Extremely preterm birth and parental authority to refuse treatment--the case of Sidney Miller

Decision-making at the border of viability: determining the best interests of extremely preterm infants

This paper proposes and employs a framework for determining whether life-saving treatment at birth is in the best interests of extremely preterm infants, given uncertainty about the outcome of such a choice. It argues that given relevant data and plausible assumptions about the well-being of babies with various outcomes, it is typically in the best interests of even the youngest preterm infants-those born at 22 weeks gestational age-to receive life-saving treatment at birth.

Ethics and Medico-legal implications in delivery room emergencies

There is very little law-either case law or statutory law - that regulates delivery room decisions about resuscitation of critically ill newborns. Most of the case law that exists is decades old. Thus, physicians cannot look to the law for much guidance about what is permissible or prohibited. Local hospital policies and professional society statements provide some guidance, but they cannot be all-inclusive and encompass all potentially encountered scenarios. Ultimately, the physician, the medical team, and the parents must try to reach a shared decision about the best course of action for each individual infant and each unique family. In this paper, we review some of the case law that may be applicable to such decisions and make recommendations about how decisions should be made.

Communication-related allegations against physicians caring for premature infants

OBJECTIVE

Maternal-fetal medicine physicians (MFMp) and neonatal-perinatal medicine physicians (NPMp) caring for premature infants and their families are exposed to significant risk for malpractice actions. Effective communication practices have been implicated to decrease litigious intentions but the extent of miscommunication as a cause of legal action is essentially unknown in this population. Analysis of communication-related allegations (CRAs) may help toward improving patient care and physician-patient relationships as well as decrease litigation risks.

STUDY DESIGN

We retrospectively reviewed the Westlaw database, a primary online legal research resource used by United States lawyers and legal professionals, for malpractice cases against physicians involving premature infants. Inclusion criteria were: 22 to 36 weeks gestational age, cases related to peripartum events through infant discharge and follow-up, and legal records with detailed factual narratives.

RESULTS

The search yielded 736 legal records, of which 167 met full inclusion criteria. A CRA was identified in 29% (49/167) of included cases. MFMp and/or NPMp were named in 104 and 54 cases, respectively. CRAs were identified in 26% (27/104) and 35% (19/54) of MFMp- and NPMp-named cases, respectively, with a majority involving physician-family for both specialties (81% and 74%, respectively). Physician-family CRAs for MFMp and NPMp most often regarded lack of informed consent (50% and 57%, respectively), lack of full disclosure (41% and 29%, respectively) and lack of anticipatory guidance (36% and 21%, respectively).

CONCLUSIONS

This study of a major legal database identifies CRAs as significant causes of legal action against MFMp and NPMp involved in the care of high-risk women and infants delivered preterm. Physicians should be especially vigilant with obtaining genuine informed consent and maintaining open communication with families.

Concentration of Sulfate and Glucuronide Conjugates of Ritodrine in Twin Pregnancy

Ritodrine, a drug for the treatment of threatened premature labor, is a highly selective beta-2 agonist with the major metabolites of sulfate and glucuronide conjugates. This study investigated the continuous evaluation of the concentration of ritodrine conjugates in relation to the clinical course in twin pregnancy. The subjects were 9 twin-pregnancy mothers who delivered after receiving ritodrine treatment between April 2012 and December 2013. Serum ritodrine sulfate and glucuronide conjugates were deconjugated using their specific enzymes. Ritodrine concentration was measured by liquid chromatography-tandem mass spectrometry. The continuous infusion rate of ritodrine was 2.66±0.67 (0.8-3.54) µg/min/kg, and the average concentration of unchanged ritodrine was 118.8±33.2 (63.8-194.0) ng/mL. During the study period between week 32 and week 36 of gestation, the average ratio of unchanged ritodrine concentration and sulfate ritodrine conjugate concentration for weeks 32, 33, 34, 35, and 36 were 1.7, 1.9, 1.5, 1.7, and 1.7 not significant (N.S.), respectively. The average ratio of unchanged ritodrine concentration and glucuronide ritodrine conjugate concentration were 1.8, 2.2, 1.9, 1.8, and 2.1 (N.S.), respectively. No statistical difference was identified in the ratios of unchanged ritodrine concentration and sulfate or glucuronide ritodrine conjugate concentrations. Large individual differences were shown in the concentration of sulfate and glucuronide during the gestational period. No change in the ratio of the formation of ritodrine metabolites was identified as the gestational age progressed.

