The controversy over nontreatment of handicapped newborns arises in a context of criminal and civil law, against which the current controversy has unfolded. This article examines the legal setting and background under traditional criminal and civil law concepts of nontreatment of handicapped newborns. It focuses on substantive principles of law, showing that nontreatment would be legally permitted when treatment could not be reasonably said to be in the interest of the patient involved, and that nontreatment could be considered criminal where treatment would serve patient interests. It then relates this analysis to procedural issues and the federal Baby Doe legislation and regulations that have recently emerged.
KIE: Robertson examines the substantive criminal and civil legal principles that may be applied in considerations of nontreatment of handicapped newborns. He analyses several court decisions that illustrate the extent of parental authority; the grounds for state intervention; the physician's legal obligations to the child; and the legal liability of hospitals, health personnel, and parents for nontreatment. The author accepts as the operative principle a patient-centered approach in which, for some infants, withholding treatment may be in the child's best interests. Robertson holds that, although the final Baby Doe regulations begin to recognize this principle, they do not recognize the extent to which nontreatment may be consonant with the infant's interests. He urges establishment of criteria for nontreatment and definition of the proper roles of physicians, parents, hospitals, infant care review committees, and courts in deciding whether these criteria are met.