“... perhaps more wishful than anything else” [2]. Thus, in some sense the rules can be viewed as a best-attainable compromise amidst a highly-charged atmosphere of media coverage, strong public reactions, and a political agenda to exercise S. Van McCrary / Neonatology and the specter of the law 71 greater federal control over certain types of medical decision making. Although explaining this political compromise well, Frader makes clear his own view that “... federal intrusion on factually and morally disputed decisions in the NICU was and remains a bad idea and should go away” [2]. Others are less concerned than Frader, claiming first, that the Baby Doe rules are enforced by states’ child protective services and that such formal actions have never been taken, and second, that the recent judicial opinions strictly interpreting the rules apply to only a few jurisdictions and that best interests remains the preferred standard elsewhere [5, 15,16]. These two arguments will be addressed separately. Even though it appears that the primary method of enforcement for the rules is CPS agencies, there is no language in the rules that limits their enforcement by CPS [6]. More important, even though scholars report no knowledge of formal prosecutions by CPS for violations of Baby Doe rules, there is ample anecdotal evidence (including my own personal experiences as an ethics consultant) indicating that CPS agencies scrutinize carefully the medical records of neonatal cases during periodic audits and aggressively pursue investigations when the records contain any ambiguity [5, 6]. Further, complaints filed by families or other interested parties about cases where it is believed treatment was terminated for improper reasons can be pursued to extreme lengths by CPS before the legitimacy of such reports can be determined (depending on the personal tendencies of investigators). Such investigations by CPS, even if not resulting in prosecution, clearly have a chilling effect on the practice of neonatology by many physicians. As Kopleman has noted, federal regulations supported by appellate courts and CPS investigations “... can be powerful forces in shaping behavior” of health care providers [17]. The impact of such a chilling effect should not be underestimated. In order to address the argument that existing legal precedents are few in number, apply in only a small number of jurisdictions, and therefore have limited impact, it is necessary to describe briefly the two recent appellate opinions interpreting application of the Baby Doe rules. The first case, Montalvo v. Borkovec, is a 2002 decision from the Court of Appeals of Wisconsin, District One, in which a neonate born at 23 and 3/7 weeks gestation was resuscitated at birth, apparently against the wishes of his parents [15]. Essentially, the parents’ claim was that the decision to resuscitate should have been theirs as parents rather than being left to the sole discretion of the physicians. Because Wisconsin had accepted federal funding under the US Child Abuse Protection and Treatment Act (CAPTA), the court applied the Baby Doe rules (a subsection of CAPTA) and held that “the implied choice of withholding treatment [resuscitation at birth], proposed by the plaintiffs [parents], is exactly what CAPTA prohibits” [15,18]. Both the Supreme Court of Wisconsin and the US Supreme Court later declined to review the Montalvo decision, limiting its value as precedent to the district in which the court sits. In the second case, Miller v. HCA, a 28-year-old woman went into labor approximately 23 weeks into her first pregnancy [16]. Although it is clear that the parents, physicians, and hospital administrators had several conversations during labor about risks to the infant’s health and her prognosis, some of the precise facts remain in dispute. Both parents informed the physicians during labor that they were refusing resuscitation of the infant. The father later testified that a hospital administrator told him the hospital had a policy that required resuscitation of any baby weighing more than 500 grams and that he would have to remove his wife from the hospital in order to prevent resuscitation of the infant [4]. The medical team agreed among themselves that they would wait to make a resuscitation decision until the baby was born and could be examined. When the baby was born she weighed 615g, cried spontaneously, had “no unusual dysmorphic features,” with Apgar scores of 3 and 6 at one and ten minutes, respectively [4]. The parents did not refuse any indicated treatments after birth. Subsequently, the infant developed a Grade III/IV intraventricular hemorrhage and hydrocephalus; her current condition presents severe mental and physical impairments, including cerebral palsy, seizures, severe mental retardation, blindness, recurrent shunt placements, and incontinence, with no expectation of improvement [3,4]. The parents sued the hospital and its parent company for battery and negligence. The jury concluded that the resuscitation had been performed without consent and awarded the family $29.4 million for medical expenses and $13.5 million in punitive damages [4]. The judgment was overturned on appeal and the family appealed to the Texas Supreme Court. The Supreme Court described the issue as requiring it “... to determine the respective roles that parents and healthcare