The ethics and practice of neonatal resuscitation at the limits of viability: an international perspective

Premature infants at the limits of viability raise difficult ethical, legal, social and economic questions. Neonatologists attending an international Collegium were surveyed about delivery room behaviour, and the approach taken by selected countries practicing 'modern' medicine was explored.

CONCLUSION

There were strong preferences for comfort care at 22 weeks and full resuscitation at 24 weeks. Resuscitation was a grey area at 23 weeks. Cultural, social and legal factors also had a considerable impact on decision-making.

Do neonatologists limit parental decision-making authority? A Canadian perspective

BACKGROUND

According to the principles of family-centered care, fully informed parents and health care professionals are partners in the care of sick neonates.

AIM

The aim of this study was to assess the attitudes of Canadian neonatologists towards the authority of parents to make life-and-death decisions for their babies.

STUDY DESIGN

We interviewed 121 (74%) of the 164 practicing neonatologists in Canada (June 2004-March 2005), using scripted open-ended questions and common clinical scenarios. Data analysis employed interpretive description methodology.

MAIN OUTCOME MEASURE

The main outcome measure was the intention of neonatologists to limit parental life-and-death decision-making authority, when they disagree with parental decisions.

RESULTS

Neonatologists' self-rated respect for parental decision-making authority was 8/10. Most neonatologists thought that parents should be either primary decision-makers or part of the decision-making team. Fifty-six percent of neonatologists would limit parental decision-making authority if the parents' decision is not in the baby's "best interest". In response to common neonatal severe illness scenarios, up to 18% of neonatologists said they would limit parental decision-making, even if the chance of intact survival is very poor. For clinical scenarios with equally poor long-term outcomes, neonatologists were more likely to comply with parental wishes early in the life of a baby, particularly with documented brain injury.

CONCLUSIONS

Canadian neonatologists espouse high regard for parental decision-making authority, but are prepared to limit parental authority if the parents' decision is not thought to be in the baby's best interest. Although neonatologists advise parents that treatment can be started at birth, and stopped later, this was only for early severe brain injury.

Counseling pregnant women who may deliver extremely premature infants: medical care guidelines, family choices, and neonatal outcomes

OBJECTIVES

The justification of neonatal intensive care for extremely premature infants is contentious and of considerable importance. The goal of this report is to describe our experience implementing consensus medical staff guidelines used for counseling pregnant women threatening extremely premature birth between 22 and 26 weeks' postmenstrual age and to give an account of family preferences and the immediate outcome of their infants.

METHODS

Retrospective chart review was performed for all women threatening premature birth between 22 and 26 weeks postmenstrual age who presented to our high-risk obstetric service between June 2003 and December 2006. Women participated in comprehensive periviability counseling, which featured our specific obstetric and neonatology care recommendations for them and their infant at each gestational week. A subset of women were approached to obtain consent for a 2-step interview process beginning 3 days after the initial periviability counseling and followed with a 6- to 18-month assessment.

RESULTS

Two hundred sixty women were identified as eligible subjects. After periviability counseling, but before any birth, palliative comfort care was requested by a higher percentage of families at each decreasing week. Ninety-five of the 260 women delivered 121 infants at <27 weeks' postmenstrual age. At delivery, at the request of the families and with the agreement of the medical staff, the following proportions of these infants were provided palliative comfort care: 100% at 22 weeks, 61% at 23 weeks, 38% at 24 weeks, 17% at 25 weeks, and 0% at 26 weeks. All nonresuscitations and comfort care measures were supported by the medical and nursing staffs, and all infant deaths occurred within 171 minutes. Fifty women consented to a postcounseling interview, and 25 of them also participated in a follow-up interview 6 to 18 months later. The counseling process and the guidelines were viewed as highly understandable, useful, consistent, and done in a comfortable manner. The tone and content of the parental comments regarding the counseling process were very positive, even more so at the later interview. There were no complaints or negative comments regarding the counseling process or the infant outcomes.

