Until relatively recently extremely premature babies and critically-ill
neonates would not have survived because medical science was
insufficiently advanced to save them. Infanticide was a common practice
among the Greeks and Romans as a form of birth control and a means
of disposing of malformed offspring. Certain indigenous South African
tribes also committed infanticide to rid society of deformed infants.
Gradually the law came to take a stricter view of infanticide, and with the
rise of Christianity it was regarded as murder.
The advancement in medical technology, skills and expertise increased
the need to take account of biomedical ethics, since this is the
framework within which critical care decisions should be made. The
principal ethical theories, namely deontology, utilitarianism and virtue
ethics, are discussed, as well as the principles of biomedical ethics,
namely beneficence, non-maleficence, autonomy and justice. Since
actions for wrongful life and wrongful birth also touch on the sanctity of
life and quality of life principle, these aspects are briefly discussed. Various international human rights instruments not only guarantee the
right to life, but also prescribe a high standard of health care to member
states.
The right of access to health care, the right to emergency medical
treatment and the best interests of the child are entrenched in the
Constitution of the Republic of South Africa, 1996. The best interests of
the child are of paramount importance in all matters concerning the child
and this concept runs like a golden thread through all cases in which
childrenâs rights are considered. In terms of the National Health Act 61 of
2003, free health services are offered to children below the age of six
years. Section 129 of the Childrenâs Act 38 of 2005 specifically deals
with medical treatment of children, while section 11 deals with children
with disabilities and chronic illnesses.
A legal comparative study was undertaken in which the legal position in
England and Wales, as well as that of the Netherlands, was considered
in order to formulate a framework of legislation for the protection of
premature babies and critically-ill neonates. The position in England and
Wales can best be determined by studying the judgments delivered in
court cases. A comprehensive report, âCritical care decisions in fetal and neonatal
medicine: ethical issuesâ, was compiled by the Nuffield Council on
Bioethics. This report was drafted by a multi-disciplinary working party
and provides guidelines regarding the medical treatment of neonates.
In the Netherlands euthanasia is legal, but then the person requesting it
must be above the age of sixteen years. Since neonates cannot request
euthanasia, the preferred term is âend-of-life decisionsâ. The Groningen
Protocol was drafted by paediatricians assisted by the public prosecutor
coroner to prevent a physician from being criminally prosecuted if the
guidelines in the Protocol are adhered to in the case of end-of-life
decisions.
In the thesis three recommendations are made:
Guidelines that would be suitable for South African conditions
should be drafted by a multidisciplinary team along the lines of the
Nuffield Council on Bioethics.
When cases concerning whether treatment should be withheld or
withdrawn reach a South African court, it is recommended that the
cases adjudicated in England and Wales be used as a precedent. It is recommended that mediation be considered as an option when
there is disagreement regarding the treatment of critically-ill
neonates between health care professionals and parents, or
between parents. Since the High Court is the upper guardian of all
minors, the outcome of the mediation should be made an order of
court.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:ufs/oai:etd.uovs.ac.za:etd-06142013-150414 |
| Date | 14 June 2013 |
| Creators | van der Westhuizen, Catharina Susanna |
| Contributors | Prof JM Kruger, Prof T Verschoor, Prof H Oosthuizen |
| Publisher | University of the Free State |
| Source Sets | South African National ETD Portal |
| Language | en-uk |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | http://etd.uovs.ac.za//theses/available/etd-06142013-150414/restricted/ |
| Rights | unrestricted, I hereby certify that, if appropriate, I have obtained and attached hereto a written permission statement from the owner(s) of each third party copyrighted matter to be included in my thesis, dissertation, or project report, allowing distribution as specified below. I certify that the version I submitted is the same as that approved by my advisory committee. I hereby grant to University Free State or its agents the non-exclusive license to archive and make accessible, under the conditions specified below, my thesis, dissertation, or project report in whole or in part in all forms of media, now or hereafter known. I retain all other ownership rights to the copyright of the thesis, dissertation or project report. I also retain the right to use in future works (such as articles or books) all or part of this thesis, dissertation, or project report. |
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