The Supreme Court has put the federal government out of the business of supervising the medical care of handicapped infants in hospitals. Spurred in part by two cases -- Baby Doe in Indiana and Baby Jane Doe in Long Island -- the Reagan administration had sought to use statutes barring discrimination against the handicapped to intervene in situations where parents and doctors agreed not to treat medical problems of children born with defects ranging from Down's Syndrome to multiple abnormalities. Regulations were promulgated by the Department of Health and Human Services covering all hospitals receiving federal funds. These facilities were required to post notices, provide access to medical records and facilitate legal proceedings when the life of a child is at stake. The regulations also set standards for state child protective agencies. These four sets of requirements have now been struck down.
The court ruled that the discrimination statute cannot be used to justify the regulations because these cases do not in fact involve a hospital's refusal to care for a child because of his handicap. They all involved a decision by parents not to seek treatment. In such a situation, not only does the hospital not have the obligation to counter the parents' wishes, it does not have the right to do so.
Where does this leave the difficult questions about the treatment of newborn infants with severe birth defects? Are life-or-death decisions now to be made only by the parents and the doctor? Does this always protect the rights of the child? Every family faced with such a decision deserves compassion. But society has an overriding responsibility to protect life, especially when the lives at stake are so vulnerable.
Two mechanisms are still available. One section of the regulations that was not challenged in this litigation encourages health-care providers to establish Infant Care Review Committees in each hospital. These committees, composed of medical and legal specialists and people versed in the ethics of the question, would review all cases where parents and a doctor had decided not to treat a handicapped infant. That kind of internal review, close to home and without Washington's interference, makes sense. In addition, state courts retain the authority to appoint guardians when parents have made a decision that the court finds to be against the interest of the child. Both these options protect the infant without bringing the power of the federal government to bear at a time of personal anguish and stress for families.