Parental Autonomy over Prenatal End-of-Life Decisions

67 Pages Posted: 17 Mar 2020

See all articles by Greer Donley

Greer Donley

University of Pittsburgh - School of Law

Date Written: March 17, 2020

Abstract

When parents learn that their child has a life-limiting, often devastating, prenatal diagnosis, they are faced with the first (and perhaps, only) healthcare decisions they will make for their child. Many choose to end the pregnancy because they believe it is in the child’s best interest to avoid a short and painful life. I argue that these decisions should be protected in the same way that parental healthcare decisions are constitutionally protected after birth—including the refusal or withdrawal of life-saving treatment for an infant or child who is dying. This constitutional right, grounded in an entirely different jurisprudence than traditional abortion rights, would prohibit states from banning terminations for severe fetal anomaly at any point in the pregnancy. It would therefore mimic the health-or-life exception, which is required for abortion bans that begin after fetal viability. The Article distinguishes prenatal diagnoses that carry a significant, or certain, risk of childhood death from those that cause only disability. Only termination decisions based on the former would fall within the right, although decisions based on the latter would still be protected before viability under Planned Parenthood v. Casey.

Keywords: Reproductive Rights, Abortion, Disability Rights, Fourteenth Amendment, Parental Rights, Parental Autonomy, Constitutional Law, Substantive Due Process, End-of-Life Care, Health Law, Bioethics

JEL Classification: I10, I12, I14, K19, K32, K36

Suggested Citation

Donley, Greer, Parental Autonomy over Prenatal End-of-Life Decisions (March 17, 2020). Minnesota Law Review, Vol. 105, Forthcoming; U. of Pittsburgh Legal Studies Research Paper No. 2020-11. Available at SSRN: https://ssrn.com/abstract=3555943

Greer Donley (Contact Author)

University of Pittsburgh - School of Law ( email )

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Pittsburgh, PA 15260
United States
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412.648.2649 (Fax)

HOME PAGE: http://www.law.pitt.edu/people/greer-donley

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