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Force Majeure (Legal Necessity): Justification for Active Termination of Life in the Case of Severely Handicapped Newborns after Forgoing Treatment

Published online by Cambridge University Press:  29 July 2009

H. J. J. Leenen  and
Chris Ciesielski-Carlucci
H. J. J. Leenen
Affiliation:
University of Amsterdam
Chris Ciesielski-Carlucci
Affiliation:
University of California, Berkeley-San Francisco
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Extract

The health of newborns has always been subject to the natural lottery. When in the past a severely disabled baby was born, nature provided the “solution,” and the child did not survive. Medical technology has brought about a change; fetuses who would have died during pregnancy or newborns who once would have had little chance to survive are now kept alive. Although these technological advances do benefit many children, the dark side is that more severely handicapped babies are surviving.

When a severely disabled baby is born, all persons concerned are faced with emotional difficulties as well as moral and legal dilemmas. Questions that arise include whether it is acceptable, morally and legally, to allow the severely handicapped newborn to die by forgoing treatment or by direct intervention.

Type
Special Section: From Cells to Selves: Ethics at the Beginning of Life
Information
Cambridge Quarterly of Healthcare Ethics , Volume 2 , Issue 3 , Summer 1993 , pp. 271 - 274
Copyright
Copyright © Cambridge University Press 1993

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References

Notes

1. Force majeure as employed in The Netherlands is not readily transferable to other legal systems. An example of this distinction is the conventional usage of force majeure in the United States, where the term is restricted exclusively to civil law and can refer to an “irresistible impulse” or “Acts of God.” Force majeure in the United States has primarily been utilized as an insurance contract term for unforeseen occurrences. It has a recognized use as a valid excuse for nonperformance where there is an otherwise binding contractual obligation. When necessity is used as a defense in the United States, it is only in a criminal sense and bears no relation to the civil concept of force majeure. In Dutch criminal law, where references are made to force majeure in cases of euthanasia, it should be translated into English as “a situation of necessity.” Thus, the Dutch use of necessity or force majeure can refer to both civil and criminal law, whereas in the United States, force majeure (civil contract law) and necessity (criminal defense) have two distinctly different interpretations.