Robert H. Springer, S.J.

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St. John's University School of Law

The Catholic Lawyer Volume 9 Number 2 Volume 9, Spring 1963, Number 2 Article 6 October 2016 Compulsory Medical Treatment - A Moral Evaluation Robert H. Springer, S.J. Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl  Part of the Courts Commons, Family, Life Course, and Society Commons, and the Religion Commons Recommended Citation Robert H. Springer, S.J. (1963) "Compulsory Medical Treatment - A Moral Evaluation," The Catholic Lawyer: Vol. 9 : No. 2 , Article 6. Available at: https://scholarship.law.stjohns.edu/tcl/vol9/iss2/6 This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. COMPULSORYMEDICAL TREATMENT-A Moral EvaluationROBERT H. SPRINGER, S.J.*S EVERAL RECENT CASES have, in effect compelled parents to permitmedical treatment of their minor children for the correction of physi-cal deformity not involving the risk of death.' It has also been held that aminor should have psychiatric treatment when his behavior indicated thathe was "suffering from some emotional instability."'2 In none of thesecases, however, were religious beliefs clearly the basis of parental refusal.The developments in the law involved in these decisions raise intriguingethical issues which are the subject of this study.3 Should our moral reac-tion be one of displeasure or approval at the sight of the state's overrulingparental authority in cases where not life itself but physical health andemotional balance are the values at stake? We shall first consider the moralvalues pertinent to the general trend of law herein contained, then con-clude with an opinion as to whether the courts have overstepped moralbounds in these decisions.To evaluate this trend in the law, we should contrast the present con-figuration of the problem with its earlier form. The prior position of thelaw, from which this trend has developed, was that medical treatmentmight not be denied a minor child in danger of death. The classic case wasthat of Jehovah Witness parents of a child who would die unless a bloodtransfusion were administered. The courts authorized the hospital togive the transfusion notwithstanding the objection of the parents. Moralopinion holds that public authority would exceed its competence in forcingan adult to accept a transfusion for himself. This would be a gross abuse* A.B., Georgetown University; Ph.L., Woodstock College; S.T.D. Gregorian Uni-versity. Assistant Professor of Philosophy, Fordham University.I See In re Seiferth, 127 N.Y.S.2d 63 (Child. Ct. 1954), rev'd on other grounds, 285App. Div. 221, 137 N.Y.S.2d 35 (4th Dep't), rev'd, 309 N.Y. 80, 127 N.E.2d 820(1955); In the Matter of Rotkowitz, 175 Misc. 948, 25 N.Y.S.2d 624 (Child. Ct.1941).2 In re Carstairs, 115 N.Y.S.2d 314 (Child. Ct. 1952).3 See 8 CATHOLIC LAWYER 155 (1962) for a detailed discussion of the legal evolutionMEDICAL TREATMENTof personal inviolability. But in orderingmedical intervention on a child to save itslife, the state is within its rights. No matterwhat the beliefs of the parents, the certainright to life of the child is controlling.4To take up the ethical issues in the laterdeeper penetration of the family domain bythe courts, we should first ask what are thelimits on state intervention. We suppose asestablished in moral science and recognizedin our law the authority of the state in whatpertains to the public welfare, as well as theprior rights of parents over their children.The question is to be answered principallyin terms of what are the rights of the child.Rights are grounded in the person.A Moral NormWhat kind of a person is a minor? What-ever his status in law as a person (considera-tions of the common welfare justify limita-tions on his personal freedom), in reality heis no less a person than his parents, sub-stantially speaking. He is possessed of bodyand soul with all the powers of both. He hasfreedom of choice once he reaches the useof reason. He, too, has as his destiny hispersonal well-being within the spiritual com-munity of God and men, both here andhereafter. The parents, then, are not thefashioners of his destiny. Nor do they de-termine his rights to the means of achievingthat destiny.He is, however, an immature person. Heis in dire need of social assistance for hisphysical, psychological, intellectual andmoral growth. Human experience and bothlaw and morals teach that the parents haveand aspects of this problem.4 The moral view of earlier form of the problemhas been ably presented in Ford, The Refusal ofBlood Transfusions by Jehovah's Witnesses, 22LINACRE Q. 3-10, 41-50 (1955).the prior right and indispensable duty ofministering to his tender wants. The imme-diate matrix of his nurture, then, is thefamily. But human experience likewise as-sures us that there are parents who are in-capable of supplying these needs, or whoare ignorant of their true nature, or finallywho know and can but will not fulfill them.Accordingly it is the child that determinesmorally his right to nurture, that is, hisneeds as a person are a basis of the ethicalright and duty of helping him to personalmaturity.Further, his needs are determined by thesocial context in which he exists. His im-maturity demands fulfillment commensuratewith the social progress of the culture inwhich he lives and works toward his destiny.He has a right to that kind and degree ofhuman perfection in the world today whichhis family aided by society can reasonablyprovide him.As for the role of government, it main-tains the necessary external structure of lawand order in the external community, whichexists for the good of the person in society.It does not do what the family and otherprivate associations can and will do for theperson in his private or social existence.Rather it has a supplementary function toperform. When these other units of societycannot or will not do what the good of alldemands, government must prod them tothe doing. When persuasion fails, and thevalue