Saturday, March 13, 2004

The Scales of Justice

Here's an interesting legal case for your consideration:

A 30-year old man, one John Smith, had a son with incurable leukemia. Medical tests determined that the only suitable bone marrow donor for this child was his father. John Smith refused to donate any of his marrow; he said that he was scared of the medical procedure that would have been used. So not very fatherly, our John. But this is unsurprising; it was known that he had suffered from mental health problems most of his life, he took recreational drugs and otherwise acted in ways that proper people frown on. As a result of John's refusal, his son died. Should we now accuse him of murder?

Now change the sex of the person in question, make her name Melissa Ann Rowland, and her age 28 years, and change the circumstances into one where the mother refused a Caesarian section that might have saved her son's life. The son died here, too. Should we accuse her of murder?

What if both John and Melissa can be regarded as vain, narcissistic individuals who refused a little bit of surgery for purely trivial reasons? What if both John and Melissa were mentally ill drug-abusers living on social welfare? Though I have made the case of John Smith up, there is not much doubt in my mind that most legal commentators would not regard John as a murderer. On the other hand, Melissa really exists and the prosecutors in Salt Lake City are charging her with criminal homicide.

Try asking one of those people who voted in the msnbc poll in support of Melissa's murder charges whether John also should be tried for murder; not whether his act was morally reprehensible but whether he should be legally charged. It will be interesting to hear what they might say. I suspect that they see a clear difference between the two cases, though there is no factual difference.

Mothers are held to higher standards than fathers, and mothers of fetuses even more so. In fact, it's beginning to seem as if the only time a child's rights to life are really going to be guaranteed is before she or he has drawn one single breath. After birth, well, you're on your own, kid. And if you happen to be a girl, one day your rights to refuse surgery will not be awarded the same protection as they would if you had been born a boy.
An excellent discussion on this topic is on Body and Soul.