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Burden of Proof

Legal Questions with No Easy Answers: Two Cases with Parents, Children, and Lives in the Balance

Aired September 7, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ROGER COSSACK, CO-HOST: Legal questions with no easy answers.

Today on BURDEN OF PROOF, two cases with parents, children, and lives in the balance.

(BEGIN VIDEO CLIP)

PIERS BENN, MEDICAL ETHICS, UNIVERSITY OF LONDON: We're hoping that there had been (ph) one of the twins will live, and will live, possibly, a fruitful and long life.

CORMAC MURPHY O'CONNER, CATHOLIC BISHOP OF WESTMINSTER: It is never permissible to do a wrong action, that good may come of it.

JOHN KITCHINGMAN, PARENTS' LAWYER: It's not in the best interests of either of the children for there to be an operation to separate them and, in any event, if it were in their best interests, then to order an operation to separate the children would be unlawful, according to the laws that presently stand.

(END VIDEO CLIP)

ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

In England, a court must decide whether to order doctors to kill one conjoined twin in order to save her sister, over the objections of their parents.

And in Massachusetts, a judge sends an apparently healthy pregnant woman to a state facility to force her to get medical attention before she delivers her baby.

(BEGIN VIDEO CLIP)

ANDREA MULLIN, PRESIDENT, NOW MASSACHUSETTS CHAPTER: Where are we going to draw the line here? Are we going to start incarcerating women who drink during their first trimester of pregnancy? Are we going to start incarcerating women who don't wear their seat belts when they ride in a car? Are we going to incarcerate women who smoke during their pregnancy?

(END VIDEO CLIP)

COSSACK: Joining us today from Atlanta is Dr. Nicolas Krawiecki, a pediatric neurologist and a medical ethicist.

Here in Washington, we're joined by Brian Jones (ph), law professor Chai Feldblum, and legal ethics professor Father Robert Drinan. And in the back: Dilan Macharty (ph), Michael Wetmore (ph), and Cedric Allen (ph).

Doctor, I want to go right to you.

As a medical ethicist, we have a situation here in which a woman who is pregnant, but has, in the past, refused medical treatment, and has lost a child, has been placed in a facility by the state because she refuses to receive medical treatment.

As a medical ethicist, what is your responsibility in that situation, and should you provide treatment?

DR. NICHOLAS KRAWIECKI, PEDIATRIC NEUROLOGIST AND MEDICAL ETHICIST: One of the difficult issues to address is trying to know if the unborn child is -- has rights.

If the unborn child has rights, then, as a pediatrician we...

COSSACK: Let me interrupt you, I'm sorry, for a second. We have to go to Wolf Blitzer with breaking news from the United Nations -- Wolf.

WOLF BLITZER, CNN ANCHOR: Thank you, Roger.

Ehud Barak, Israel's embattled prime minister, is about to hold a news conference at the United Nations Millennium Summit. Here he is going to begin. Let's listen in.

EHUD BARAK, ISRAELI PRIME MINISTER: We are here in unprecedented gathering of world leaders. And I think that first of all we have to commend the secretary- general, Kofi Annan, for his vision and determination that led to this highly important gathering.

We in Israel see this gathering as an opportunity to expand and deepen our relationship with world leaders and with different countries all around the globe. We do feel a major turn around in the situation of Israel. In this kind of international forum, like the UN, where we are now in a -- much better deployed to share our views, to share ideas about how to approach the Middle East conflict, and to expand our bilateral relationship with different countries in the world.

We have made this opportunity -- intended to explain to leaders all around the world both the opportunity that is there to push forward with the peace process in the Middle East, the risks that might be derived from a deadlock if we reach one, and the time limit that we have of basically a few weeks within which either we have a breakthrough or we might face the reality of a deadlock.

We emphasized our commitment to leave no stone unturned on the way to try and to make peace in the Middle East, if it is possible, and our readiness to take calculated risks in order to achieve it without violating the core of our national interests.

We hope to find a partner. Until now, we didn't find a responsive partner on the other side. But the door is open, and we hope that we'll find it in the very near future.

I should admit that leaders all around the world are accepting our position in a very open way. Some may say we feel that there is a fair attitude and approach on behalf of most of the leaders of the world with regard to peace process in the Middle East.

I strongly believe that peace in the Middle East between Israel and its immediate wing of neighbors can serve the wider interests of the free world. It can enable a deployment of moderate regimes vis-a- vis the rogue states in the Middle East. It will help to stabilize these moderate regimes, and it will even help to provide a continual flow of oil from the Middle East to the economies of Europe and Japan, which is an essential need of these economies in order to keep the sustainable growth of their economies.

That concludes my opening remarks, and I'm ready to answer questions if you have.

(CROSSTALK)

QUESTION: ... Israel looking for from the Palestinians in order for the process to move forward?

BARAK: During Camp David and even afterwards, President Clinton raised several far-reaching ideas in order to solve core issues in regard to the peace process, from Jerusalem through the refugee program and down to the border or settlement issues.

