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| Newsletter No. 22 Summer 1984 |
40 BEDFORD STREET, LONDON, WC2E 9EN
Editor: M. N. M. BELL, M.A. (Cantab.),
Summer 1984
Number 22
News and Comment
Annual General Meeting
The Annual General Meeting of the Association is being held this year at the Hawthorns Hotel, Woodland Road, Clifton, Bristol on Saturday 14th July at 2 p.m. Members of the Association living in the West Country and Wales may have felt in the past that the A.G.M. was held in faraway places. It is for this reason that we are holding it at Bristol this year, and we very much hope that all members living in the West and in Wales will make every effort to attend. This is your opportunity to make known to the Committee what you think the Association should be doing, and it will enable the Committee to meet the members. If any members would like a map showing how to get to the hotel, please would they write to our Secretary at 29 Queen's Court, Hill Lane, Southampton PO1 5RR, enclosing a stamped addressed envelope.
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The Murder of New-Born Children
Abortion is often defended on the grounds that it provides a back-up where a mother did not intend to get pregnant, but where for some reason or other the steps she took to prevent this were not effective. It is, therefore, perhaps not unexpected that members of the medical profession who see abortion as a back-up for failed contraception should see murder of the newly born as a back-up for abortion. The Abortion Act 1967 introduced into our law an entirely new concept: that the handicapped were second-class human beings who might lawfully be killed before birth, whether or not they represented any threat to the health of the mother. It was an easy step for doctors who saw no ethical objection to this to consider that, where they had failed to seek out and destroy the handicapped child before birth, there was no ethical objection to their killing the handicapped born child, provided this was done reasonably soon after birth.
It is because of this close link between the abortion mentality and the increasingly common practice of "allowing new-born handicapped children to die" that we are devoting the majority of this issue of our Newsletter to an important talk given to our Association in October 1982 by Professor R.B. Zachary, F.R.C.S.
His talk exposed what is going on behind the scenes in some of our hospitals. Since much of this activity is clearly illegal, it is important that we as lawyers should be aware of this situation. The fact that Government Departments are apparently turning a blind eye to these widespread criminal activities in hospitals under their control must be a matter of grave concern to our profession, undermining as it does the whole principle of the Rule of Law.
It is also a flagrant dereliction of the duty imposed on the Secretary of State by section 3(l)(d) of the National Health Service Act 1977, which says that it is his duty to provide, as part of the Health Service, to such extent as he considers necessary to meet all reasonable requirements, such facilities for the care of young children as he considers are appropriate. There is no way in which his provision of services and staff for the killing of young children can be construed as a proper carrying out of this duty. Indeed, we submit unhesitatingly that this provision on his part can only be considered as a gross violation of his statutory duty.
Nor can the legal profession claim to be true to its calling unless we uphold the Rule of Law and insist that, wherever there are reasonable grounds to believe that murder has been committed, the law against this most heinous of crimes should be properly enforced.
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Medicine, The Law and The Handicapped, Before and After Birth
The text of a lecture given to ALDU's London Conference at the Law Society's Hall on October 6th 1982 by Professor R. B. Zachary, F.R.C.S., F.R.C.S.I., F.A.A.P., K.C.S.G., Emeritus Professor of Paediatric Surgery, University of Sheffield.
I have reason to be grateful to the Association of Lawyers for the Defence of the Unborn for making clear to me some of the legal issues relating to the life of the child in utero. The first is the significance of the period of 28 weeks. It is often thought, even in medical circles, that the termination of the pregnancy before that time is quite permissible in law in certain circumstances, which are in fact very loosely interpreted, especially if the infant in utero has a congenital defect, whereas in fact the law says no such thing. Rather does it say that 28 weeks of gestation shall be regarded as prima facie proof that the child is capable of being born alive. If the child is capable of being born alive, to kill him or her is not only an abortion, but is also the crime of child destruction.
Capable of being born alive
It is widely known that some babies born after, say, 23 weeks gestation have cried. Now in order to cry you have to take in a breath, you have to breathe. Not only is such a baby capable of being born alive: it has in fact been born alive.
Now no-one is foolish enough to claim that all such babies can at present be reared successfully, and some have pointed out that a significant number of very premature babies have birth defects, mainly arising from inadequate supply of blood to the brain. Yet the centres well known for the vigour with which they pursue this policy of resuscitating very premature infants are the very ones with a low incidence of complications.
