Challenging Australia's "closed" model of neonatal care: the need for reform following Re baby D (No 2)

The withdrawal or withholding of life-sustaining treatment to compromised newborns is a subject of controversy in countries where there is now highly advanced neonatal care to keep such newborns alive. The topic has generated comparatively less debate in Australia, where case law is sparse and parents and clinicians themselves make decisions regarding the cessation of care, largely free from extemal oversight. The recent case of Re Baby D (No 2) [2011] FamCA 176 endorses this "closed" approach to neonatal decision-making. This article critically discusses some of its implications and makes suggestions for reform to ensure meaningful oversight of decisions to withdraw or withhold treatment. The authors argue that the judgment fails to address some fundamental issues, such as ensuring that those with the responsibility to make decisions are doing so on a "best interests" basis. This is important because, in a society where disability remains stigmatised and poorly understood, there is no opportunity under the approach adopted in Baby D to guarantee adequate protection of the rights of individuals born with physical or intellectual impairments.