The Law and Charlie Gard

The Law and Charlie Gard

As expected, the news has come of the death of Charlie Gard.

This sad and troubling case has drawn worldwide discussion, and questions and concerns have been raised about what might happen in a similar case here.

Some analogies have been made to the well-known US case of Terry Schiavo, but there were very important differences in the fact situation there that makes Schiavo a poor analogy. That case involved a battle between the husband and parents of the adult Schiavo over what her expressed wishes about end-of-life care had been.

In contrast, Charlie Gard is an infant, and his case pitted his parents’ wishes against the opinions of the hospital and doctors.

A better analogy to the Charlie Gard case is that of Jahi McMath, involving a minor child and a dispute between Jahi’s family and her hospital/doctors over the definition of brain death and when life support should end. However, the McMath case was settled by an agreement between the child’s family and the hospital in which the family was allowed to take her from the hospital and continue life support.

If the Charlie Gard case had occurred in the US, however, the legal emphasis differs between here and the UK. In the UK, disputes between parents and doctors are brought to court under an objective best interests of the child standard.

However, in the United States, in similar cases the best interests “tend to be resolved in favor of parental rights,” according to Dr. John D. Lantos, director of Bioethics Center at Children’s Mercy Kansas City. And, when courts do overrule parents’ wishes in the US, they usually do so to order care over parental objections rather than the opposite.

The different legal standard in the UK was further described by Claire Fenton-Glynn, legal scholar at the University of Cambridge:

“English law…does not see parents as having the ‘right’ to make decisions on behalf of their children. The concept is called parental responsibility: That is, the parent has a responsibility to make decisions, to look after the child,” she said. “Parenthood doesn’t give them rights; parenthood gives them responsibilities.”

And lawyer and ethicist Seema Shah describes the differences between American and British law this way:

. . . . Legally, though, US courts are following the same best-interest standard as the UK, but the way it works here, at least in practice, is that “courts are deferring to parents,” Shah said.

American courts recognize that parents have values and that parents understand their children, even if this does not give parents rights to do whatever they want, Shah explained.

Still, from state to state, “there’s a lot of variability in practice,” she said.

So it seems fairly likely that, had the Gard case occurred in the US at this point, the court would have been more likely to have found for the parents. How long that will remain true in the face of a possible leftward drift is more difficult to say.

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]

Donations tax deductible
to the full extent allowed by law.