1 1978 Mass. Adv. Sh. 2002, 379 N.E.2d 1053 (1978), reviewed and off ‘d, 1979 Mass. Adv. Sh. 2124, 393 N.E.2d 836 (1979)Google Scholar (the well-publicized Chad Green case). Chad Green was diagnosed as suffering from acute lymphocytic leukemia in the fall of 1977, when he was one and one-half years old. He was put on a treatment regimen consisting of various drugs, which brought the disease into remission for a few months. In February, 1978, Chad became ill again, and his attending physician discovered that Chad's mother had stopped giving the child his daily medications. Because the Greens refused to consent to continuation of Chad's chemotherapy, Massachusetts General Hospital, where Chad was being treated, petitioned first (mistakenly) the probate court and then the Superior Court in and for Plymouth County for custody pursuant to Mass. Gen. Laws Ann. ch. 119, § 24 (West Supp. 1979), alleging that he was a child in need of care and protection within the meaning of the statute. At trial, the sole issue was whether or not chemotherapy should be administered. The court found that Chad was without “necessary and proper physical care” and, therefore, was in need of care and protection under the statute. Accordingly, although physical custody of Chad remained with his parents, the court committed him to the legal custody of the Massachusetts Department of Public Welfare for the limited purpose of continuing chemotherapy. On appeal, the Massachusetts Supreme Judicial Court upheld this decision and noted that the parents had presented no evidence of any alternative treatment. Custody of a Minor, 1978 Mass. Adv. Sh. 2002, 2005 n.l, 379 N.E.2d 1053, 1056 n.l (1978). The Greens then appealed to the United States District Court for the First Circuit, which declined to hear the appeal on grounds of res judicata. Green v. Truman, 459 F. Supp. 342 (D.Mass. 1978).

Pursuant to a provision of the Massachusetts care and protection statute that allows parents to appeal a finding of neglect once every six months, the Greens attempted to regain legal custody of their son in a second trial in January, 1979. In this trial, the Greens for the first time asserted their right to give Chad “metabolic therapy“—the laetrile, vitamin, and enzyme treatment they had been giving him for a number of months—in addition to, and in order to counter-balance, the court-ordered program of chemotherapy. The state presented evidence that the laetrile treatment had caused a level of cyanide in Chad's blood that could result in progressive brain damage or even death. Moreover the court-ordered resumption of chemotherapy had brought the disease back into remission so that his chances of cure, although diminished, were nearly fifty percent. The court ordered the Greens to stop administering metabolic therapy to their son and to continue chemotherapy. Superior Court in and for Plymouth County, Findings of Fact, Conclusions of Law, and Order for Judgment of April 23, 1979. Violating the trial court's order, the Greens then left the United States with Chad and went to Mexico. Subsequently, the Massachusetts Supreme Judicial Court heard the Green's .appeal and affirmed the Superior Court's decision. 1979 Mass. Adv. Sh. 2124, 393 N.E.2d 836 (1979). Chad Green died in Mexico on October 12, 1979. Boston Globe, Oct. 14, 1979, at 1, col. 5.

2 65 A.D.2d 108, 411 N.Y.S.2d 416 (App. Div. 1978), off d, 47 N.Y.2d 648, 393 N.E.2d 1009, 419 N.Y.S.2d 936 (1979). Joseph Hofbauer, at age seven, was diagnosed as a victim of Hodgkin's disease. Unlike the Greens, who took their son out of the country after a judicial determination of neglect, the Hofbauers, prior to intervention by a state agency, took their son to Jamaica for a month of metabolic therapy, which included laetrile treatment. Upon returning to New York, they were charged with neglect by the Saratoga County Commissioner of Social Services, pursuant to N.Y. Fam. Ct. Act § 1012(f)(i)(A) (McKinney 1975). The Commissioner alleged that the parents’ failure to administer chemotherapy constituted neglect. Unlike Chad Green, Joseph Hofbauer had never received chemotherapy, his condition had not deteriorated, and his parents apparently remained willing to resort to chemotherapy if and when necessary. Moreover, there was no finding in Hofbauer that the laetrile therapy had resulted in any toxicity or cyanide poisoning. The New York Court of Appeals thus refused to deem Joseph Hofbauer a neglected child or to award custody to the state for the purpose of administering chemotherapy. 65 A.D.2d 108,411 N.Y.S.2d 416 (App. Div. 1978), aff'd, 47 N.Y.2d 648, 393 N.E.2d 1009, 419 N.Y.S.2d 936 (1979).

3 Life-threatening diseases are illnesses—such as leukemia or Hodgkin's disease—that present imminent danger of death unless treated. Serious illnesses that do not present such imminent danger of death, although they may eventually result in death, are not considered to be life-threatening. See In re Phillip B., 92 Cal. App. 3d 796, 156 Cal. Rptr. 48 (1979) (Court upheld the parents’ denial of consent to cardiac surgery for their twelve-year-old child with Down's syndrome, because the court found that, even without the surgery, the child had an anticipated lifespan of another twenty years.)

4 The unorthodox treatment in Chad Green and in Hofbauer was “metabolic therapy,” which included laetrile, large doses of vitamins A and C, enzyme enemas, and folic acid.

5 Neither the Greens nor the Hofbauers raised religious objections to chemotherapy. If they had, such objections would have given rise to first amendment defenses. Courts, however, have consistently interpreted the first amendment as providing an absolute protection for “freedom of belief,” but not for “freedom of action,” Reynolds v. United States, 98 U.S. 145 (1878), especially when such action would result in grave and immediate danger to a child. See, e.g., Wallace v. Labrenz, 411 111. 618, 104 N.E.2d 769, cert, denied, 344 U.S. 824 (1952); John F. Kennedy Memorial Hosp. v. Heston, 58 NJ. 576, 279 A.2d 670 (1971).

6 In Chad Green, the Massachusetts Department of Public Welfare intervened and petitioned for custody. Custody of a Minor, 1978 Mass. Adv. Sh. 2002, 379 N.E.2d 1053 (1978), reviewed and affd, 1979 Mass. Adv. Sh. 2124, 393 N.E.2d 836 (1979). In Hofbauer, the Saratoga County Commissioner of Social Services sought custody. In re Hofbauer, 65 A.D.2d 108, 411 N.Y.S.2d 416 (App. Div. 1978), affd, 47 N.Y.2d 648, 393 N.E.2d 1009, 419 N.Y.S.2d 936 (1979).