CONCLUSIONS

Rational, consensus periviability guidelines are well accepted and can be used by all neonatologists, obstetricians, and nurses who provide care to pregnant women and infants at extremely early gestational ages. Pregnant women see these guidelines as highly understandable, useful, consistent, and respectful. When encouraged to participate with attending staff in discussions involving morbidity and mortality outcomes of premature infants and consensus medical practice recommendations, a substantial proportion of parents will choose palliative comfort care for their extremely premature infant up through 25 weeks' postmenstrual age. We believe the choice of neonatal intensive care versus palliative comfort care in extremely premature infants rightfully belongs to medically informed parents. More research is needed to examine how these decisions are made under diverse conditions of culture, religion, and technology.

Ethics in radiological practice: the story behind the image

In an era when new technologies and demands for increased clinical productivity have rendered direct contact between radiologists and patients less frequent than ever, it is important for radiologists to pause from time to time and consider the relationship between radiologic images and the lives of the patients they depict.

Supporting parents' decision making surrounding the anticipated birth of an extremely premature infant

Parents who are at risk for giving birth to an extremely premature infant, defined as 22 to 25 weeks' gestation, can find themselves faced with urgent treatment decisions for their unborn infant that have life-altering consequences. Despite the recommendation for involving parents in decision making for these infants, there is limited evidence regarding guidelines for involving parents. In this article, we describe a case from a larger collective case study that examines the decision making and the decision support needs of parents regarding life support decisions made over time (prenatally and postnatally) for extremely premature infants from the perceptions of parents, physicians, and nurses. For this case study, we describe decisions that were made during the antenatal hospitalization of the mother whose infant was stillborn, the support the parents received, and advice for healthcare professionals for improving care to families. For this case, the mother and father, a physician, and 2 nurses were interviewed before the birth of the infant. The findings in this case study demonstrate the importance of the nurse being present when information is given to parents, of informing with compassion, and helping parents to understand treatment options and decisions.

United States law and managing the terminally ill fetus and newborn

The article sets out the legal principles that govern practice in the US in relation to both the abnormal fetus and the terminally ill newborn. It also provides a view of the law relating to abortion more generally within the US.

Ethics ain't easy: do we need simple rules for complicated ethical decisions?

BACKGROUND

Recommendations from national bodies regarding extremely preterm infants have focussed almost exclusively on thresholds for intervention based upon estimated gestational age (GA) alone.

METHODS

We reviewed policy statements that address active intervention for newborn infants and compare them with those that are available for older patients. We reviewed research, examining attitudes towards preterm infants, uncertainties in GA assessment and other factors important in determining prognosis at the time of birth.

RESULTS

Policy statements regarding active care of very preterm infants treat this population differently from others in morally significant ways--without rationalizing this discrepancy. Extremely preterm infants are devalued in medical and lay opinion compared to older individuals with similar outcomes. Uncertainty in GA estimates often covers a range with vastly differing prognoses. Sex, birth weight, inborn-outborn status and use of antenatal steroids are vitally important in prognosis, but clinical findings in the delivery room are not. Most policy statements fail to account for these factors.

CONCLUSION

Simplistic policies based on GA alone should be avoided. Decision making for extremely preterm infants should recognize that they are each unique and must be individualized, taking into account all relevant prognostic factors and the values and wishes of the families.