Because of the danger that a child with, for example, spina bifida detected at 23 weeks may after expulsion from the uterus by prostaglandins be born alive, it has been seriously suggested and, I am told, practised that other drugs such as urea be added to the prostaglandin solution to make sure that the child is dead when it is expelled from the uterus some hours later. This is a clear admission that the child may well be capable of being born alive — otherwise the drugs would not be used. Obviously the primary purpose in such cases is not the termination of the pregnancy but terminating the life of the child. This practice has not been recognised by the medical profession, and possibly by many lawyers, as the crime of child destruction.
The new-born handicapped child
My special concern is with the handicapped child after birth. Though some gynaecologists may have reservations about terminating a pregnancy of more than 20 weeks for other reasons, such reservations are seldom in evidence when the infant in utero is likely to be handicapped. In some proposed legislation to limit the age for abortion to perhaps 22 or 20 weeks, even this limited protection was not to apply to the handicapped whose lives could be ended without question right up to 28 weeks.
An even more sinister move against the handicapped was included in the ruling of the Supreme Court of the U.S.A. [Roe v. Wade. 410 U.S. 113, (1973)] when, if my information is correct, it was implied that in the case of handicapped babies the pregnancy could be ended at any age, right up to the expected time of delivery. It would be no small wonder if the almost total disregard for the integrity of the life of the handicapped child within the uterus should spill over to a relative lack of concern in the neonatal period.
Has this in fact happened? Are new born babies being actively killed as they are in utero'7 Are they left without sustenance - just as sure a way of causing death as cutting the baby's throat? Are they refused medical help without which they will certainly die?
Bowel obstruction: need not cause death
I first came across this attitude of mind when the parents of a baby with intestinal obstruction would not give consent for an operation, because the paediatrician had advised against it. His reasoning was that the cause of the obstruction was very thick bowel contents at birth, called meconium ileus. This is due to the failure of the pancreas and the mucous glands of the bowel to produce normal secretions, an illness which can also be present without actual bowel obstruction and is then known as cystic fibrosis of the pancreas. The glands of the lungs are also abnormal and there is a tendency for them to produce thick, sticky secretions which may block the air passages and can cause repeated bouts of pneumonia.
Years ago it was unusual for such a child to reach the age of 15 years, and this particular paediatrician had painted a very gloomy picture of recurrent chest infections, frequent admissions to hospital and an early death. Yet even in those days the child could live a happy life, mostly at home, and often go to school, and it would be quite false to say that such a child's life was not worth while.
Moreover bowel obstruction from this cause can in a number of cases be overcome by special enemas, so that no operation is needed. Would that paediatrician advise against the use of enemas? Furthermore the outlook for the lungs is vastly better, and even 5 years ago a paediatrician reported that the survival time was now into the fourth decade. If all the children with cystic fibrosis had been "left to die" there could have been no such advance in the methods of treatment.
Congenital obstruction of the bowel may occur anywhere throughout its length, and one of the simplest types to recognize and treat is that which affects the bowel just beyond the stomach, the duodenum. Naturally if there is complete obstruction at this level, no food can pass this site and even the gastric juices lie stagnant and are vomited frequently as green bile-stained fluid.
Down's syndrome: is it kind to allow them to die?
About one third of these babies also have Down's syndrome, mongolism; and as you know it is for this reason that a number of doctors and parents have in the past refused to allow the baby to be treated. The attitude of the parents is understandable. They don't want their baby to suffer and grow up to be mentally retarded, and they have been told that it is kinder to let their baby "die in peace".
I believe that lawyers are often annoyed with doctors who will not give the full facts on which the lawyers can form a judgement. It is true that without operation the baby will die, but in no way can it be said that the baby is going to "die in peace". Most of you have suffered a bilious attack from time to time and know how unpleasant it is to retch for two or three hours. But these babies continue to vomit day after day, and may live two to four weeks if unrelieved.
Moreover every person must realize what bliss it is for a baby to have a full feed, how satisfied he looks: yet even this is denied to these infants throughout their lives, for even the merest attempt to feed them causes vomiting. What is more they must soon feel the pangs of hunger and thirst, something few of us have experienced. The survival for two to four weeks is not "dying in peace" but a short life of distress and misery which could have been relieved easily by surgery.
