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Until Life Support Do Us Part: A Spouse's Limited Ability to Terminate Life Support for an Incompetent Spouse With No Hope of Recovery
T. Jefferson L.Rev. (2002)
  • Marybeth Herald, Thomas Jefferson School of Law
Abstract

This paper deals with a MCS patient in California - a case that highlights our uncertain steps into state regulation of the end of life. After a 1993 automobile accident, 42-year-old Robert Wendland fell into the classification of a MCS with no hope of recovery. He had made no advance directives as to his health care. His wife of 20 years sought to withhold artificial feeding and hydration after three surgeries to replace Robert's feeding tube. The 20-member ethics committee at the hospital, Robert and Rose's three children (two were of college age), and Robert's brother, all supported her decision. Robert's sister and mother - who had both been estranged from Robert for many years - opposed her decision.

One outcome of the combination of the Supreme Court decisions in Cruzan and Glucksburg is that the government retains the right to write the rules for persons seeking to end their own life, the states can experiment through their legislatures or constitutions, and, of course, the federal government can always try to preempt the states. California has attempted to legislatively resolve the issue of the right to die and the case of the conscious but incompetent patient. In interpreting this legislation, however, the California Supreme Court placed a heavy burden of proof (clear and convincing evidence) on the conservator's family, including the spouse of incompetent in a MCS, making it a practical impossibility to stop feeding and hydration when there is no written advance directive. Neither the legislative language nor history directed that standard. This essay argues that spouses should not be placed in the same position as other conservators in these situations, although the court's decision reflects an underlying discomfort with end of life decisions for MCS patients, no matter the relationship of the decision maker to patient.

Keywords
  • substantive due process,
  • physician assisted suicide
Publication Date
June, 2002
Citation Information
Marybeth Herald. "Until Life Support Do Us Part: A Spouse's Limited Ability to Terminate Life Support for an Incompetent Spouse With No Hope of Recovery" T. Jefferson L.Rev. Vol. 24 (2002)
Available at: http://works.bepress.com/marybeth_herald/7/