7 See Note, State Intrusion into Family Affairs: Justifications and Limitations, 26 Stan. L. Rev. 1383 (1974)CrossRefGoogle Scholar (Note advocates a tripartite balance between parents, child, and state); see also Bennett, Allocation of Child Medical Care Decisionmaking Authority: A Suggested Interest Analysis, 62 U. Va. L. Rev. 285 (1976)Google Scholar [hereinafter cited as Bennett].

8 Assumption of legal custody by the state can entail full termination of parental custody—for example, in the case of foster children—or partial termination, with parents retaining physical custody of the child. Chad Green, for example, lived at home, and the court's awarding “legal custody” to the Massachusetts Department of Public Welfare meant that social workers and nurses had daily authority to supervise and oversee Chad's courtordered regimen. 1978 Mass. Adv. Sh. 2002, 379 N.E.2d 1053 (1978), reviewed and affd, 1979 Mass. Adv. Sh. 2124, 393 N.E.2d 836 (1979).

9 Custody of a Minor, 1979 Mass. Adv. Sh. 2124, 2143, 393 N.E.2d 836, 845 (1979).

10 Id. at 2130, 393 N.E.2d at 840. Acute lymphocytic leukemia is a progressive disease that is fatal if left untreated. Chemotherapy, the only known medically effective treatment for the disease, had a demonstrated effect on Chad Green: when chemotherapy was first administered, his leukemia was brought into remission. Although his disease returned when his parents took him off chemotherapy, the leukemia was brought back into remission subsequent to compliance with court-ordered resumption of treatment. Moreover, while Chad was under court-ordered chemotherapy, he displayed none of the side effects, such as loss of hair, nausea, or headaches, frequently associated with the treatment. 1978 Mass. Adv. Sh. 2002, 2010-11, n.2, 379 N.E.2d 1053, 1058, n.2 (1978).

11 Custody of a Minor, 1979 Mass. Adv. Sh. 2124, 393 N.E.2d 836 (1979).

12 In New York, a neglected child is “a child less than eighteen years of age whose physical … condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parents … to exercise a minimum degree of care in supplying the child with adequate … medical care … though financially able to do so.” N.Y. Fam. Ct. Act § 1012(f)(i)(A) (McKinney 1975).

13 If parental choice is sanctioned by some state-licensed physicians—as it was in Hofbauer, but not in Chad Green—that choice, albeit unorthodox, should be respected. “If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment.” In re Hofbauer, 47 N.Y.2d 648, 655, 393 N.E.2d 1009, 1014, 419 N.Y.S.2d 936, 940 (1979) (quoting Doe v. Bolton, 410 U.S. 179, 199 (1973)). If the physician's clinical judgment is not acceptable, the appropriate state authority should prosecute not the parents for their reliance on it, but the physician.

14 In re Hofbauer, 47 N.Y.2d 648, 393 N.E.2d 1009, 419 N.Y.S.2d 936 (1979).

15 A guardian ad litem is a guardian appointed by a court to represent a minor (or other legal incompetent) in any suit to which the minor is a party. Black's Law Dictionary 834 (4th rev. ed. 1968).

16 See note 7 supra.

17 See Carey v. Population Services Int'l, 431 U.S. 678 (1977); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976); In re Benjamin C, California Superior Court, Los Angeles County, No. J914419 (February 15, 1979) (unpublished opinion).

18 W. Prosser, Handbook of the Law of Torts, § 18, at 103 (4th ed. 1971).

19 Id. at 102.

20 In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert, denied, 429 U.S. 922 (1976) (Court held that a father had standing to exercise his daughter's constitutional right of privacy, since she was incompetent to do so.) But see Ruby v. Massey, 452 F. Supp. 361 (D.Conn. 1978); Custody of a Minor, 1978 Mass. Adv. Sh. 2002, 379 N.E. 2d 1053 (1978), reviewed and off'd, 1979 Mass Adv. Sh. 2124, 393 N.E.2d 836 (1979).

21 Stanley v. Illinois, 405 U.S. 645 (1972) (Court held that an unmarried parent has a right to a hearing on fitness before being deprived of the custody of his illegitimate children); Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816 (1977) (Court found that limited due process rights also extend to the privacy of foster parents); see also note 35 infra.

22 Prince v. Massachusetts, 321 U.S. 158 (1944).

23 Independent decision-making rights are those rights of bodily self-determination and choice that are exclusively the patient's. See, e.g., Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976) (Only the individual can consent to abortion; spousal consent cannot be a pre-condition); Ponter v. Ponter, 135 N.J. Super. 50, 342 A.2d 574 (1975) (Only the individual can consent to sterilization; spousal consent cannot be a pre-condition).

24 See, e.g., In re Quinlan, 70 N.J. 10, 41, 355 A.2d 647, 664, cert, denied, 429 U.S. 922 (1976) (“Karen's independent right of choice … may be asserted on her behalf by her guardian … .“). See Glantz, Annas, & Katz, Scientific Research with Children: Legal Incapacity and Proxy Consent, 11 Fam. L.Q. 253, 284 (1977)Google Scholar [hereinafter cited as Glantz, Annas & Katz]; Bennett, supra note 7 (Bennett labelled this concept “surrogate decision making.“)

25 Roe v. Wade, 410 U.S. 113 (1973) (Court found the right of privacy exists in the fourteenth amendment's concept of personal liberty); Eisenstadt v. Baird, 405 U.S. 438 (1972); Stanley v. Georgia, 394 U.S. 557 (\969). But see Griswold v. Connecticut, 381 U.S. 479 (1965) (Court held that the constitutional right of personal privacy is grounded in the first, third, fourth, fifth, ninth, and fourteenth amendments). See generally Wilkinson, & White, Constitutional Protection for Personal Lifestyles, 62 Cornell L. Rev. 563 (1977)Google Scholar; Note, On Privacy: Constitutional Protection for Personal Liberty, 48 N.Y.U.L. Rev. 670 (1973)Google Scholar; Note, Roe v. Wade and In re'Quinlan: Individual Decision and the Scope of Privacy's Constitutional Guarantee, 12 U.S.F. L. Rev. 111 (1977)Google Scholar.

