The Devil's Lettuce: Primary Caregivers have the Constitutional Right to Distribute Medicinal Marijuana to Their Terminally Ill Child

• DOI: http://doi.org/10.1111/fcre.12366
• Published date: 01 July 2018
• Author: Ian J. Bergstrom
• Date: 01 July 2018

STUDENT NOTES

THE DEVIL’S LETTUCE: PRIMARY CAREGIVERS HAVE THE

CONSTITUTIONAL RIGHT TO DISTRIBUTE MEDICINAL MARIJUANA

TO THEIR TERMINALLY ILL CHILD

Ian J. Bergstrom

Pediatric cancer is a tragedy that affects many American families. Despite the effectiveness of pediatric cancer treatments,

patients experience adverse side effects that can be relieved by medical marijuana. However, medicinal marijuana is only

lawful in twenty-eight states, including the District of Columbia. This Note proposes that all fifty states enact compassionate-

use statutes permitting parents to lawfully possess and distribute the herb to their terminally ill child (between the ages of five

to fourteen) to alleviate the effects of cancer treatments. Medicinal marijuana use provides pediatric cancer patients with

better-quality lives and the determination to win the war against cancer.

Key Points for the Family Court Community:

•Approximately 10,380 American children under the age of fifteen were diagnosed with pediatric cancer in 2016.

•Many parents helplessly watch their terminally ill child suffer from the harsh side effects associated with chemotherapy

and radiation therapy.

•Medical research shows that marijuana has therapeutic properties, which counteract the side effects from chemotherapy

and radiation therapy.

•Twenty-eight states, including the District of Columbia., enacted statutes legalizing medical marijuana use.

•Parents have the constitutional right to determine the care, custody, and control of their children pursuant to the

United States Constitution.

•Parents have the constitutional right to distribute medicinal marijuana to their terminally ill child because parents have

the plenary authority to seek medical care for their children, subject to a physician’s independent examination and

medical judgment. Medical marijuana is prescribed by a physician.

Keywords: Compassionate Use; Designated Caregiver; Medical Marijuana; Medicinal Marijuana; Pediatric Cancer; and

Primary Caregiver.

I. INTRODUCTION

In September 2012, Sierra Riddle suffered a tragedy when her son, Landon Riddle, was diag-

nosed with acute lymphocytic leukemia (ALL).

1

Although ninety percent of ALL patients survive

the disease, Landon’s physicians in Utah only gave him an eight percent chance of survival.

2

Conse-

quently, the doctors placed Landon on a four-year chemotherapy plan to treat his cancer, but three

months into his treatments he became very sick.

3

Landon’s pediatric cance r and cancer treatments

caused him to acquire neuropathy, which impaired his ability to walk.

4

Sierra relocated her family

from Utah to Colorado in a desperate attempt to save her son because medicinal marijuana is legal

in Colorado.

5

Once the family settled into their home in Colorado, Sierra registered Landon with Colorado’s

medicinal marijuana program.

6

Subsequently, a physician prescribed Landon with medicinal mari-

juana to treat his pediatric cancer. The herb purportedly lessened Landon’s side effects from chemo

Correspondence: ianjbergstrom@gmail.com

FAMILY COURT REVIEW, Vol. 56 No. 3, July 2018 474–489

© 2018 Association of Family and Conciliation Courts

and his red and white blood cell counts improved.

7

As Landon’s primary caregiver, Sierra was

responsible for obtaining and distributing his medicinal marijuana so long as she complied with

state law.

8

Landon’s physicians at Children’s Hospital Colorado

9

admitted that they were shocked

that he went into remission because Landon suffered from an aggressive form of ALL.

10

Moreover,

representatives from the hospital issued a statement asserting, “There are several FDA-approved

and commercially available anti-nausea [medications] derived from marijuana …frequently used by

adults and children with cancer and [Children’s Hospital Colorado] often prescribe[s] these medica-

tions.”

11

Sierra discontinued Landon’s chemo treatments approximately six months after he went

into remission because Landon experienced phenomenal results from the medicinal marijuana

regimen.

12

Despite Landon’s recovery from ALL, his physicians notified Colorado’s Child Protective Ser-

vices (CPS) to report possible medical neglect by Sierra because she discontinued Landon’s chemo-

therapy.

13

The physicians disagreed with Sierra’s stance on cancer treatments because they believed

that chemo was Landon’s best chance of surviving ALL.

14

Sierra notified the doctors in December

2013 that she planned to transfer Landon’s medical care to a physician who would reduce the

chemo treatments and the steroid medications.

15

The Riddle family believed that Landon’s medici-

nal marijuana prescriptions would provide him with the best chance of winning the war against

pediatric cancer.

16

Twenty-eight states, including the District of Columbia, permit medicinal marijuana use, but the

herb is illegal in the remaining twenty-two states.

17

Consequently, the parents of terminally ill chil-

dren are stuck in a paradoxical situation because their fundamental constitutional right to determine

appropriate medical treatments for their terminally ill child is not protected in every state.

18

To

avoid this paradox, this Note proposes that the remaining twenty-two states enact “compassionate

use statutes”

19

permitting parents to distribute medicinal marijuana to their terminally ill child as an

integrative health treatment

20

to alleviate the potentially fatal side effects of chemo and/or radiation

therapy.

21

Part II of this Note defines marijuana and describes the psychological effects of cannabinoids on

the human brain. Part III explores the impact pediatric cancer has among children and the side

effects of pediatric cancer treatments on the human body. Part IV discusses the lethal and addictive

consequences of FDA-approved pain relief medications. Further, Part IV evaluates the relationship

of medicinal marijuana and pediatric cancer. Part V analyzes parents’constitutional right to distribute

medicinal marijuana to their terminally ill child pursuant to the U.S. Constitution. Part V also asserts

the economic benefits of medicinal marijuana legalization for states because regulation of the herb

generates millions of dollars in tax revenue. Part VI sets forth the elements within the model

compassionate-use statute. The statutory verbiage shall provide protection to primary caregivers

residing in the twenty-two states that have not legalized medicinal marijuana. Part VII addresses the

counterarguments that critics may have regarding a child’s exposure to marijuana. Such counterargu-

ments may include possible adverse effects upon a child’s cognitive development and the risk of mar-

ijuana addiction among children. In response, Part VII asserts that marijuana use is in a child’s best

interest because opioids are an addictive and lethal substance. Part VIII concludes this Note by sum-

marizing why pediatric cancer patients and primary caregivers benefit from medicinal marijuana use.

II. THE DEVIL’S LETTUCE

Marijuana is derived from the hemp plant

22

and comprises over 100 cannabinoids.

23

The two

main cannabinoids found within the marijuana plant are delta-9-tetrahydrocannabinol (THC) and

cannabidiol (CBD).

24

CBD is an endogenous chemical, which means that the chemical is produced

within the human brain.

25

In sum, cannabinoids assist in the regulation of mental processes such as

memory, feelings of exhilaration, awareness of time, sensations of pain, and the five senses.

26

Mari-

juana causes physical and mental effects within users because the THC chemical flows from the

lungs to the bloodstream, thereby getting transported to the brain and other organs within the body.

27

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