{"status":"ok","message-type":"work","message-version":"1.0.0","message":{"indexed":{"date-parts":[[2026,1,2]],"date-time":"2026-01-02T07:46:09Z","timestamp":1767339969752,"version":"3.40.5"},"reference-count":72,"publisher":"American Academy of Pediatrics (AAP)","issue":"4","content-domain":{"domain":[],"crossmark-restriction":false},"short-container-title":[],"published-print":{"date-parts":[[2005,10,1]]},"abstract":"<jats:p>The Born-Alive Infants Protection Act (BAIPA), passed by Congress in 2002, has attracted little publicity. Its purposes were, in part, \u201cto repudiate the flawed notion that a child\u2019s entitlement to the protections of the law is dependent on whether that child\u2019s mother or others want him or her.\u201d Understood as antiabortion rhetoric, the bill raised little concern among physicians at the time of legislative hearings and passed in both Houses by overwhelming majorities, hardly suggesting contentious legislation. After its signing into law, the Neonatal Resuscitation Program (NRP) Steering Committee issued an opinion stating that \u201c[BAIPA] should not in any way affect the approach that physicians currently follow with respect to the extremely premature infant.\u201d This interpretation of the law, however, may have been short sighted.<\/jats:p>\n               <jats:p>In April 2005, the US Department of Health and Human Services (DHHS) brought life to the BAIPA, announcing: \u201cAs a matter of law and policy, [DHHS] will investigate all circumstances where individuals and entities are reported to be withholding medical care from an infant born alive in potential violation of federal statutes.\u201d The agency issued instructions to state officials on how the definitional provision within the BAIPA interacts with the Emergency Medical Treatment and Labor Act (EMTALA) and the Child Abuse Prevention and Treatment Act (CAPTA). These interagency memoranda potentially resurrect dormant governmental oversight of newborn-treatment decisions and thus may have influence over normative neonatal practice.<\/jats:p>\n               <jats:p>Under the BAIPA, the DHHS interprets EMTALA to protect all \u201cborn-alive\u201d infants; hospitals and physicians violating regulatory requirements face agency-sanctioned monetary penalties or a \u201cprivate right of action by any individual harmed as a direct result.\u201d According to its memorandum, the DHHS will investigate allegations of EMTALA violations whenever it finds evidence that a newborn was not provided with at least a medical screening examination under circumstances in which a \u201cprudent layperson observer\u201d could conclude from the infant\u2019s \u201cappearance or behavior\u201d that it was \u201csuffering from an emergency medical condition.\u201d The memorandum fails to clarify which observers qualify as prudent, what infant appearance or behavior is relevant, or what defines an emergency medical condition. Because these evaluative criteria are not constrained by reference to relevant standards of medical care, the agency arguably substitutes a nonprofessional\u2019s presumed sagacious assessment of survivability for reasonable medical judgment.<\/jats:p>\n               <jats:p>Indeed, under a straightforward reading of the instruction, a family member could conceivably trigger an investigation after observing a relative deliver a 20-week fetus who maintains a heartbeat for an hour before its death. Most physicians would not consider this an emergency medical condition and, rather than perform a screening examination, would provide comfort for the newborn and support for the family. The guideline, however, does not state that professional acumen trumps the layperson\u2019s observations in these instances; thus, physicians are left unclear about whether screening examinations are required for all newborns regardless of a priori, reasoned considerations of survivability. In this context, the NRP Steering Committee opinion states that \u201cat the time of delivery\u2026 the medical condition and prognosis of the newly born infant should be assessed. At that point decisions about withholding or discontinuing medical treatment that is considered futile may be considered by\u2026 providers in conjunction with the parents acting in the best interest of their child.