Terminally ill British infant Charlie Gard will probably die this week. British courts would not allow his parents to take him for experimental medical treatment in the U.S. The massive public outcry, with even Pope Francis and President Donald Trump chiming in, came too late. The 11-month-old’s muscles deteriorated too much. He will be removed from life support and is expected to die within a week.

Could something like the Charlie Gard case happen here? Could a court take away parents’ right to decide how to treat their very sick child? Could it order the child’s death when the parents have a possible treatment?

The Charlie Gard Story

His parents fought the Great Ormond Street Hospital in court since March. Its doctors claimed Charlie had irreversible brain damage, but other doctors disagreed. The hospital refused to let his parents take him out of the hospital, even though doctors had no cure.

Under British law, parents don’t have parental rights.

The court sided with  the hospital over Charlie’s parents, despite the fact they were fit custodians and had raised over a million dollars for the experimental treatment. In mid-April, a High Court’s judge stripped the parents of any parental rights over Charlie. He also ordered the hospital to terminate Charlie’s life support. He found that death was “in Charlie’s best interests.” He claimed the law vests overriding control over the child in the court exercising its independent and objective judgment of the child’s best interests.

The court knows better than the parents according to British law. The judge had reason to rule as he did. Section 1 of the Children’s Act 1989 instructs the court to “look at the question from the assumed point of view of the child.” The “welfare of the child shall be the paramount consideration.” Article 8 of the European Convention states that parental rights are limited by the requirements of the public good and the rights of others.

Parents Don’t Have Parental Rights, Says Professor

The Court of Appeal and Supreme Court upheld the decision. The European Court of Human Rights refused to intervene.

Law professor Ian Kennedy, who teaches health law, policy and ethics at the University College London, went even further in the liberal newspaper The Guardian. He explained that under British law, parents don’t have parental rights. “They only have duties, the principal duty being to act in their children’s best interests.” Children have rights, of course. “Any rights that parents have exist only to protect their children’s rights.”

This wasn’t the first time British parents tried to take their infant to another country for treatment they preferred. Ashya King had a brain tumor removed in 2014. His parents wanted him treated then with proton therapy in France instead of chemotherapy in England. They took him to France without permission and were arrested. A court eventually ruled that they could choose the alternative treatment. Almost a year later, the baby’s dad reported he was healthy and tumor free.

American Law

If Charlie had been an American, what would have been his fate in the U.S. court system? American law is like British law, but with key differences. Both acknowledge limits to parental authority. However, U.S. law gives parental authority more weight than British law does, and makes it very clear this authority is considered a right.

The U.S. Supreme Court ruled that parents have a due process right to make decisions concerning the care, custody, and nurture of their children. However,  the court held in the 2000 decision Troxel v. Granville that while this was a “fundamental right,” adverse decisions would not receive strict scrutiny. The right to parent shares the same footing as obtaining an abortion — including a minor obtaining one without parental notification or consent.

In recent years, 37 states have passed “right to try” laws.

In Troxel, the court objected to a Washington state statute which gave the judge sole discretion to decide the child’s best interests. The opinion emphasized that the parents were not found to be unfit. “[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” The court stated its concern that the lower court judge had provided no special weight to the mother’s determination of what was best for her children.

When U.S. Courts Step In

In several previous decisions, the Supreme Court acknowledged the states’ strong parens patriae interest in the welfare of children and in the structure and stability of the family. Parens patriae refers to the principle that the government serves as the legal protector of citizens unable to protect themselves. In the 1944 case Prince v. Massachusetts, the high court stated that the states retain “a wide range of power for limiting parental freedom and authority in things affecting [a] child’s welfare.”

U.S. courts generally only step in when parents refuse medical treatment that would save their child’s life — the exact opposite of what happened in Charlie’s case. Seventh Day Adventists, Jehovah’s Witnesses and Christian Scientists all have objections to various types of medical treatment for religious reasons.

In Prince v. Massachusetts, the Supreme Court ruled that “‘the right to practice religion freely does not include liberty to expose the community or child to communicable disease, or the latter to ill health or death.” Consequently, some of those religious practitioners have been prosecuted after their children died for lack of adequate medical care.

In recent years, 37 states have passed “right to try” laws, which allow terminally ill patients to try experimental treatments that have not yet finished the full FDA approval process. Parents have successfully used these laws to obtain treatment for their children. Situations like Charlie’s could be avoided in the future if this law is enacted in Britain.

Follow Rachel on Twitter at Rach_IC.