A clear illustration of this slow death was given to me by Mrs. Bugg who, you may remember, appeared in a Panorama programme on television in which I took part. She gave birth to twins, both of whom had duodenal obstruction and also Down's syndrome, and she refused consent for operation. The first baby lived ten days and at supper after the programme Mrs. Bugg told me that she was sure she had made the right decision because she could see the distress of the baby when she visited each day. The second baby lived six weeks, and Mrs. Bugg explained her own distress during this time as she watched the baby suffer. I had not the heart to tell her at that time that operation would have relieved both babies within a day or two. I cannot see why a baby must suffer unnecessarily just because he or she has Down's syndrome. Moreover with modern methods of management only a very small proportion of such babies are severely retarded: most are either moderately or only mildly retarded.
Spina bifida: why do they not survive?
The situation is altogether different if the condition is one which does not inevitably lead to death, a condition like spina bifida. It is nothing short of tragic that the idea has been widely publicised that if you operate on a baby with spina bifida he will live, but he will be paralysed; he will have hydrocephalus requiring a valve which may block and cause blindness; he will have kidney and bladder difficulties and need many orthopaedic operations and what is more he is likely to be mentally retarded; whereas if you do not operate he will "die in peace".
Thirty-five years ago when I was working in Boston, Mass., we did not operate on any of these babies. They simply had a dressing on the back and were sent home to the care of their parents and the family paediatrician and they were brought to the follow-up clinic once a month. These were the days before antibiotics were widely used and yet a considerable number survived and were able to have the back swelling removed at about 18 months or two years of age. The swelling was an undue extra burden for the mother who was afraid that it might burst, and occasionally it did. When I started my surgery of the newborn in Sheffield I decided to relieve the mother of this extra burden by removing this swelling at birth. It was not intended to be, and indeed it was not, a life-saving operation.
I began to realise that the survival rates in the hands of some paediatricians were poor — in fact some claimed a mortality of nearly 100% among those "left to die". How could the mortality have increased 20 or 30 years later, especially when the babies were being looked after in hospital, compared with when they were being cared for at home?
Is overdosing "ordinary baby care"?
It soon became clear to me that such babies were not being given the ordinary standard of baby care one has the right to expect. One paediatrician explained how he made sure that the babies were well cared for, picked up and loved, fed on demand - and given a little sedative. When questioned at a public meeting of doctors he admitted the dosage of the drug he was using, chloral hydrate, and the meeting was astonished to find out that it was eight to ten times that recommended in a standard text book of paediatrics, and it was being given four times a day until the child died. No wonder the child became sleepy in the course of a number of weeks, dying from dehydration, starvation and later infection.
Another paediatrician who appeared on the "Afternoon Plus" programme on television under the chairmanship of that expert medical commentator, Bernard Braden, was praised for his courage for allowing a spina bifida baby to die. Now there was no secret about the facts that at birth the baby had an operation, that at the age of one week the parents told the paediatrician that they did not want the baby to live, and that from that moment she was started on sedatives and died sixteen days later. The autopsy report showed "dehydration, starvation and infection."
'Go" and "no go" babies
Another paediatrician told a gathering of doctors, clergy and nurses that it was he who decided whether it was "go" or "no go". If it was "no go" he told his registrar what to do and the child received a good dose of morphia. He was asked by a clergyman in the audience whether he took the parents into his confidence, and he replied that he did and that they were behind him 100%. This sounded to me like an Eastern European election, so I put the question:— "Do you tell the parents that you are going to give the baby morphia?" "Oh no, I tell them that the baby is going to die and they are behind me 100%".
When inspecting the surgical department of a hospital I learned that they had 24 babies with spina bifida admitted during the previous year and that 23 had died. When I asked "Did they fall or were they pushed into death?" I was told, rather angrily, "They were pushed, of course".
At a meeting of the London Medical Group of young doctors and students a paediatrician in the audience was asked by a student how his team looked after those babies who did not have an operation. He replied "We don't feed them".
I have in my possession a letter from a medical student who was being taught paediatrics in a well-known London teaching hospital. She wrote that a baby was born in a maternity unit and was found to have spina bifida with the usual amount of paralysis and was therefore transferred to the "special care" baby unit at the teaching hospital. He was at once put on a regime of sedatives and given only glucose and water by mouth. The medical student protested at this lack of proper care for the baby, but her protest was rejected by the Professor. She then asked if she could do the rest of her paediatric training at a hospital where such babies were fed. She was told that if she did so the Professor would make sure that she did not continue her medical studies. How low can you get?
