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

212 University of California, Davis [Vol. 50:205
medical treatment ordered by their own medical specialists and
determined by their parents to be in their best interests. 23
Almost 40 years ago in the pages of the Yale Law Journal, Joseph
Goldstein, a Yale law professor and one of the leading scholars in the
field of American family law, 24 cautioned against the misuse of “the
vague and subjective language of neglect and abuse statutes” to “give
the state unguided discretion to supervene parental decisions with
regard to health care for their children.” 25 Professor Goldstein warned
that such statutes could be misconstrued to “release[] the rescue
fantasies of those it empowers to intrude” — those “well-intentioned
people who ‘know’ what is ‘best’ and who wish to impose their
personal health-care preferences on others.” 26 Professor Goldstein’s
comments presciently describe the rise of MCA charges now being
leveled against parents by doctors, and the mushrooming levels of
state intervention in parents’ medical decisions that has resulted.
No law review has yet critically examined the MCA phenomenon, 27
despite the increasing number of these charges being leveled at
parents, 28 the approval of this theory of abuse by the American
Academy of Pediatricians’ Committee on Abuse and Neglect, 29 a slew
of medical journal articles that propound this purported diagnosis, 30
23 See, e.g., Eichner, supra note 1 (describing Hilliard’s child’s medical condition
deteriorating after his medical interventions were removed on suspicion of MCA);
Swidey & Wen, Justina Pelletier, supra note 11.
24 Goldstein, the Sterling Professor Emeritus of family law at Yale Law School for
many years, was most noted for his groundbreaking interdisciplinary approach to the
interactions between families and the legal system. See generally JOSEPH GOLDSTEIN,
ANNA FREUD & ALBERT J. SOLNIT, BEYOND THE BEST INTERESTS OF THE CHILD (1973).
25 Joseph Goldstein, Medical Care of the Child at Risk: On State Supervision of
Parental Autonomy, 86 YALE L.J. 645, 650-51 (1977).
26 Id. at 651.
27 The only existing law review publication to mention this theory of child abuse
is a Note that uncritically accepts the theory, and calls for state legislation to support
it. See generally Tiffany S. Allison, Note, Proving Medical Child Abuse: The Time Is Now
for Ohio To Focus on the Victim and Not the Abuser, 25 J.L. & HEALTH 191 (2012)
(proposing legislation to fight MCA more aggressively).
28 See Eichner, supra note 1; see also infra notes 122–123 and accompanying text.
29 See Emalee G. Flaherty, Harriet L. MacMillan & Committee on Child Abuse and
Neglect, Caregiver-Fabricated Illness in a Child: A Manifestation of Child Maltreatment,
132 PEDIATRICS 590, 593 (Aug. 2013), https://www.researchgate.net/publication/
262044678_Caregiver-Fabricated_Illness_ [hereinafter 2013 AAP Report].
30 See, e.g., Ana N. Brown et al., Care Taker Blogs in Caregiver Fabricated Illness in
a Child: A Window on the Caretaker’s Thinking?, 38 CHILD ABUSE & NEGLECT 488, 488
(2014); Katharine Doughty et al., Neurological Manifestations of Medical Child Abuse,
54 PEDIATRIC NEUROLOGY 22, 22 (2016); Mary Greiner et al., A Preliminary Screening
Instrument for Early Detection of Medical Child Abuse, 3 HOSP. PEDIATRICS 39, 39 (2013).