\u201d However, most pediatricians skilled in screening and resuscitation are not currently called on to perform this function when the gestational age of a nonviable fetus is reasonably certain before delivery. If under the law screening is now required at any gestational age, professional procedure immediately after previable births may need modification. More worrisome, threatened aggressive investigations of alleged EMTALA violations at the soft edges of viability, where futility remains a matter of debate, jeopardize the normative ethical practice of offering discretionary palliative care.<\/jats:p>\n               <jats:p>The DHHS sent its other instruction to state child protective services agencies responsible for implementing CAPTA regulations; it reiterates the limited situations in which physicians may withhold medical treatment from infants and reemphasizes the local role of \u201cindividuals within health care facilities\u201d to notify authorities of suspected infractions. Its real import, however, is insistence on local execution of legal remedies to prevent nontreatment decisions deemed impermissible by the 1984 Baby Doe rules. Because this new directive encourages governmental oversight of treatment decisions involving imperiled newborns, a period of benign regulatory neglect seems to be over. The federal CAPTA rules arguably remove quality-of-life considerations from the decision-making calculus and therefore may conflict with the best-interests paradigm advocated by the American Academy of Pediatrics and NRP.<\/jats:p>\n               <jats:p>How courts will respond to the DHHS interpretation of EMTALA and CAPTA under the BAIPA remains unclear. Federal courts have yet to authoritatively examine alleged EMTALA violations involving newborn treatment decisions at the limits of viability. The Wisconsin Supreme Court has permitted an EMTALA claim to go to trial where physicians allegedly did not screen or resuscitate a 22-week newborn delivered in an emergency department, and a lower appellate court has relied on CAPTA to hold that parents do not possess the right to choose against resuscitating an extremely premature newborn. The Texas Supreme Court recently granted physicians the paternalistic prerogative to resuscitate imperiled newborns without attention to parental preference under a common law doctrine of \u201cemergent circumstances.\u201d These judicial decisions undermine the ethical discretion parents are typically afforded in decision-making before and after delivery in these morally complex situations. The DHHS interpretation of the BAIPA may encourage jurisdictional creep of these kinds of pronouncements as the agency seeks to expand legal protections for born-alive infants.<\/jats:p>\n               <jats:p>The US Supreme Court has stated that \u201ccourts must presume that a legislature says in a statute what it means and means in a statute what it says there\u201d; thus, judges interpret law by analyzing \u201cconcrete statutory language, not by reference to abstract notions of generalized legislative intent.