Doyle, Joseph F.

English

Villanova University School of Law: Digital Repository

Volume 8 Issue 1 Article 9 1962 Domestic Relations - State Has Power to Order Medical Treatment for Child in Spite of Parents' Religious Objections Joseph F. Doyle Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr  Part of the Family Law Commons Recommended Citation Joseph F. Doyle, Domestic Relations - State Has Power to Order Medical Treatment for Child in Spite of Parents' Religious Objections, 8 Vill. L. Rev. 114 (1962). Available at: https://digitalcommons.law.villanova.edu/vlr/vol8/iss1/9 This Note is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. VILLANOVA LAW REVIEWhave even given the defendant the right of pre-trial discovery 14 which isnot required by due process.15 There is no valid reason why the prose-cution should not be given access to evidence which can shed lighton issues in the case if no rights or privileges which are guaranteedby law to the defendant are involved.16 In such a way, justice can beattained in most cases where surprise has traditionally worked against theprosecution and enabled a guilty defendant to escape unscathed. The courtswhich might adopt such a procedure, as California has done, will not besacrificing constitutional principles or impinging constitutional safeguards,but merely taking immense strides toward more enlightened criminalprocedure. It will be interesting to see how many states, by legislativeor judicial action, will respond to the compelling force of this decision.James F. KippDOMESTIC RELATIONS-STATE HAS POWER TO ORDER MEDICALTREATMENT FOR CHILD IN SPITE OF PARENTS' RELIGIOUS OBJECTIONS.State v. Perricone (N.J. 1962).Appellants were Jehovah's Witnesses who refused to permit a bloodtransfusion to be performed upon their child.' The superintendent of thehospital in which the child was a patient brought an action under the NewJersey "neglect statute' 2 to have the parents declared in neglect of thechild and to have himself appointed guardian of the child for the purpose of14. See supra note 1.15. Campbell v. United States, 365 U.S. 85, 81 S. Ct. 321 (1961); Palermo v.United States, 360 U.S. 343, 79 S. Ct. 1217 (1959).16. Justice Peters, dissenting in the instant case, agrees in principle with thiscontention:While of course, a criminal trial should be 'fair' to the prosecution as well asthe defense, it should not be forgotten that the defendant has additional constitu-tional and statutory rights not given to the prosecution. 22 Cal. Rptr. 879, 884(1962).1. The refusal was based on the religious belief that to permit oneself or topermit another to be subjected to a blood transfusion is comparable to "eating blood."Members of the Jehovah's Witnesses' sect have interpreted certain passages of theBible as prohibiting such practice.2. N.J. STAT. ANN. § 9:2-9 (1960).When the parents of any minor child or the parent or other person havingactual care and custody of any minor child are grossly immoral or unfit to beentrusted with the care and education of such child, or shall neglect to providethe child with proper protection, maintenance and education . . . it shall belawful for any person interested in the welfare of such child to institute anaction for the purpose of having the child brought before the court, and forfurther relief.Such neglect statutes, now common throughout the country, confer upon theChildren's Courts or Juvenile Courts a power which had been historically exer-cised by the Chancery Courts. Petition of Ferrier, 103 I11. 367, 371-372 (1882). Thispower of "parens patriae," as it is generally known, was defined by the court in Johnson[VOL. 81Doyle: Domestic Relations - State Has Power to Order Medical Treatment fPublished by Villanova University Charles Widger School of Law Digital Repository, 1962CASE NOTESconsenting to the transfusion. The parents' defense was that of freedom ofreligion and conscience. Upon finding that the child might die shortly ifno transfusion were allowed, the trial court held the parents in neglect andissued an order appointing the hospital superintendent as the child'sguardian for the sole purpose of consenting to the blood transfusion.While an appeal was pending, the Supreme Court of New Jersey certifiedthe matter on its own motion and affirmed the judgment of the trial court,holding that a parent who refuses to consent to a blood transfusion for hischild in danger of death is guilty of neglect. State v. Perricone, 37 N.J.463, 181 A.2d 751 (1962).Parents have the primary duty and right to guide and control theirchildren,3 but this right is not beyond limitation even when its contra-diction would impair the religious principles of the family ;4 neither therights of parenthood nor religion are absolute. 5 The state has not onlya right, but a duty, as parens patriae,6 to care for those citizens who can-not care for themselves. This includes not only orphans, but also thosewho, while under the supervision of others, do not receive the minimumstandards of care set by the state. The child in the present case seems tofall within this latter category.In Pierce v. Society of Sisters,7 the Court, in striking down anOregon statute which required public school attendance for all children,stated:The fundamental theory of liberty upon which all governments in thisunion repose excludes any general power of the states to standardizeits children by forcing them to accept instruction from public teachersonly. The child is not the mere creature of the state; those who nur-v. State, 18 N.J. 422, 430, 114 A.2d 1, 5 (1955), as "a right of sovereignity . . . [which]imposes a duty on the sovereign to protect the public interest and protect such personswith disabilities who have no rightful protector." This