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At the heart of our difficulty in approaching neonatal euthanasia lie the intractable questions it raises: What is human life? When is death preferable to life? What do parents owe their children? What does society owe the suffering? Those moral questions could hardly be more perplexing, yet they are further complicated when they must be resolved not informally and case by case, but through generally applicable social rules. This is so for numerous reasons. For instance, the wide range of deeply held opinions about neonatal euthanasia makes rules hard to formulate, and the wide range of factual situations in which questions of neonatal euthanasia arise makes rules hard to apply. It is, in other words, difficult, perhaps impossible, to write rules that will command general respect and work well for the entire spectrum of cases. This difficulty presses us to take the problem of neonatal euthanasia outside the sphere of substantive social rules by seeking ways to make decisions about neonatal euthanasia which do not require social conclusions about its underlying questions. Where there is pressure of this kind, the law generally, and family law particularly, seeks procedural devices that obviate the need for substantive rules. For neonatal euthanasia, the nonsubstantive solution has commonly been to establish hospital committees to decide case by case whether neonatal euthanasia is appropriate. There is, however, an alternative nonsubstantive approach. That alternative is to define the issue in terms of rights. If parents, for example, have a right to decide whether their children will receive medical treatment, the substantive issues will be theirs, not society's, to struggle with.


Reproduced with permission. Reprinted from Schneider, Carl E. "Rights Discourse and Neonatal Euthanasia." Cal. L. Rev. 76, no. 1 (1988): 151-76.