\u201d The BAIPA indiscriminately defines \u201cborn alive\u201d to include an infant \u201cat any stage of development\u2026 regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion,\u201d and it makes no reference to standards of care or best interests, nor does it specifically protect a parent\u2019s decision-making authority. Under the law\u2019s strict logic, an 18-week miscarried fetus with a detectable heart beat after delivery is entitled to the full protections of the law as determined by \u201cany Act of Congress, or any ruling, regulation, or interpretation of the various administrative bureaus and agencies.\u201d<\/jats:p>\n               <jats:p>Before concluding that the BAIPA would not affect normative neonatal practice, the NRP Steering Committee should have analyzed the act\u2019s actual statutory language and avoided relying heavily on imprecise legislative intent. The BAIPA\u2019s congressional sponsors did claim that the law \u201cwill not mandate medical treatment where none is currently indicated,\u201d but such political rhetoric is often not sufficient to render law innocuous years after separation from its legislative history. Besides, nowhere in the House record does the majority explicitly acknowledge that discretion to decide the fate of imperiled newborns invests in parents, in consultation with physicians; indeed, the bill\u2019s stated purpose was to repudiate that notion. At best, legislators recognized that physicians disagree about the efficacy of resuscitating at the limits of viability, and therefore the current standard of care permits doctors to deem resuscitation a futile endeavor. However, judges may resist characterizing resuscitation as futile, given its poor analytical fit, and substantial public-policy concerns regarding discrimination against future disabled individuals could easily tip a court to preserve incipient, at least, physiologic life under the BAIPA\u2019s all-encompassing definition of born alive.<\/jats:p>","DOI":"10.1542\/peds.2005-1590","type":"journal-article","created":{"date-parts":[[2005,9,30]],"date-time":"2005-09-30T18:42:55Z","timestamp":1128105775000},"page":"e576-e585","source":"Crossref","is-referenced-by-count":44,"title":["Baby Doe Redux? The Department of Health and Human Services and the Born-Alive Infants Protection Act of 2002: A Cautionary Note on Normative Neonatal Practice"],"prefix":"10.1542","volume":"116","author":[{"given":"Sadath A.","family":"Sayeed","sequence":"first","affiliation":[{"name":"From the Division of Neonatology, University of California, San Francisco, California; and Department of Pediatrics, Kadish Center for Law, Morality, and Public Policy, Boalt School of Law, University of California, Berkeley, California"}],"role":[{"role":"author","vocabulary":"crossref"}]}],"member":"417","published-online":{"date-parts":[[2005,10,1]]},"reference":[{"key":"2021120819484377900_R1","unstructured":"Connolly C. Doctors are warned on fetus care. Washington Post. April 23,\u20082005:A.07"},{"key":"2021120819484377900_R2","unstructured":"HHS pledges thorough enforcement of Born-Alive Act. April 27, 2005. Available at: www.newsmax.com\/archives\/articles\/2005\/4\/26\/212935.shtml. Accessed August 16, 2005"},{"key":"2021120819484377900_R3","doi-asserted-by":"crossref","unstructured":"Pub L No. 107-207, 116 Stat 926 (2002)","DOI":"10.1023\/A:1020967810703"},{"key":"2021120819484377900_R4","unstructured":"Connolly, supra"},{"key":"2021120819484377900_R5","unstructured":"42 U.S.C. \u00a7 5101 et seq"},{"key":"2021120819484377900_R6","doi-asserted-by":"crossref","unstructured":"Lorenz JM. Ethical dilemmas in the care of the most premature infants: the waters are murkier than ever. Curr Opin Pediatr.\u20082005;17:186\u2013190","DOI":"10.1097\/01.mop.0000152996.58446.71"},{"key":"2021120819484377900_R7","unstructured":"Stenberg v Carhart, 530 U.S. 914, 120 S.Ct. 2597 (2000)"},{"key":"2021120819484377900_R8","unstructured":"Born-Alive Infants Protection Act of 2001, Report together with additional and dissenting views of the House Committee on the Judiciary, 107th Congress, 1st Session (2001), August 2, 2001. 