Thursday, January 8, 2009

Cause of action for injuries to child when parents refuse medical services for religious reasons?

Marci Hamilton has published an interesting column in called "A Roundup of 2008's Developments Relating to Harms Suffered By Children in Religious Settings: Our Disturbing Current Status, and Some Signs of Progress." She concludes that events during 2008 show that children often suffer when their interests intersect with adults' religious beliefs.

The first group of cases she discusses are examples of cases where children died when their parents refused medical treatment because of their religious beliefs. She writes:
"During 2008, there were three widely-publicized deaths of children suffering from treatable medical ailments who had lived in faith-healing homes. In Wisconsin, Kara Neumann died from untreated diabetes at 11 years old; her parents were members of an Internet-based faith-healing organization, Unleavened Bread Ministries. In Oregon, fifteen-month-old Ava Worthington died of bacterial pneumonia and a blood infection; her uncle (or cousin depending on the report) Neil Beagley, 16, died of heart failure prompted by a urinary tract blockage. Ava and Neil's families were members of Followers of Christ, a notorious group responsible for the deaths of more children than just these two.

One medical neglect case appears to be headed in a more positive direction for the child: In late December, a New York judge ordered an Amish couple to permit their 15-month-old son, Eli Hershberger, to have the heart surgery he needed to survive." 

Evidently, the author simply assumes that obtaining medical treatment is the best option, even if it means forcing it upon the child against the parents wishes. I don't doubt a majority of people would agree with this position. But if you are interested in this topic you should take a look at an article by Teresa Stanton Collett called "Life and death lawyering: dignity in the absence of autonomy" published in the Journal of the Institute for the Study of Legal Ethics (1996). The author makes a good case for the position that the parents' wishes should be respected. I am not saying that I agree with it, but I am saying that the argument is not frivolous. I have covered this material in my Torts seminar by assigning Lundman v. McKown, 530 NW2d 807 (Minn App 1995) and having students prepare to argue an appeal based on the facts of the case. I've also had a professor who is a Christian Scientist judge sometimes, which has resulted in very interesting reactions by the students and very interesting discussions.

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