are the courts having so much trouble deciding what should be done with
Phillip Becker? Two years ago this column discussed the first series
of cases involving Phillip. At that time the California courts
decided that his parents had the right to refuse recommended heart
surgery for this twelve-year-old Down syndrome child, even though this
would result in a slow and painful death for Phillip t "Denying the Rights
of the Retarded: The Phillip Becker Case,"
Hastings Center Report,
December 1979, pp. 18-20). That decision was arbitrary, unprincipled
emotional and paced parental autonomy ahead
of the right to life of a
mentally retarded child.
Another court has now ruled in Phillip's
favor. Unfortunately. the opinion is again unprincipled and emotional. 1
can applaud the outcome and still be appalled at the methodology. In. the
previous case the state sought an order for surgery, alleging child
neglect. In this case Patsy and Herbert Heath sought guardianship
of Phillip, arguing that they
had become his psychological parents and that it would be in Phillip's
best interests to be placed in their care. They promised, among other
things, to reconsider the surgery decision
(Guardianship of Phillip Becker, Superior Court of Cal., Santa
Clara Co., No. 101981, Aug. 1981).
In his memorandum
of decision California
Superior Court Judge William J. Fernandez describes it as "both a
wonderful case and an irrational tragedy"-wonderful because "so many
people [came] forward to try to make a little boy's life better . . .
tragic because God and nature may already have determined Phillip's future
life course [i.e. his ventrical sepal defect may now be inoperable] . . .
irrational because the contestants are spending thousands of dollars and
thousands of hours fighting over rights." The Judge believed "that time
could be better spent trying to make the last part
of Phillip Becker's life
happier than the earlier part."
In the latest court decision, Judge
Fernandez confronted two related issues: parental autonomy and the
child's right to life. Regarding parental autonomy. the judge should have
considered the limits of what Professor Bernard Dickens
of Toronto describes as the
modern American neoconservative doctrine
of "radical nonintervention." Specifically. the notion is that
the interventionist activities of the liberal welfare state have failed
to arrest family breakdown and violence, juvenile delinquency, poverty,
etc.. and that letting families alone may be a better way to promote
their autonomy and that of their children (Bernard M. Dickens. "The
Modern Function and Limits of Parental Rights." 97
Law Quarterly Review 462, 465-66 [July
1981]1. Limiting state intervention in family decisions to all but the
most extreme life-and-death cases is also generally espoused by Joseph
Goldstein, Anna Freud. and Albert Solnit in their
Before the Best Interests of the Child
(New York: Free Press. 1979). They argue that before the best
interests of the child should even be questioned, it must be demonstrated
by due process of law that the family has fallen short of legally set and
prenotified standards of
child care. While the 1979 Becker opinions were decided before this book
was written. they are consistent with this noninterventionist notion
Unfortunately, Judge Fernandez declines to
discuss this critical issue, and instead launches into a discursive essay
on parenting. In his words: “The issue [in the former proceedings] was too
narrow, that is, the risk of surgery. The basic issue is and always has
been one of parenting.” In this regard the judge finds it critical to
compare the role of the Beckers as parents to that of the Heaths.
While the Beckers win biologically. the
Heaths are clear psychological winners. The court found that Phillip never
received nurturing, constancy of affection and love, or the opportunity to
develop a basic trust and confidence from his biological parents They
placed him in an institution at birth. viewed his potential for
development as very low, and refused to consent to life-prolonging
"Their basic opinion of Phillip was that he
was a permanently mentally retarded low IQ Down's child who would never
have a hope of living in society." the court argues. Their view is that he
should be permanently institutionalized. not have surgery, not have
visits with people who love him. and never develop "any permanent
attachments to anyone or to have any home life." They even barred the
Heaths from visiting him after the initial litigation.
In contrast, the Heaths have had a
continuing relationship with Phillip since he was five years old. "Their
love for him is unquestioned . . . they offer love and home care.
tutoring. and all that Phillip may need in terms of educational,
vocational and basic skills training." He would live in their home. have
a private tutor; surgery would be reconsidered. Their expectations for
Phillip are great and "they will always treasure him as if he were their
own son.- On this basis the court concluded that
"psychological parenting between the Heaths and Phillip exists."
The judge is no closer to the mark when he
discusses Phillip's rights. Nowhere. for example, does he even suggest
that the mentally retarded as a class have a right to life. Instead his
analysis focuses on the much narrower issue of a right to
habilitation-suggesting that those mentally retarded persons who do not
have the options the Heaths have now opened to Phillip may not have a
right to live. Instead of using solid legal principles, the judge posits a
hypothetical conversation in which he e\plains Phillip's options:
Phillip. I am convinced . . . you have
arrived at a crossroad in your -life. . . . Your first choice
will lead you to a room in an
institution where you will live. You will be fed, housed, and clothed, but
you will not receive any
life-prolonging medical care. . . . You will not be given an opportunity
to add to your basic skills. . . . You
will not be allowed to become attached to and person. . . . Your
biological parents will visit you
occasionally. . . .