Infants of borderline viability: ethical and clinical considerations

The burden of prolonged intensive care for infants of borderline viability and the relatively high disability rate among survivors pose ethical and clinical problems. Bioethicists have argued that clinical decisions should be based on the infant's 'best interests', balancing the burden of intensive care including 'pain and suffering' against the likely outcome. However, there are so many uncertainties that the 'best interest' argument is more helpful in defining problems than driving clinical solutions. The parents' interests are inextricably linked with those of their infant and have considerable weight. Parental complaints about delivery room care are rarely based on a conflict of ethical opinion. They are more likely due to misunderstanding, confusion and tension among staff and parents as a result of a failure to have in place or to implement agreed protocols. Information given during pre-delivery counselling can easily be misunderstood. The condition of the infant at birth and response to bag and mask ventilation have an important role in influencing whether to continue intensive care. Subsequent care in the neonatal intensive care unit (NICU) should be considered as a 'trial of life', with the option of withdrawing ventilatory assistance according to the nature and extent of neonatal complications.

Do not attempt resuscitation orders in pediatrics

Do-not-attempt resuscitation orders are becoming more common in pediatrics, particularly as programs for hospice and palliative care in children develop. Concomitantly, there arises the need to decide when it is appropriate to use these technologies. It is at this point that the skills of relationship building, listening, and empathic concern become indispensable.

Medical legal issues in the prevention of prematurity

Preterm birth remains the leading cause of neonatal morbidity and mortality in the world today. This article discusses ways the treatment team can inform parents of probable outcomes and help them reach decisions about treatment for the newborn under emotionally fraught conditions. In addition to supporting the patient, these approaches may help the clinician avoid malpractice litigation.

Parental refusal of medical treatment for a newborn

When there is a conflict between parents and the physician over appropriate care due to an infant whose decision prevails? What standard, if any, should guide such decisions?This article traces the varying standards articulated over the past three decades from the proposal in Duff and Campbell's 1973 essay that these decisions are best left to the parents to the Baby Doe Regs of the 1980s which required every life that could be salvaged be continued. We conclude with support for the policy articulated in the 2007 guidelines of the American Academy of Pediatrics on non-intervention or withdrawal of intensive care for high-risk newborns.

Euthanasia: an overview and the jewish perspective

BACKGROUND

End-of-life care poses fundamental ethical problems to clinicians. Defining euthanasia is a difficult and complex task, which causes confusion in its practical clinical application. Over the course of history, abuse of the term has led to medical atrocities. Familiarity with the relevant bioethical issues and the development of practical guidelines might improve clinical performance.

OBJECTIVE

To define philosophical concepts, to present historical events, to discuss the relevant attitudes in modern bioethics and law that may be helpful in elaborating practical guidelines for clinicians regarding euthanasia and end-of-life care. Concepts found in the classic sources of Jewish tradition might shed additional light on the issue and help clinicians in their decision-making process.

METHODS

An historical overview defines the concepts of active versus passive euthanasia, physician-assisted suicide and related terms. Positions found in classical Jewish literature are presented and analyzed with their later interpretations. The relevance and application in modern clinical medicine of both the general and Jewish approaches are discussed.

RESULTS

The overview of current bioethical concepts demonstrates the variety of approaches in western culture and legal systems. Philosophically and conceptually, there is a crucial distinction between active and passive euthanasia. The legitimacy of active euthanasia has been the subject of major controversy in recent times in various countries and religious traditions.

CONCLUSION

The historical overview and the literature review demonstrate the need to provide clearer definitions of the concepts relating to euthanasia, for in the past the term has led to major confusion and uncontrolled abuse. Bioethical topics should, therefore, be included in medical training and continuing education. There are major debates and controversies regarding the current clinical and legal approaches. We trust that classical Jewish sources might contribute to the establishment of clinical definitions, meaningful approaches and practical guidelines for clinicians.

Delivery room decision-making for extremely preterm infants in Sweden

OBJECTIVE

To assess neonatologists' attitudes and practices regarding treatment of extremely preterm infants in the delivery room, particularly in response to parental wishes.

STUDY DESIGN

Cross-sectional survey of all neonatologists in Sweden registered with the Swedish Pediatric Society.

