PARENS PATRIAE AND PARENTAL RIGHTS: WHEN SHOULD THE STATE OVERRIDE PARENTAL MEDICAL DECISIONS?

Author:Stern, Elchanan G.
  1. INTRODUCTION 79 II. BACKGROUND 80 A. THE TRAGIC STORY OF ALFIE EVANS 82 B. THE TRAGIC STORY OF CHARLIE GARD 85 C. ZARA ALI AND HER UNTREATED BRAIN TUMOR 87 III. ANALYSIS 88 A. CONSTITUTIONAL AND BRITISH COMMON LAW BASIS OF PARENTAL RIGHTS 89 B. LIMITATIONS ON PARENTAL RIGHTS--COMPELLING STATE INTEREST 91 C. PARENTAL RIGHTS AND LIMITATIONS AS APPLIED TO EVANS AND GARD 92 D. PATIENT AUTONOMY AN D PARENTAL MEDICAL DECISION-MAKING 92 E. WHAT IS ALTERNATIVE MEDICINE? 93 1. Introduction and Definitions 93 2. Lack of Clear Statutory and Adjudicatory Standards Regarding Alternative Medicine 94 F. A CALL FOR JUDICIAL PRUDENCE 96 G. THE PARENT; STATE; AND CHILD DYNAMIC 99 IV. SOLUTION 100 A. THE IDENTIFICATION OF A CHILD WITH HIS PARENTS 100 B. APPLYING THE PRINCIPLE OF IDENTIFICATION TO EVANS AND GARD 102 C. THE NEGLECT OF ZARA ALI 103 V. CONCLUSION 105 I. INTRODUCTION

    "The death of a baby is like a stone cast into the stillness of a quiet pool; the concentric ripples of despair sweep out in all directions, affecting many, many people." - John DeFrain

    "Grief fills the room up of my absent child; Lies in his bed, walks up and down with me; Puts on his pretty look, repeats his words; Remembers me of his gracious parts; Stuffs out his vacant garments with his form." - William Shakespeare, The Life and Death of King John

    Alfie Evans was a terminally ill British child whose parents, clinging to hope, were desperately trying to save his life. (1) Hospital authorities disagreed and petitioned the court to enjoin the parents from removing him and taking him elsewhere for treatment. (2) The court stepped in and compelled the hospital to discontinue life support and claimed that further treatment was not in the child's best interest. (3)

    Alfie's story is a complicated one. It weaves passionate emotions together with cold and detached legal analysis. It pits parents and authorities against each other in a battle of who is most properly suited to determine the "best interest" of a child. (4) Should the historical right of the parents prevail or the court's obligation to protect the child's welfare? Are the parents violating their child's autonomy in his medical decision-making or is the court usurping the parents' responsibility of care? It is a profoundly moving human-interest story of pain and suffering that tugs at one's heartstrings.

    What ought to happen when the wishes of parents and the concerns of the state collide? This note discusses the heartbreaking stories of Alfie and two other children, whose parents' medical decisions on their behalf were overridden by the court. It argues that courts should never decide that death is in a child's best interest and compel parents to withdraw life support from their children. (5) Such a decision is outside the scope of the judiciary. Furthermore, it argues that even in those instances when the court may or must intervene, a new framework is necessary because the current framework used by the court to determine the best interest of the child ignores fundamental realities of child psychology. Too often, as a result of the court's mistaken framework, the court illegitimately trespasses into the parental domain. By adopting a new framework, the court will intervene only when actual abuse or neglect is suspected. In all other cases, judicial restraint will be practiced, and the court will show greater deference to the parents' wishes.

    Part II of this note lays out the basic legal landscape regarding parents' rights over their children. In addition, it addresses the notion of autonomy, specifically in the arena of medical care, that underlies the analysis surrounding the courts' determination of the child's best interest. Furthermore, it shows how these concepts were used in deciding the Evans, Gard, and Ali cases.

    Part III of this note delves into the parental rights/obligation debate from a historical and philosophical perspective. It discusses how much deference the courts must give to parental decisions regarding alternative medicine treatments for their children. It analyzes the court's framework in deciding when the child's care is not in his best interest. It shows that the court improperly inserted itself to override the wishes of the parents in Evans and Gard.

