From our own correspondents

From our own correspondents

Rule-based folly at the moment of birth

Overemphasis on certainty may lead us to...intolerable rigidity. Justice is a concept byfar more subtle and indefinite than is yielded by mere obedience to a rule.

± U S Supreme Court Justice Benjamin Cardozo1

A television programme broadcast on a prestigious national network in America

recently presented the real-life story of a severely brain-damaged, blind 7-year-old

ex-premature girl (born at 23±24 weeks of gestation, weighing 615 grams).2 Before

delivery, the parents were told by the hospital's neonatologist that the outlook for

intact survival was poor for infants born this early. Based on this gloomy prognosis,

the parents requested that no heroic measures be used to support life. Although this

explicit directive was recorded in the mother's hospital chart, the infant was,

nonetheless, resuscitated and treated intensively. Several years later, the parents

sued the hospital charging negligence and `wrongful birth.' The jury found for the

plaintiffs and the family was awarded the sum of US$42.9 million in compensation.3

In the television broadcast, a senior American neonatologist (not connected with

the accused hospital) was asked to give his opinion about the dilemma faced by

doctors who must make a life-or-death decision at the birth of a high-risk neonate

born at the extremely immature gestational age of 23±24 weeks. He replied,

Ìf there are signs of viability, I resuscitate.'

This categorical answer startled the reporter, who then asked,

`But what about the parents' wishes in these marginal circumstances?'

Ì resuscitate [pause] I resuscitate.'

was the prompt and emphatic reply. The neonatologist made it clear that the

newborn infant's `best interests' trumped all other considerations; and these

interests were served by adherence to this simple two-word rule. He recited the

unequivocal prescription for action, Ì resuscitate,' as if it were a mantra.

After the widely-seen programme, neonatologists, neonatal intensive care

nurses and parents all over the U S weighed in with comments about the

controversial issue. Later, respondents in other countries, who did not see the

provocative programme, joined in the free-for-all when they read the

opinions expressed by the viewers. The dilemma explored in the programme

seemed to release pent-up opinions and these poured out in discussions for

days after the broadcast.

Paediatric and Perinatal Epidemiology 1998, 12, 366±369

366# 1998 Blackwell Science Ltd.

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A pervasive need in neonatal medicine was disclosed in these post-broadcast

responses: neonatologists yearn for relief from the anxiety brought on by

uncertainty. And the straightforward rule (Ì resuscitate!') to guide decisive action

in the face of complexity, does provide quick relief. Moreover, the episode

revealed what may be a distinctive trait in my country: we Americans have a

fondness for explicit rules.

For example, Pool4 recently examined the way in which the nuclear industry

has been controlled in the U S; and he compared this experience with regulation in

other Western countries. A prominent feature of the American oversight has been

a `voluminous and complex maze of nuclear Regulatory Commission rules'. An

investigative commission, studying the nuclear industry after the frightening

accident at Three Mile Island, found that the companies were so preoccupied with

satisfying the regulatory rules they lost sight of the true objective of close

monitoring: `Going by the book' came to be equated with safety.

In a very lucid account of the development of the `rule of law' in modern

societies, Ronald Dworkin5 writes that the theory of `legal positivism,' enuciated

in the 19th century, is accepted by most working and academic lawyers who hold

views on jurisprudence. An òbligation,' under this theory, is defined as a duty

`lying under a rule, a rule as a general command, and a command as an expression

of desire that others behave in a particular way, backed by the power and will to

enforce that expression in the event of disobedience.' Dworkin then mounts an

attack on positivism, arguing that `[it] is a model of and for a system of rules, and

its central notion of a single fundamental test for law, forces us to miss the

important roles of standards...that are not rules.' The former òperate differently as

principles, policies and other sorts of standards.'

Dworkin defines the term `principle' in this context, as a standard that is to be

observed, `not because it will advance or secure an economic, political, or social

situation deemed desirable, but because it is a requirement of justice or fairness or

some other dimension of morality.' And he adds (under a utilitarian thesis)

`principles of justice are disguised statements of goals (securing the greatest

happiness of the greatest number).'

The jury (noted above) and many in the huge television audience had no difficulty

in understanding the injustice of the positivist rule (Ì resuscitate'), when they heard the

parents' complaint that the neonatologists refused to abide by their request for no

heroic measures to support life. They concluded, in essence, that there was ample

justification for overriding the rule, in the service of a more humane utilitarian principle.WILLIAM A. SILVERMAN

References

1 Cardozo BN. The Growth of Law. New Haven: Yale University Press, 1924.2 Columbia Broadcast Company. 60 Minutes. Broadcast on 5 April 1998.

From our own correspondents 367

# 1998 Blackwell Science Ltd. Paediatric and Perinatal Epidemiology, 12, 366±369

Paper 137-138

3 Associated Press. Columbia/HCA ordered to pay $42.9 M. 18 January 1998.4 Pool R. Beyond Engineering. New York: Oxford UniversityPress, 1997.5 Dworkin R. Taking Rights Seriously. Cambridge, Massachusetts: Harvard UniversityPress, 1978.

So What?

Life cycles

When I studied at the London School of Economics in the 1960s we learnt all about

the poverty cycle, shown in the form of a curvy line. It was common to be poor in

childhood; for the curve to move upwards as one moved into work and then

down again as children ate up family income, and then up again as children

started to earn. And then the line went right down for the last time as the reality of

retirement income hit the household.

I now find myself locked into another kind of cycle: when does daughter embarrass

mother and when does mother embarrass daughter? As an example, let us take

hanging around looking for famous people and asking them for their autographs.

As a teenager I hung around stage doors for the signature of French singers like

Yves Montand and Maurice Chevalier. When I grew up I realised this was a very

childish and silly thing to do, so I stopped. (The only adult lapse was when I

bumped into the wonderful Jean-Louis Barrault in the courtyard of a theatre in paris

and stopped him and asked him to sign his name on a piece of paper now lost.)

Then I started to take my daughter to the ballet and she started to want to hang

about stage doors. I loitered at the back of the crowd pretending she had nothing

to do with me, finding it particularly wry to see all the pretty little girls crowding

round the late and much missed Rudolph Nureyev while a male friend waited for

him to be free. The high spot was when a ballerina who was still the Sleeping

Beauty to my wide-eyed daughter told her she looked pretty and what a pretty

dress she was wearing. The low spot was when she refused to have her book

signed by the famous dancer Wayne Sleep ± who kindly stopped at the stage door

when he saw her holding her autograph book after a performance of La Fille MalGardeÂe ± just because he had not danced the prince.

Daughter then stopped haunting stage doors but got quite good at celebrity-

spotting and to my horror went over to helpless actors who were shopping or

lunching to ask them to sign for her. The high spot of that period of embarrassing

activity came when friends were driving us around in Los Angeles and she yelled

for them to stop, jumped out of the car and ambushed the film star Jon Voigt who

was innocently walking from one shop to the next.

And now suddenly ± as I get used to being an older person ± it is me

embarrassing her. Not surprisingly, she is not at all keen to go anywhere cultural

368 From our own correspondents


Paper 137-138

with me now. I have taken to want programmes and books signed if I am at a talk

rather than a performance, unless the queues are too long as they were when I

went to hear Joseph Heller talk about his new book (and answer questions mainly

about Catch 22). While I do this, she hangs around at the back of the crowd

pretending I have nothing to do with her.

As I write this, looking forward to the birth of our first grandchild, my head is

full of fantasies. Will there be a time when grandchild and grandmother BOTH

want to wait around for autographs? Or will another cycle of mismatched

passions start?

JEAN GAFFIN

From our own correspondents 369


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