Your second choice
will lead you to a private home
where you will be bathed in the
love and affection of your psychological parents. . . . You will be given
private tutoring . . . in order that some day you may enter into society
and be a productive member of our community. . . . You will have a chance
for life-prolonging surgery. . . . Best of all, your psychological
parents will do all in their power to involve your biological parents in
your habilitation and to unite both families together. . . .
The judge clearly believes Phillip would
decide to live with the Heaths. But since he feels such an analysis is
without California precedent,
the judge goes on to find detriment to Phillip from his biological
parents, concluding that they have caused him to suffer severe emotional,
physical and medical harm.
Admitting that he is "stretching important
legal doctrines to the utmost" to make a "little one's life better," the
judge concludes that guardianship should be given to the Heaths,
Phillip's psychological parents, without severing the parental bonds with
his biological parents. The judge's stated purpose is to provide Phillip a
"chance to secure a life worth living."
Since the search for a legal principle of
decision making is fruitless, the judge's emotional reaction to the case
should be examined. Here the judge is remarkably candid. The twenty-page
opinion has twenty-six additional pages of notes, in solve the judge
expresses his reactions. At one point he remarks, "What the Court is
critical of is their (the Beckers'] insensitivity to his [Phillip's]
needs and the immutable label of retarded that they have placed upon
their child." And later, "Obviously the Beckers' attitude is unrealistic.
Life is an ever changing kaleidoscope." He recalls his feelings when he
read Phillip's medical records:
I weep uncontrollably at the struggle of
this wee lad to survive. My soul reaches out to him and his laboring heart
to try to give it ease, and in this time
of grief, i think of Tiny Tim and what might have been but for,
old Marley's ghost.
Later he wonders out
loud if he is not letting his emotions carry the day. He suggests that a
cynic might say, "Judge, isn't that just a little bit subjective, if not
maudlin and trite?" His response, of course, is in the negative. He goes
on to explain that "Judges are humans and not machines," and in his view
this is the most critical characteristic of a judge. He even takes the
occasion to compare his decision to Solomon's, noting again his reactions
to Phillip's medical records:
Intuitively, I reason
if I a stranger but a parent can be so overcome with grief as I read the
symptoms pointing to the slow but inexorable approach of the child's
death. what does the real mother feel? I am struck by the indifference
towards Phillip's doom displayed by Mr. and
Becker. It can only
come from a failure to associate with the child and see him on a daily
basis. No true parent can watch a child's life slowly ebbing and not cry
out. "Oh Lord. let the child live."
While argued before
different courts and couched as different legal proceedings, the basic
issue at stake is the same now as it was in 1979: who should decide if
Phillip Becker possesses a "life worth living," and therefore a right to
life" Goldstein et al. argue that these are "highly personal terms about
which there is no societal consensus" and suggest accordingly that this
is precisely the type of decision "parents must remain free of coercive
state intervention in deciding. . . ."
the first Becker case Judge Eugene M.. Premo agreed when he determined
that the parental decision against surgery was "in the range of debatable
actions" and therefore to be made only by the parents. But his decision
cautions that such a loose rule may protect parental autonomy at too high
a price: the lives of children. Judge Fernandez, for example, is
especially persuasive when he compares the perceptions of Phillip's
biological parents with those of his psychological parents regarding the
type of life Phillip is capable of living:
Phillip can't talk.
communicate, write his name, draw, cook or form loving attachments. He is
a low Down's. and has few basic skills.
Phillip can talk,
communicate, write his name, draw, cook, and form loving attachments. He
is a high Down's, is educable, and has many basic skills.
The question of life-prolonging surgery for the individual described by
Phillip's biological parents may be "debatable" for some; but surgery for
the individual described by his psychological parents is not a matter
"about which there is no societal consensus."
Most of these
characteristics are, of course. matters of fact, and the courts are
excellent forums in which to prove such fact: if they are disputed. Courts
are less skilled at making predictions about the "best" placements for
children. And this court provides an example of the problems courts get
into when they try, to engineer the future. Instead of finding
Phillip's biological parents unfit and giving Phillip's exclusive custody
to the Heaths, Judge Fernandez gives the Heaths guardianship without
severing the Becker’s parental rights. Now Phillip has not one set of
parents, but two. This is not only unprecedented: it seems to make
little sense if one is seeking a continuity of care and responsibility
for the child.
First, both of the
lower court judges let their emotions as hypothetical parents to Phillip
determine their decisions. Second, instead of dealing with the child's
right to life, the judges concentrated on the quality of his life, so that
the rulings seem to depend upon Phillip's chances to be self-sufficient.
Third, no attempt is made to define the functions or limits of parental
I applaud Justice
Fernandez for giving Phillip a chance to live. But his emotional appeals
and dearth of analysis make this case almost useless as a precedent. A
tribute to the judge's humanity, it is otherwise as much a travesty as
the 1979 Becker opinions. Judges must use their humanity in judging
others. But judges sit as judges, not surrogate parents, and they have a
responsibility to articulate their opinions on the basis of principles.
Unless they do. issues of parental autonomy will be decided by emotional
caprice. All our children deserve more from the law.
Judge Fernandez should
have stated simply that parental rights exist primarily to enable parents
to prepare their children for adulthood and their own emerging autonomy
When parents abdicate this goal. the state or others
properly step in to act for them.