RESULTS

The response rate was 71% (88 of 124 neonatologists). At 24[1/7] to 24[6/7] weeks of gestation, 68% of neonatologists considered treatment clearly beneficial; at 25[1/7] to 25[6/7] weeks of gestation, 93% considered it clearly beneficial. When respondents consider treatment clearly beneficial, 97% reported that they would resuscitate in the delivery room despite parental requests to withhold treatment. At or below 23[0/7] weeks of gestation, 94% of neonatologists considered treatment futile. Nineteen percent reported that they would provide what they consider futile treatment at parental request. When respondents consider treatment to be of uncertain benefit, 99% reported that they would resuscitate when parents request it, 99% reported that they would resuscitate when parents are unsure, and 25% reported that they would follow parental requests to withhold treatment.

CONCLUSION

Although neonatologists' attitudes and practices varied, respondents to our survey in general envisioned little parental role in delivery room decision-making for extremely preterm infants.

Life or death decisions in the NICU

When, if ever, should we allow an extremely premature baby to die? The paper explains how that would be answered if we are guided by three reasonable assumptions. (1) The value a person's life has is primarily the value it has for that person, rather than a value it has in itself. (2) All competent persons have a right to decide for themselves whether their lives are to be prolonged. (3) Parents have a right to treat their children as they choose, so long as they neither abuse them nor neglect them.

The marginally viable newborn: legal challenges, conceptual inadequacies, and reasonableness

Decisions to provide life-sustaining medical care for marginally viable newborns present a unique set of morally complex challenges for providers and parents in the United States. This article examines recent legal trends that restrict discretionary decision-making, and critiques commonly employed ethical justifications offered to support permitting such discretion.

The ethics of neonatal resuscitation at the margins of viability: informed consent and outcomes

OBJECTIVES

To determine the adequacy of records of parental counseling in mothers with threatened preterm delivery before 27 weeks gestation, whether interventions performed at birth were consistent with recorded antenatal decisions and whether extent of resuscitation affected the occurrence of serious short-term morbidity.

STUDY DESIGN

Antenatal consultation records and records of resuscitation and short-term outcomes were analyzed of 65 mothers with threatened delivery at 21 weeks to 26 weeks and 6 days gestation, and their 61 infants who delivered before 27 weeks.

RESULTS

Discussions about survival rates and the frequency of handicap were more likely to be recorded before 25 weeks gestation than after; the adequacy of the records varied among individuals. A decision not to resuscitate was present in 6 of the 13 consultations performed before 23 weeks gestation, and in none of the 52 at 23 weeks or above. A decision to resuscitate only if the infant's condition at birth was good was found in 7 consultations, 6 of which were at less than 24 weeks gestation. All infants born at 23 weeks and above were resuscitated, including the infants with conditional resuscitation decisions. Three of the 6 infants receiving heart massage were discharged alive without major short-term morbidity (severe intracranial hemorrhage, periventricular leukomalacia, or threshold retinopathy). All 8 infants of less than 25 weeks gestation with a heart rate at 3 minutes that was still less than 100 beats/min, in spite of active resuscitation, either died or had major short-term morbidity.

CONCLUSIONS

Records of antenatal consultations were often lacking important information. Variations in physician documentation practices are substantial and affect the care offered to infants at the threshold of viability. Even extensive resuscitation can be followed by intact survival if the resuscitation required is brief.

