This case raises issues that courts have not ruled upon in disputes regarding medical decision-making that is whether economics and separation from one’s family can be considered in determining whether treatment can be withheld.  It is well established in the United States that competent patients have the right to refuse medical treatment. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). Courts have found that the right to refuse medical treatment is grounded in a constitutional right of privacy as well as on religious grounds.  The right to refuse life sustaining medical treatment is subject to four state interests: (1) the preservation of life, (2) the protection of third parties, (3) the prevention of suicide, and (4) the integrity and ethics of the medical profession. See Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 225 Cal. Rptr. 297 (1986); Satz v. Perlmutter, 362 So. 2d 160 (1978), aff′d, 379 So. 2d 359 (1980); Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 370 N.E. 2d 417 (1977); In the Matter of Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), cert. den., 429 U.S. 922.     

 Children are considered by the courts to be incompetent to make their own healthcare decisions and, therefore, healthcare decision-making is made by parents.  However, parents do not have unfettered discretion as to whether medical treatment can be withheld.  They are obligated to act in the best interests of their child.  

 Courts have generally permitted parents/guardians to authorize the withdrawal of life sustaining treatment on behalf of a patient in a persistent vegetative state.  For example in Rosebush v. Oakland County Prosecutor, 1992 WL 217994 (Mich.App. 1992) the court allowed parents to discontinue tube feedings for their 11 year old daughter who was in a persistent vegetative state.  See also, In Re: Joelle Rosebush, 195 Mich.App. 675 (1992);  In Re Fiori, 543 Pa. 592, 673 A.2d 905 (1996).

If a minor has a life threatening condition which can be medically treated, courts have ordered that life sustaining treatment must be administered if the child’s parents will not consent.  For example, courts have consistently ordered blood transfusions for minors over the religious objections of their parents. In Re Guardianship of L.S. and H.S., No. 38242 (Nev. April 6, 2004); In Re McCauley, 565 N.R.2d 411 (Mass. 1991)    

There are some cases in which courts have upheld the wishes of parents even though those wishes did not appear to be in the best interest of the child. In the case In Re Hofbauer, 395 NE2d 1109 (NY App1979), the court allowed the parents to refuse standard chemotherapy on behalf of their nine year old son diagnosed with Hodgkins lymphoma. With standard therapy the child had an 80% chance of total cure.  In the case In Re Maxin, Case No. JU 124198 (Court of Common Pleas, Stark County, Ohio 2002), the court upheld the wishes of the parents that their seven year old son diagnosed acute lymphoblastic leukemia be treated with macronutrient supplements.  The minor in Maxin had a 90% expected chance of cure with standard treatment.   The courts in these cases permitted the parents greater latitude over treatment given to their children than the “Jehovah’s Witnesses” cases.

Because there is no clear consensus in the courts, it cannot be predicted with certainty how a court would decide this matter.  This case is distinguishable from those cases in which parents sought to have life sustaining treatment removed from their child in a persistent vegetative state.  If the minor in this case requires a tracheostomy during surgery it will leave him dependent on a ventilator but presumably alert, oriented and able to live indefinitely.  The state interests of preservation of life, protection of third parties and the integrity of the medical profession appear to be compelling in this situation.   Furthermore, an argument can certainly be made that it is in the best interests of the child to be alive on a ventilator, although separated from his family, than dead.