¹ Note, The Right to Family Integrity: A Substantive Due Process Approach to State Removal and Termination Proceedings, 68 Geo. L.J. 213, 214 (1979)Google Scholar; Annot., 53 A.l.r.3d 605 (1973); 59 Am. jur. 2d Parent & Child § 40 (1971).

² Custody of a Minor, 375 Mass. 733, 379 N.E.2d 1053 (1978); Note, Of Love and Laetrile: Medical Decision Making in a Child’s Best Interests, 5 Am. J.L. & Med. 271-94 (1979)Google Scholar. See infra notes 62-68 and accompanying

³ Prince v. Massachusetts, 321 U.S. 158 (1944). See infra notes 37-40 and accompanying text.

⁴ Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson, 42 N.J. 421, 201 A.2d 537, cert, denied, 377 U.S. 985 (1964). See infra notes 42-48 and accompanying text.

⁵ 247 Ga. 86, 274 S.E.2d 457 (1981).

⁶ Berg, Georgia Supreme Court Orders Ceasarian—Mother Nature Reverses on Appeal, 70 J. Med. A. Ga. 451-53 (1981).Google Scholar

⁷ “[An] incision through the abdominal wall and the uterus. . . for the extraction of the fetus.” Stedman’s Medical Dictionary 1267 (4th ed. 1976). See generally Scialli, Cesarean Section, 9 Law. Med. J. 111-137 (2d ed. 1980).Google Scholar

⁸ 247 Ga. 86, 274 S.E.2d 457 (1981).

⁹ Placenta previa is the condition in which the placenta is implanted in the lower segment of the uterus, extending to the margin of the internal os of the cervix or partially or completely obstructing the os. Stedman’s Medical Dictionary 1093 (4th ed. 1976).

¹⁰ 247 Ga. at 86, 274 S.E.2d at 457.

¹¹ Id.

¹² Mrs. Jefferson’s husband was the minister of the Shiloh Sanctified Holiness Bapist Church in rural Georgia. Atlanta Journal/Constitution, Jan. 26, 1981 at 1-A, col. 2.

¹³ Jefferson, 247 Ga. at 87, 274 S.E.2d at 458, citing Ga. code ann. §§ 26-1201, 26-1202 (1973).

¹⁴ 247 Ga. at 87, 274 S.E.2d at 459.

¹⁵ Id. at 87, 274 S.E.2d at 459 (presumably because of jurisdiction problems). See infra notes 82-86 and accompanying text.

¹⁶ Ga. Code Ann. § 24A-401(h)(1) (1973).

¹⁷ Jefferson, 247 Ga. at 88, 274 S.E.2d at 459.

¹⁸ Id.

¹⁹ 247 Ga. at 89, 274 S.E.2d at 460.

²⁰ But cf. Taft v. Taft, 388 Mass. 331, 446 N.E.2d 395 (1983) (state interest insufficient to override pregnant woman’s religious objection to surgery).

²¹ Freedoms “found to be implicit in the concept of ordered liberty" are protected against state intrusion by the fourteenth amendment. Palko v. Connecticut, 302 U.S. 319, 325 (1937). These freedoms include marriage, procreation, contraception, family relationships, child rearing and abortion. Roe v. Wade, 410 U.S. 133, 153-54 (1973).

²² 247 Ga. at 90, 274 S.E.2d at 460 (Hill, J., concurring).

²³ 410 U.S. 113 (1973).

²⁴ 247 Ga. at 90, 274 S.E.2d at 460.

²⁵ 247 Ga. at 91, 274 S.E.2d at 461 (Smith, J., concurring); see infra notes 37-41 and accompanying text.

²⁶ 410 U.S. 113 (1973).

¹²⁷ Jefferson, 247 Ga. at 89, 274 S.E.2d at 460.

²⁸ Viability is the point at which the fetus is capable of meaningful life outside of the mother’s womb, and is the point at which the state may legitimately intervene. 410 U.S. 113 (1973).

