Abstract

This paper argues that Charlie Gard’s parents should have been the decision-makers about their son’s best interests and that determination of Charlie’s best interests depended on a moral decision about which horn of a profound moral dilemma to choose. Charlie’s parents chose one horn of that moral dilemma and the courts, like Charlie Gard’s doctors, chose the other horn. Contrary to the first UK court’s assertion, supported by all the higher courts that considered it, that its judgement was ‘objective’, this paper argues that the judgement was not and could not be ‘objective’ in the sense of objectively correct but was instead a value judgement based on the judge’s choice of one horn of the moral dilemma. While that horn was morally justified so too was the horn chosen by the parents. The court could and should have avoided depriving the parents of their normal moral and legal right and responsibility to decide on their child’s best interests. Instead, this paper argues that the court should have acknowledged the lawfulness of both horns of the moral dilemma and added to its judgement that Charlie Gard’s doctors were not legally obliged to provide treatment that they believed to be against their patient’s best interests the additional judgement that Charlie’s parents could lawfully transfer his care to other doctors prepared to offer the infant a trial of the experimental treatment requested by his parents.