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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