I have told President Clinton that some of the ideas that he had raised are beyond what we believe we can accept, but that if Chairman Arafat is ready to take his -- Clinton's -- ideas as the basis for the negotiation, we will be ready to contemplate it and to enter into such a negotiation.

Until now, we have not seen Arafat ready to take Clinton's ideas as a basis for negotiation. This I interpret as lack of flexibility.

QUESTION: Mr. President, as a follow-up to that question, do you believe that the main reason why Mr. Arafat may not be conducive to those ideas -- some have described the relationship of...

STAFF: Could someone ask the speaker to turn on the mike, please?

QUESTION: ... that support is sort of overbearing or inordinate. Do you have any comments on that, regarding that aspect? Do you think that they see the requirements that Clinton has put forth as too top heavy to reach a balance...

BARAK: I don't think that this is the kind of thing that -- President Clinton proved all along his presidency a kind of evenhandedness, and he enjoyed the trust of the Arab world as a whole and of Chairman Arafat in a way that is unprecedented in the history of this conflict. He is also a good friend of Israel. But I never observed him swaying from this line of being a kind of honest broker of ideas and solutions.

BLITZER: Israeli Prime Minister Ehud Barak promising to do what he can over the next several weeks to try to revive the Israeli- Palestinian peace process, but insisting Yasser Arafat, the Palestinian Authority president, must make some major decisions.

Earlier today, President Clinton said he was confident that there would be a serious effort to work through these things over the next few weeks.

CNN's Jerusalem bureau chief, Mike Hanna, is at the United Nations in New York, standing by with some analysis -- Mike.

Unfortunately Mike Hanna is not ready, but we will be covering this story, obviously, throughout the next several days. The Palestinian leader threatening to establish, or at least call for an independent Palestinian state originally by September 13th, although that deadline might slip somewhat.

Yesterday Mr. Arafat met with President Clinton for about an hour and a half. President Clinton met separately with Mr. Barak for about an hour. Today Mr. Barak saying the Israelis are ready to move forward, but the Palestinians must demonstrate some flexibility as well, especially when it comes to the core issue involving the future of Jerusalem.

(COMMERCIAL BREAK)

COSSACK: We are back, and we were just beginning to discuss the issue of a mother in Massachusetts, who apparently has been put into a -- some kind of home custody because she refuses to receive prenatal care for her unborn child.

Yes, in the past she has had another child who has died, and there is certainly some consideration, and well-founded consideration, by the state, that this child may also die.

And, I have asked our medical ethicist: Doctor -- doctor, you were beginning to answer when should a doctor be brought in? and when should a doctor provide care when the patient doesn't want care?

KRAWIECKI: I don't think in our culture that we can really force patients to be treated. I think if the child has a known genetic or metabolic condition, where treatment is going to make a difference in the outcome, we can certainly try to convince the mother that treatment is best for the unborn child, but a lot of mothers don't follow medical advice and do drink and smoke and do drugs during pregnancy. And, we have very little effect on making them not do what we think is harmful to the fetus.

COSSACK: Doctor, let me make this picture a little starker. What if we could show that but for the addition of medical treatment, this child would die, either at birth or shortly thereafter? Then should a doctor follow what a court would order to come in and give medical attention?

KRAWIECKI: Well, if a court -- I think you've answered that question. I mean, if a physician is ordered by the court to provide treatment, I don't think that physician has much choice.

COSSACK: Well, the physician always has the choice to refuse.

KRAWIECKI: And the consequences of that refusal would be what?

COSSACK: Well, perhaps maybe incarceration. All right. I won't ask you to get that far.

Chai Feldblum, constitutionally, can the government come in and say to this mother: You either accept medical attention by the state, which we think you should have, even though you don't think you should have, or we will put you in this -- we're going to call it a home, but it is really a jail-type setting.

CHAI FELDBLUM, LAW PROFESSOR: Well, I think that putting this woman in a jail, not to ensure that she doesn't smoke or drink for last month of her pregnancy, but to ensure when the child is born, when there's no question in anyone's mind that that child has rights, that once that child is born, that that child is given the appropriate medical care.

And, apparently, there is some concern that this particular woman will not give that care. That's why the concern that what is happening to this woman will mean that all of us who might want to get pregnant will have the government in our bedroom is just not correct.

COSSACK: You are pro-choice.

FELDBLUM: I am.

COSSACK: Pro-choice means that a woman has the decision whether or not to have an abortion and end a pregnancy.

FELDBLUM: Up to a certain month.

COSSACK: Even if we extend that, up to a certain month is really what the law says. I think that if I probably argued with you long enough you might even want to extend the months that are out there available for a woman. But, putting that aside for a moment, isn't this -- isn't this an issue of pro-choice?