1\u201338, 3. (Purpose and Summary)"},{"key":"2021120819484377900_R9","unstructured":"Id at 34 (additional views)"},{"key":"2021120819484377900_R10","unstructured":"Id."},{"key":"2021120819484377900_R11","doi-asserted-by":"crossref","unstructured":"Boyle D, Carlo WA, Goldsmith J, et al. Born-Alive Infants Protection Act of 2001, Public Law No. 107-207. Pediatrics.\u20082003;111:680\u2013681","DOI":"10.1542\/peds.111.3.680-a"},{"key":"2021120819484377900_R12","unstructured":"Arkes H. Unheralded Good: The Born-Alive Infants Protection Act. National Review Online. July 31, 2002. Available at: www.nationalreview.com\/comment\/comment-arkes073102.asp. Accessed August 16, 2005"},{"key":"2021120819484377900_R13","unstructured":"PubMed [database online]. Bethesda, MD: National Library of Medicine. Search conducted on May 13, 2005, using the terms \u201dBorn-Alive Infant Protections Act.\u201c Three returned citations include Connolly, supra; Romesberg TL. Futile care and the neonate. Adv Neonatal Care. 2003;3:213\u2013219; and Arkes H. On the Born-Alive Infants Protection Act of 2000. Hum Life Rev.\u20082000;26:15\u201326"},{"key":"2021120819484377900_R14","unstructured":"Born-Alive Infants Protection Act of 2001, supra at 28 (statement of Representative Melvin Watt at business meeting of Committee on the Judiciary)"},{"key":"2021120819484377900_R15","unstructured":"Born-Alive Infants Protection Act of 2001, supra at 38 (dissenting views)"},{"key":"2021120819484377900_R16","unstructured":"Born-Alive Infants Protection Act of 2001, supra at 34 (additional views)"},{"key":"2021120819484377900_R17","unstructured":"Center for Medicaid and State Operations\/Survey and Certification Group. Interaction of the Emergency Medical Treatment and Labor Act (EMTALA) and the Born-Alive Infants Protection Act of 2002. Baltimore, MD: US Department of Health and Human Services, Centers for Medicare and Medicaid Services; April 22, 2005. Ref: S&C-05-26; and Children\u2019s Bureau, Administration for Children and Families. Child Abuse Prevention and Treatment Act Requirements and the Born-Alive Infants Protection Act of 2002. Baltimore, MD: US Department of Health and Human Services, Administration for Children and Families; April 22, 2005. Log No. ACYF-CB-PI-05-01"},{"key":"2021120819484377900_R18","unstructured":"42 U.S.C. \u00a7 1395dd (1994)"},{"key":"2021120819484377900_R19","unstructured":"Center for Medicaid and State Operations\/Survey and Certification Group. Interaction of the Emergency Medical Treatment and Labor Act (EMTALA) and the Born-Alive Infants Protection Act of 2002. Baltimore, MD: US Department of Health and Human Services, Centers for Medicare and Medicaid Services; April 22, 2005. Ref: S&C-05-26"},{"key":"2021120819484377900_R20","unstructured":"Id."},{"key":"2021120819484377900_R21","unstructured":"Id."},{"key":"2021120819484377900_R22","unstructured":"Id."},{"key":"2021120819484377900_R23","unstructured":"42 C.F.R. 489.24 (October 1, 2004 Ed.)"},{"key":"2021120819484377900_R24","unstructured":"Boyle, supra"},{"key":"2021120819484377900_R25","unstructured":"In re Baby K, 16 F. 3rd 590 (4th Cir. 1994). See also emtala.com. Bryan v University of Virginia\u2014the Fourth Circuit retrenches on Baby K. Available at: www.emtala.com\/bryan.htm. Accessed August 16, 2005"},{"key":"2021120819484377900_R26","unstructured":"Bryan v University of Virginia, 95 F. 3rd 349 (4th Cir. 1996). See also Harry v Marchant, 291 F. 3rd 767 (11th Cir. 2002)"},{"key":"2021120819484377900_R27","unstructured":"Compare with Lopez-Soto v Hawayek, 175 F. 3d 170 (1st Cir. 1999)"},{"key":"2021120819484377900_R28","unstructured":"Burks v St Joseph\u2019s Hospital, 223 Wis. 2d 265, 