Baby doe redux? The Department of Health and Human Services and the Born-Alive Infants Protection Act of 2002: a cautionary note on normative neonatal practice

The Born-Alive Infants Protection Act (BAIPA), passed by Congress in 2002, has attracted little publicity. Its purposes were, in part, "to repudiate the flawed notion that a child's entitlement to the protections of the law is dependent on whether that child's mother or others want him or her." Understood as antiabortion rhetoric, the bill raised little concern among physicians at the time of legislative hearings and passed in both Houses by overwhelming majorities, hardly suggesting contentious legislation. After its signing into law, the Neonatal Resuscitation Program (NRP) Steering Committee issued an opinion stating that "[BAIPA] should not in any way affect the approach that physicians currently follow with respect to the extremely premature infant." This interpretation of the law, however, may have been short sighted. In April 2005, the US Department of Health and Human Services (DHHS) brought life to the BAIPA, announcing: "As a matter of law and policy, [DHHS] will investigate all circumstances where individuals and entities are reported to be withholding medical care from an infant born alive in potential violation of federal statutes." The agency issued instructions to state officials on how the definitional provision within the BAIPA interacts with the Emergency Medical Treatment and Labor Act (EMTALA) and the Child Abuse Prevention and Treatment Act (CAPTA). These interagency memoranda potentially resurrect dormant governmental oversight of newborn-treatment decisions and thus may have influence over normative neonatal practice. Under the BAIPA, the DHHS interprets EMTALA to protect all "born-alive" infants; hospitals and physicians violating regulatory requirements face agency-sanctioned monetary penalties or a "private right of action by any individual harmed as a direct result." According to its memorandum, the DHHS will investigate allegations of EMTALA violations whenever it finds evidence that a newborn was not provided with at least a medical screening examination under circumstances in which a "prudent layperson observer" could conclude from the infant's "appearance or behavior" that it was "suffering from an emergency medical condition." The memorandum fails to clarify which observers qualify as prudent, what infant appearance or behavior is relevant, or what defines an emergency medical condition. Because these evaluative criteria are not constrained by reference to relevant standards of medical care, the agency arguably substitutes a nonprofessional's presumed sagacious assessment of survivability for reasonable medical judgment. Indeed, under a straightforward reading of the instruction, a family member could conceivably trigger an investigation after observing a relative deliver a 20-week fetus who maintains a heartbeat for an hour before its death. Most physicians would not consider this an emergency medical condition and, rather than perform a screening examination, would provide comfort for the newborn and support for the family. The guideline, however, does not state that professional acumen trumps the layperson's observations in these instances; thus, physicians are left unclear about whether screening examinations are required for all newborns regardless of a priori, reasoned considerations of survivability. In this context, the NRP Steering Committee opinion states that "at the time of delivery... the medical condition and prognosis of the newly born infant should be assessed. At that point decisions about withholding or discontinuing medical treatment that is considered futile may be considered by... providers in conjunction with the parents acting in the best interest of their child." However, most pediatricians skilled in screening and resuscitation are not currently called on to perform this function when the gestational age of a nonviable fetus is reasonably certain before delivery. If under the law screening is now required at any gestational age, professional procedure immediately after previable births may need modification. More worrisome, threatened aggressive investigations of alleged EMTALA violations at the soft edges of viability, where futility remains a matter of debate, jeopardize the normative ethical practice of offering discretionary palliative care. The DHHS sent its other instruction to state child protective services agencies responsible for implementing CAPTA regulations; it reiterates the limited situations in which physicians may withhold medical treatment from infants and reemphasizes the local role of "individuals within health care facilities" to notify authorities of suspected infractions. Its real import, however, is insistence on local execution of legal remedies to prevent nontreatment decisions deemed impermissible by the 1984 Baby Doe rules. Because this new directive encourages governmental oversight of treatment decisions involving imperiled newborns, a period of benign regulatory neglect seems to be over. The federal CAPTA rules arguably remove quality-of-life considerations from the decision-making calculus and therefore may conflict with the best-interests paradigm advocated by the American Academy of Pediatrics and NRP. How courts will respond to the DHHS interpretation of EMTALA and CAPTA under the BAIPA remains unclear. Federal courts have yet to authoritatively examine alleged EMTALA violations involving newborn treatment decisions at the limits of viability. The Wisconsin Supreme Court has permitted an EMTALA claim to go to trial where physicians allegedly did not screen or resuscitate a 22-week newborn delivered in an emergency department, and a lower appellate court has relied on CAPTA to hold that parents do not possess the right to choose against resuscitating an extremely premature newborn. The Texas Supreme Court recently granted physicians the paternalistic prerogative to resuscitate imperiled newborns without attention to parental preference under a common law doctrine of "emergent circumstances." These judicial decisions undermine the ethical discretion parents are typically afforded in decision-making before and after delivery in these morally complex situations. The DHHS interpretation of the BAIPA may encourage jurisdictional creep of these kinds of pronouncements as the agency seeks to expand legal protections for born-alive infants. The US Supreme Court has stated that "courts must presume that a legislature says in a statute what it means and means in a statute what it says there"; thus, judges interpret law by analyzing "concrete statutory language, not by reference to abstract notions of generalized legislative intent." The BAIPA indiscriminately defines "born alive" to include an infant "at any stage of development... regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion," and it makes no reference to standards of care or best interests, nor does it specifically protect a parent's decision-making authority. Under the law's strict logic, an 18-week miscarried fetus with a detectable heart beat after delivery is entitled to the full protections of the law as determined by "any Act of Congress, or any ruling, regulation, or interpretation of the various administrative bureaus and agencies." Before concluding that the BAIPA would not affect normative neonatal practice, the NRP Steering Committee should have analyzed the act's actual statutory language and avoided relying heavily on imprecise legislative intent. The BAIPA's congressional sponsors did claim that the law "will not mandate medical treatment where none is currently indicated," but such political rhetoric is often not sufficient to render law innocuous years after separation from its legislative history. Besides, nowhere in the House record does the majority explicitly acknowledge that discretion to decide the fate of imperiled newborns invests in parents, in consultation with physicians; indeed, the bill's stated purpose was to repudiate that notion. At best, legislators recognized that physicians disagree about the efficacy of resuscitating at the limits of viability, and therefore the current standard of care permits doctors to deem resuscitation a futile endeavor. However, judges may resist characterizing resuscitation as futile, given its poor analytical fit, and substantial public-policy concerns regarding discrimination against future disabled individuals could easily tip a court to preserve incipient, at least, physiologic life under the BAIPA's all-encompassing definition of born alive.

