In England, the Child is the “Mere Creature of the State”

In the case of the now-deceased toddler, Alfie Evans, the British government, through its Royal College of Pediatrics and its courts, had legal authority. Alfie had legal “interests,” which the government defined in his case, but he did not have any “rights.” Alfie’s parents only had a right to be heard; they had no substantive rights or authority over their child.

The legal standard for the British court that ordered that Alfie be unplugged from his ventilator was provided for the court by the Royal College of Pediatrics and Child Health. That standard is the “best interests of the child,” but it is nowhere defined or elaborated upon in the court’s written decisionJustice Hayden, the author of the decision on February 20, 2018, attempts to state when medical treatment is no longer in the child’s best interests by referring to life that “is limited in quality” or “lacks the ability to benefit.” But the obvious problem with those phrases is that they are not definitive; they are just circular restatements of the same general concept of what may be said to be “best.”

Justice Hayden goes on to attempt to supplement that supposed foundation of the law by citing two case precedents. In one case, the court said that the best interests of the child should be based on “his welfare in the widest sense,” as if that added anything to “best interest.” Hayden cites the second case for its emphatic conclusion that the child’s best interests must prevail even in cases where parents “hold some alternative view.”

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In the end, he refused to allow Alfie to travel to Italy or Germany because he might die in transit. Overall, Hayden held that

The continued provision of ventilation, in circumstances which I am persuaded is futile, now compromises Alfie’s future dignity and fails to respect his autonomy. I am satisfied that continued ventilatory support is no longer in Alfie’s best interest. This decision I appreciate will be devastating news to Alfie’s parents and family. I hope they will take the time to read this judgment and to reflect upon my analysis.

Thus, Alfie was said to have “autonomy,” and that meant autonomy from his parents – but not from the court, of course.

The Nazis and Pope Francis
German Professor Nikolaus Haas, a pediatric intensive-care specialist from the University of Munich, was consulted by Alfie’s parents. Haas submitted testimony to the court, and his medical analysis mostly agreed with the diagnosis of the British physicians who had concluded that Alfie was hopelessly terminal. However, Haas also advocated letting Alfie be transported to the German or Italian hospitals that were willing to receive him. But, absent that, Haas said that it was “clear” that Alfie’s “best interest” should include the “possibility for Alfie to live the possibly short rest of his life in dignity together with his family if this is the wish of his parents at home, which I believe is the best for him.” However, Haas went on to assert that “Because of our history in Germany, we’ve learned that there are some things you just don’t do with severely handicapped children.”

That raised the ire of Justice Hayden who said that Haas’ remarks were not only “inflammatory and inappropriate,” they were his “own personal beliefs.” Thus did Hayden rebuke Haas for bringing up an historical moral horror in the field of medicine as an additional factor to consider in deciding what was medically “best” for Alfie. Then, in explicit recognition that Alfie’s father and mother were Catholics, Hayden proceeded to offer evidence from Pope Francis as a final refutation of Haas.

In November of 2017, Francis had submitted an open letter to the President of the Pontifical Academy of Life on “end of life” issues. In his written decision, Justice Hayden set out all the substantive paragraphs of the pope’s letter for the purpose of showing that “the position of the Catholic Church is sometimes characterized inaccurately in cases concerning these difficult ethical issues.” Hayden said that the Catholic Church’s position allows “not adopting or suspending disproportionate measures” as a way of avoiding “over-zealous treatment.” Hayden cited the pope for saying that “greater wisdom” is needed in considerations about prolonging life and withholding treatment. Hayden concluded that the pope’s letter was “a comprehensive answer to the tendentious views expressed by Professor Haas.”

The pope’s letter is an unremarkable statement of standard Catholic teaching on the subject. In the middle of April, the pope, as has been extensively noted, made a public plea that “the suffering” of Alfie’s parents “may be heard” and “that their desire to seek new forms of treatment may be granted.”

A Few Observations About U.S. Law
We do not yet have cases of children or incompetent adults being captured and detained in hospitals by force of law, and the breathtaking vehemence and sweep of the British court in the case of Alfie Evans is not going to happen here soon, especially in setting out the rights of parties in such cases. We are not there yet. Even with Obamacare, we do not yet have the comprehensive government-controlled medical system that provided the foundation for the decision in Alfie’s case. There is no national legally enforceable standard for the “best interests of the child.”

The Terry Schiavo case of the 1990’s dealt with the question of which members of her family had the legal authority to continue or terminate her treatment. The relevant medical facilities were not the primary parties to the case. So far, blood transfusion cases of the Jehovah’s Witnesses, which do involve doctors and hospitals as parties, have not created any national legal standards. And the medical parties in those cases have taken the position that blood transfusions protect life.

In Cruzan v. Director, Missouri Department of Health (1990), the Supreme Court turned back an attempt by the family of a young comatose woman to have the feeding tubes attached to her removed. The parents alleged that their daughter had a constitutional right exercised through them to refuse medical treatment. The defendant was the state of Missouri, which had refused to allow the parents to act because there was insufficient evidence of the woman’s intentions. The Court rejected any federal constitutional basis for the parents’ suit and held that the state of Missouri had the prerogative to demand clear proof of a person’s decisions about end of life treatment.

The case caused the widespread acceptance of advanced health directives, “living wills,” and also caused the effective relocation of such cases to state rather than federal courts. We should note that the Missouri government, unlike the British government in Alfie’s case, was on the side of life. Seven years later in Washington v. Glucksberg (1977), the Supreme Court held that a patient did not have a constitutional right to demand the assistance of a physician in his suicide and ruled that there was no federal constitutional “right to die.” Cruzan and Glucksberg left it to the states to decide about physician-assisted suicide, which today is allowed in seven states: California, Colorado, Oregon, Vermont, Hawaii, Washington, Montana, and the District of Columbia.

With respect to parental rights in federal constitutional law, two Supreme Court decisions originating in the field of education include broad and sweeping language affirming the rights of parents over their children.

In the unanimous decision of the Supreme Court in Pierce v. Society of Sisters (1925), the Court overturned as a denial of liberty under the Fourteenth Amendment an Oregon statute that required all children between the ages of eight and sixteen to attend public schools. The Court said that the statute “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children.” For, “the child is not the mere creature of the State.”

Nearly fifty years after Pierce, the Supreme Court in Wisconsin v. Yoder (1972) cited Pierce in upholding the right of Amish parents to keep their children out of high school in violation of the Wisconsin compulsory attendance law. The Court used language that could hardly be a more emphatic refutation of the British court in Alfie’s case:

[T]his case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.

As for any American connection to Nazi ideology in medicine, the infamous case of Buck v. Bell (1927) has never been overturned. In that case, the Supreme Court, stating that “three generations of imbeciles are enough,” endorsed the sterilizing by the state of Virginia of the “feeble minded.” It is not widely known that some of the Nazi defendants in the Nuremburg trials quoted Buck v. Bell in their defense. Their point was that they should not be prosecuted by American prosecutors for things that Americans themselves had done. Ironically, Buck v. Bell was cited by the Court in Roe v. Wade as a purported limitation of the right of privacy.

(Photo credit: Wikimedia)


  • Thomas Ascik

    Thomas Ascik is a retired federal prosecutor. He writes from North Carolina. His writing has appeared in a variety of publications including Catholic World Report, The Federalist, and The Imaginative Conservative.

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