²⁹ Roe v. Wade, 410 U.S at 163. The Supreme Court was ambiguous as to exactly how many weeks of gestation would place the fetus in the third trimester: "Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Id.

³⁰ Jefferson, 247 Ga. at 89, 274 S.E.2d at 458, citing Ga. code ann. §§ 26-1201, 26-1202 (1973).

³¹ 247 Ga. at 87, 274 S.E.2d at 458.

³² Id.

³³ “The Court finds that the intrusion . . . into the life of Jessie Mae Jefferson ... is outweighed by the duty of the State to protect a living, unborn human being . . . .” 247 Ga. at 89, 274 S.E.2d at 460.

³⁴ 247 Ga. at 90, 274 S.E.2d at 460 (Hill, J., concurring) (emphasis added).

³⁵ Jefferson also raises the possibility of intrusive state restrictions on the mother’s conduct, such as prohibiting smoking or drinking, without proof of detriment to the unborn child.

³⁶ 410 U.S. at 162. See generally Doudera, FetalRights? It Depends, 18 Trial 38 (April 1982).

³⁷ “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” U.S. Const, amend. I. This guarantee applies equally to state governments. Cantwell v. Connecticut, 310 U.S. 296 (1940).

³⁸ Jefferson, 247 Ga. at 91, 274 S.E.2d at 461 (Smith, J., concurring) (citing Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940)). See also Reynolds v. United States, 98 U.S. 145 (1879).

³⁹ Prince v. Massachusetts, 321 U.S. 158(1944) (interest of state in protecting child welfare justifies intrusion on freedom of religious practice).

⁴⁰ Kramer v. Union Free School Dist., 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 638 (1969); Sherbert v. Verner, 374 U.S. 398, 406 (1963).

⁴¹ Jefferson, 247 Ga. at 88, 274 S.E.2d at 460.

⁴² 42 N.J. 421, 201 A.2d 537, cert, denied, 377 U.S. 985 (1964).

⁴³ 42 N.J. at 423, 201 A.2d at 538.

⁴⁴ It has been noted that the Anderson doctrine could be cited for the proposition that a pregnant woman may be required to adhere to a special low-phenylalanine diet in order to protect the fetus from brain damage. Shaw & Damme, Legal Status of the Fetus in Genetics and the law 3 (1976).

⁴⁵ Cesarian sections have been noted to be major abdominal surgery and more highly intrusive than blood transfusions. Annas, Forced Cesarians, the Most Unkindest Cut of All, 12 Hastings center rep. 17 (1982).

⁴⁶ 42 N.J. at 423, 201 A.2d at 538.

⁴⁷ 247 Ga. at 89, 274 S.E.2d at 459-60.

⁴⁸ Holmes v. Silver Cross Hosp., 340 F. Supp. 125 (D. 111. 1972); In re Osborne, 294 A.2d 372 (D.C. App. 1972); Satz v. Perlmutter, 379 So. 2d 359, (Fla. 1980); In re Brookes Estate, 32 111. 2d 361, 205 N.E.2d 435 (1965); Matter of Spring, 380 Mass. 629, 405 N.E.2d 115 (1980); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); Lane v. Candura, 6 Mass. App. Ct. 377, 376 N.E.2d 1232 (1978); In re Quackenbush, 156 N.J. Super. 282 (1978), 383 A.2d 785; In re Storar, 52 N.Y.2d 636, 420 N.E.2d 64, 438 N.Y.S. 2d 266 (1981); In re Melideo, 88 Misc. 2d 974, 390 N.E.2d 523 (N.Y. Sup. Ct. 1976); Erikson v. Dilgard, 44 Misc. 2d 27, 252 N.Y.S. 705 (N.Y. Sup. Ct. 1962); In re Yetter, 62 Pa. D. & C.2d 619 (1973).

