Post on 02-Apr-2015
Avoiding Baby Doe Redux:Dismantling the Born Alive InfantsProtection Act Myth
Avoiding Baby Doe Redux:Dismantling the Born Alive InfantsProtection Act Myth
Jonathan M. Fanaroff MD, JD
Assistant Professor of PediatricsDirector, Rainbow Center for Pediatric EthicsAssociate Medical Director, NICURainbow Babies & Children’s Hospital
• I do NOT have any financial conflicts to disclose
• I will NOT be referencing any off-label or investigational use of any drugs or products
• All photos are publicly available and either without copyright or used with permission
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
Disclosures
• Learn about the Born Alive Infants Protection Act (BAIPA)
• Analyze the reactions and beliefs of the medical and legal community to the BAIPA
• Discuss the ethical and legal implications of theses reactions
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
Objectives
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
The Importance of History?
“Those who cannot remember the past are condemned to repeat it.”
- George Santayana
“The only thing we learnfrom history is that welearn nothing from history.”- Friedrich Hegel
• Baby Doe died April 15, 1982
• The Indiana Courts refused to intervene
• President Reagan was upset
“The judge let Baby Doe starve and die”
• Surgeon General C. Everett Koop spoke out against the decision
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
Image permission/author – Kari Reine
Baby Doe
• Federal Government struggled to find a mechanism to intervene
• DHHS developed regulations on care of newborns with birth defects
• Struck down by the U.S. Supreme Court
• October 1984 Congress passed amendments to the child abuse laws
• These “Baby Doe Laws” are still in effect as the Child Abuse Prevention and Treatment Act (CAPTA)
•
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
Baby Doe
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
“[T]he [Baby Doe] rules are often misinterpreted: they are seen, mistakenly, as the legal prods forcing over treatment of such infants.”
Copyright ©2005 American Academy of Pediatrics
Used with PermissionPediatrics 90(6): 971.(1992)
Impact of Baby Doe Laws
• Creates a Federal definition of live birth
• “a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles.”
• Irrelevant
- Why the birth occurred
- If the cord was cut
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
Born Alive Infants Protection Act – Pub Law 107-207 (2002)
White House Photo by Paul Morse
• F. Sessions Cole, M.D. –parents, fearing legal consequences, will prolong the “medically inevitable dying process.”
• Gordon B. Avery, M.D. – these definitions will “immensely cloud” the work of separating “indicated measures” from “what would be futile and actually dehumanizing.”
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
BAIPA – Neonatologist Congressional Statements
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
Pediatrics 123(4): 1088(2009)
Enforcement of the BIPA Would:
• Recent Georgia State Law Review article
• “[R]esuscitation…must be initiated…if a heartbeat is detected or it otherwise shows signs of life.”
• “Thus, an extremely premature infant born with no hopes of long-term viability must, according to BAIPA, be administered maximal life-sustaining treatment, likely resulting in a bad death or a severely disabled life.”
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
BAIPA: Legal Community Confusion
25 Ga. St. U. L. Rev. 1098 2008-2009
• Origin - Greek mythos, story
• An unproved or false collective belief that is used to justify a social institution
• Myths surrounding BAIPA?
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
The Origin and Meaning of Myth
• The BAIPA provides a Federal definition of live birth
• Most States already have this
• No evidence that States with live birth statutes are more aggressive at resuscitating marginally viable newborns
• ALL States require the reporting of live births of any weight or gestation
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
Dismantling the Myth - Statutory
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
Dismantling the Myth - Constitutional
• Parental have constitutionally protected rights to make decisions for their children
• “Decision-making involving the health care of young patients should flow from responsibility shared by physicians and parents.
- AAP Committee on Bioethics
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
Dismantling the Myth - Ethical
Avoiding Baby Doe Redux: Dismantling the BAIPA Myth
Conclusion
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