No Way to Treat a Woman: Creating an Appropriate Standard for Resolving Medical Treatment Disputes Involving HIV-Positive Children

Harvard Women's Law Journal, Vol. 25, Number 21, Spring 2002

49 Pages Posted: 7 Aug 2012

Date Written: 2002

Abstract

This paper concerns the difficult dilemma of healthcare treatment decisions for HIV-positive children. Part I provides background to the discussion of medical neglect cases involving HIV-positive children and HIV-positive mothers including information concerning the demographics of women and children living with HIV/AIDS in the United States as well as the general medical standard of care for HIV-positive children.

Part II begins with a discussion of the ways in which mothering and motherhood have been divided into two categories -- good and bad -- with women of color, low-income women, and single women often falling into the latter category. This Part then describes the ways in which this negative pigeonholing of women of color, particularly African American women and Latinas, has adverse consequences for African American and Latina mothers who interact, often unwillingly, with the child welfare system.

Part III evaluates existing statutory, constitutional, and precedential standards for determining when a mother's decision not to provide physician recommended treatment constitutes medical neglect. The Part describes the scope of a parent's right to care for and maintain custody of her children, explores existing mandated treatment cases in several contexts, and reviews the standards used to decide those cases.

Part III posits a holistic standard for courts to utilize when making decisions about treating an HIV-positive child with aggressive anti-retroviral therapy despite the objection of the child's mother. This standard requires states to meet a heightened burden of proof and to make a threshold showing of actual or imminent harm to a child in any medical neglect case involving an HIV-positive child. This family-focused standard strikes a balance between the mother's constitutionally protected right to make healthcare decisions for her child, the child's right to receive treatment for a life-threatening illness, and the state's interest in protecting the child from harm. Through a focus on actual or imminent harm to the child rather than an assessment of the reasonableness of the mother's decision to forego a recommended aggressive medication regimen, this holistic standard seeks to avoid encouraging legal decisionmaking based on impermissible and indefensible biases.

Finally, Part IV describes and analyzes In re Nikolas, the most prominent mandated HIV treatment case in the United States. This Part argues that though the deciding courts reached a correct result in Nikolas, the standard used to reach that result was flawed. Had the court applied this Article's proposed family-focused standard, the primacy of the mother's right to make healthcare decisions for her child would have been given proper deference and the standard would have strengthened the mother's case. Reinforcement of the importance of the mother's right to the care and custody of her child results in increased protection for marginalized mothers and their families.

Suggested Citation

Mutcherson, Kimberly M., No Way to Treat a Woman: Creating an Appropriate Standard for Resolving Medical Treatment Disputes Involving HIV-Positive Children (2002). Harvard Women's Law Journal, Vol. 25, Number 21, Spring 2002, Available at SSRN: https://ssrn.com/abstract=2125988

Kimberly M. Mutcherson (Contact Author)

Rutgers Law School ( email )

217 N.5th Street
Camden, NJ 08102
United States

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