⁴⁹ Winters v. Miller, 446 F.2d 65 (2d Cir. 1971)(first amendment); Satz v. Perlmutter, 379 So. 2d 359 (Fla. 1980); In re Spring, 380 Mass. 629, 405 N.E.2d 115 (1980)(constitutional right of privacy); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977) (unwritten constitutional right of privacy found in penumbra of specific guarantees); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976) (unwritten constitutional right of privacy). See Holmes v. Silver Cross Hosp., 340 F. Supp. 125 (1972)(unauthorized transfusions violate 42 U.S.C. § 1983).

⁵⁰ Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914). See In re Storar, 52 N.Y.2d 363, 380, 420 N.E.2d 64, 71, 438 N.Y.S.2d 266, 274; Clarke, The

Choice to Refuse or Withhold Medical Treatment: The Emerging Technology and Medical-Ethical Consensus, 13 Creighton L. Rev. 795 (1980).

⁵¹Jacobson v. Massachusetts, 197 U.S. 11 (1904).

⁵² Saikewicz, 373 Mass. at 741-3, 370 N.E.2d at 425-26.

⁵³ In re President and Directors of Georgetown College, 331 F.2d 1000, 1009 (D.C. Cir. 1964); see Powell v. Columbian Presbyterian Medical Center, 49 Misc. 2d 215, 267 N.Y.S.2d 450 (N.Y. Sup. Ct. 1965). However, one court refused to order treatment on a showing that the children would be provided for after the death of the parent. In re Osborne, 294 A.2d 372 (D.C.App. 1972).

⁵⁴ Anderson, 42 N.J. 421, 201 A.2d 537, cert, denied, 377 U.S. 985 (1964).

⁵⁵ Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969).

⁵⁶ Id. at 145-46.

⁵⁷ See Hart v. Brown, 29 Conn. Supp. 368, 370, 289 A.2d 386, 387 (1972); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 752-53, 370 N.E.2d 417, 431 (1977). Substituted judgment demands that “the decision . . . should be that which would be made by the incompetent person, if that person were competent, but taking into account the pres ent and future incompetency of the individual as one of the factors which would necessarily enter into the decision-making process of the competent person.” Saikewicz, 373 Mass. at 752-53, 370 N.E.2d at 431.

⁵⁸ 445 S.W.2d at 146.

⁵⁹ 445 S.W.2d 145, 147 (Ky. 1969). The substituted judgment analysis of Strunk is inappli cable to the Jefferson case. In Jefferson, there is no question of whether treatment should be performed on an incompetent. Furthermore, even if the Georgia court analogized the unborn child to the incompetent who cannot comprehend the situation or express his wishes, the issue is not whether the treatment should be administered to the “incompetent,” but whether the treatment should be imposed on the mother.

⁶⁰ Bonner v. Moran, 126 F.2d 121 (D.C. Cir. 1941); Hart v. Brown, 29 Conn. Supp. 368, 189 A.2d 386 (1972).

⁶¹ Closely analogous to the rule that one has no duty to submit to unwanted medical treatment is the older and broader common law rule that there is no obligation to come to the aid of another, even though the result is loss of the life of the victim. Prosser, law of torts 340 (4th ed. 1971) . Exceptions to this rule rest upon some special relationship which may exist between the parties. Id. at 341-43. The Jefferson court has seemingly classified the relationship between a pregnant woman and her unborn fetus as such a special relationship and has thereby imposed a duty.

⁶² Santosky v. Kramer, 50 U.S.L.W. 4333,4335 (U.S. March 23, 1982); Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972)(education of children according to religious beliefs); Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925)(children’s attendance at religious school); Meyer v. Nebraska, 262 U.S. 390, 399 (1923)(parent’s interest in education of children).