FELDBLUM: No, I don't think it is. Because I think this is an issue of two rights at issue here, not just the right of autonomy, which is choice, but also the right of religion. I mean these people are saying they have a religious belief not to get medical care. But, just because you have a right, be it religion or autonomy, doesn't mean that right always prevails, as a matter of constitutional law or as a matter of common sense. And, the fact is, that there are some rights that this infant will have, and the government is just trying to do its best to balance those two rights, not run rough-shod over either.

COSSACK: But, in fact, doesn't that mean now, that the government is in the position of making a choice as to whether or not they like this religion and its dictates, versus -- and what this woman chooses to follow -- versus the rights of this unborn child?

That seems to me that in many ways it does smack a little bit of Roe versus Wade, not of the religious part of it but of the choice part of it.

FELDBLUM: And, you know what? The government is unfortunately in that business of dealing with people's religious rights and the rights of others often. In cases of child abuse, even if there's some religious belief to smack children unconscious, the government has the right, and I think, the obligation, to step in and take care of that child. We are not talking about an unborn child here as much as talking about that infant when it draws its first breath.

COSSACK: Well, what about the argument of the mother who smokes during pregnancy our drinks a little too much or takes drugs? Does the government have the right then to come in and put that woman in jail?

FELDBLUM: Again, you've got the right of the -- autonomy right of the mother, the potential rights of the child, once its born, and there I think it leans more on the autonomy right. I'd rather that mother didn't drink and smoke but I don't think the government has the right to step in.

COSSACK: Father Drinan, a law professor, a man of the cloth, also, you now are faced with this decision in terms of religion -- this woman's religion -- versus what the government says -- how she can practice her religion. How does that -- how does that square with you?

FATHER ROBERT DRINAN, LAW PROFESSOR: I'm from Massachusetts and I have thought of this very closely. And I think, in essence, the district attorney of Bristol is probably correct. This woman probably destroyed her last child, killed him. She is a member of a cult of only nine people, a tiny little thing, and many of them now have been adjudicated to be in contempt of court because they won't talk about the grave of several of their children.

This woman now will not have custody of the child, that's been predetermined. It is not a question of abortion, because she's in the 7th or 8th month, she couldn't get an abortion.

So I think that in this awful case that the police are protecting the life of that unborn child. COSSACK: Father Drinan, she would look you in the eye, if she were here, and she would say: Father Drinan, this is how I believe God's will should be interpreted, and this is what I must do to get to heaven. How would you answer that?

DRINAN: The law is very clear that no one, under any religious pretense, has the right to destroy the life of a child.

COSSACK: All right, let's take a break. When we come back, legal, moral and medical dilemmas with no easy answers. Stay with us.

(COMMERCIAL BREAK)

COSSACK: The parents of conjoined twins Jodie and Mary, not their real names, wanted the best possible medical care for their children. That's why they traveled to England to deliver the girls, who are joined at the abdomen. Doctors said they would have to kill Mary in order to save Jodie, the stronger of the two. Now, if they do nothing, both will die.

The parents say they want to leave it in God's hands, but the courts may make the ultimate life-or-death decision.

Doctor, I want to start with you. Nothing easy here. Now, you are faced with this decision. If you separate these twins, one will die. If you don't separate these twins, both will die. What is a doctor's ethical responsibility?

KRAWIECKI: I think this is a perfect example of ethical dilemma where there's conflict between different values. And one value that we tend to respect is a patient's autonomy, and in this case, patient's autonomy speaks through the parents.

On the other hand, we have to deal with the best interests of the child, and in this case, best interest of one child, and I think those decisions are best made within a discussion with the parents, making sure that they understand their decisions, and making sure that the physicians understand where the parents come from. So, as you said, I don't think it is an easy decision, and this is like most of the ethical issues we are dealing with, not an issue where there is a right or wrong, but an issue where we have to decide what is more important.

COSSACK: Doctor, let me just make this sort of the pointed question. Should a doctor ever be involved in a situation where his work will cause someone to die?

KRAWIECKI: Yes. We do that and we do that for instance when we decide to withhold, or withdraw, treatment. This is circumstances where we are placed, and we make that decision. And our decision leads to the death of a patient.

COSSACK: We just have a very short time left. Father Drinan, in this situation, you have born children, one of whom must die for the other to live, what kind of religion and legal, ethical implications are there? DRINAN: I think religiously you are not killing Mary. She is going to die anyway. You could say that she's an aggressor in a certain sense against her sister. You want one to survive rather than both die. It seems to me, the principle is rather easily solved, that you just don't allow both of them to die when extra medical witness or evidence is here.

COSSACK: Quickly, is it manslaughter to kill, or not to do either; if both die, is it manslaughter? And if you do one, do you kill the other, is that manslaughter?

FELDBLUM: Any decision is a decision. So the fact of the matter is is that maybe you have to do something so one can live.

COSSACK: Chai, this too tough a subject. I have to cut you off. I am sorry.

That's all the time we have for today. Thanks to our guests and thank you for watching.

We'll be back tomorrow with another edition of BURDEN OF PROOF.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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