26 Cobbs v. Grant, 8 Cal. 3d 229, 243, 502 P.2d 1, 10, 104 Cal. Rptr. 505, 514 (1972); Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 2474, 370 N.E.2d417, 424 (1977); Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 129, 105 N.E.2d 92, 93 (1914), overruled on other grounds in Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3, 163 N.Y.S.2d 3 (1957); Erickson v. Dilgard, 44 Misc. 2d 27, 252 N.Y.S.2d 705 (Sup. Ct. 1962).

27 An adult has the constitutional right to choose a medically sanctioned means of terminating her pregnancy. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976) (State cannot mandate that all abortions be by prostaglandin technique). This right of choice in medical treatments exists even if one of the treatments is of questionable efficacy. See United States v. Rutherford, 99 S.Ct. 2470 (1979). In Rutherford, the Supreme Court addressed only the question of the administrative construction of § 201(p)(l) of the Food, Drug and Cosmetic Act, 21 U.S.C. § 321(p)(l) (1970), concerning the “safety” and “effectiveness” standards as applied to laetrile. This was the sole issue on appeal from the district court, although that court had ruled previously that the constitutional right of privacy allows “terminally ill cancer patients who have exhausted orthodox approaches or cancer patients interested in using laetrile only in conjunction with conventional methods” to choose such therapy. United States v. Rutherford, 438 F. Supp. 1287, 1301, n.28 (W.D. Okla. 1977), rev'd and remanded on other grounds, 582 F.2d 1234 (10th Cir. 1978). See also Rizzo v. United States, 432 F. Supp. 356 (E.D.N.Y. 1977) (Court upheld the right of an adult terminal cancer patient 383 A.2d 143 (1977). But see People v. Privitera, 23 Cal. 3d 697, 591 P.2d 919, 153 Cal. Rptr. 431 (1979) (Court sustained the conviction of physicians for conspiring to sell and prescribe laetrile as a cure for cancer). See generally Comment, Picking Your Poison: The Drug Efficacy Requirement and the Right of Privacy, 25 U.C.L.A. L. Rev. 577 (1978)Google Scholar; Note, Laetrile: Statutory and Constitutional Limitations on the Regulation of Ineffective Drugs, 127 U. Pa. L. Rev. 233 (1978)CrossRefGoogle Scholar.

28 A competent adult has the right to decline treatment altogether. In re Estate of Brooks, 32 I11.2d 361, 205 N.E.2d 435 (1965); Lane v. Candura, 1978 Mass. App. Ct. Adv. Sh. 588, 376 N.E.2d 1232 (1978); Erickson v. Dilgard, 44 Misc. 2d 27, 252 N.Y.S.2d 705 (Sup. Ct. 1962). The right of bodily autonomy and self-determination, which enables a patient to reject treatment, generally is limited by the state only if the right is exercised by an individual who is a parent, or if acceptance or rejection of certain medical procedures could jeopardize the life of a child. Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson, 42 N.J. 421, 201 A.2d 537, cert, denied, 377 U.S. 985 (1964) (Court held that a woman in the eighth month of pregnancy could not refuse a blood transfusion on religious grounds when such refusal would jeopardize the life of the infant); Application of President and Directors of Georgetown College, 331 F.2d 1000 (D.C. Cir.), cert, denied, 377 U.S. 978 (1964) (The patient in extremis was the mother of minor children, and the court refused to accept the husband's religiously based refusal of consent to treatment on her behalf. The court, fearing for the future welfare or possible “abandonment” of the children, found extrinsic factors—such as the woman's having come voluntarily into the emergency ward—as indicative of her desire to undergo a blood transfusion); In re Estate of Brooks, 32 I11.2d 361, 205 N.E.2d 435 (1965) (Court sustained an adult's refusal of a blood transfusion because there were no minor children involved). Thus a court's solicitude for the mental and physical well-being of minors will overcome an adult's constitutional privacy interest in bodily self-determination.

29 Carey v. Population Services Int'l, 431 U.S. 678 (1977) (Court held that minors, regardless of maturity, have an independent right of access to non-prescription contraceptives). In many jurisdictions, this right has been expanded by legislation to allow minors of any age to give effective consent to treatment of venereal disease, of drug dependency, or of other diseases recognized by the state legislature as compelling unhindered treatment of the child. See, e.g., Ala. Code tit. 22, § 104(15) (Michie Supp. 1973); Mass. Gen. Laws Ann. ch. 112, § 12F (West Supp. 1978); Mich. Comp. Laws Ann. § 14.15(5257) (Cum. Supp. 1979).

30 A mature minor is a minor of sufficient age and mental capacity to understand, and to fully and freely consent to the ramifications of medical treatment; such consent is legally effective. W. Prosser, Handbook of the Law of Torts § 18, at 103, and n.51 (4th ed. 1971); Wadlington, Minors and Health Care: The Age of Consent, 11 Osgoode Hau. L.J. 115, 117-19 (1973)Google Scholar.

31 See, e.g., Bellotti v. Baird, 99 S.Ct. 3035, 3052 (1979) (Court held that a minor “who has been determined to be mature and fully competent to assess the implications of the choice she has made” has a constitutional right to consent to her own abortion without parental approval); In re Seiferth, 309 N.Y. 80, 127 N.E.2d 820, 148 N.Y.S.2d 80 (1955) (Court held that a 14-year-old boy should decide whether he wanted his cleft palate and harelip repaired, regardless of his father's objections to the operation); In re Green, 448 Pa. 338, 292 A.2d 387 (1972) (Court reserved the decision to ascertain the wishes of a 12 year old regarding proposed surgery for curvature of the spine that was not life-threatening).

32 See Baird v. Bellotti, 450 F. Supp. 997, 1003 (D. Mass. 1978), aff'd, 99 S.Ct. 3035 (1979) (Court noted that children must be protected from the special consequences of their minority).

