or weeks after birth. Not all newborns fare well. Some infants with low birth weight or severe defects cannot survive for long, despite the most aggressive efforts to save them; others suffer severe impairments either as a component of their conditions or as a result of treatments. Consequently, medicine’s increased ability to forestall death in seriously ill-newborns and this has magnified the already difficult task of physicians and parents who must attempt to assess which infants may or may not benefit from various medical interventions. This paper will examine the legal implications of withholding treatment in such instances. This will include the right of the child (with particular reference to the right to life) and whether this right is absolute. The paper will also discuss the grounds for state intervention in protecting the rights of a child. In doing this, the Baby Doe incidence which occurred in the United States of America will be used as a case study. An outcome of the Baby Doe case in the USA is the Baby Doe Law, and as such, this paper will also discuss the provisions of this law. It will also look at the provisions of the Nigerian Law in respect of withholding treatment for disabled newborns to determine whether or not the law on this issue is adequate. Key words: Withholding treatment, withdrawing treatment, disabled/seriously ill newborn, right to life. INTRODUCTION The ultimate aim of medical treatment is to provide continue to provide treatment options to prolong life des- benefit for the patient and such treatment should not be pite organ failure, there comes a marked blurring of the prolonged if it cannot achieve this aim. Remarkable ad- dividing line between life and death. An important vances in neonatal care now make it possible to sustain distinction must therefore be made between withdrawal of the lives of many newborn infants who several years ago treatment when it is futile and confers no benefit, and would have died in the first days or weeks after birth1. active intentional termination of life. However, not all newborns fare well. Some infants with Decisions about whether life-sustaining treatment is low birth weight or severe defects cannot survive for long, warranted for newborns arise most frequently in two despite the most aggressive efforts to save them; others general categories: infants of low birth weight (those who suffer severe impairments either as a component of their weigh less than 1500 g) and infants with life-threatening conditions or as a result of treatments. congenital abnormalities. In this category are children Consequently, medicine’s increased ability to forestall with neural tube defects, such as anencephaly and spina death in seriously ill newborns has magnified the already bifida and permanent handicaps combined with surgical difficult task of physicians and parents who must attempt correctable, life-threatening lesion such as Down’s to assess which infants will benefit from various medical syndrome. interventions and which will not. As medical technologies This paper will examine the legal implications of with- holding treatment in such instances. These will include the right of the child (with particular reference to the right 1 President’s Commission, Deciding to Forego Life-Sustaining Treatment: A to life) and whether this right is absolute. The paper will Report on the Ethical, Medical, and Legal Issues in Treatment Decisions., 197- also discuss the grounds for state intervention in order to 203 (March 1983), quoted in Patricia A King, et al, Law, Medicine and Ethics., 2006,Foundation Press., New York, pp484-486. protect the rights of a child. In doing this the Baby Doe 054 J. Law. Conflict. Resolut. incidence which occurred in the United States of America (Kopelman et al., 1988)6. will be used as a case study2. An outcome of the Baby Many neonatologists and other paediatricians reported Doe case is the Baby Doe Law, and as such, this paper that these rules immediately altered standards of care will also discuss the provisions of this law. It will also look and limited clinicians’ and parents’ abilities to select indi- at the provisions of the Nigerian Law in respect of vidualised treatment plans and act in the best interests of withholding treatment for disabled newborns. infants (Kopelman et al., 1988)7. The birth of another baby known as Baby Jane Doe in 1983 in New York tested the law. Baby Jane Doe had WITHOLDING TREATMENT FROM A DISABLED spina bifida, hydrocephalus, kidney damage, and micro- NEWBORN: THE BABY DOE CASE cephaly. The parents were told that the infant would be severely retarded and paralysed below the lesion and In April 1982, a baby was born in Bloomington, Indiana. suffered frequent kidney and bladder infections. Doctors He was diagnosed with Down’s syndrome, a chromoso- disagreed about whether aggressive treatment was mal abnormality that produces mental retardation and appropriate and whether it was in the best interest of the with esophageal artresia, the separation of the esopha- child to have corrective surgery. The parents, deciding it gus from the stomach, which rendered the newborn was in their child’s best interest to be provided palliative unable to absorb food. The obstetrician who delivered the care, declined surgery8. baby told the parents that their child would have only a The US Supreme Court in Bowen. v. American Hospi- 50% chance to survive surgery for his atresia of the tal Association9 rejected the government’s interpretation esophagus and that even if surgery was successful, their of the civil rights law that generated the first set of Baby child would remain severely retarded and would face a Doe rules. The court ruled these rules as unnecessary to lifetime of medical treatment, disability, and dependency. protect the rights of disabled infants and parental rights to He advised the parents to withhold treatment and let their consent or refuse treatment base on what they deemed child die of his birth defect. The baby’s parents decided to be in their infant’s best interest. The court noted, that that they did not want the baby treated (The C Everett these rules represented an unwarranted attempt to Koop Papers , 2009)3. influence standard of care. Furthermore, the court upheld An action was brought to court4 to have him declared a the ‘best interest of the child’ standard. This was be- neglected under Indiana Child in Need of Service Statute, cause, allowing parents to have the primary responsibility and to have the court order medical treatment. Indiana would promote the best interests, welfare, and safety of courts ruled that there was no violation of the statute, and children, given the various circumstances and options that the parents, confronted with contradictory medical that shape complex medical-decision making. This led to opinions, had the right to decide the fate of their child. the adoption of a new set of Baby Doe Rules as amend- The Indiana Appeal Court let this decision stand. An ments to the child abuse and neglect to the funding appeal was made to the US Supreme Court. However, requirements for states (Lauretta, 2005)10. The second before the appeal could be heard, Baby Doe died of set of Baby Doe rules is known as the Child Abuse dehydration and pneumonia. Amendments of 1984, but unlike the first set, they have This culminated in the promulgation of the Baby Doe Law not been tested in the courts and are still in force and the Baby Doe Amendment5. There have been 2 sets (Lauretta, 2005).11 of Baby Doe rules. The first set of Baby Doe rules was based on section 504 of the US Rehabilitation Act of 1973. It mandated that states receiving federal money for CHILD ABUSE AMENDMENT OF 1984 child abuse programs develop procedures to report medi- cal neglect, which the law defines as the withholding of In 1984, the Child Abuse Amendment Act was promul- treatment unless a baby is irreversibly comatose or the gated and it went into effect in 1985 (Lauretta, 2005)12. treatment is “virtually futile” in terms of the newborn’s This Act was also known as the Baby Doe Regulations survival. By this law, opinions about the child’s “quality of (BDR). The key portion of the BDR provides thus: “The life’’ are not valid reasons for withholding medical care withholding of medically indicated treatment is the failure to respond to the infant’s life-threatening conditions by 2 The author is not aware of any litigated or reported case of withholding or withdrawing treatment from a disabled newborn in Nigeria, hence the use of an American case as a case study. 6 Kopelman L M, Kopelman A E, Irons T G, ‘Neonatologists Judge the “Baby 3 The C Everett Koop Papers, “Congenital Birth Defects and the Medical Doe” Regulations’, N.Engl.J.Med 1988;318:677-683. Rights of Children, the Baby Doe Controversy”., Retrieved from 7 Kopelman L M et al., ibid http://profiles.nlm.nih.gov.QQ/views/Exhibit/narrative/babydoe.htm.