588 N.W. 2d 927, 929 (1999)"},{"key":"2021120819484377900_R29","unstructured":"Preston v Meriter Hospital, 678 N.W. 2d 347 (Wis.App. 2004)"},{"key":"2021120819484377900_R30","unstructured":"Id. at 356 (citing Lopez-Soto v Hawayek, 175 F. 3d 170 [1st Cir. 1999])"},{"key":"2021120819484377900_R31","unstructured":"Id. at 356\u2013357"},{"key":"2021120819484377900_R32","unstructured":"42 U.S.C. \u00a7 5101 et seq. See also Montalvo v Borkovec, 647 N.W. 2d 413, 419 (Wis.App. 2002)"},{"key":"2021120819484377900_R33","unstructured":"42 U.S.C. 5101(g) (1994)"},{"key":"2021120819484377900_R34","doi-asserted-by":"crossref","unstructured":"Kopelman LM. Are the 21-year old Baby Doe rules misunderstood or mistaken?Pediatrics.\u20082005;115:797\u2013802","DOI":"10.1542\/peds.2004-2326"},{"key":"2021120819484377900_R35","doi-asserted-by":"crossref","unstructured":"Developments in the law. Medical technology and the law. IV. Neonatal treatment decisions. Harv Law Rev. 1990:1584, 1591. See also, MacDonald H; American Academy of Pediatrics, Committee on Fetus and Newborn. Perinatal care at the threshold of viability. Pediatrics.\u20082002;110:1024\u20131027; and 42 U.S.C. \u00a7 5101 et seq","DOI":"10.1542\/peds.110.5.1024"},{"key":"2021120819484377900_R36","unstructured":"45 C.F.R. \u00a7 1340.15 (1989)"},{"key":"2021120819484377900_R37","unstructured":"Children\u2019s Bureau, Administration for Children and Families. Child Abuse Prevention and Treatment Act Requirements and the Born-Alive Infants Protection Act of 2002. US Department of Health and Human Services, Administration for Children and Families; April 22, 2005. Log No. ACYF-CB-PI-05-01"},{"key":"2021120819484377900_R38","unstructured":"Id. (from text of Instruction; italics are in the original)"},{"key":"2021120819484377900_R39","unstructured":"Developments in the law, supra at 1592"},{"key":"2021120819484377900_R40","unstructured":"eg, Miller v HCA, Inc., 118 S.W. 3d 758, 771 (Tex. 2003)"},{"key":"2021120819484377900_R41","unstructured":"Montalvo v Borkovec, 647 N.W. 2d 413 (Wis.App. 2002)"},{"key":"2021120819484377900_R42","unstructured":"Id. at 418"},{"key":"2021120819484377900_R43","unstructured":"Id. at 419"},{"key":"2021120819484377900_R44","doi-asserted-by":"crossref","unstructured":"Miller v HCA, Inc., 118 S.W. 3d 758 (Tex. 2003)","DOI":"10.1632\/pmla.2003.118.4.758"},{"key":"2021120819484377900_R45","doi-asserted-by":"crossref","unstructured":"Paris JJ, Schreiber MD, Reardon F. The \u201cemergent circumstances\u201d exception to need for consent: The Texas Supreme Court in Miller v HCA. J Perinatol. 2004;24:337\u2013342; see also Lorenz, supra","DOI":"10.1038\/sj.jp.7211105"},{"key":"2021120819484377900_R46","unstructured":"Boyle, supra"},{"key":"2021120819484377900_R47","unstructured":"Born-Alive Infants Protection Act of 2001, supra at 13 (Background and Need for Legislation)."},{"key":"2021120819484377900_R48","unstructured":"Id. at 7\u20138"},{"key":"2021120819484377900_R49","unstructured":"Id. at 13"},{"key":"2021120819484377900_R50","unstructured":"Id. at 34 (additional views)"},{"key":"2021120819484377900_R51","unstructured":"Id. at 26\u201327 (statement by Rep. Nadler)"},{"key":"2021120819484377900_R52","unstructured":"Id. at 34\u201335 (quoting testimony of Dr Watson Bowes before the Subcommittee on the Constitution, July 12, 2001)"},{"key":"2021120819484377900_R53","unstructured":"Singer NJ. Sutherland Statutes and Statutory Construction. 