33 Both the constitutional interest in bodily privacy and the tort right to give informed consent to medical procedures arise from identical concerns for human dignity and for protection of a person's freedom from non-consensual invasion of bodily integrity. Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 370 N.E.2d 417 (1977). “The recognition of [the right of choice] must extend to the case of an incompetent, as well as a competent, patient because the value of human dignity extends to both.” Id. at 2482-83, 370 N.E.2d 417, 427 (1977). See also In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert, denied, 429 U.S. 922 (1976). “Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority.” Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976). Moreover, there can be little basis for differentiating between the constitutional rights of an incompetent adult, such as Joseph Saikewicz, who had the cognitive ability of a two year old, 1977 Mass. Adv. Sh. 2461, 2463, 370 N.E.2d 417, 420 (1977), and a child, such as Chad Green, whose physique matches his or her intellectual development.

34 From the child's vantage point this constitutional protection can be construed as the expectation that parents will make decisions that are in his or her best interests. Parham v. J.L., 99 S.Ct. 2493 (1979). If the parents do not satisfy this expectation, the child has the right to expect state intervention and protection on his or her behalf. Garvey, Child, Parent, State and the Due Process Clause: An Essay on the Supreme Court's Recent Work, 51 So. Cal. L. Rev. 769, 790, 808 (1978)Google Scholar; Goldstein, Medical Care for the Child at Risk: On State Supervision of Parental Autonomy, 86 Yale L.J. 645, 647 (1977)CrossRefGoogle Scholar [hereinafter cited as Goldstein]. Therefore, although a child, in theory, may have the constitutional protection of bodily autonomy equivalent to that of an adult, in reality that right is latent until asserted on his or her behalf by a third party. Thus, although medical decision-making rights for a child conceptually may be independent, in practice they are dependent. See note 33 supra.

35 “Existence of the family is dependent upon parental rights and responsibilities to build, maintain, and guide the family morally, mentally, and physically … and [p]arents … have a right of privacy in the care and control of their minor children … .” Doe v. Irwin, 428 F. Supp. 1198, 1206 (W.D. Mich. 1977), vacated and remanded, 559 F.2d 1219(6thCir. 1977),affd on remand, 441 F. Supp. 1247 (W.D. Mich. 1977); see also Stanley v. Illinois, 405 U.S. 645, 651-52 (1972) (Court held that parents of illegitimate children, like those of legitimate children, are entitled to a hearing on fitness before being deprived of their children's custody and stated that “the interest of a parent in the companionship, care, custody, a nd management of his or her children … [is] … cognizable and substantial.“); Alsager v. District Ct. of Polk County, 406 F. Supp. 10, 15 (S.D. Iowa 1975), off ‘d per curiam, 545 F.2d 1137 (8th Cir. 1976) (Court held that “where various aspects of family life are threatened, … the [parents] have a fundamental right to family integrity.“) But see Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (Court held that parental rights do not clothe parents with life and death authority over their children). See note 21 supra.

36 Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965).

37 Although the U.S. Supreme Court has held that there is no fundamental right to an education, San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 35 (1973), it has recognized that parents have a constitutionally protected interest in controlling their children's education. Note, The Minor's Right to Consent to Medical Treatment: A Corollary of The Constitutional Right of Privacy, 48 S. Cal. L. Rev. 1417, 1431, n.67 (1975)Google Scholar. For example, a state can neither forbid parents from having their children educated in a language other than English, Meyer v. Nebraska, 262 U.S. 390 (1923), nor prevent them from sending their children to parochial rather than public schools, Pierce v. Society of Sisters, 268 U.S. 510 (1925). The Court recently invalidated the application of a Wisconsin compulsory school attendance law to Amish children whose parents refused to send them to public high school, but were willing to provide the children with alternative vocational education. Wisconsin v. Yoder, 406 U.S. 205 (1972). The Court found that the parents’ interest in choosing their children's education and religious upbringing outweighed the state's interest in education. Id. at 233. Although Yoder can be interpreted to mean that religious freedom under the first amendment is the only justification for parental autonomy over children's education in the face of reasonable state regulation, Id. at 215-16, 234-36, such an interpretation of the case is not consistent either with previous cases, such as Meyer and Pierce, or with subsequent cases, such as Moore v. City of East Cleveland, 431 U.S. 494 (1977). Note, The Mental Hospitalization of Children and the Limits of Parental Authority, 88 Yale LJ. 186, 196, n.41 (1978)CrossRefGoogle Scholar. But see Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (Court characterized both Meyer and Pierce as first amendment, rather than parental right, cases). See also Goldstein, supra note 34 at 645.

38 “The primary right, duty and privilege to select the type of medical care to be given and the physician to administer it belongs to the parent.” In re Hofbauer, 65 A.D.2d 108, 111,411 N.Y.S.2d 416, 418 (App. Div. 1978). Moreover, “[p]arents are uniquely capable of making health care decisions for their children. In favoring parental authority over state regulation, judges should recognize that parents can make better decisions regarding health care than the state, since they are more familiar with the psychological and physical dynamics of the family.” Levy, The Rights of Parents, 1976 B.Y.U. L. Rev. 693, 698 (1976)Google Scholar; Baker, Court Ordered Non-Emergency Medical Care for Infants, 18 Clev.-Mar. L. Rev. 296 (1969)Google Scholar.

In making such decisions, questions concerning the good faith of parental motives may arise. See Prince v. Massachusetts, 321 U.S. 158, 170 (1944) (“Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.“)

Compare In re Hofbauer, 65 A.D.2d 108, 411 N.Y.S.2d 416 (App. Div. 1978), aff'd, 47 N.Y.2d 648, 393 N.E.2d 1009, 419 N.Y.S.2d 936 (1979) in which “Joseph [Hofbauer]'s mother and father were concerned and loving parents who sought qualified medical assistance for their child” and were willing to resort to chemotherapy if necessary, Id. at 655, 393 N.E.2d at 1014, 419 N.Y.S.2d at 941 with Custody of a Minor, 1978 Adv. Sh. 2002, 379 N.E.2d 1053 (1978), in which the parents had originally decided not to allow Chad to continue to be treated with chemotherapy. In commenting on the parents’ decision to terminate chemotherapy, the mother stated, “[w]e would love for [Chad] to have a full and long life. But it is more important to us that his life be full instead of long, if that [is] the way it [has] tobe.“/d. at 2029, 379 N.E.2d at 1064.