same right was enjoyed by com-mon law courts which were empowered to take custody of the child from the parents, ifnecessary, and appoint a guardian if the parents had failed in their duty or wereunfit to be entrusted with the care of the child. Wellesley v. Beaufort, 2 Russ. 1, 38Eng. Rep. 236 (Ch. 1827), aff'd sub nora., Wellesley v. Wellesley, 1 Dow. & Cl. 152,6 Eng. Rep. 481 (H.L. 1829). This power is now expressly provided by statute.N.J. STAT. ANN. § 2A:4-2 (1952):"It is hereby declared to be a principle governing the law of this state thatchildren under the jurisdiction of said courts are wards of the state, ...entitled to the protection of the state, which may intervene to safeguard themfrom the neglect or injury."N.J. STAT. ANN. § 2A:4-34 (1952):"Children under 18 years of age who appear before the juvenile and domesticrelations court in any capacity shall be deemed to be wards of the court, andprotected accordingly."Cf. "[The above quoted statutes grant] this court express power to act onbehalf of the state, as parens patriae with respect to children within its juris-diction and to protect them from neglect or injury." Hoener v. Bertinato, t,7N.J. Super. 517, 171 A.2d 140 (1961).3. Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571 (1925).4. Reynolds v. United States, 98 U.S. 145 (1879); Davis v. Beason, 133 U.S.333, 10 S. Ct. 299 (1890).5. Ibid.6. Johnson v. State, 18 N.J. 422, 114 A.2d 1 (1955).7. 268 U.S. 510, 45 S. Ct. 571 (1925).FALL 1962]2Villanova Law Review, Vol. 8, Iss. 1 [1962], Art. 9https://digitalcommons.law.villanova.edu/vlr/vol8/iss1/9VILLANOVA LAW REVIEWture him and direct his destiny have the right, coupled with the highduty, to recognize and prepare him for additional obligations.8It should be noted immediately, however, that while the "right" is clearlyrecognized, it is "coupled with" a high duty. When this duty is violatedthe state may intercede.The test generally used in such cases to determine whether thestate should interfere is the "clear and present danger doctrine."9  Itprovides that the state may not act in violation of religious liberties unless aclear and present danger to the interests of the state is presented. In WestVirginia State Board of Education v. Barnette,10 the Court struck down aregulation of the Board of Education requiring all school children to recitethe Pledge of Allegiance, finding no such danger. The rule was objected toby several parents on religious grounds. However, in Prince v. Common-wealth of Massachusetts," the Court did find a clear and present danger.In sustaining the conviction of a member of the Jehovah's Witnesses forviolation of a statute which prohibited using children under a certain agein selling of newspapers on the street, the Court indicated that the test ismodified in regard to children in that the state may possess greater regu-latory power. One reason is that what may not present a danger to adultsmay constitute a great danger to children. Even though the defendantparent claimed the selling of the newspapers was a divine command, 1 -2the Court found that the consequential harm to the health and welfare ofthe child, and thus to the interest of the state, gave the latter the power toprohibit such practice. The Court indicated, however, that even if thedanger presented is the same for both adult and child, the state stillmaintains a greater regulatory power over the child:Parents may be free to become martyrs themselves. But it doesnot follow they are free, in identical circumstances, to make martyrsof their children before they have reached the age of full and legaldiscretion when they can make that choice for themselves. 3Specifically, as regards the present case, a number of decisions haveappeared dealing with parents who refused to allow others to administerto their children. In People Ex Rel Wallace v. Labrenz, 4 the situationwas strikingly similar to that in the instant case. The parents refused to8. Id. at 535, 45 S. Ct. at 573.9. This test was indicated by certain language in West Virginia v. Barnette, 319U.S. 624, 63 S. Ct. 1178 (1943), and has been applied in innumerable cases involving aconflict of public welfare and personal liberties.10. Ibid.11. 321 U.S. 158, 64 S. Ct. 438 (1944).12. The defendant based her defense on the religious belief of the Jehovah'sWitnesses that active evangelism required by Jehovah included the selling of theirreligious papers on the street.13. Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 170, 64 S. Ct. 438,444 (1944).14. 411 Il1. 618, 104 N.E.2d 769 (1952), cert. denied 344 U.S. 824, 73 S. Ct.24 (1952) ; accord, Morrison v. State, 252 S.W.2d 97 (Mo. Ct. App. 1952).[VOL. 83Doyle: Domestic Relations - State Has Power to Order Medical Treatment fPublished by Villanova University Charles Widger School of Law Digital Repository, 1962CASE NOTESgive the child a blood transfusion because of religious objections. Deathor permanent brain damage was the medical prognosis. The court appointeda guardian for the child for the purpose of consenting to the transfu-sion after a finding that the child was "neglected" or "dependent" asrequired by the relevant statute. In Re Vasko' 5 involved a child of twoyears who had glioma, a malignant disease of the eye. The medical testi-mony was to the effect that, if proper measures were not taken, the eyewould increase in size until it protruded through the eyelid and that thedisease would follow the optic nerve to the brain eventually causingdeath. The mother's only objection to the operation was that God hadgiven her the baby and He could do with it as He pleased. The courtallowed the operation even though it appeared that a cure was only aboutfifty percent probable.In In Re Carstairs,16 untreated mental illness was found a sufficientbasis for a finding of neglect. Other than being obese, the child was notphysically ill; however, the mother had been repeatedly informed of thechild's anti-social behavior. The court on finding neglect and orderingpsychiatric treatment of the child said:Neglect . . . is not only a failure to provide the necessaries of life -sustenance, clothing, shelter, food and warmth - but a failure to care,to look after, to guide, to supervise . . . to direct the activities of achild which will not destroy the child and will not be a menace toothers. 