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Hoener v. Bertinato

Decided: April 27, 1961.

ELLA HOENER, CASE SUPERVISOR CHILD WELFARE DEPARTMENT OF BERGEN COUNTY, PLAINTIFF,
v.
LOUIS BERTINATO AND GLORIA BERTINATO, HIS WIFE, DEFENDANTS



Kole, J.

Kole

The defendants, husband and wife, are members of a religious sect known as Jehovah's Witnesses. The defendant Gloria Bertinato is pregnant by Louis Bertinato with her fourth child and is expected to give birth to the baby within the next few days. Gloria Bertinato has a blood condition known as RH negative. The undisputed medical evidence of both physicians who testified at the hearing in this matter established, beyond a reasonable doubt, that, as a result of this blood condition of the mother, unless a blood transfusion was given the child soon after birth, the child would die, or even if there were the remote possibility of its surviving, it would be born physically or mentally deformed for life.

The testimony of the physicians is supported by the history of Gloria Bertinato's former pregnancies. Her first child was born without the necessity of blood transfusions and is a normal child. This accords with the medical testimony at the hearing that the mother's RH blood condition adversely affects the second and subsequent children but rarely is harmful to the first-born.

Gloria Bertinato's second child, born in 1955, required a blood transfusion immediately after birth. Both defendants then refused on religious grounds to consent to the transfusion after the child was born. Concern by defendants'

then physicians for the child's welfare prompted the filing of a complaint at that time in this court under N.J.S.A. 9:2-9 to 9:2-11, inclusive. According to the affidavits of the physicians attached to the complaint in that cause, even a day's delay in performing the transfusion could be fatal to the new infant. An emergent night hearing, therefore, was held before this court, after which an order was entered granting custody to the Bergen County Child Welfare Department for the purpose of having the necessary transfusions effected. Upon the subsequent certification to the court by the physicians that the transfusions had been performed and that the child was in good health, custody of the child was then returned to its parents -- the present defendants. At the hearing in the instant proceeding, both defendants admitted that that child has been and presently is normal and in good health.

Gloria Bertinato's third pregnancy resulted in a baby who admittedly also needed a blood transfusion to save its life. But defendants again refused to permit this on religious grounds. No legal proceedings were instituted to compel the transfusion. The infant died.

It is the welfare of the child which will be born within the next few days that is the subject of the present proceeding. It was initiated by a complaint of the Bergen County Child Welfare Department, under N.J.S.A. 9:2-9 to 9:2-11, inclusive. The complaint seeks an order awarding that Department custody of the child, when it is born, for the purpose of having the necessary blood transfusions made. It charges that the defendants, by their refusal to authorize the transfusions, are endangering the life of the unborn child and are, therefore, neglecting to provide it with proper protection, as provided in N.J.S.A. 9:2-9. An order to show cause why the relief prayed for should not be granted was duly served on defendants. Defendants were also afforded an opportunity to retain counsel to represent them, but they declined to do so. Pursuant to N.J.S.A. 9:2-10, the court ordered the Chief Probation Officer of Bergen County to

make an investigation concerning the reputation, character and ability of the Bergen County Child Welfare Department to properly care for the child. The report of this investigation was favorable.

A hearing was held at which the Child Welfare Department was represented by the County Counsel. The physicians who are and will be Gloria Bertinato's obstetrician and pediatrician, both of whom were eminently qualified, testified. As heretofore stated, they established, beyond a reasonable doubt, that, when born, the baby will have to receive blood transfusions in order to survive. Otherwise, it will die. They also testified that the transfusions, in order to be successful, should be performed as near after birth as possible; indeed, in order to reduce the severity of the baby's blood condition at birth, they intended, in accordance with established medical procedures in such cases, to induce early labor in the mother. Their testimony was based not only on their expert knowledge and opinion but also on the past history of Gloria Bertinato's other pregnancies and the blood tests they were taking from time to time of Gloria Bertinato.

Both defendants testified. They did not dispute the medical opinion as to the absolute need for the transfusions; nor did they object on the ground that the transfusions might be physically harmful to the baby. Their sole objection was on religious grounds, which I find they genuinely believe in. They testified that, as Jehovah's Witnesses, if they consented, they would be breaking the commands of their faith which prohibit any taking or injection of blood, and that the strength of their belief was such that, even if it meant that the baby could not survive without the transfusions, they would, and could, not consent thereto. They stated, however, that, if the transfusions were ordered by the court -- a matter beyond their control and against ...


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