39 See, e.g., In re Seiferth, 309 N.Y. 80, 127 N.E.2d 820, 148 N.Y.S.2d 80 (1955) (Court would not order surgery over the parent's objection on a child's cleft palate and harelip, which were causing a speech impediment); In re Green, 448 Pa. 338, 292 A.2d 387 (1972) (Court refused to order an operation to correct a child's curvature of the spine when the child's mother refused consent and the malady was not life-threatening); In re Frank, 41 Wash. 2d 294, 248 P.2d 553 (1952) (Court held that parental failure to provide treatment for a child's speech impediment was not grounds for state intervention); In re Hudson, 13 Wash.2d 673, 126 P.2d 765 (1942) (Court refused to order surgery for a child suffering from a grossly deformed arm); In re C-F-B, 497 S.W.2d 831 (Mo. App. 1973) (Mother was given the right to choose between different types of psychiatric care for her daughter). But see State v. Karwath, 199 N.W.2d 147 (Iowa 1972) (Although there was no emergency, the court approved tonsillectomy operations where medical opinion was unanimously in favor of surgery and the children already were in the custody of the state); Mitchell v. Davis, 205 S.W.2d 812 (Tex. Civ. App. 1947) (Court ordered treatment for a 12-year-old arthritis victim whose parents relied on faith healing, where there was uncontested medical testimony in favor of treatment). The above cases—as well as Chad Green—in which parental choices of medical treatment were overridden, “all involved … situations] of choice presented by the availability of a treatment offering hope of restoration to a normal, integrated, functioning, cognitive existence.” In re Dinnerstein, 1978 Mass. App. Ct. Adv. Sh. 736, 745-46, 380 N.E.2d 134, 138 (1978). See afro/n re Quinlan, 70 NJ. 10, 39, 355 A.2d 647, 669, cert, denied, 429 U.S. 922 (1976); In re Phillip B., 92 Cal. App. 3d 796, 156 Cal. Rptr. 48 (1979). The probability of a healthy future for the child, if immediate medical treatment is rendered, distinguishes these instant cases from those of defective newborns. See Robertson, Involuntary Euthanasia of Defective Newborns: A Legal Analysis, 27 Stan. L. Rev. 213 (1975)CrossRefGoogle Scholar; Comment, Withholding Treatment from Defective Newborns: Substituted Judgment, Informed Consent, and the Quinlan Decision, 13 Gonz. L. Rev. 781 (1978)Google Scholar; Note, Birth Defective Infants: A Standard for Non-treatment Decisions, 30 Stan. L. Rev. 599(1978)CrossRefGoogle Scholar; Note, A Dilemmafor the Legal and Medical Professions: Euthanasia and the Defective Newborn, 22 St. Louis U. L. Rev. 501 (1978)Google Scholar.

40 A significant distinction exists between potentially irreversible and potentially reversible parental decisions. For example, while the effect of parental choice of an alternative education arguably is reversible (at the age of majority, the minor can decide to return to school or to get a secular diploma through other means), parental choice of alternative medical care is potentially permanent. Thus, a greater degree of state intrusion is justified in the realm of parental medical decision making than is justified in the realm of educational decision making.

41 If the conventional medical treatment is virtually certain of success and is “attended by no risk greater than such as are inescapable in all of the affairs of life,” parental refusal to consent to such life-saving treatment will be overridden. Morrison v. State, 252 S.W.2d 97, 102-03 (Mo. App. 1952). See afro State v. Perricone, 37 N.J. 463, 181 A.2d 751, cert, denied, 371 U.S. 890 (1962). Additionally, if medical treatment of the child is necessary to promote the general welfare of society, the state can compel treatment and overcome the parents’ prerogatives. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (Court held that compulsory vaccination against smallpox was a proper exercise of the state's police powers).

42 See notes 20 and 33 supra.

43 Custody of a Minor, 1979 Mass. Adv. Sh. 2124, 2139-40, 393 N.E.2d 836, 843 (1979). [T]he parental right to control a child's nurture is not grounded in any absolute property right [that] can be enforced to the detriment of the child, but rather is akin to a trust, subject to a correlative duty to care for and protect the child … .” See also Richards v. Forrest, 278 Mass. 547, 180 N.E. 508 (1932); Donnelly v. Donnelly, 4 Mass. App. 162, 344 N.E.2d 195 (1976). This analogy to parents as trustees also supports the requirement of “reversibility” with regard to parental choices, for example, in the area of education. See note 37 supra. Additionally, just as a trustee's minimal duty is to maintain the status quo, parents are required not to choose the best available alternative either in education—for example, an exclusive private high school instead of a public high school—or in medical treatment, but only to make a choice that does not seriously harm the child. See notes 40 and 41 supra.

44 W. Prosser, Handbook of the Law of Torts § 18, at 102-03 (4th ed. 1971).

45 Wallace v. Labrenz, 411 111. 618, 104 N.E.2d 769, cert, denied, 344 U.S. 824 (1952); Morrison v. State, 252 S.W.2d 97 (Mo. App. 1952); In re Clark, 21 Ohio Op. 2d 86, 185 N.E.2d 128(1962).

46 State v. Perricone, 37 N.J. 463, 181 A.2d 751, cert, denied, 371 U.S. 890(1962). See note 45 supra.

47 See notes 30 and 31 supra.

48 See, e.g., Mass. Gen. Laws Ann. ch. 119, §§ 1-51G (West Supp. 1979); N.Y. Fam. Ct. Act § 1012 (McKinney Supp. 1979). These statutes, however, may be subject to parental attack for vagueness, on the grounds that they do not give sufficient indication of whether parental action falls within or outside of the law. Connally v. General Constr. Co., 269 U.S. 385 (1926) (“[A] statute [that] either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Id. at 391); see Day, Termination of Parental Rights Statutes and the Void for Vagueness Doctrine: A Successful Attack on the Parens Patriae Rationale, 16 J. Fam. L. 213 (1977)Google Scholar; Note, Parens Patriae and Statutory Vagueness in the Juvenile Court, 82 Yale L.J. 745 (1973)CrossRefGoogle Scholar. The Massachusetts Supreme Judicial Court rejected such a vagueness attack on Mass. Gen. Laws Ann. ch. 119, § 26 (West Supp. 1979). “Courts must be allowed some flexibility in the area if they are to respond at all fairly or intelligently to the factual situations that come before them. Any greater specificity than that which has already been expressed would render impotent the Legislature's attempt to prevent child neglect and maltreatment.” Custody of a Minor, 1979 Mass. Adv. Sh. 2099, 2108, 393 N.E.2d 379, 384 (1979). One of the dangers of vague statutes, however, is the impermissibly broad and ambiguous delegation of discretion from the state legislature to a state law enforcement body, thereby according “state officials with so much discretion in their interpretation and application that arbitrary and discriminatory parental terminations are inevitable.” Alsager v. District Ct. of Polk County, 406 F. Supp. 10, 18(S.D.Iowa 1975), off'd per curium, 545 F.2d 1137 (8th Cir. 1976) (Court held that portions of The Iowa care and protection statutes were unconstitutionally vague).