    Part IV of this note provides a new and better framework for judicial intervention based on accepted psychological research and judicial prudence. It argues that children so strongly identify with their parents from birth that the parents' decision must be construed as the wish of the child as well. The courts should only intervene when parents are abusing or neglecting their child. It also provides boundaries for defining abuse and neglect. Finally, it applies the new framework to three specific cases. It shows how the court overstepped its authority in Evans and Gard, while in the case of Ali, the court rightfully determined that the parents' inaction had crossed the line into neglect.

  2. BACKGROUND

    The range of philosophical approaches concerning the relationship between children and those who raise them are astounding in their disparity. Aristotle believed that children are the property of their parents. (6) Plato, in the Republic, considered children to be the property of the state. (7) In modern times this debate is much more nuanced. Do parents have a constitutionally protected right, derived from natural law, to direct the upbringing of their children, or do parents have a duty, derived from the state, to care for their children?

    The question of a parental right vs. a parental duty is a hotly contested topic among contemporary philosophers and legal scholars. (8) If there is a constitutional right, how far does it extend? If there is no constitutional right, rather a state-mandated parental obligation to care for one's child, how much deference should the state give parents regarding the upbringing of their children? One thing for certain is that, practically, the primacy of parents over everyone and everything else to determine what is best for their child is an idea firmly rooted in our social fabric and conscience. (9) As a corollary, the state will not interfere unless the parents are not fulfilling their legal obligation to act in the best interest of their child. (10)

    In the United Kingdom, both parental obligations to their children and the power of the state to intervene is statutory. (11) The Children Act of 1989, passed by the British Parliament, assigns the welfare of children to state authorities, courts, and parents. Its purpose is to ensure that children are safeguarded, and their welfare is promoted. It centers on the idea that children are best cared for within their own families; (12) however, it also makes provisions regarding the removal of a child from his/her family in instances when parents and families do not cooperate with statutory bodies. (13)

    Underpinning the state's common law and statutory authority to intervene and override parental decisions is the notion that children have individual autonomy and a right to self-determination. (14) Personal autonomy, in the context of medical decision-making, is a basic and accepted patient right. (15) It is also the ethical theory which supports the legal concept of informed consent, (16) requiring doctors to disclose information to the patient as well as to obtain authorization before conducting medical intervention. (17) Typically, if patients cannot decide for themselves, a legal guardian will decide for them. (18) With young children, as in the cases at hand, the primary authority to decide for the child is given to the parents. (19)

    1. The Tragic Story of Alfie Evans

      Alfie Evans was born in May of 2016 as an apparently healthy child, but he began experiencing seizures in December of that year. (20) His parents brought him to Alder Hey Children's Hospital in Liverpool, where he remained in a semi-vegetative state until his death in April of 2018. (21) Doctors were unable to diagnose Alfie's mysterious degenerative neurological condition, but were insistent that his condition was worsening and that the damage done was irreparable. (22) Subsequently, against the express wishes of the parents, Alder Hey Hospital decided to remove life support, asserting that further treatments were futile and that keeping Alfie alive, in his state of suffering, was "unkind and inhumane." (23)

      Alfie's parents disagreed with the doctors' conclusions. His father claimed that Alfie "looks him in the eye" and "wants help." (24) The parents considered Alder Hey Hospital's decision to remove life support from Alfie to be a violation of their parental rights to decide what is in the best interest of their child. (25) They even lobbied for additional care for Alfie at the Bambino Gesu Hospital in Vatican City. (26) Alder Hey Hospital officials refused, insisting that transporting Alfie would create risks to his life as well as cause him undue pain. (27)

      The battle went to the courts. In the United Kingdom, as in the United States, when parents and doctors disagree over the proper care for a child, the courts make the final decision. (28) Alfie's case began on December 19, 2017 in the Family Division of the High Court in London. (29) Lawyers arguing on Alder Hey Hospital's behalf claimed that there was "no hope" for Alfie. (30) The hospital further asked the Court for a declaratory judgment that it would be unlawful to continue Alfie's treatment and that life support should be discontinued. (31) Alfie's parents countered that it was their right to determine the appropriate medical care for their son and that their consent was necessary before Alder Hey Hospital could make any medical decisions on behalf of their child. (32)

      On February 20, 2018, the High Court ruled in favor of Alder Hey Hospital. (33) Justice Anthony Hayden wrote in his decision that "[I]t was entirely right that every reasonable option should be explored for Alfie. I am now confident that...

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