Evidence of physician attitudes favoring the withholding of needed medical treatment from infants infected with HIV compels a reassessment of the applicability and adequacy of existing law in dealing with selective nontreatment. Although we can hope to have learned some lessons from the Baby Doe controversy of the mid-1980s, whether the legislation emerging from that controversy, the Child Abuse Amendments of 1984, has ever adequately dealt with the problem of nontreatment remains far from clear. Today, the medical and social characteristics of most infants infected with HIV introduce new variables into our assessment of that legislation. At stake are the lives of infants who, for reasons of class, race, and HIV infection, are both particularly vulnerable to having their lives devalued and relatively likely to have decisions regarding their medical treatment made by someone other than their parents. These factors, when combined with the prognostic uncertainty characteristic of perinatally transmitted HIV infection, are likely to diminish further the Child Abuse Amendments’ ability to assure an effective response to nontreatment of these infants.
The Americans with Disabilities Act, by contrast, offers great promise as an adequate legal response to nontreatment based on HIV infection. Although the ADA’s applicability to individual medical treatment decisions is unclear from the statute’s face and legislative history, normative considerations amply justify interpreting the ADA as covering such decisions. Applying the ADA to treatment decisions pursuant to the medical effects approach proposed by this Article respects the legitimate complexity of the medical decision-making process, but prohibits the interjection of illegitimate considerations of disability into that process. Use of the medical effects approach would not create new burdens, unanticipated by Congress, for medical decision-makers; rather, the approach simply would harmonize legal protection with existing ethical standards. Although using the medical effects approach to judge the legitimacy of treatment decisions for infants infected with HIV doesn’t promise easy answers in hard cases, it does offer a sensitive way of ensuring that the ADA’s revolution reaches infants infected with HIV and all patients with disabilities.
Of Diagnoses and Discrimination: Discriminatory Nontreatment of Infants with HIV Infection,
Columbia Law Review
Available at: https://scholarship.law.pitt.edu/fac_articles/414
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