49 In Chad Green, the Massachusetts Supreme Judicial Court held that “[pjarental rights … do not clothe parents with life and death authority over their children,” Custody of a Minor, 1979 Mass. Adv. Sh. 2124, 2139, 393 N.E.2d 836, 843 (1979), although within these constraints they have the right to raise their children according to the dictates of their own consciences. Id. Similarly, the trial court had held that parents have the “right to employ any child-rearing practice they choose that does not threaten the child with serious harm.” Superior Court in and for Plymouth County, Findings of Fact, Conclusions of Law, and Order for Judgment of April 23, 1979.

50 See note 48 supra.

51 Roe v. Wade, 410 U.S. 113 (1973); Jacobson v. Massachusetts, 197 U.S. 11 (1905).

52 See United States v. Rutherford, 99 S.Ct. 2470 (1979); Carey v. Population Services Int'l, 431 U.S. 678 (1977).

53 Carey v. Population Services Int'l, 431 U.S. 678 (1977); Prince v. Massachusetts, 321 U.S. 158, 165 (1944) (Court stated that “[this interest] is no mere corporate concern of official authority. It is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent [individuals].“); Custody of a Minor, 1978 Mass. Adv. Sh. 2002, 2035, 379 N.E.2d 1053, 1066 (1978).

54 “On a proper showing that parental conduct threatens a child's well-being, the interests of the State and of the individual child may mandate intervention.” Custody of a Minor, 1978 Mass. Adv. Sh. 2002, 2026, 379 N.E.2d 1053, 1063 (1978) (footnote omitted). Even in the exercise of the parens patriae power, however, a state must respect a child's own rights of privacy, Custody of a Minor, 1979 Mass. Adv. Sh. 2124, 393 N.E.2d 836 (1979), as well as those of t he family. “Only in t he situation of a family finding itself in great difficulty resulting from internal or external problems should the State intervene. The State intervention should then be no more extensive than is necessary to alleviate the problem causing the difficulty.” Doe v. Irwin, 428 F. Supp. 1198, 1206 (W.D. Mich. 1977), vacated and remanded, 559 F.2d 1219 (6th Cir. 1977), off ‘d on remand, 441 F. Supp. 1247 (W.D. Mich. 1977). See also Goldstein, supra note 34, at 648-51; J. Goldstein, A. Freund & A. Solnit, Beyond the Best Interests of the Child (1973).

The court must recognize that the child's best interests are not necessarily served by imputing majoritarian choices on an unorthodox family. “The ‘best interests’ of a child … [are] determined not by the vote of the majority but by the complexities of the singular situation … .” Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 2484, 370 N.E.2d 417, 428 (1977).

55 As one court has stated:

In re Clark, 21 Ohio Op. 2d 86, 89-91, 185 N.E.2d 128, 132 (1962).

56 But see Goldstein, supra note 34, at 650 (“As parens patriae the state is too crude an instrument to become an adequate substitute for parents.“)

57 See Hafen, Children's Liberation and the New Egalitarianism: Some Reservations About Abandoning Youth to Their “Rights,” 1976 B.Y.U. L. Rev. 604, 650 (1976)Google Scholar:

58 Once the state has met its burden of proof and gained custody over a minor for purposes of providing medical treatment, the court still must evaluate whether the child should undergo the parent- or state-proposed medical treatment. In order to protect the child's inherent constitutional right of choice, the court should hold an adversary hearing at which the state and the parents would testify as to the effects of their chosen regimen on the child. See Baron, Assuring Detached but Passionate Investigation and Decision: The Role of Guardians Ad Litem in Saikewkz-Type Cases, 4 Am. J.L. & Med. 111 (1978)Google Scholar (Baron urges that in order to assure an adversary process in cases in which a guardian ad litem is appointed to make medical decisions on behalf of an incompetent patient, the guardian necessarily should argue against the position taken in the petition) [hereinafter cited as Baron].

In medical care cases, when the state charges the parents with neglect under care and protection statutes, an adversary hearing is guaranteed. If the child already is a ward of the state, in order to preserve the minor's right of choice against state interests that conflict with those of the minor, a guardian ad litem should be appointed to argue against the state. See Baron, supra; Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 370N.E.2d 417 (1977). Since the issue before the court presumably will be which of two modes of therapy would be in the child's best interest (parent-sanctioned or state-preferred), both sides can raise arguments as to the therapeutic advantages and disadvantages. If the child is old enough to articulate his or her desires, such preferences should be heard. In many respects, however, the child is a passive actor in the process, with the court assuming the role of final arbiter on the issue of which therapy will be in the child's best interests.

Additionally, a guardian ad litem should be appointed to represent the child when an inherent motivational conflict of interest exists between parents and child—for example, if parents want a healthy child to donate an organ to an ill sibling. See Hart v. Brown, 29 Conn. Supp. 368, 289 A.2d 386 (1972).

59 Mccormick, Evidence § 339, at 793-96 (2d ed. 1972). One Note has contended that this liberal standard is especially apt in cases of temporary removal of the child from parental custody. See Note, Legislative and Judicial Recognition of the Distinction Between Custody and Termination Orders in Child Neglect Cases, 7 J. Fam. L. 66 (1967).

60 Mccormick, Evidence § 341, at 798-99 (2d ed. 1972); 9 Wigmore, Evidence § 2497, at 316-24 (3d ed. 1940). See In re Winship, 397 U.S. 358 (1970) (Holding that proof beyond a reasonable doubt is required in a juvenile delinquency proceeding in which a minor is charged with an act that would be considered a crime if committed by an adult).