⁶³ Jehovah’s Witnesses v. King County Hosp., 278 F.Supp. 488, 504-05 (W.Wash. 1967); People ex rel Wallace v. Labrenz, 411 111. 618, 624-25, 104 N.E.2d 769, 773-74 (1952); Custody of a Minor, 375 Mass. 733, 747-49, 379 N.E.2d 1053, 1062-64 (1978); In re Storar, 52 N.Y.2d 363, 380, 420 N.E.2d 64, 73, 438 N.Y.S.2d 266, 275 (1981); In the Matter of Sampson, 65 Misc.2d 658, 667, 317 N.Y.S.2d 641, 651 (N.Y. Fam. Ct. 1970), affd, 37 A.D.2d 668 (1971), aff'd, 29 N.Y.2d 900,278 N.E.2d 918, 728 N.Y.S.2d 686 (1972); In re Vasko, 238 A.D. 128, 263 N.Y.S. 552 (1933).

⁶⁴ See, e.g., Custody of a Minor, 375 Mass. 733, 379 N.E.2d 1053 (1978); In re Hudson, 13 Wash. 2d 673, 126 P.2d 765 (1942); J. Goldstein, A. Freud & A. Solnit, beyond the best interest of the child (1973); Ga. code ann. §§ 24A-302, 24A-401 (1981). Section 401(h) defines a “deprived child" as one “without proper parental care or control, subsistence. . . or other care or control necessary for his physical, mental or emotional health. . . .” Section 401(h)(5) exempts from this definition any child who is in good faith being treated solely by spiritual means through prayer. The Jefferson court found the exemption not to apply, because the child’s life was at risk. 247 Ga. at 90, 274 S.E.2d at 461.

⁶⁵ See Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, (1925); Meyer v. Nebraska, 262 U.S. 390, 390 (1923); Note, The Right to'Family Integrity, A Substantive Due Process Approach to State Removal and Termination Proceedings, 68 Geo. L.J. 213 (1979).

⁶⁶ Kramer v. Union Free School Dist., 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 638 (1969); Sherbert v. Verner, 374 U.S. 398, 406 (1963).

⁶⁷ In re Edward C, 126 Cal. App. 3d 193, 202, 178 Cal Rptr. 694, 699 (1981). ⁶⁸See, e.g., Custody of a Minor, 375 Mass. at 754-56, 379 N.E.2d at 1066-67.

⁶⁹ See id. at 752-54,379 N.E.2d at 1065-66;/n re Michael S., 127 Cal. App. 3d 348, 179 Cal. Rptr. 546 (1981).

⁷⁰ In re Hofbauer, 47 N.Y.2d 648, 656, 419 N.Y.S.2d 936, 941, 393 N.E.2d 1009, 1014, (1979); In re Hudson, 13 Wash. 2d 673, 126 P.2d 765 (1942).

⁷¹ In re Green, 448 Pa. 338, 292 A.2d 387 (1973). Cf. In the Matter of Sampson, 65 Misc. 2d 658, 317 N.Y.S.2d 641(N.Y. Fam. Ct. 1910), off d, 37 A.D.2d 668 (1971), af/W, 29 N.Y.2d 900 (1972) (treatment ordered where it would prevent further disfiguration of the child’s face, notwithstanding that it was “risky" surgery).

⁷² Goldstein, Medical Care for the Child at Risk: State Supervention of Parental Autonomy, 86 Yale L.J. 645 (1977).

⁷³ Justice Smith noted in concurrence that he doubted whether the legislature had intended the juvenile statutes to apply to a person who had not “seen the light of day."

Jefferson, 247 Ga. at 92, 274 S.E.2d at 461-62. Cf. In re Dittrick Infant, 80 Mich. App. 219, 263 N.W.2d 37 (1977) (finding no jurisdiction over a fetus).

⁷⁴ 410 U.S. at 163. See supra note 29 and accompanying text.

⁷⁵ Colautti v. Franklin, 439 U.S. 379 (1979).

⁷⁶ Sinclair, Torrance, & Boyle, Evaluation of Neonatal-Intensive-Care Programs, 305 New eng. J. Med. 482 (1981). Fetuses as small as 650 grams (1.43 lbs.) may be considered viable. Hodgman, Withholding Treatment from Seriously III Newborns: A Neonatologist’s View, in Legal and ethical aspects of treating critically iii patients 242 (1982).