I believe I have made my point, that the same lack of concern of some obstetricians for the life of the baby before birth has indeed spilled over into the neonatal period.
How spina bifida SHOULD be treated
I must make it quite clear that operation is not advised in every case of spina bifida; in fact in some babies there are strong reasons against it. For example when the open wound is so very large that if surgical repair of the skin were undertaken it would almost certainly lead to wound breakdown with far worse infection than if it had been covered with a simple dressing, as we would have done in the olden days. The operation, I repeat, is not a life-saving procedure, yet there are a small number of babies in whom it is very important to repair the defect urgently so as to prevent further loss of muscle power.
But many, for example, of those already paralysed in the legs, can be cared for quite well without operation, and it is these babies who are often kept in hospital and given heavy doses of sedative or hypnotic drugs. In contrast to this ruthless management it is only a couple of weeks ago that I learned from a paediatrician that she gives the babies normal care and 90% of such babies go back home to the care of their parents and the family doctor.
One lady in general practice told how she was advised to leave her spina bifida baby in hospital. They would care for the baby and give her a little sedative to help the baby while she was dying. She refused to leave the baby and took her home. Now, at four years of age. if the child has, for example, an ear infection and she takes her to the spina bifida clinic, they check the records and say "Oh, the baby is in the no treatment group. You can take the baby away".
You might wonder how it comes about that such doctors who quite deliberately bring about the death of the baby can escape the arm of the law. If the mother gave such heavy doses of these drugs at home, and fed the baby with glucose and water only, she would be up before the magistrates like a shot. Why should not the doctor have to give the same standard of care as the mother? Moreover although the mother could be charged with the lesser crime of infanticide, there can be no other charge for the doctor than that of murder if the act is deliberate.
The case of Dr. Leonard Arthur
I now wish to refer to two other cases. The first is that of the mongol baby under the care of Dr. Leonard Arthur [L.S.G. 25th November 19S1]. There is no need for me to go into great detail, but briefly, Dr. Arthur diagnosed Down's syndrome in a baby shortly after birth. Now, no-one can predict at birth how seriously the baby is going to be affected, but he wrote in the notes "parents do not wish the baby to survive" and gave the instruction "Nursing care only", and also ordered heavy doses of the drug DF118, which even the makers say is unsuitable for small children, let alone the newborn.
"Nursing care only" seems to have been interpreted as not feeding the baby; yet from my personal experience of the care of new born babies in hospital, I would say that half the time of the nurse in the new born ward is taken up with feeding babies. As far as I could judge from the notes, which I myself have seen, the solution of the drug in water was all that passed the baby's lips from birth until death 69 hours later. At autopsy the tissues contained a level of DF118 which was twice that which would have killed an adult. You know the verdict, and I do not think there is any doubt that it was the finding of my colleague, Professor Emery, of haemorrhages in the brain, lungs and other tissues, which were not mentioned or even looked for by Professor Usher, the pathologist for the prosecution, that turned the tide in favour of the defence. Yet Professor Emery has on many an occasion shown me haemorrhages at the autopsy of a new born baby and made it quite clear that he did not think those haemorrhages had anything to do with the death of the child.
I do not know if Professor Emery was cross-questioned or even called to explain his findings. I would think he can have no doubt whatever about what actually caused the baby to die - the large doses of DF118. I understand that he was strictly forbidden by the defence counsel to discuss his findings with Professor Usher before they were reported to the court.
Baby Alexandra and Baby Doe
The second case to which I would refer is that of baby Alexandra [L.S.Ci.Slh October 19X1] who was born in Queen Charlotte's Maternity Hospital, London, and found to have Down's syndrome, and also obstruction of the duodenum just beyond the stomach identical with the condition in Mrs. Bugg's twins. Operation was advised by the paediatrician and the infant was sent to Great Ormond Street Hospital where it was decided not to proceed with surgery since the mother refused to give consent.
A senior social worker took the matter to the High Court on behalf of the baby, but the Court refused to intervene. The matter then went to the Court of Appeal which decided that the baby was entitled to receive available curative surgery of the bowel even though she had another condition. Down's syndrome. The operation was done at the Postgraduate Centre for Paediatric Surgery, Hammersmith. The baby recovered well and went home to foster parents, enjoying feeds and thriving.