61 Mccormick, Evidence § 340, at 796 (2d ed. 1972); 9 Wigmore, Evidence § 2498, at 329-34 (3d ed. 1940). In Addington v. Texas, 99 S.Ct. 1804 (1979), a unanimous Court held that a clear and convincing standard of proof is required by the fourteenth amendment in civil involuntary commitment hearings. This standard of proof is “less commonly used [than the alternative standards] but nonetheless ‘is no stranger to the civil law'.” Id. at 1808 (quoting Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 285 (1966). Nevertheless, the Massachusetts Supreme Judicial Court has rejected this standard in care and protection proceedings. Instead, it has established a constitutional requirement that the judge enter “specific and detailed” findings indicating that “persuasive” evidence supports a decision terminating parental custody. Custody of a Minor, 1979 Mass. Adv. Sh. 1117, 1118, 1130,389 N.E.2d 68, 70, 75 (1979); accord, Custody of a Minor, 1979 Mass. Adv. Sh. 2099, 2111, 393 N.E.2d 379, 381 (1979) (note that neither of these cases is Chad Green).

62 Comment, Does Due Process Require Clear and Convincing Proof Before Life's Liberties May Be Lost? 24 Emory L.J. 105, 142 n.166 (1975)Google Scholar. A care and protection proceeding, such as one brought under Mass. Gen. Laws Ann. ch. 119, § 24 (West Supp. 1979), is a civil hearing with no criminal sanctions imposed. Custody of a Minor, 1978 Mass. Adv. Sh. 2002, 2021, 379 N.E.2d 1053, 1061 (1978).

63 See note 8 supra.

64 Alsager v. District Ct. of Polk County, 406 F. Supp. 10 (S.D. Iowa 1975), aff'dper curiam, 545 F.2d 1137 (8th Cir. 1976). In re Phillip B., 92 Cal. App. 3d 796, 156 Cal. Rptr. 48 (1979), addressed the scope of appellate review in the medical neglect context. The parents of a 12-year-old child with Down's syndrome in need of cardiac surgery denied consent for the surgery. The state attempted to intervene, but the trial judge found, and was upheld on appeal, that the state's position in favor of the surgery was not supported by clear and convincing evidence. See Custody of a Minor, 1979 Mass. Adv. Sh. 2099, 393 N.E.2d 379 (1979) (note that this case is not Chad Green). Although the appeals court held that termination of parental custody of a child may be preventative as well as remedial, and thus may occur prior to any showing of actual parental neglect, it remanded the case to the trial court to establish “specific and detailed findings” supporting a conclusion of parental neglect.

65 Care and protection proceedings are not criminal in nature; criminal sanctions may be imposed, however, for failure to care for the child. In such situations, criminal due process requirements would apply. Comment, supra note 62, at 142. See also State v. Grace, 286 A.2d 754 (Del. 1971); Custody of a Minor, 1978 Mass. Adv. Sh. 2002, 2021, 379 N.E.2d 1053, 1061 (1978).

66 A criminal proceeding, of course, requires proof beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970); Speiser v. Randall, 357 U.S. 513 (1958).

67 Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 370 N.E.2d 417 (1977); In re Fleming's Estate, 173 Misc. 851, 853, 19 N.Y.S.2d 234, 236 (1940). See also Robertson, Organ Donations by Incompetents and the Substituted Judgment Doctrine, 76 Coi.Um. L. Rev. 48, 57-58 (1976) [hereinafter cited as Robertson]; Baron, Botsford & Cole, Live Organ and Tissue Transplants from Minor Donors in Massachusetts, 55 B.U.L. REV. 159, 170 n.54 (1975) [hereinafter cited as Baron, Botsford & Cole].

68 Custody of a Minor, 1979 Mass. Adv. Sh. 2124, 2142, 393 N.E.2d 836, 844 (1979) (citing Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 2484, 370 N.E.2d 417, 431 (1977)).

69 Custody of a Minor, 1979 Mass. Adv. Sh. 2124, 2141-42, 393 N.E.2d 836, 844 (1979). The right of privacy includes the right to make personal health care decisions. Id., 393 N.E.2d at 844. See notes 25 a nd 27 supra and accompanying text.

70 Courts attempt to accomplish this task by “donning The mental mantle” of t he incompetent. Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 2491, 370 N.E.2d 417, 431 (1977) (quoting In re Carson, 39 Misc. 2d 544, 545, 241 N.Y.S.2d 288, 289 (Sup. Ct. 1962)). For example,In re Boyd, 403 A.2d 744 (D.C. Ct. App. 1979) applied the doctrine of substituted judgment to a Christian Scientist mental patient, who recently had been declared incompetent, in order to reject the use of psychotropic drugs on behalf of the patient. The court relied on evidence that she had been a practicing Christian Scientist for two years, during which time she had rejected the use of all medications, that the situation was not an emergency, and that the state had no compelling state interest to justify forced treatment. See also Rennie v. Klein, 462 F. Supp. 1131 (D.N.J. 1978) (absent finding of incompetency, a mental patient has the right to refuse psychotropic drugs).

71 See In re Quinlan, 70 NJ. 10, 355 A.2d 647, cert, denied, 429 U.S. 922 (1976). See also In re Boyd, 403 A.2d 744, 750 (D.C. Ct. App. 1979) (Patient, while competent, expressed deeply felt, even sacred preferences, but no longer had the capacity to decide).

72 For example, a court could rely on psychological studies regarding “the supposed inability of profoundly retarded persons to conceptualize or fear death.” Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 2490, 370 N.E.2d 417, 430 (1977). See also Comment, Con Law—Right of Privacy—Qualified Right to Refuse Medical Treatment May be Asserted for Incompetent Under Doctrine of Substituted Judgment—Superintendent of Belchertown State School v. Saikewicz, — Mass. —, 370 N.E.2d 417 (1977)Google Scholar, 27 Emory L.J. 425, 452 (1978).