⁷⁷ Some have suggested that the availability of in utero treatment and the consideration of the fetus as the patient spell the end of the abortion right. Fletcher, The Fetus as Patient: Ethical Issues, 246 J. A.M.A. 772 (1981); Ruddick & Wilcox, Operating on the Fetus, 12 Hastings center rep. 10 (1982).

⁷⁸ Liability may also be imposed under a theory which does not depend upon viability. Courts have held tortfeasors liable for injuries inflicted upon fetuses before viability; Group Health Ass'n v. Blumenthal, Md., 453 A.2d 1198 (1983); Shirley v. Bacon, 154 Ga. App. 203, 267 S.E.2d 809 (1980); Hornbuckle v. Plantation Pipeline, 212 Ga. 504, 93 S.E.2d 727 (1956);

and even before conception, Renslow v. Mennonite Hosp., 67 111. 2d 348, 367 N.E.2d 1250 (1977); see generally Doudera, Fetal Rights? It Depends, 18 Trial 38 (April 1982). A mother may be liable to a fetus for failing to take reasonable precautions to protect its health, Grodin v. Grodin, 102 Mich. App. 396, 398, 301 N.W.2d 869, 870 (1981). Thus, under this analysis a duty may be imposed on the mother before viability. However, this duty would violate the rights of the pregnant woman guaranteed by Roe v. Wade, 410 U.S. 113 (1973).

⁷⁹ Harrison, Golbus & Filly, Fetal Surgery for Congenital Hydronephrosis, 306 New eng. J. Med. 591 (1982); Harrison, Golbus & Filly, Management of the Fetus with a Correctible Congenital Defect, 246 J. A.M.A. 774 (1981); Clewell, Johnson & Meier.A Surgical Approach to theTreatment of Fetal Hydrocephalus, 306 New eng. J. Med. 1320 (1982); Henig, Saving Babies Before Birth, N.Y. Times Magazine, Feb. 28, 1982, at 18.

⁸⁰ Harrison, Golbus & Filly, Fetal Surgery for Congenital Hydronephrosis, 306 New eng. J. Med. 591 (1982).

⁸¹ The issues of potential liability surrounding fetal surgery have been amply discussed. Robertson, The Right to Procreate and In Utero Fetal Therapy, 3 J. Legal med. 333 (1982); Ruddick & Wilcox, Operating on the Fetus, 12 Hastings center rep. 10 (1982). Fetal surgery raises the possibility that physicians will be caught between conflicting duties to refrain from imposing unwanted treatment on the mother and to render care to the fetus in accordance with the professional standard.

⁸² 247 Ga. at 88, 274 S.E.2d at 459.

⁸³ See Matter of Steven S., 126 Cal. App. 3d 23, 178 Cal. Rptr. 525 (1981) (fetus not a person within the meaning of the Welfare and Institutions Code § 300). Cf. Hagerstown Reproductive Servs. v. Fritz, 293 Md. 664, 450 A.2d 906 (1982). Courts have exercised jurisdiction over unborn children and awarded custody to one of the parents before birth. See Baker v. Smiley, 231 Ga. 375, 202 S.E.2d 39 (1973). However, fefferson is novel in that the court exercised jurisdiction over, and transferred custody of, an unborn baby to the state. For example, the Michigan Court of Appeals invalidated a trial court order which granted custody of a fetus to the county on a showing that the child was in danger of abuse and neglect. Matter of Dittrick Infant, 80 Mich. App. 220, 222, 263 N.W.2d 37, 38 (1977). The court held that

jurisdiction over the unborn was contrary to the legislative intent to protect only living children through the state child custody statute. Id. at 223, 263 N.W.2d at 40. Another opinion by the same court held that behavior by the mother during the prenatal period was sufficient to constitute abuse and neglect for the purpose of the child protection statute; however, custody was removed only at birth. Matter of Baby X, 97 Mich. App. 219, 263 N.W.2d 37 (1977).

