Futility Determinations of Newborns at the Edge of Viability: A Comparison of Relevant Law in the United States and the United Kingdom

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Graves, Austin
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2017-01
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Journal Article
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INTRODUCTION The full term for a normal pregnancy is forty weeks; and yet, a child can be delivered at just twenty-two weeks of gestation and still have a viable chance at life. Infants born at such an early age may face such a myriad of complications that medical treatment may be futile in some cases. In the grey area of determining futility, parents and health care professionals face the harrowing decision of whether or not to withhold treatment; thus the question arises: what result if they disagree? Both the United States and the United Kingdom employ the courts to make the ultimate determination in such cases. Both apply a standard that primarily considers the child’s best interests; however, the United States only considers the child’s medical diagnosis, while the United Kingdom considers factors beyond the medical diagnosis. The “best interest” standard, as applied in the United States, breaks down when applied to cases where there is no clear futility determination. The solution is to follow the precedent set by courts in the United Kingdom and consider a broader scope of factors than just the child’s medical diagnosis when applying the best interests standard.|The following Article first provides background concerning the medical landscape in regard to difficulties faced by children born extremely premature. Next, the case law regarding the best interests standard in both the United Kingdom and the United States is discussed. Then, academic criticism of the standard is explored. Finally, this Article advances the claim that the best interests standard in the United States fails when stretched to its analytical limits, and that the scope of the standard, as applied in the United States, should be widened to match the case law in the United Kingdom.
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Creighton University School of Law
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