73 Strunk v. Strunk, 445 S.W.2d 145, 146-47 (Ky. 1969). But see In re Richardson, 284 So.2d 185 (La. App. 1973) (Court disallowed an organ donation operation on the grounds that it would not be in the mentally retarded donor's best interests and refused to apply the doctrine of substituted judgment); accord, In re Pescinski, 67 \Vis.2d 4, 226 N.W.2d 180 (1975)

74 See In re Grady, 405 A.2d 851, 865 (N.J. Super. Ct. Ch. Div. 1979) (“Since no one will ever know what answer the incompetent would give how can the parents give the wrong answer?“)

75 “Obviously, in attempting to make such a subjective evalu?tion, in contrast with an objective, ‘reasonable person’ analysis, the court will be engaging, at best, in approximation; any imputation of a preference to an incompetent will, to some extent, be fictional.” In re Boyd, 403 A.2d 744, 751 (D.C. Ct. App. 1979). See, e.g., Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969). See also In re Sampson, 65 Misc. 2d 658, 317 N.Y.S.2d 641 (Fam. Ct. 1970), aff'd, 37 A.D.2d 668, 323 N.Y.S.2d 253 (App. Div. 1971), aff'd per curiam, 29 N.Y.2d 900, 278 N.E.2d 918, 328 N.Y.S.2d 686 (1972), in which a child suffered from a massive facial deformity that was not life-threatening. The mother refused to consent to surgery for the child, and the child's attending physician testified that the malady would not worsen if the court waited until the child reached 21 and could make his own decision. Nevertheless, the court decided that waiting would cause severe psychic harm and ordered immediate performance of the surgery.

76 “If preferences of the incompetent are unknown, we must act with respect to the preferences a reasonable, competent person in the incompetent's situation would have.” Robertson,supra note 67, at 63. In/n re Quinlan, 70 N.J. 10, 42, 355 A.2d 647, 664,cert, denied, 429 U.S. 922 (1976), the New Jersey Supreme Court employed a standard identical to that of the “reasonable person” standard when it stated that the decision they were imputing to Ms. Quinlan was one that would “be accepted by a society, the overwhelming majority of whose members would, we think, in similar circumstances, exercise such a choice in the same way for themselves or for those closest to them.” Although the Massachusetts Supreme Judicial Court in Saikewicz did not phrase its conclusions in terms of the reasonable person standard, there are many reasonable, competent 67-year-old men who, if suffering from leukemia, might well decline chemotherapy when “there is only a 30-40 percent chance that chemotherapy will produce a remission of said leukemia, which remission would probably be for a period of time of from 2 to 13 months, but that said chemotherapy will certainly not completely cure such leukemia.” Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 2471, 370 N.E.2d 417, 421 (1977). See also Murphy, Minor Donor Consent to Transplant Surgery: A Review of the Law, 62 Marq_. L. Rev. 149 (1978)Google Scholar. See W. Prosser, Handbook of the Law of Torts § 32, at 149 (4th ed. 1971).

77 Hart v. Brown, 29 Conn. Supp. 368, 289 A.2d 386 (1972); Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969); Custody of a Minor, 1978 Mass. Adv. Sh. 2002, 379 N.E.2d 1053 (1978), reviewed and aff'd, 1979 Mass. Adv. Sh. 2124, 393 N.E.2d 836 (1979). Annas, Reconcil ing Quinlan and Saikewicz: Decision Making for the Terminally III Incompetent, 4 Am. J.L. & Med. 367, 377 n.30 (1979); Baron, Botsford & Cole, supra note 67, at 170 n.54.

78 1977 Mass. Adv. Sh. 2461, 370 N.E.2d 417 (1977).

79 Other factors employed by t he Massachusetts Supreme Judicial Court in imputing a choice to reject chemotherapy to a 67-year-old severely retarded man included: (1) his age; (2) his inability to cooperate with the treatment; (3) t he treatment's probable adverse side effects; (4) t he treatment's low chance of producing remission; and (5) the certainty that treatment would cause immediate suffering. Id. at 2469, 370 N.E.2d at 422.

80 Custody of a Minor, 1979 Mass. Adv. Sh. 2124, 393 N.E.2d 836 (1979).

81 The best interests standard has been interpreted to mean the equivalent of “net benefit.” Robertson, supra note 67, at 57.

82 Parham v. J.L., 99 S. Ct. 2493, 2505 (1979).

83 Custody of a Minor, 1979 Mass. Adv. Sh. 2124, 393 N.E.2d 836 (1979).

84 See note 7 supra.

85 See note 13 supra.

86 “[O]nce an individual becomes incompetent, the state must act asparens patriae. As such, it has the duty and the right to care for the “best interest” of the incompetent, even if that occasionally means overriding a decision made by the individual while [competent].” In re Boyd, 403 A.2d 744, 748 n.8 (D.C. Ct. App. 1979).

87 Hart v. Brown, 29 Conn. Supp. 368, 289 A.2d 386 (1972); Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969); Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 370 N.E.2d 417 (1977).

88 Custody of a Minor, 1979 Mass. Adv. Sh. 2124, 2142, 393 N.E.2d 836, 844 (1979).

89 Id. at 2142, 393 N.E.2d at 844.

90 In re Hofbauer, 65 A.D.2d 108, 411 N.Y.S.2d 416 (App. Div. 1978), aff'd, 47 N.Y.2d 648, 393 N.E.2d 1009, 419 N.Y.S.2d 936 (1979).

91 The decisions that “chemotherapy [was] the sole hope for amelioration or cure of the disease … [and that] metabolic therapy for this child [was] useless and dangerous … were supported by convincing, even overwhelming, evidence,” Custody of a Minor, 1979 Mass. Adv. Sh. 2124, 2147, 393 N.E.2d 836, 846 (1979).

92 Id. at 2130, 393 N.E.2d at 840.

93 Id. at 2143, 393 N.E.2d at 845. (“Faced with the facts that metabolic therapy was not only medically ineffective but was poisoning the child, the judge inescapably concluded that the treatment … was contrary to the best interests of the child.“)

94 In re Hofbauer, 47 N.Y.2d 648,649-50,393 N.E.2d 1009, 1011, 419 N.Y.S.2d 936, 938 (1979) (The court was unable to hold that “the parents of a child afflicted with Hodgkin's disease have failed to exercise a minimum degree of care in supplying their child with adequate medical care by entrusting the child's physical well-being to a duly licensed physician who advocates a treatment not widely embraced by the medical community.“)

95 See, e.g., Symposium—Mental Incompetents and the Right to Die, 11 Suffolk U.L. Rev. 919 (1977)Google Scholar (Several authors discuss the substituted judgment doctrine as applied in Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 370 N.E.2d 417 (1977)).