How much leeway do parents have?

The Star Tribune - Minnesota May 21, 2009

The law grants parents much deference in their children's care, but not to "martyr'' them.

By CHEN MAY YEE | Star Tribune

The case of Daniel Hauser is not the first time in Minnesota that medical science has clashed in court with religious belief.

But it is the first case in recent memory, attorneys say, in which a judge ordered that a minor be taken from his family to undergo medical treatment.

Typically, they said, parents find a way to give in early. Parents who are Jehovah's Witnesses, for example, will sometimes say they can't authorize blood transfusions for their sick children, but will comply if the hospital gets a court order. "This is extremely rare," said Kit Friedemann, a health lawyer at Fredrikson & Byron, a Minneapolis law firm.

So rare, in fact, that a mother from Sleepy Eye and her 13-year-old son are the subjects of a nationwide manhunt. Brown County District Judge John Rodenberg issued an arrest warrant for Colleen Hauser on Tuesday after she and her son Daniel, citing their religious beliefs, refused medical treatment for his cancer and failed to make a scheduled court appearance. The Hausers belong to the Nemenhah movement, which claims belief in Native American healing methods.

The friction between faith and medicine flares up periodically around the country. This week in Weston, Wis., Leilani Neumann is standing trial, charged with second-degree homicide in the death of her 11-year-old daughter, Madeline Neumann, who died last year from untreated diabetes. The parents, followers of the Unleavened Bread Ministry, had believed prayer would cure her. The girl's father will stand trial in July.

Two years ago in Virginia, a teenager named Abraham Cherrix made national headlines when he refused chemotherapy for Hodgkin's lymphoma, the same disease that afflicts Daniel Hauser. Cherrix's lawyers later reached an agreement with a judge allowing the boy to forgo chemotherapy as long as he continued to see a licensed oncologist.

An Iowa group called Children's Healthcare is a Legal Duty, or CHILD, started by a former Christian Scientist who lost her son to meningitis, lists 17 different churches whose members have let children die since 1980 because of religious beliefs against medical care.

Long history

Medical neglect cases involving religious beliefs go back as far as the late 1800s in England, when a sect called the Peculiar People went on trial after generations of children died because their parents declined medical care.

In the United States, lawyers say, there is no clear pattern from the case law.

Normally, the state gives considerable deference to parents in how they choose to treat their children.

Many states, including Minnesota, have legal exemptions that allow parents to reject medical care on religious grounds.

In recent years, courts have also paid more attention to the minor's wishes, especially if the child is close to 18 or shows signs of maturity, such as financial independence. The Virginia legislature, responding to the Cherrix case, passed a law allowing children to make their own medical decisions at the age of 14.

But judges will draw a line when a child's life is plainly in danger.

"The overwhelming precedent is the parents are not entitled to make martyrs of their children," said Susan Wolf, a professor of law and medicine at the University of Minnesota.

"The right of the state to step in and protect the interests and well-being of the minor is pretty well established," said Friedemann. The fact that Daniel comes from a home with loving parents, "doesn't make it any more excusable," he said.

One high-profile case in Minnesota 20 years ago did lead to a protracted legal battle and illustrates the tangled web of laws the Hausers may have stepped into.

In 1989, an 11-year-old boy named Ian Lundman from Independence, Minn., died of diabetic complications after his mother and stepfather declined to seek medical care for him, relying instead on prayer and spiritual treatment according to their Christian Science faith.

After the boy died, Hennepin County authorities brought manslaughter charges against the mother and stepfather and the Christian Science practitioner who treated the boy.

But the case was thrown out of three courts, including the Minnesota Supreme Court, because of conflicting Minnesota statutes. The state's child neglect statute says parents have an obligation to make sure a child gets needed medical care but includes an exemption for spiritual healing if done by a guardian or parent in good faith. The state's manslaughter law does not have such an exemption.

The boy's biological father proceeded to file a suit against his ex-wife, her husband, the church and others. He won and was awarded $14 million in combined punitive and compensatory damages. But the damages were eventually severely cut down. An appelate court judge said punitive damages violated the church's constitutional right to promote its religious doctrine.

Attorneys say probably the most straightforward part of the Daniel Hauser case are the medical facts: If he gets chemotherapy, he is very likely to live. If he doesn't, he is very likely to die.

"I don't think anybody wants to punish these parents," said Phebe Haugen, who teaches bioethics and criminal law at William Mitchell College of Law. "The bottom line is, parents cannot make a decision that results in children getting harmed, because of religious beliefs."

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