Choosing to Be or Not to Be
by Fred E. Foldvary, Senior Editor
Life and death have been topics of world-wide debate as the issue of whether to terminate life has aroused interest due to the sad case of Terri Schiavo. The brain-damaged woman has been in a so-called 'persistent vegetative state'. This is not the unconsciousness of a coma; the person has reflexes (the eyes blink), but allegedly no cognitive ability, no ability to feel or think.
Of course in such cases the previous preference of the person should have priority in deciding whether to continue the life support. But in this case, she did not give any explicit instructions. Her preferences should not be inferred from her religion (Catholic), since there is no unanimous agreement on such issues.
In such a case, there should be a legal default. So long as private persons are willing to finance the life support, the default should be life. One of the problems in this case is that the law has been unclear.
The case was brought to the Florida state courts, which sided with the husband's desire to terminate life support, as doctors have stated that the probability of her regaining consciousness was basically zero.
One of the constitutional issues in this case is whether the federal government has any jurisdiction. In the United States, criminal and family law have been under the jurisdiction of the states. The U.S. Constitution is clear in providing the federal government with only those powers specifically stated. All other governance powers are left to the states. It was therefore a violation of federalism for Congress to have attempted to intervene in this case. If Congress can shift jurisdiction to federal courts after a case has gone through a state judicial process, then states lose their legal authority, and become mere provinces of the federal government.
Such life and death decisions can be made clearer if people are made more aware of the legal defaults. The ideal would be if at age 18, when people are legally able to enter into contracts, the state government would send the new adult a document of zher rights and responsibilities.
The document would welcome the person into the adult community and would strongly recommend that zhe sign a living will and medical directive making clear zher preferences regarding life support. The documents would state that if there is no living will and medical directive, what the legal default would be.
It would be best if oral statements or a person's religion or ideology were ignored in the case of a legal default. Somebody could say at one time that zhe does not wish to be on life support in such a case, but later change zher mind. It would also be best if the wishes of the spouse, parents, children, and others, were not applicable in the basic decision of life or death. There should just be a uniform legal default. There is really no good substitute for an explicit written and signed statement, in effect a contract with society.
If the permanently non-conscious person (in a coma or persistent vegetative state) did not sign a document, and if there is insufficient private funding for life support, then the default should be to terminate life. If the person signs a declaration that zhe wishes to be on life support, then zhe should obtain sufficient insurance to cover the cost. If the person does not have such insurance, and others do not provide the funds, then governmental funding should only cover, say, six months of life support, since after that amount of time, there is little if any probability of recovery.
This world-wide attention, promoted by religious interests, should be a catalyst for legal reforms that clarify the issue of to be or not to be. That would spare us the distress of having to engage in long family conflicts in the future. With clearer laws and with documents of rights and responsibilities sent to new adults, the tragedy of Terri Schiavo would be socially redeemed.
-- Fred Foldvary
Copyright 2005 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.
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