Opinion by
The Director of the State Hospital for Crippled Children at Elizabethtown, Pennsylvania, filed a “petition to initiate juvenile proceedings” under The Juvenile Court Law, Act of June 2, 1933, P. L. 1433, §1
Ricky was born on September 10, 1955, to Nathaniel and Ruth Green. He lives with his mother as his parents are separated and the father pays support pursuant to a court order. Ricky has had two attacks of poliomyelitis which have generated problems of obesity and, in addition, Ricky now suffers from paralytic scoliosis (94% curvature of the spine).
Due to this curvature of the spine Ricky is presently a “sitter”, unable to stand or ambulate due to the collapse of his spine; if nothing is done, Ricky could become a bed patient. Doctors have recommended a “spinal fusion” to relieve Ricky’s bent position, which would involve moving bone from Ricky’s pelvis to his spine. Although an orthopedic specialist testified, “there is no question that there is danger in this type of operation”, the mother did consent conditionally to the surgery. The condition is that, since the mother is a Jehovah’s Witness who believes that the Bible proscribes any blood transfusions which would be necessary for this surgery,1 she would not consent to any blood transfusions. Initially, we must recognize that, while the operation would be beneficial, there is no evidence that Ricky’s life is in danger or that the operation must
By statute, a “neglected child”—“a child whose parent . . . neglects or refuses to provide proper or necessary medical or surgical care”2—may be committed “to the care, guidance and control of some respectable citizen of good moral character. . . ,”3 appointed by the court. The guardian appointed by the court may, with the court’s approval, commit the child to a “crippled children’s home or orthopaedic hospital or other institution” for treatment.4 Thus, it has been held that a child whose parent views smallpox vaccination as “harmful and injurious” may be considered a “neglected child”. Marsh’s Case, 140 Pa. Superior Ct. 472, 14 A. 2d 368 (1940). Cf., In re Rinker, 180 Pa. Superior Ct. 143, 117 A. 2d 780 (1955). On the other hand, In re Tuttendario, 21 Pa. Dist. 561. (Q.S. Phila. .1912), held that surgery on a seven-year-old male to cure rachitis would not be ordered over the parents’ refusal due to fear of the operation. While these statutes could be construed to cover the facts of this appeal, we cannot accept the Commonwealth’s construction if it abridges the Free Exercise clause of the First Amendment.
Almost a century ago, the United States Supreme Court enunciated the twofold concept of the Free Exercise clause: “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”
When dealing with adults requiring medical attention who voice religious objections, other jurisdictions have come to varying conclusions depending, in large measure, upon the facts of each case. See, generally, Annot., 9 A.L.R. 3d 1391 (1966). Some courts have found medical treatment to be properly ordei'ed by the public authority despite the adult’s religious beliefs when his or her life hangs in the balance. Thus, it was held in Application of President & Directors of Georgetown College, Inc., 331 F. 2d 1000 (C.A.D.C. 1964), rehearing denied, 331 F. 2d 1010, cert. denied, 377 U.S. 978 (1964), that a blood transfusion could be ordered for an adult Jehovah’s Witness whose life was immediately endangered. While a similar result was reached in United States v. George, 239 F. Supp. 752 (D.C. Conn. 1965), that court dissolved the order several days later when the patient was no longer in ewtremis and could decide whether to allow further necessary transfusions. The Supreme Court of New Jersey likewise ordered blood transfusions for a pregnant Jehovah’s Witness in order to save the life of the mother and unborn child. Raleigh Fithin-Paul Morgan Memorial Hospital v. Anderson, 42 N.J. 421, 201 A. 2d 537, cert. denied, 377 U.S. 985 (1964). Cf., Collins v. Davis, 44 Misc. 2d 622, 254 N.Y.S. 2d 666 (1964). On the other hand, the Illinois Supreme Court reversed an ordered
Turning to the situation where an adult refuses to consent to blood transfusions necessary to save the life of his infant son or daughter, other jurisdictions have uniformly held that the state can order such blood transfusions over the parents’ religious objections. People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E. 2d 769 (1952); Morrison v. State, 252 S.W. 2d 97 (C. A. Kansas City, Mo., 1952); State v. Perricone, 37 N.J. 463, 181 A. 2d 751 (1962); Hoener v. Bertinato, 67 N.J. Super. 517, 171 A. 2d 140 (1961); Santos v. Goldstein, 16 A.D. 2d 755, 227 N.Y.S. 2d 450 (1962), appeal dismissed, 232 N.Y.S. 2d 1026 (1962); Application of Brooklyn Hospital, 45 Misc. 2d 914, 258 N.Y.S. 2d 621 (1965); In re Clark, 21 Ohio Op. 2d 86, 185 N.E. 2d 128 (C.P. Lucas 1962). Cf., Mitchell v. Davis, 205 S.W. 2d 812 (Texas C.C.A. 1947). See, generally, Annot., 30 A.L.R. 2d 1138 (1953). The fact that the child was over twenty-one made no difference to the New Jersey Supreme Court in John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576, 279 A. 2d 670 (1971), which ignored the mother’s religious objections.