⁸⁴See, e.g., Ga. code ann. §§ 24A-301, 24A-401 (1973); Cal. civ. code, § 5152 (West 1970).

⁸⁵ Justice Smith was not aware of any intent to include unborn children within the scope of the Georgia statute. 247 Ga. at 92, 274 S.E.2d at 461-62.

⁸⁶ See Keeler v. Superior Court of Amador County, 2 Cal. 3d 619, 470 P.2d 617, 87 Cal. Rptr. 481 (1970) (viable fetus not a human being within meaning of homicide statute.) After the Keeler case, the California legislature amended the murder statute to include fetuses. See Cal. penal code § 187 (West 1970).

⁸⁷ Roe v. Wade, 410 U.S. 113, 163 (1973).

⁸⁸ Even where the state may prohibit abortion, it may not do so at the expense of the mother’s health. Roe v. Wade, 410 U.S. at 165.

“Griswold v. Connecticut, 381 U.S. 479, 485; Cantwell v. Connecticut, 310 U.S. 296, 307-08 (1940); see supra note 66 and accompanying text.

⁹⁰ See generally, J. Goldstein, A. Freud & A. Solnit, beyond the best interests of the child (1973).

⁹¹ See e.g., In re Davis, 288 Pa. Super. 453, 432 A.2d 600, 605 (1981).

⁹² It has also been suggested that the state should show restraint in overriding parental refusals to provide medical treatment to children. “As parens patriae the state is too crude an instrument to become an adequate substitute for parents. . . . State statutes . . . must be revised to hold in check, not release, the reserve fantasies of those it empowers to intrude, and thus to safeguard families from state-sponsored interruptions of ongoing family relationships by well-intentioned people who ‘know’ what is ‘best’ and who wish to impose their personal health-care preferences on others.” Goldstein, Medical Care for the Child at Risk: On State Supervention of Parental Autonomy, 86 Yale L.J. 645, 650-51 (1977).

⁹³ The Georgia Supreme Court, granting custody of the fetus to the state Department of Family and Children Resources, stated: "The Department shall have full authority to make all decisions, including giving consent to the surgical delivery appertaining to the birth of this child.” 247 Ga. at 88, 274 S.E.2d at 459. It is assumed for this discussion that the position of the department represents the desires of the attending physician, that it urges a course of action considered by the physicians to be medically desirable, and that there is no conflict between the physicians and other members of the department as to the desired course of action.

⁹⁴ In re Quinlan, 70 N.J. at 50, 355 A.2d at 669. See also Matter of Dinnerstein, 6 Mass. App. Ct. 466, 471, 380 N.E.2d 134, 137 (1978) (validity of physician’s orders do not depend upon prior judicial approval); In re Storar, 52 N.Y.2d 353, 363, 420 N.E.2d 64, 74, 438 N.Y.S. 2d 266, 276 (1981) (resort to courts called “optional”).

⁹⁵ See In re Quinlan, 70 N.J. at 45,355 A.2d at 669 (recommends the use of “hospital ethics committees" to retain matters of such judgment in the hands of the medical profession). See also Teel, The Physician’s Dilemma: A Doctor’s View: What the Law Should Be, 27 Baylor L. Rev. 6 (1975).

⁹⁶ Baron, Assuring “Detached But Passionate Investigation and Decision:" The Role of Guardians Ad Litem in Saikewicz-Type Cases, 4 Am. J. L. & Med. Ill (1978). This approach was advocated by the Massachusetts Supreme Judicial Court in Saikewicz: "We take a dim view of any attempt to shift the ultimate decision-making responsibility away from the duly established courts of proper jurisdiction to any committee, panel or group, ad hoc or permanent.” Saikewicz, 373 Mass. at 758, 370 N.E.2d at 434. Professor Baron’s analysis supports the basic premise of Saikewicz, but points out procedural insufficiencies and proposes guidelines for reform.

