Small But Not Forgotten: Advocating for Legal Guidelines in the Intensive Care of Premature Infants When Legal Guidance is Scarce

26 Pages Posted: 4 Mar 2020

See all articles by Brandy Booth

Brandy Booth

Texas Tech University School of Law

Date Written: February 3, 2020

Abstract

Currently, there is a lack of legal guidance regarding the resuscitation and implementation of life-sustaining treatment for premature infants born in the gray zone of viability, causing inconsistency in hospital policy throughout the nation. This inconsistency negatively impacts the data collected, which is then heavily relied on by doctors to determine if a premature infant should or should not receive resuscitation and life-saving medical treatment. Amending the current statute governing preterm labor and delivery to create a consistent procedure throughout the United States will help with the collection of data, understand the factors that impact prematurity, protect the rights of parents to determine a child’s medical treatment, and push for doctors to consider what other factors are involved when using a best interest assessment.

This Article analyzes some of the large gaps in the existing law and proposes amendments to an existing federal statute that will alleviate many of the problems these gaps create. The proposed language establishes a procedure for all hospital policies to incorporate, which will create a consistency in hospital practices throughout the country. This consistency will not only ensure that each child will be given an opportunity at life but will also help push doctors away from relying on skewed medical statistics, which are faulty due to the inconsistency in policies. Immediate resuscitation after birth will make certain that doctors are not basing decisions about whether or not to resuscitate an infant of off pre-birth estimations and incorrect diagnoses.

The proposed language also encourages doctors to take into account the best interest of the child and analyzes the current definition of best interest. Due to the lack of explicit factors from caselaw and statutes, this Article proposes possible factors that may be used and advocates for a wholistic approach to this determination. The best interest of the child plays the biggest role during the determination of whether treatment should be continued or withdrawn, but this Article also pushes to protect the deeply rooted presumption that parents should have the right to determine the medical treatment of their children.

Currently few academic articles discuss the problems surrounding premature birth and the lack of legal guidance, and none of them provide an overview of the definition of the best interest of the child, nor do they discuss the problems with statistical reporting and reliance. This Article bridges the gap by not only highlighting the few landmark cases in existence on this topic, but proposes language for a federal statute and analyzes solutions for the above-noted problems.

Keywords: health law, premature, preemie, premature birth, premature infants, medical treatment, neonatal, NICU

JEL Classification: K19

Suggested Citation

Booth, Brandy, Small But Not Forgotten: Advocating for Legal Guidelines in the Intensive Care of Premature Infants When Legal Guidance is Scarce (February 3, 2020). Available at SSRN: https://ssrn.com/abstract=3530979 or http://dx.doi.org/10.2139/ssrn.3530979

Brandy Booth (Contact Author)

Texas Tech University School of Law ( email )

1802 Hartford Avenue
Lubbock, TX 79409
United States

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