...it's not dark yet, but it's gettin' there...

March 28, 2005

Some Extra Thoughts On The Controversy Du Jour

While i didn't agree with everything in this article by Andrew McCarthy of NRO, i did find the following passage persuasive:

In the PVS context, we are talking about a person’s own right to life. It doesn’t matter what we, individually or collectively, would want for ourselves. What matters is what, if anything, that person subjectively wanted — even if it doesn’t track our predilections. What matters is whether that person has considered and communicated those desires in an informed and reliable way. If she has, and PVS turns out both to be an appropriate basis to end life and actually to exist in the case at hand, we should not interfere in that choice if the state has made it available through surrogate action. If she hasn’t, we should be erring on the side of life, lest we inevitably venture further down this slope into even more ethically dubious takings of life.

As I have argued here, before the state may permit the termination of life in a PVS case, the guardian should be required to establish beyond a reasonable doubt* that the stricken person is in a PVS and that the stricken person evinced, in a knowing and intelligent way, a desire to be removed from sustenance if ever in a hopeless, incapacitated state. On the latter finding, we should encourage living wills to induce a person who considers and feels strongly about this choice to make her intentions clear. In the absence of such a living will, there should be a presumption that the person wants to live. It is life, not death, that our constitution protects.

There is a good argument that this should not merely be a presumption but a conclusion. On balance, however, I think we need to make reasonable allowances here, out of respect for the individual’s self-determination, out of the desire to minimize government intrusion into painful family matters, and out of the recognition that it would be unduly haughty to think ourselves capable of fashioning an unbending rule that will do justice in all conceivable situations — because we simply can’t conceive of all the situations that might arise in this area.
[emphasis added]

i believe, as other bloggers have commented, that there should be a sort of "statute of frauds" for end of life decisions. Contract law will not enforce the sale of land, unless the contract is in writing. The reason is that the subject of the contract, i.e. the specific parcel of land, cannot be replaced if the Court gets it wrong. Obviously, the same rationale applies to a person's life.

* The correct standard, in civil cases, would be "clear and convincing evidence." Which, i understand, was the standard used by Judge Greer in the Florida Court. Whether rightly or wrongly, well, that depends on whom you ask.

Posted by annika, Mar. 28, 2005 |
Rubric: annikapunditry