6th ed. Eagan, MN: West Publishing Co; 2001; see also Legislative Intent Service. Authority and procedure for judicial consideration of legislative history and intent. Available at: www.legintent.com\/Judicial%20Procedure.pdf. Accessed August 16, 2005"},{"key":"#cr-split#-2021120819484377900_R54.1","unstructured":"Connecticut Nat'l Bank v Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed. 2d 391 (1992)"},{"key":"#cr-split#-2021120819484377900_R54.2","unstructured":"see also Robinson v Shell Oil Co., 519 U.S. 337 (1997)"},{"key":"2021120819484377900_R55","doi-asserted-by":"crossref","unstructured":"Lopez-Soto v Hawayek, 175 F. 3d 170, 176 (1st Cir. 1999)","DOI":"10.1016\/S0044-8486(98)00324-X"},{"key":"2021120819484377900_R56","unstructured":"People v Ledesma, 16 Cal. 4th 90, 95, quoting People v Peiters (1991) 52 Cal. 3d 894, 898\u2013899"},{"key":"2021120819484377900_R57","doi-asserted-by":"crossref","unstructured":"Pub L No. 107-207, 116 Stat 926 (2002)","DOI":"10.1023\/A:1020967810703"},{"key":"2021120819484377900_R58","unstructured":"Lopez-Soto v Hawayek, supra at 173"},{"key":"2021120819484377900_R59","doi-asserted-by":"crossref","unstructured":"Pub L No. 107-207, 116 Stat 926 (2002)","DOI":"10.1023\/A:1020967810703"},{"key":"2021120819484377900_R60","doi-asserted-by":"crossref","unstructured":"Peerzada JM, Richardson DK, Burns JP. Delivery room decision-making at the threshold of viability. J Pediatr.\u20082004;145:492\u2013498","DOI":"10.1016\/j.jpeds.2004.06.018"},{"key":"2021120819484377900_R61","unstructured":"Born-Alive Infants Protection Act of 2001, supra"},{"key":"2021120819484377900_R62","unstructured":"Rhoden NK. Treatment dilemmas for imperiled newborns: why quality of life counts. South Calif Law Rev.\u20081985;58:1283; see also Kopelman, supra; Developments in the law, supra; and Paris, supra"},{"key":"2021120819484377900_R63","unstructured":"Montalvo v Borkovec, supra at 421"},{"key":"2021120819484377900_R64","unstructured":"Id."},{"key":"2021120819484377900_R65","unstructured":"Miller v HCA, Inc., supra at 768; see also Montalvo v Borkovec, supra at 419"},{"key":"2021120819484377900_R66","unstructured":"Montalvo v Borkovec, supra at 420"},{"key":"2021120819484377900_R67","unstructured":"\u2019Lectric Law Library Lexicon. Statutory construction\/interpretation. Available at: www.lectlaw.com\/def2\/s104.htm. Accessed August 16, 2005"},{"key":"2021120819484377900_R68","unstructured":"Born-Alive Infants Protection Act of 2001, supra at 37 (dissenting views)"},{"key":"2021120819484377900_R69","doi-asserted-by":"crossref","unstructured":"Annas GJ. Extremely preterm birth and parental authority to refuse treatment\u2014the case of Sidney Miller. N Engl J Med.\u20082004;351:2118","DOI":"10.1056\/NEJMlim041201"},{"key":"2021120819484377900_R70","unstructured":"Developments in the law, supra at 1584"},{"key":"2021120819484377900_R71","unstructured":"Developments in the law, supra at 9\u201311"}],"container-title":["Pediatrics"],"original-title":[],"language":"en","link":[{"URL":"https:\/\/publications.aap.org\/pediatrics\/article-pdf\/116\/4\/e576\/1023957\/zpe0100500e576.pdf","content-type":"application\/pdf","content-version":"vor","intended-application":"syndication"},{"URL":"https:\/\/publications.aap.org\/pediatrics\/article-pdf\/116\/4\/e576\/1023957\/zpe0100500e576.pdf","content-type":"unspecified","content-version":"vor","intended-application":"similarity-checking"}],"deposited":{"date-parts":[[2021,12,8]],"date-time":"2021-12-08T22:49:10Z","timestamp":1639003750000},"score":1,"resource":{"primary":{"URL":"https:\/\/publications.aap.org\/pediatrics\/article\/116\/4\/e576\/68060\/Baby-Doe-Redux-The-Department-of-Health-and-Human"}},"subtitle":[],"short-title":[],"issued":{"date-parts":[[2005,10,1]]},"references-count":72,"journal-issue":{"issue":"4","published-online":{"date-parts":[[2005,10,1]]},"published-print":{"date-parts":[[2005,10,1]]}},"URL":"https:\/\/doi.org\/10.1542\/peds.2005-1590","relation":{},"ISSN":["0031-4005","1098-4275"],"issn-type":[{"type":"print","value":"0031-4005"},{"type":"electronic","value":"1098-4275"}],"subject":[],"published":{"date-parts":[[2005,10,1]]}}}