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Friday, January 12, 2007

Blood Transfusions and the Law -- Times Six

From the Globe and Mail comes this interesting story highlighting a standard law and religion issue: the conflict between the law's protection of the best interests of the child and the spiritual interests of some religionists -- in this case, and most commonly, Jehovah's Witnesses -- for whom blood transfusions are unacceptable for religious reasons.  In this case, the conflict is made more palpable, and poignant, by the circumstances: the story involves sextuplets, born prematurely at low birth weights.  From the story:

VANCOUVER -- While the parents of sextuplets born this week in B.C. Children's Hospital are striving to keep a low profile, the health of their babies could propel them into a courtroom and a very public clash over medical responsibilities and religious rights.

The British Columbia ministry responsible for the welfare of children confirmed yesterday that it is prepared to make the babies wards of the state, if necessary, to ensure their safety.

The parents, who have remained anonymous despite massive media attention, are Jehovah's Witnesses, members of a faith that forbids members to accept blood transfusions....

An official with the B.C. Ministry of Children and Family Development, speaking on a background basis, said the government is very much aware of the situation and is prepared to act, if necessary....

"If a health practitioner is aware of a case where a child, including a newborn, may be at risk as a result of a parent refusing to consent with a recommended treatment, the health practitioner has a legal duty to report that matter to a child-protection worker. And we would then assess and take appropriate steps to ensure the child's safety," the official said.

"In cases where treatment is deemed to be necessary to preserve a child's life, or prevent serious or permanent impairment to a child's health, it may be necessary to seek a court order - and that's what we would do."

Speaking from personal experience, I can certainly attest that transfusions are common in the treatment of premature children.  A representative for the Jehovah's Witnesses quoted in the story suggests that there are potential alternatives to blood transfusions.  I can't speak to the efficacy of those treatments.

The courts generally treat these cases as easy cases, and no doubt so would most folks.  No doubt there is about as significant a compelling government interest here as you could ask for.  My own view, nonetheless, is that courts should, to some degree and in some sense, treat cases like this as among the hardest.  Just as the government's interest is at its highest level, so the stakes are especially high for the religionists involved in the case.  As Kent Greenawalt notes in volume 1 of his recently published treatise, the religionists may "believe that their souls and the souls of their children will be jeopardized if the children receive a transfusion.  Someone might argue that the state should defer to the parents . . . . Certainly it is better to lose one's life on this earth than to suffer eternal damnation, if that is the choice."  (emphasis in original)

Should the heavy weight of the prospect of damnation shift the balance dramatically enough to change the outcome?  Ultimately, no, at least in cases involving infant children.  In such circumstances, as Greenawalt writes, it should still be the case that the courts "properly require[ ] medical treatment that is essential for life, even against a parental claim that the treatment is harmful religiously."  But courts, in their rhetoric, might at least honor the significance and poignance of such religious claims, even in cases involving children, and even if the outcome still favors the state.  Serious recognition of the weight of the religious claims involved in such cases, rather than an air of dismissiveness, might at least show respect for the religious objectors in such cases, and draw them more fully into the broader community and the legal and medical decision-making process, regardless of the outcome.  Judges certainly should give due consideration to the availability of medical alternatives in such cases, at least where they are not pressed by the genuine urgency of the situation.  And they ought to give far greater weight to such claims the more the individual involved reaches the capacity to claim the right to refuse medical treatment for him- or herself, even at a relatively young age.   In this case, as I have already suggested, given the age of the children, I certainly believe the outcome must favor the state's interest in medical treatment, even against the parents' wishes, unless genuinely credible medical alternatives exist.  But the court facing such a situation might at least treat the religious claims involved with the weight and dignity they deserve, even as it rules for the state.

I will be curious to see what my law & religion students this semester think of such a situation.  I don't doubt they'll teach me as much as I teach them.

Posted by Paul Horwitz on January 12, 2007 at 11:19 AM in Religion | Permalink

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The following website summarizes over 200 similar court cases involving Jehovah's Witness Parents who refused life-saving blood transfusions for their children:

DIVORCE, BLOOD TRANSFUSIONS, AND OTHER LEGAL ISSUES AFFECTING CHILDREN OF JEHOVAH'S WITNESSES

http://jwdivorces.bravehost.com/

Posted by: Jerry | Mar 29, 2007 12:37:09 PM

To back up my immediately preceding statement about misrepresentation:

http://ajwrb.org/whatsnew/church_state.shtml

This cutting edge legal essay critically examines one of the religion’s main publications dedicated to the blood doctrine, How Can Blood Save Your Life?. How Can Blood Save Your Life? dedicates pages to the thoughts of secular writers on the benefits of abstaining from blood. As late as December 2005, the Watchtower Society’s Kingdom Ministry recommended that its followers use How Can Blood Save Your Life to teach their children about the blood doctrine in order that their children will be able to articulate their stance in court. The essay details the misrepresentations in How Can Blood Save Your Life, by analyzing the following quotes against the original author’s (or court’s) words to determine if they are taken out of context to the point of creating a dishonest secular argument that bolsters the Watchtower Society's religious belief.