In a somewhat different posture, the United States District Court for the Western District of Washington entertained a class action brought on behalf of all Jehovah’s Witnesses in the State against certain physicians and hospitals in that State. The relief requested was a declaration that a “dependent child” statute similar to our own was unconstitutionally applied to sustain blood transfusions for children of Jehovah’s Wit
In our view, the penultimate question presented by this appeal is whether the state may interfere with a parent’s control over his or her child in order to enhance the child’s physical well-being when the child’s life is in no immediate danger and when the state’s intrusion conflicts with the parent’s religious beliefs. Stated differently, does the State have an interest of sufficient magnitude to warrant the abridgment of a parent’s right to freely practice his or her religion when those beliefs preclude medical treatment of a son or daughter whose life is not in immediate danger? We are not confronted with a life or death situation as in the cases cited earlier in this opinion. Nor is there any question in the case at bar of a parent’s omission or neglect for non-religious reasons. Compare, Heinemann’s Appeal, 96 Pa. 112 (1880), with, In re Hudson, 13 Wash. 2d 673, 126 P. 2d 765 (1942).
In the very recent Yoder decision, the United States Supreme Court ruled that the Free Exercise clause barred the application of a compulsory education statute to members of the Amish sect. While skirting the precise issue before this Court, the Supreme Court did
Our research discloses only two opinions on point; both are from the New York Court of Appeals but the results differ. In Matter of Seiferth, 309 N.Y. 80, 127 N.E. 2d 820 (1955), the State of New York sought the appointment of a guardian for a “neglected child,” a fourteen-year-old boy with a cleft palate and harelip. The father’s purely personal philosophy, “not classified as religion,” precluded any and all surgery as he believed in mental healing.; moreover, the father had “inculcated a distrust and dread of surgery in the boy since childhood.” 309 N.Y. at 84, 127 N.E. 2d at 822. The boy was medically advised and the Children’s Court judge interviewed both the boy and his father in cham
On facts virtually identical to this appeal, the Family Court of Ulster County ordered a blood transfusion in In re Sampson, 65 Misc. 2d 658, 317 N.Y.S. 2d 641 (1970). Kevin Sampson, fifteen years old, suffered from Von Eecldinghauson’s disease which caused a massive disfigurement of the right side of his face and neclc. While the incurable disease posed no immediate threat to his life, the dangerous surgery requiring blood transfusions would improve “not only the function but the appearance” of his face and neck. It should also be noted that all physicians involved counselled deiay until the boy was old enough to decide since the surgical risk would decrease as the boy grew older. The Family Court judge ruled in an extensive opinion that the State’s interest in the child’s health was paramount to the mother’s religious beliefs. That court further decided not to place this difficult decision on the boy and to order an immediate operation, thereby preventing psychological problems. On appeal, the Appellate Division, Third Department, unanimously affirmed the order in a memorandum decision. In re Sampson, 37 A.D. 2d 688, 323 N.Y.S. 2d 253 (1971). That court rejected the argument that “State intervention is permitted only where the life of the child is in danger by a failure to act ... [as] a much too restricted approach.” 37 A.D. 2d at 669, 323 N.Y.S. 2d at 255. When the matter reached the Court
With all deference to the New York Court of Appeals, we disagree with the second observation in a nonfatal situation and express no view of the propriety of that statement in a life or death situation. If we were to describe this surgery as “required”, like the Court of Appeals, our decision would conflict with the mother’s religious beliefs. Aside from religious considerations, one can also question the use of that adjective on medical grounds since an orthopedic specialist testified that the operation itself was dangerous. Indeed, one can question who, other than the Creator, has the right to term certain surgery as “required”. This fatal/ non-fatal distinction also steers the courts of this Commonwealth away from a medical and philosophical morass: if spinal surgery can be ordered, what about a hernia or gall bladder operation or a hysterectomy? The problems created by Sampson are endless. We are of the opinion that as between a parent and the state, the state does not have an interest of sufficient magnitude outweighing a parent’s religious beliefs when the child’s life is not immediately imperiled by his physical condition.
Unlike Yoder and Sampson, our inquiry does not end at this point since we believe the wishes of this sixteen-year-old boy should be ascertained; the ultimate question, in our view, is whether a parent’s religious
It would be most anomalous to ignore Ricky in this situation when we consider the preference of an intelligent child of sufficient maturity in determining custody. E.g., Snellgrose Adoption Case, 432 Pa. 158, 247 A. 2d 596 (1968). Moreover, we have held that a child of the same age can waive constitutional rights and receive a life sentence. E.g., Com. v. Moses, 446 Pa.
The order of the Superior Court is reversed and the matter remanded to the Court of Common Pleas of Philadelphia, Family Court Division, Juvenile Branch, for proceedings consistent with the views expressed in this opinion. In the meantime, awaiting the evidentiary hearing and result thereof, we will retain our jurisdiction in this matter.
1.
The mother also rejected the suggestion that Ricky’s own blood, obtained by periodic bleeding, be employed.
2.
The Juvenile Court Law, Act of June 2, 1933, P. L. 1433, §1(5) (c), as amended, 11 P.S. §243(5) (e).
3.
The Juvenile Court Law, Act of June 2, 1933, P. L. 1433, §8(b), as amended, 11 P.S. §250(b).
4.
Act of June 7, 1923, P. L. 677, §1, 11 P.S. §871.
5.
The other cited opinions clearly involved substantial threats to society: Cleveland v. United States, 329 U.S. 14 (1946) (polygamy); Prince v. Massachusetts, 321 U.S. 158 (1944) (child labor laws); Jacobson v. Massachusetts, 197 U.S. 11 (1905) (compulsory vaccination); Wright v. DeWitt School District, 238 Ark. 906, 385 S.W. 2d 644 (1965) (compulsory vaccination).