To most parents, the question of whether the government should intervene to dictate how a child should be raised is an easy one. Parents, not the court system, should decide what is best for their children — in the absence, of course, of abuse or neglect. But does that change when a child’s life is on the line?
That is the difficult question facing a court of appeals in Ohio regarding Sarah Hershberger. What are the constitutional rights of parents to make life-or-death medical decisions for their child? What if the decision the parents make flies in the face of conventional medicine and, according to traditional doctors, means the child will die in less than a year?
Sarah Hershberger is the eleven-year-old daughter of Andy and Anna Hershberger, who are Amish. The family lives in an Amish community near a small town outside of Cleveland. At least, they did until recently. Because the Ohio court system appointed a guardian over Sarah — for the sole purpose of making medical decisions for her — the Hershbergers fled this past October and went into hiding. Their five other children remain behind, apart from Sarah and their parents.
The Hershbergers feel otherwise. According to Sarah’s grandfather, the parents took Sarah Hershberger to a natural cancer treatment center in Central America. They say that blood and imaging tests shows that she is now cancer free, and is “a vibrant, healthy girl.” But the Hershbergers remain in hiding, afraid to return until the guardianship case is over.
Recently, a lawyer on behalf of the family submitted new arguments to the Court of Appeals in Ohio. The attorney contends that the guardianship violates the family’s constitutional right to choose the doctor, hospital, and medical treatment of their choice. The court-appointed guardian — an attorney who is also a nurse — is opposing the appeal, arguing that the constitutional argument was waived because it was not brought up to the probate court.
The Hershberger’s lawyer disagrees, arguing that the constitutional right is so fundamental and important that it does not matter whether it was previously raised during the case. He feels that this is a case that could affect the parental rights and health care freedom of parents across the state of Ohio. Indeed, the case has the potential to be so important that its outcome could impact laws throughout the entire country, much like the Terri Schiavo case that began in 1998.
Why? Because of the fundamental importance and difficulty of the questions posed by the case. Conventional medicine says Sarah Hershberger will die if chemo is not resumed. The Hospital argues that a parent’s refusal to provide proper or necessary medical care is, by itself, child neglect. Accordingly, the Hospital believes that Sarah’s parents should have the right to make this decision taken away, even though they are not otherwise neglectful or abusive.
But who is to say with 100% certainty that conventional medicine is right?
Indeed, if Sarah’s grandfather is correct, and her cancer really has been cured by natural means, then the Hershbergers’ decision to reject conventional medicine may have been the right one. Is that far-fetched? Not according to a recent study in the medical journal, Proceedings of the Natural Academy of Sciences. In January of 2013, the study was published based on the work of Northwestern University researchers. The study proclaims “A New Way To Kill Lymphoma Without Chemotherapy.” While the findings were preliminary, this study suggests that a natural way to defeat the disease without chemo may one day become accepted by conventional medicine.
This study does not necessarily mean that the Hershbergers made the right decision. Again, it is preliminary and it involved a different type of cancer cells than what Sarah has. But, it certainly shows that what is considered “proper and necessary medical treatment” for lymphoma may change in the not-so-distant future. Conventional medicine norms always change … otherwise, doctors would still keep a supply of leaches on hand for regular use. And different countries have different views on what is accepted treatment for many diseases, including cancer.
No one knows with certainty what the best medical treatment should be for Sarah. In fact, the last Court of Appeals opinion noted that the chemo treatment itself could kill her. The Hershbergers are very worried that chemo will do exactly that, and they believe that there is a better course of treatment available for their daughter. Shouldn’t they be allowed to make that decision without the interference of the court system?
Interestingly, the probate judge who presided over the case agreed that the Hershbergers should make the decision. He ruled against appointing a guardian — twice — but each time, his ruling was appealed. And after each appeal, the Ohio Court of Appeals overruled the probate judge. In October, the Court of Appeals ordered the probate judge to appoint the guardian for Sarah. The family is now asking the same Court of Appeals to change its decision based on constitutional principles, which were not previously raised.
While the legal dispute continues in the Court of Appeals, Sarah and her parents will remain in hiding. The court-appointed guardian at one point asked to be released from her position, saying her hands were tied because she had no way to even find the girl, much less force the chemotherapy treatment. Yet, the same guardian still opposes the family’s constitutional arguments in the Court of Appeals.
So Andy and Anna Hershberger believe it is not safe to return to their home and their other children. They feel they are forced to remain hiding because it is the only way they will be allowed to make this important decision for their daughter. Clearly, it’s not a decision they’ve made lightly.
Sadly, there does not appear to be a quick end in sight. Undoubtedly, the case will not be resolved with the Ohio Court of Appeals. Any decision will be appealed to the Supreme Court of Ohio, and even the United States Supreme Court. Likely, the only thing that may end the lawsuit without years of additional appeals, is if Sarah does indeed pass away, as predicted by the Hospital.
Hopefully, the natural treatment Sarah Hershberger received in Central America will succeed as the Hershberger family says it has. If it does, it may call into question the very laws that permitted this guardianship case to proceed to probate court in the first place.
While this case is very unusual, it still highlights important legal lessons. Most families, of course, will never have to face a dilemma like the Hershbergers. But, all families should plan ahead in case tragedy strikes. Any time parents of minor children pass away, guardianship proceedings will be necessary. Parents should plan ahead and appoint guardians through their wills, or through other legal documents to the extent permitted by the particular state, and ensure that important decisions for their children will be made by the person or people they want to make those decisions.
And the planning does not end when a child reaches the age of 18. If your adult child ever gets into an accident, or suffers a serious injury, you may have to again make medical decisions for your child. If that child has reached the age of majority, then you will not be able to make those decisions without a guardianship, unless your child previously signed durable power of attorney documents giving you that authority. All parents should help their children, upon reaching the age of 18, sign durable power of attorney documents to be prepared. As the Hershbergers could attest to, no family wants to spend time in a guardianship proceeding in probate court.
This article was reposted from The Probate Lawyer Blog