Hastings Constitutional Law Quarterly


In this Essay, Professor Fitzgerald observes that the law and practice governing medical treatment decisions for seriously ill and disabled newborn children requires physicians and parents to compare such children with an unstated norm. She discerhs that our jurisprudence informs that unstated norm with an exclusive model of legal personhood, that of the autonomous individual, an independent and self-sufficient adult. Parents and physicians may conclude, then, that a seriously ill or disabled newborn child who cannot eventually become an autonomous adult should not receive life-saving or life-prolonging treatment. Professor Fitzgerald suggests that this treatment paradigm parallels a cultural resurgence of genetic determinism, influencing parents and physicians to attempt medically to "engineer" children to meet that norm of eventual autonomous adulthood.

Professor Fitzgerald then discusses the experience of children who do not meet the norm, including conjoined twins. These cases demonstrate, she argues, that children who confound the norm, whose lives are defined instead by interdependence, represent different and valuable aspects of being human. She observes, moreover, that interdependence is the hallmark of childhood itself, whether particular children survive to autonomous adulthood or not. Professor Fitzgerald concludes, therefore, that casting human interdependence as a curable defect also casts the childhood of all children as only a surmountable defect standing between them and adult autonomy and results in the legal and cultural devaluing of all children.