Bad Medicine Parents the State and the Charge of “Medical Child Abuse”

246 University of California, Davis [Vol. 50:205
plans in part were based on voluntary misreporting of
symptoms by parents to meet their own psychological
needs. 188
The state’s intervention in Justina Pelletier’s MCA case, described in
the introduction, 189 demonstrates such a breach of parents’
constitutional rights. In that case, the state intervened based on the
parents accepting the Tufts’ doctors’ diagnosis of mitochondrial
disease over the BCH doctors’ diagnosis of psychological illness. When
doctors disagree, however, it is properly the role of parents, not the
state, to make these tough medical decisions on behalf of their
children. 190 Furthermore, as fit parents, the Pelletiers’ decision was
entitled to the presumption that it serves the child’s best interests. 191
Recall the words of the New York Court of Appeals in Hofbauer that
the state may not “assume the role of a surrogate parent and establish
as the objective criteria with which to evaluate a parent’s decision its
own judgment as to the exact method or degree of medical treatment
which should be provided, for such standard is fraught with
subjectivity.” 192 The state’s forcible intrusion into the Pelletiers’
decision-making, and its taking sides on which doctor’s opinion to
accept, placed the state in precisely the role of surrogate parent
forbidden by the Constitution.
Indeed, the Pelletier case shows exactly why such governmental
intervention generally disserves the best interests of children, even if
state officials act with the best of intentions. When two sets of
physicians fundamentally disagree about diagnosis and treatment, the
decision maker best positioned to resolve the conflict is generally not a
court or child protection official who has spent little to no time with
the child. Instead, it is the parent who knows the child best, is most
motivated to ensure their welfare, and who has seen the child’s
medical issues develop over time. In Justina’s case, in the face of
diametrically conflicting medical opinions, the best decision makers
were her parents.
188 Frank D. v. Ariz. Dep’t of Econ. Sec., No. 1 CA-JV 11-0017, 2011 WL 3300669
at *5 (Ariz. Ct. App. Aug. 2, 2011) (Norris, J. concurring).
189 See supra notes 2–11 and accompanying text.
190 See Custody of a Minor, 393 N.E. 836, 846 (Mass. 1979); ); In re Storar, 420
N.E.2d 64, 73 (N.Y. 1981); In re Hofbauer, 393 N.E.2d 1009, 1013 (N.Y. 1979);
Goldstein, supra note 25, at 652 (state may overcome presumption of parental
autonomy in health-care matters only when “the medical profession is in agreement
about what non-experimental medical treatment is right for the child . . . .”).
191 See Troxel v. Granville, 530 U.S. 57, 69 (2000).
192 In re Hofbauer, 393 N.E.2d at 1014.