Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A bill recently introduced in the Michigan Legislature is a troubling response to the Terri Schiavo case. Michigan House Bill No. 4752 would prohibit a guardian, who is the ward’s spouse, from making “a medical treatment decision to withhold or withdraw treatment, nourishment, or hydration from the ward that would result in the ward’s death” if the guardian has a “marital conflict of interest.” The bill defines “marital conflict of interest” as a guardian for an incompetent who has “commenced an action for a divorce from the ward” or “is engaged in a current, commonly known or openly acknowledged, adulterous relationship.” Michigan defines adultery as sexual intercourse when either person is married to a third person. Courts generally have the power to remove a guardian who does not fulfill the guardian’s duty of care for the ward. Accusations were made that Schiavo’s husband had not fulfilled his guardianship duties. But the Florida courts consistently found that such was not the case. (In fact the records are replete with examples of more than a decade of conscientious care.) One of the aspects of the Schiavo matter not often addressed is that biological technologies fragment natural processes, conditions and relationships. The resulting “particles” may not be clearly addressed by our existing normative classification systems that describe, explain and justify our actions. The fragments can be reassembled, creating more entities and more choices that are not covered by our existing categories. Social relationships also may be fragmented and reassembled. Dilemmas caused by technology Professor Michael Shapiro of the University of Southern California Law School uses this model to analyze the dilemmas and paradoxes created by biomedical technologies. Assisted reproductive technology provides an example. This technology can fragment genetics and gestation and then reassemble new family relationships. Some people may not be able to account for a grandmother who is also the genetic or gestational mother of her grandchild. Some may wish to prohibit the creation of such a relationship. Can Shapiro’s fragmentation and reassembly model explain why some people were uncomfortable with Terri Schiavo’s husband simultaneously being in two separate family relationships? If a wife becomes unconscious, we are comfortable when her husband cares for her and makes medical decisions for her. If she recovers, we are comfortable with husband and wife resuming life as a functioning couple, including having children. If a wife becomes unconscious and later dies, we are comfortable when, after an appropriate period, her husband remarries and has children. But assume a wife suffers a cardiac arrest and becomes unconscious. Heartbeat is restored, but the brain has been damaged from a lack of oxygen. Her husband becomes her guardian and makes medical care decisions. Because she is unconscious and cannot take food or water by mouth, a feeding tube is inserted directly into her stomach. Within a year, doctors conclude that the wife is permanently unconscious and can never again be a functioning person. Her husband continues to care for her and continues medically administered nutrition and hydration. He does not abandon or divorce her or act as if she is dead. But as months and years pass, he cannot enjoy the companionship of a marriage. Medical technology has fragmented the wife’s life as an organism from her life as a functioning person. The permanently unconscious wife lives, but husband and wife cannot resume life as a functional family and have children. Now assume that the husband then enters into an additional relationship that includes having children. Our family classification system accounts for a spouse of a living, functioning person, as well as for a spouse of someone who has died. But it does not account for a spouse who simultaneously cares for his permanently unconscious spouse and enters into a new family relationship. Some people may be uncomfortable when a husband enters into another relationship with children while caring for his permanently unconscious wife. Fragmentation and reassembly of family relationships can create anomalies� “monsters.” The Lele of Africa comfortably account for both birds and mammals. But “flying squirrels” are not unambiguously either birds or mammals. They have fur, but they also seem to fly. The Lele view them as “monsters” to be avoided. When Terri Schiavo became permanently unconscious and continued life as an organism, but not life as a functioning person, Michael Schiavo was not unambiguously either a “husband” or a “widower.” We have no classification category for someone in his situation. The Michigan bill would prohibit any spouse from making a decision to withhold or withdraw life-sustaining medical treatment for a permanently unconscious spouse if the guardian spouse has commenced an action for divorce or has sexual intercourse with another person. This ill-conceived bill would enforce this prohibition even if all agree that the guardian spouse is devoted to the care and interests of the other spouse, the patient’s medical team recommends or supports the treatment decision, the treatment decision is within the mainstream of medical ethics and the permanently unconscious spouse, while competent, left clear instructions not to continue treatment in this situation. The Michigan Legislature, and society generally, may treat the guardian spouse as a monster to be avoided. But it is more likely that those whose inability to consider new normative categories in response to families fragmented and reassembled by medical technology will demonize themselves more than they demonize the “flying squirrel.” Lance Tibbles is director of the Ethics Institute at Capital University Law School in Columbus, Ohio.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.