to the public welfare requires it, themoral force of law may be exercised to as-sure compliance.With this philosophical background, weare in a position to elaborate a moral normfor state intervention. A clear formulationis the following: "It also belongs to the Stateto protect the rights of the child itself whenthe parents are found wanting . . . whetherby default, incapacity or misconduct .... ,,5It cannot be objected that in so actingthe state substitutes itself for the family. Itsimply supplies a deficiency existing con-trary to the right of the child which parentalinability or neglect fails to provide for. Thestate remains true to its supplementaryfunction.This intervention, however, should be in-frequent, by way of exception rather thanthe rule. Or another way of expressing thisrestriction - the courts should not interveneexcept in flagrant instances of parental ne-glect. The jurisprudential rule is morallysound which holds that law must not attemptto repress all evil but only graver violations.Nor should it strive for some maximum ofpublic health. Rather it must be content witha respectable mean. We may amend ourmoral norm to read: the state may intervenewhen the parents are found gravely wantingby default, incapacity or misconduct.But the frequency and extent of state in-terposition is relative. It will vary with thegreater or lesser need of society at differenthistorical moments. Today we are experi-encing a weakening of family life. Divorce,desertion, the failure of love and of the exer-cise of authority in the home constitute theparental delinquency to which sociology,child psychology and the courts themselvesbear witness. In general, then, this trend toextend the exercise of public authority iscalled for.ApplicationsWhat about this extension specificallyinto the area of physical health? We applythe norm: when the parents are foundgravely wanting. And the gravity of parental5 Pius XI, Christian Education of Youth (1929),FIVE GREAT ENCYCLICALS 49 (1939).9 CATHOLIC LAWYER, SPRING 1963neglect of bodily health is to be measurednot by the standards of child welfare validfor earlier times. Corrective surgery for adeformed limb was a hazardous businessand held out little hope of success beforethe advent of bone grafting and the othertechniques of modem surgery. There was noobligation to undergo it. Today we benefitnot only by the great progress of medicalscience but by the mass marketing of thenewest drugs and public health programs.With this social and medical progress, theright of the child to health and happinessand the corresponding duty of the parents toprovide the ordinary means thereto keeppace. That the courts have seen fit to enforcethis increased responsibility is an exerciseof enlightened public responsibility.Psychological defects can be as detri-mental to the person and human happinessas physical ones, and more so. Man esteemsthe enjoyment of his mental faculties ofmind and will more than his bodily ones.For the courts to ignore parental neglect ofthe psychological health of the child butinsist on compliance with his right to physi-cal health would argue inconsistency, un-reasonableness in law. Indeed both physicaland psychological elements are sometimesfound in the same illness, as psychosomaticmedicine attests. From the ethical viewpoint,then, the development in law under studyrepresents a laudable and necessary effort tokeep pace with the changing circumstancesof human living.There is, however, a greater restriction tocourt intervention in the matter of psycho-logical health than in that of bodily wellbeing. Psychological medicine is of far morerecent origin. The efficacy of many of itstherapeutic techniques is disputed amongthe psychologists themselves. Hence there isless hope of alleviation of mental distress.MEDICAL TREATMENTMoreover, the availabilty of its services ismore restricted, its expense more dear.Hope of success, availability and expense allenter into the moral evaluation of what arecalled the ordinary means of preservinghealth. To such means alone a moral obliga-tion attaches. Anything more is an extra-ordinary means, beyond any moral impera-tive. The courts should not ignore this con-sideration, lest they impose unreasonableburdens.Thus far we have considered the generalethical values pertinent to the question underdiscussion. With these values in mind weshould answer our final question. Did thecourts overstep moral bounds in the threeNew York cases?6 Here the moralist is onuncertain ground. He leaves the surer terrainof ethical principle to enter the arena of theparticular and the contingent. He can onlyexpress an opinion, not pass final judgment.ConclusionWe can go along with the reasoning in theRotkowitz decision justifying a court orderfor surgery to correct leg deformity frompoliomyelitis. It is in accord with our norm.The one dissenting parent appears gravelynegligent. But the court went too far in theCarstairs case in ordering a psychiatric ex-amination for the child suffering some emo-tional instability. All things considered, thiswas hardly an ordinary means to emotionalhealth. The parent had done no moralwrong. Given the uncertainty of successfulpsychiatric treatment, she can scarcely beaccused of the serious default necessary forcourt intervention to be justified. In theSeiferth case,7 not only parental objectionwas respected but that of the twelve-yearold minor himself. Ethics would side withthe majority view of the court, seeing in theAppellate Division holding an invasion ofthe person of the subject. The final answersmust come from the men of the law with aknowledge of all the pertinent facts, assistedby expert medical and psychological testi-mony, and in the light of the moral valuesexpressed above.6 See notes 1 and 2 supra. 7 See note I supra.

Compulsory Medical Treatment - A Moral Evaluation

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Compulsory Medical Treatment - A Moral Evaluation

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