Writers:
· Joseph Priestley, The Theological and Miscellaneous Works of Joseph Priestley, vol. 2,
· Eusebius of Ceasarea, The Ecclesiastical History, Book V
· Tertullian’s The Apology of Tertullian—Chapter IX” (Merton College, Oxford for Parker & Co 1890);
· Paul J. Voogt et. al., “Perioperative Blood Transfusion and Cancer Prognosis,” Cancer
· John S. Spratt, MD, “Blood Transfusions and Surgery for Cancer,” The American Journal of Surgery
· Tarter, “Blood transfusion and infectious complication following colorectal cancer surgery,” 790
· Lawrence Altman, MD, “Lyme Disease from a Transfusion? It’s Unlikely, but Experts are Wary,” New York Times,
· Lawrence Altman, M.D., “Scientist Fear that a Paras! ite Will Spread in Transfusion” New York Times
· Lawrence Altman, MD., “Quandary for Patients: Have Surgery, or Await Test for Hepatitis C?” New York Times,
· Bruce Lambert, “4 Cases Found of Rare Strain of AIDS Virus—Standard Test Fail to Detect the HIV-2,” New York Times
· Jerry Kolins, MD and Leo J. McCarthy, MD, Contemporary Transfusion Practice (American Association of Blood Banks 1987)
· Kolins, MD and McCarthy, MD, Contemporary Transfusion Practice
· P.J. Howell and P.A. Bamber, “Severe acute anaemia in a Jehovah Witness,” Anaesthesia
· James A. Stockman III, MD., “Anemia of Prematurity Current Concepts in the Issue of When to Transfuse,” Pediatric Clinics of North America
· Dixon B. Kaufman, “A Single-Center Experience of Renal Transplantation in Thirteen Jehovah Witnesses,” Transplantation

Court Cases
· Parham v. J.R., 442 U.S. 584 (1979) (US Supreme Court).
· In re Hofbauer, 47 N.Y. 2d 648 at 655 (NY Ct. of Appeal 1979) (New York’s Highest Court)

The essay, “Jehovah’s Witnesses, Blood Transfusions, and the Tort of Misrepresentation” does not stop here, but furthers by critically analyzing the Watchtower Society’s current blood policy misrepresentations surrounding the scope of allowed blood products, including hemoglobin and Factor VIII, and autologous blood transfusions, an issue that www.ajwrb.org has repeatedly shown.

The essay’s author, Attorney Kerry Louderback-Wood, wrote this essay after the loss of her elderly mother due, in part, to the Watchtower Society’s blood doctrine. She dedicates the essay to all the children who were harmed by the Watchtower Society’s blood policy! She wrote this essay in the hopes of saving one life. Like the first tobacco cases and Catholic church sex scandal cases, Kerry Louderback-Wood does not expect the first Jehovah’s Witness blood case to easily win. But, this essay is meant to look at where the law could go, if the State were to hold the Watchtower Society’s “freedom to misquote secular material” over the very lives of its citizens.

Posted by: J Mason Emerson | Jan 19, 2007 9:36:28 AM

Going back decades now, after initially prohibiting Jehovah's Witnesses from receiving organ transplants, the Watchtower Bible and Tract Society over JWs wrote it would be okay for JWs to get such transplants, adding that otherwise the organization could become mired in costly litigation.

So Jehovah's Witnesses get organ transplants full of blood. Yet members are put under the gun or duress of shunning when they get emergency blood transfusions for themselves or the children. This is hypocrisy and the end result for too many is death.

Watchtower heads have misrepresented to members that not getting standard medical care in such situations is safer than getting such care, laying the organization open to potentially costly lawsuits. The power behind the throne for the current Watchtower Society's Governing Body is frequently said to be Theodore (Ted) Jaracz.

Jaracz and his cohorts not only err in this matter but also in their policy of continuing to insist that local JW Elders must keep sending so-called "repentant" child molesters, serials rapists and murderers etc along with other unsuspecting JWs. This is an endangerment to those other JWs, their children, the public and the children of the public at whose doors such "repentant" ones knock.

By the way, who's knocking at your own doors?

Posted by: J. Mason Emerson | Jan 19, 2007 8:30:38 AM

DEADLY DOGMA

The utter hypocrisy of the Watchtower/Jehovah's Witnesses prohibition against blood is that they can now take ALL the *parts* of blood so called 'blood fractions' the components that blood is composed of.

So what's the difference? Either blood is sacred or it isn't.How can ALL (whole blood) be sacred to God but not PARTS (fractions) of it arbitrarily set aside by Watchtower standards?

Such utter hyprocrisy!
Some dissident JW educational links:
http://www.ajwrb.org/ Jehovah's Witnesses blood policy reform site

http://www.towertotruth.net... "Will you die for a lie?"

The Jehovah's Witnesses apologist keep posting that,"it's God's command to abstain from blood"NO it is not! It is the command of your Watchtower leaders who's last utterance is that it's now okay to take all the 'parts' of blood but not whole blood.The entire doctrine is senseless and deadly

Posted by: Danny Haszard | Jan 16, 2007 4:11:21 AM

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