⁹⁷ Saikewicz, 373 Mass. at 759, 370 N.E.2d at 435.

⁹⁸ See Baron, supra note 96, at 126-30.

⁹⁹ Health Law: Preservation of Life—A Right to be Born, 5 Am. J. Trial advoc. 383, 386 (1981).

¹⁰⁰ 247 Ga. at 89, 274 S.E.2d at 460.

¹⁰¹ Responsibility for such decisions belongs to the courts “and is not to be entrusted to any other group purporting to represent the ‘morality and conscience of our society’, no matter how highly motivated or impressively constituted.” Saikewicz, 373 Mass. at 759, 370 N.E.2d at 435.

¹⁰² Guillemin, Babies by Cesarian: Who Chooses, Who Controls?, 11 Hastings center rep. 15 -(1981).

¹⁰³ NIH Consensus Development Statement on Cesarean Childbirth, reprinted in 31 Maryland state med. J. 46 (1982).

¹⁰⁴ Nolan-Haley, Amniocentesis and the Apotheosis of Human Quality Control, 2 J. Legal med. 347 (1981); Henig, supra note 79, at 18.

¹⁰⁵ See, e.g., In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981); In the Matter of Sampson, 65 Misc. 2d 658, 317 N.Y.S.2d 641 (N.Y. Fam. Ct. 1970).

¹⁰⁶ See In re Quinlan, 70 N.J. at 10, 355 A.2d at 647 (determining whether life support is ordinary or extraordinary depends upon the particular circumstances).

¹⁰⁷ Jehovah’s Witnesses consider blood transfusion an unnatural act. See In the Matter of Sampson, 65 Misc. 2d at 658-61,317 N.Y.S.2d 641 at 646. Strunk involved removal of a healthy kidney, a highly intrusive procedure which is not considered to be medical treatment because of the lack of therapeutic value to the donor, Little v. Little, 576 S.W.2d 493, 495 (Tex. Civ. App. 1979); In Lane v. Candura, physicians attempted amputation of the patient’s leg against her will. 6 Mass. App. Ct. 377, 376 N.E.2d 1232 (1978). A defibrillator, used to resuscitate a patient in cardiac arrest, “appl[ies] electric shock to the heart to produce contractions. . . . The defibrillator . . . causes violent (and painful) muscle contractions which . . . may cause fracture of vertebrae or other bones.” Matter of Dinnerstein, 6 Mass. App. Ct. at 468-69,380 N.E.2d at 135-36.

¹⁰⁸ See, e.g., Fletcher, Ethics and Amniocentesis for Fetal Sex Identification, 301 New eng. J. Med. 550 (1981); Nolan-Haley, supra note 104. Office of Technological Assessment, Electronic Fetal Monitoring, (OTA, U.S. Congress)(Sept. 1978) reprinted in 4 Health law project library bull. 312 (1979).

¹⁰⁹ See In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981) (arguably, neither the quality nor the length of the patient’s life were increased).

¹¹⁰ See generally G. Annas, the rights of hospital patients (1975).

¹¹¹ See N. Cousins, anatomy of an illness 37 (1979).

¹¹² See generally D. Shutts, lobotomy: resort to the knife (1982).

¹¹³ Although the standard for malpractice liability is the duty to use care and skill of the average practitioner, courts will hold that standard of care insufficient where it does not serve the needs of the public. Helling v. Carey, 83 Wash. 2d 514, 519 P.2d 981 (1974).

¹¹⁴ Guillemin, supra note 102, at 15.

¹¹⁵ Bottoms, Rosen & Sokol, The Increase in,the Cesarean Birth Rate, 302 New eng. J. Med. 559 (1980); Corea, The Caesarean Epidemic, 5 Mother jones 28 (1980).

¹¹⁶ Jefferson, 247 Ga. at 86, 274 S.E.2d at 458.