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have found these principles to be helpful in deliberationsand discussions at our infant bioethical reviewcommittee meetings." 55 Among those principles is:"Withholding or withdrawing treatment may beconsidered when such treatments are reasonablydeemed futile and merely prolonging the dyingprocess or when the medical treatment imposes aburden that lacks compensating benefits for theinfant." 56Commenting on an earlier draft of this report,Montefiore Medical Center asserted that these "principlesare intended to assist the Committee membersin applying the Child Abuse Amendments to thecases under review." 57 Emphasizing that the "ChildAbuse Amendments and the regulations thereunderexpressly defer to the 'treating physician's (orphysicians') reasonable medical judgement,'" thecenter stated:In other words, Congress and HHS have made clear thatthe determination as to what, if any, treatment is medicallyindicated, is to be left to the professional judgment of thetreating physician(s). Given that medical judgments arekey to decision-making under the Child Abuse Amendments,it cannot responsibly be suggested that the Committeehas violated the Child Abuse Amendments, simply onthe superficial observation that medical treatment has beenwithheld. 58The center relied in particular on the HHSinterpretation of the exception to a general requirementof treatment the Child Abuse Amendmentscreate when "the treatment itself involves significantmedical contraindications and/or significant painand suffering for the infant that clearly outweighsthe very slight potential benefit of the treatment foran infant highly unlikely to survive." 59 As thequoted passage makes clear, however, such benefitsburdenbalancing is legal only when the child is» Id. at 384." Id. at 384-85. But cf. 45 C.F.R. § 1340.15(b)(2) (1987)(definition of the Federal medical treatment standard of carebarring "withholding of medically indicated treatment") (discussedin chap. 7).5TLetter from Nadia C. Adler, supra note 52, at 3." Id. at 7-8.S9Id. at 7, quoting 45 C.F.R. §1340.15 app. (1987). See chap. 7.» 42 U.S.C.A. §51O2(2)(B)(3) (West Supp. 1988).81Montefiore Medical Center, commenting on this statement inan earlier draft, expressed concern that it implied the view "thatthe Einstein-Montefiore Committee took a neutral stance and wasattempting to evade responsibility" when in fact the committeemade the referral in order to override the parental refusal toconsent to treatment. Letter from Nadia C. Adler, supra note 52,at 11. The Commission does not mean to suggest that thecommittee's action in this case implied neutrality; rather, in this"highly unlikely to survive." The statutory languageitself requires that "the provision of such treatmentwould be virtually futile in terms of the survival ofthe infant and the treatment itself under suchcircumstances would be inhumane." 60 Although thelaw is phrased in the conjunctive, the principleFleischman says the Einstein-Montefiore committeesemploy is phrased in the disjunctive: unlike the law,it allows treatment denial in cases of futility or underbenefit-burden analysis.From February 1984 through August 1986 (duringthe last 11 months of which the Child AbuseAmendments were applicable), eight cases involvingwithholding of life-preserving surgery from children"in the first days of life" were reviewed by theaffiliated committees. (A total of 30 neonatal caseswere reviewed; the article is not clear about thetreatment/nontreatment outcome in the other 22cases.) In one case in which the attending physicianbelieved treatment should be provided and theparents disagreed, the committee referred the matterto the child protective services agency. 61 In asecond case in which the treating physicians andparents believed treatment should be withheld, thecommittee considered that it should be provided,and both the physicians and parents were thenconvinced to agree to continued treatment.In a third case the treating physicians wanted todeny treatment while the parents desired it to beprovided; although the child died (presumably withoutreceiving the life-saving surgery), the committeeretrospectively concluded that "the parents' requestwas imposing undue pain and suffering on the infantfor no potential benefit." In all the other cases thecommittee agreed with the desire of physicians andparents to withhold treatment. 62case it is clear that the committee acted properly and fulfilled theresponsibility to report imposed upon it by the law.62Fleischman, supra n. 53, at 388-89. In its letter of comment,Montefiore says, concerning the third case: "As Dr. Fleischman'sarticle plainly states, a retrospective review of the case (the infantwas imminently dying and indeed died before the Committeecould be convened for prospective review) indicated that theparents' wish to provide treatment would have imposed 'unduepain and suffering on an infant for no potential benefit.' (Fleischman,p. 389) The Report, once again, omits this detail." Letterfrom Nadia C. Adler, supra note 52, at 12. In fact, the Fleischmanarticle at no point states that the child was imminently dying. IfMontefiore is making this assertion based on its review of themedical records of the case, rather than on the article, then thedenial of treatment would in fact not have violated the ChildAbuse Amendments. However, what is striking about the descriptionof the case in Fleischman's article, like that of all the other125