A similar case was that of Baby Doe [In Regard to Infant Doe. A Child in Need of Services. Juvenile Docket. No. JV-8204-038A (State of Indiana. Monroc Circuit Court. Juvenile Division), Opinion date April 14. 1982.] who was born in Bloomington, Indiana, U.S.A. in April 1982. He had Down's syndrome, but he also had no way through from the mouth to the stomach, oesophageal atresia. Baby Doe's only hope of survival was surgery, a difficult but straightforward procedure, with perhaps an 80% chance of success. His parents refused permission for operation. While he was still living, Monroe County officials appointed a guardian and applied to the court against the parents' decision, but the County Court and later the Indiana Supreme Court upheld it. The baby died about a week after birth.
The primary cause of the baby's death was starvation. Moreover, while the baby was still alive any attempt to swallow would be accompanied by coughing and retching, and with an attack of going blue, cyanosis. Indeed the same symptoms could accompany the normal swallowing of saliva. In no way can it be said that such a baby would be dying in peace.
The lawyers for the parents said in court that there was treatment, treatment to do nothing. Within a week of the baby's death the "Washington Post" carried strongly critical articles about the refusal of surgery and the decision of the Indiana Supreme Court. They described the action as homicide, and to the parents' claim that they were exercising their freedom of choice they commented "freedom to kill inconvenient life is being extended beyond fetal life to categories of infants such as Down's syndrome babies".
Do they care more in America?
My opposite number in Philadelphia, Dr. C. Everett Koop, who for years has taken a firm stand against abortion and infanticide (they use the term in a wider sense in the U.S.A.) was appointed Surgeon-General in the U.S.A. in 1982. From him I learn that a statement from the Secretary of the Health and Human Services Department issued five weeks after the death of the child reads:-
"In the aftermath of the recent death of a handicapped newborn baby in Bloomington, Indiana, there has been a good deal of justified concern about the protection of newborn infants and their right, as human beings, to receive appropriate medical treatment". The statement continued: "President Reagan and I share this concern, and the President has instructed me to make absolutely clear to Health Care providers in the nation that Federal Law does not allow medical discrimination against handicapped infants".
Now 6,800 hospitals in the U.S.A. receive Federal assistance. They have each been sent a letter reminding them that
"Under section 504 of the Rehabilitation Act of 1973, it is unlawful for the recipient of Federal financial assistance to withhold from a handicapped infant nutritional sustenance or medical or surgical treatment required to correct a life-threatening condition if: -1) The withholding is based on the fact that the infant is handicapped.2) The handicap docs not render treatment or nutritional sustenance medically contra-indicated."
They will also be advised that violation of Section 50A-N, could result in termination of Federal funding.
These statements provide strong reaffirmation of a commitment of their laws to the protection of human life. I wish I could say that our Department of Health took a similar clear stand on these matters.
The Legal protection of Children
The only positive decision in favour of protection of the lives of handicapped newborn children in this country that I can recall was that given in the Court of Appeal in the case of Alexandra. I was later told that Alexandra is now well and has been welcomed home by her parents. This illustrates that the medical profession must not take initial rejection by the mother as her final word. It is accepted in law in relation to infanticide that the mother's judgement may well be impaired in the weeks or months after the delivery of even a normal baby. In the case of a handicapped baby I do not think we should rely on such immediate maternal rejection, and of course the father is enormously influenced by the attitude of the mother, and in his concern for her wellbeing is likely to accept her views.
When the outcry about baby Alexandra and John Pearson and other similar cases has died down, we are apt to become complacent and to believe that such pressures to end the lives of handicapped newborns have relaxed, and maybe responsible doctors are giving up these ideas. Not a bit of it.
In September 1982, at a symposium to celebrate 150 years of the Leeds Medical School, it was reported in the "Yorkshire Post" that Professor Ronald Illingworth of Sheffield "called for doctors to be given the power to end the lives of handicapped infants without interference by the law". He continued "It cannot be just a legal matter as to whether to let a child live. It must be the doctor's decision with everyone involved giving their agreement". I would like to make the point very strongly that these are NOT matters solely for doctors and parents, and I believe that those connected with the law must be vigilant that the rights of the handicapped child, however small he or she may be, are not forgotten.
The Association of Lawyers for the Defence of the Unborn accepts the undisputed finding of.modern embryology that human life begins at conception. The Association accordingly holds that natural justice requires that the unborn child, no matter how young, should enjoy the same full protection of the criminal law as is enjoyed by his or her mother or father or by any other human being. The Association was founded by eight lawyers in May 1978 and already has well over 1000 members.