Resuscitation of the preterm infant against parental wishes

Over the past 40 years, the norms on who is to make treatment decisions for newborns, and on what standards, have been significantly altered and revised. Today the standard for treatment of newborns is the "best interest" of the child. A recent ruling of the Texas Supreme Court authorizing a doctor to resuscitate a potentially viable very premature newborn over the parents' objection is a challenge to that standard.

Ethical dilemmas in the care of the most premature infants: the waters are murkier than ever

PURPOSE OF REVIEW

Summarize the literature relevant to ethical issues surrounding decisions to provide intensive care to extremely premature newborns.

RECENT FINDINGS

A Texas Supreme Court decision and a position paper are noteworthy for health professionals participating in management decisions with families at risk for extremely preterm delivery.

SUMMARY

In Miller v HCA, the Millers sued the Hospital Corporation of America for resuscitating their approximately 23-week gestation daughter against their wishes. The baby survived with severe neurodevelopmental disabilities. They were awarded $59.9 million in a jury trial. However, the judgment was reversed by the court of appeals, which ruled that parents have no right to withhold urgently needed life-sustaining medical treatment from children with non-terminal impairments, deformities, or disabilities, regardless of their severity. The Supreme Court of Texas upheld that ruling, but reasoned that parents have no right to refuse resuscitation of extremely premature infants prior to birth because they cannot be fully evaluated until birth; therefore, decisions before birth could not be fully informed. Robertson (Hasting Center Report 2004) supports precluding parental refusal of resuscitation before birth. He argues that parents have a right to withhold or withdraw medical treatment from a non-terminally ill child, but only if the child will lack capacity for symbolic interaction. Such severe limitation of quality of life concerns in decision making for extremely premature newborns is inconsistent with current published guidelines, the positions of noted bioethicists, and the practice of many neonatologists. Further, the additional information attained by initiating intensive care in the most premature infants does not justify doing so without parental consent.