49 Rutgers L. Rev. 1, *
Robert Kastenbaum, Childhood: The Kingdom Where Creatures Die, 3 J. Clinical Child Psychol. 11, 11
For the purpose of this Article,
treatment is defined broadly to protect the patient's right to
self-determination. Thus, lifesustaining treatment is medical treatment, not including diagnostic procedures, that
would prevent the patient's death in the foreseeable future. See The Hastings Center, Guidelines on the
termination of lifesustaining treatment and the care of the dying 4 (1987) [hereinafter "Hastings Center
treatment as "any medical intervention that is administered to a patient in
order to forestall the moment of death"); cf. 2 Alan Meisel, The Right to Die section 11.9, at 99 (1995) ("
treatment is one that will serve only to prolong the process of dying.").
may be provided for illnesses or conditions in which the threat of death is imminent, such as the need for a
respirator. Such treatment may also be provided for conditions or illnesses in which death is more remote, such
as chemotherapy for cancer or artificial hydration and nutrition. The essence of
treatment is that
the child is weighing the significance of death because, without the treatment, the child could die. See infra Part
II.A. Consequently, treatments for nondeadly, chronic illnesses are not addressed in this Article.
This definition of
treatment is broader than the definitions contained in living wills and
health care proxy statutes. Generally, these statutes address decisions made when death is imminent. See Haw.
Rev. Stat. Ann. section 327D-2 (Michie 1992); 755 Ill. Comp. Stat. Ann. 40/10 (West 1995); Me. Rev. Stat.
Ann. tit. 18A, section 5-801 (West Supp. 1995); Md. Code Ann., Health-Gen. I section 5-601 (1995); N.J. Stat.
Ann. section 26:2H-55 (West 1995); Pa. Stat. Ann. tit. 20, section 5402 (West Supp. 1995); Utah Code Ann.
section 75-2-1103 (Supp. 1995); Va. Code Ann. section 54.12982 (Michie 1994); see also statutes cited infra
The broader term of right to die--which includes
refusal of life-sustaining
suicide, and voluntary active euthanasia--has been deliberately avoided. See Jean K. Cipriani, Note, The Limits
of the Autonomy Principle:
Refusal of Life-Sustaining
Medical Treatment for Incompetent Persons, 22 Hofstra
L. Rev. 703, 705-06 (1994) (explaining that the right to refuse
treatment is not the same as the
right to die). This Article focuses on a right that is clearly established for adults--the right to refuse
treatment--and analyzes to what extent the right extends to children.