“No parent, no doctor, no court has any power to determine that the life of any child, however disabled, will be deliberately taken from them.”

With these words, spoken clearly and firmly, a Supreme Court Judge, Mr. Justice Vincent, made legal history in the pro-life struggle in Australia.  The date was July 2, 1986 and the scene was Victoria’s Supreme Court where a legal battle was being waged to save the life of a nine-day old baby.

The action had started a day earlier when the infant’s grandparents discovered that their grandchild, who was born with spina bifida, had been on a “regime of non-treatment” for three days.  Their affidavit claimed that the baby had been sedated and had not received any nourishment for three days in Melbourne’s Queen Victoria Hospital.

At a late-night hearing the Supreme Court Judge declared the infant a ward of the court, and he instructed the grandparents’ lawyers to inform the hospital that all steps to preserve the baby’s life must be taken.

Clear and simple

Next morning, July 2, the judge reconvened the court to hear from the mother and the hospital.  Mr. Justice Vincent said it was necessary to acertain what the circumstances of the child’s treatment were, and to clarify the legal issues and the rights and obligations of parents and medical practitioners.  He said that he had drawn an inference, perhaps not completely justified, that some decision had been made to sedate the baby and withdraw sustenance, with the purpose of allowing the infant to die.

Saying that it was a “blunt expression” of the conduct being considered, he asked the mother whether she saw herself as having a right to determine whether her child would be killed.

Mr. Justice Vincent then said:  “Whatever may be the situation as considered in terms of personal or community morality, or whatever might be justifies on some form of ethical assessment, for the adoption of a deliberate course of conduct designed to terminate the life of a child, the law is clear and simple.  It gives no warrant for any such decision to be made.”

We should, however, let Margaret Tighe – Chairman of the Board of Right to Life, Australia – tell the story as she wrote it in a letter to her pro-life friends.  “For now, I want to share with you my feelings as I sat in the Supreme Court in Melbourne and heard Mr. Justice Vincent utter the historic words that saved a baby’s life.

“Mr. Justice Vincent had made an order late one night for steps to be taken to save the baby’s life.  And so, next day, we sat in the Supreme Court with a bevy of media representatives, barristers and solicitors, the family of the baby and other interested parties.

“Mr. Justice Vincent entered the court and the hearing began.  I made sure my face was hidden behind the cloud of red hair belonging to one of the women reporters seated in front of me.  After all, I thought, seeing me might be like a red rag to a bull.

“I had to listen hard to catch the judge’s words – he appeared to be softly spoken.  Suddenly he began to speak very clearly indeed in a most firm and resolute manner.  He began: ‘No parent, no doctor, no court, etc. etc.’ ‘It xouldn’t be,’ I thought.  I hid bdhind the red hair in front even more so, and waited tensely for him to continue.

“I caught the eye of the grandmother’s solicitor, Tim McFarlane, momentarily.  He looked startled and disbelieving.  We Right-to-Lifers were too scared to even breathe.  The judge continued, ‘has any power to determine that the life of any child, however disabled, will be deliberately taken from them.  I want that proposition clearly understood by all concerned.  The law does not permit decisions to be made concerning the qualityof life, nor any assessment as to the value of any human beings.’

“We looked at each other, my colleagues and I, in utter disbelief.  The reality of what he was saying finally sank in.  We searched for each other’s eyes, holding back tears of joy and emotion.  After all these years of battling, battling, battling – suddenly it was all worth it.

“I straightened myself in my seat and looked straight at the judge, no more hiding for fear of prejudicing him.

“I wanted to look at this courageous and just member of the judiciary because here was a man who was making history.”

Criminal charges

Mr. Justice Vincent went on to warn that any course of medical treatment deliberately chosen to bring about the death of a child could result in criminal charges of a most serious kind.  The lawyer who represented the hospital said that since the court order at midnight the hospital had undertaken to maintain the child’s life.  This statement did not completely satisfy Mr. Kevin Andrews, the second lawyer for the grandparents.  He was still concerned about the level of co-operation in the hospital, and he insisted that an outside medical opinion was needed.

Two days later, on July 4, Dr. Robert Zachary (a founder member of the British Association of Pediatric Surgeons, Emeritus Professor of Pediatric Surgery of the University of Sheffield, and a recognized expert in the treatment  of spina bifida) went to the hospital with the grandparents’ lawyers, and examined the infant in the presence of a hospital representative.  It was reported, however, that the hospital did not make available treatment records of the baby, nor was Professor Zachary able to see the child’s mother.  Meanwhile, the hospital stated that it was complying with the Cupreme Court Order which remained in force.

In fairness to the mother it should be said that when she first appeared in the morning session in court she told the judge: “I would still like to have an active role in the future of the baby’s life and I would still like to be his mother.”

First step

It is not without interest to note that a short time before this court case Doctor Alan Duncan, the director of intensive care at the Royal Children’s Hospital, had made a submission to Victoria’s Committee of Inquiry into Options for Dying with Dignity.  (The Committee of Inquiry is regarded as being the first step towards legalizing euthanasia, both passive and direct.)  In his submission, Doctor Duncan said that “technical homicides” occurred in all public hospitals, and he argued that in some circumstances (e.g. when a child is born with congenital malformations) that critically ill children should be allowed to die.  His statement is chilling:

“In making these decisions there is no place for hospital ethics committees or outside bodies, including the courts, to be involved in decisions for individual children and their families.”

Mr. Justice Vincent is certainly the right men, in the right place, at the right time.