17The court saw the duty of the community to be to prevent temporary actsfrom becoming a permanent state of mind. Although the court felt thatthe child might be a menace not only to himself, but to others, it is sub-mitted that the court would have acted similarly on behalf of the boyeven if such a threat had not been present. The court, in In Re Seiferth,18while deciding that the parents' objection had been "philosophical" ratherthan "religious" did not direct medical treatment, but did forbid thefather of the child from interfering in conversations designed to acquaintthe latter with the advantages of the needed operation. The distinctionmade here between "philosophical" and "religious" is of little consequencesince the court indicated that it could take action anyway. On the otherhand, the court in In Re Frank,19 while noting jurisdiction only on afinding of neglect, refused to take the child from its father merely becauseit had a speech defect which the father had failed to take action to cor-rect. In In Re Hudson,20 the court found no neglect even though thechild had been born with a grotesquely enlarged arm. The arm, beingalmost the size of the rest of the body, prevented the child from persuing15. 238 App. Div. 128, 263 N.Y.S. 552 (1933).16. 115 N.Y.S.2d 314 (1952).17. Id. at 316.18. 127 N.Y.S.2d 63 (Childrens Court 1954).19. 41 Wash. 2d 294, 248 P.2d 553 (1952).20. 13 Wash. 2d 673, 126 P.2d 765 (1942).FALL 1962]4Villanova Law Review, Vol. 8, Iss. 1 [1962], Art. 9https://digitalcommons.law.villanova.edu/vlr/vol8/iss1/9VILLANOVA LAW REVIEWnormal activities and made her more susceptable to infection. However,there would have been a serious risk of death if an amputation had beenattempted. It appears from these cases that not all courts are in com-plete agreement regarding the scope of the state powers in this area. How-ever, certain guide lines are suggested. The "clear and present danger"required for state action over parental objection in these cases does notalways mean danger of death. It appears to include any condition, physicalor mental, which is serious enough to prevent the child from persuing arelatively normal life. However, it probably must also require immediateattention and the treatment, itself, should present a reasonable expectationof success. If such conditions are found, the form of the parents' objec-tion seems to be just one more aspect to be taken into consideration by thecourt. Perhaps a refusal on religious grounds might be treated withgreater respect by the court; however, in all cases where a child is found tobe neglected or dependent, a religious objection alone will not impedecourt action. It should be emphasized that when the court is presentedwith a religious objection it may decide only if the contention is sincere,that is, in line with the religious beliefs of the organization in which theparent claims membership. It is not competent to decide the seriousness ofthe objection. The court's function is not to weigh spiritual consequencesagainst physical damage. Nor can it hold in higher regard religious ob-jections from a member of one sect than those from another. The name,size or primitiveness of the denomination is of no concern. Each objectionmust be equally weighed, with the determining factor always being thewelfare of the child. In the instant case, the objection was based on thesincere belief of a Jehovah's Witness. The same principles would applyif it were a Catholic complaining about a proposed abortion. If it appearedthat the operation promised a good chance of success and was necessaryto save the life of the child, there is little doubt that the court wouldpermit it. The deducible rule is a simple one: where the child is threatenedwith severe physical or mental consequences which can be prevented bytreatment which holds a reasonable expectation of success, but which isopposed by the parents for religious reasons, the courts will not allow thereligious objections to stand in the way of the child's welfare.Freedom of religion is undoubtedly a great and important guarantee.State action abridging this right must be strictly controlled. To allow thestate to step in and deny the free exercise of a person's sincere beliefs in adivine command, would, at first glance, seem to run counter to theseprinciples.2 1 Closer inspection, however, of the instant case and similar21. In Reynolds v. United States, 98 U.S. 145 (1879), the Supreme Court of theUnited States held that the right of religion was not beyond limitation. In that case, itaffirmed a conviction for polygamy which the defendant claimed was unconstitutionalin violation of his religious beliefs.[VOL. 85Doyle: Domestic Relations - State Has Power to Order Medical Treatment fPublished by Villanova University Charles Widger School of Law Digital Repository, 1962

Domestic Relations - State Has Power to Order Medical Treatment for Child in Spite of Parents\u27 Religious Objections

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Domestic Relations - State Has Power to Order Medical Treatment for Child in Spite of Parents\u27 Religious Objections

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