Wednesday, March 23, 2005[posted by jaed at 5:13 PM]
Theresa Schiavo: Arguments in favor (III)
Second argument in favor of denying food and water to Theresa Schiavo:
The family should decide. The second argument is that Theresa Schiavo's next of kin are or should be empowered to decide to deprive her of food and water, and thus leave her to die. The popular echo of this argument is the often-heard lament that Congress has "interfered in a family decision"; the right of the family to do this in the first place is not questioned, in this view. It might be better if the entire family could agree, but Michael Schiavo is his wife's next of kin, and therefore he has the right to deny food and water, given that she is unable to articulate (and perhaps unable to form) wishes about her treatment.
There is ample precedent for giving a noncommunicative patient's next of kin the right to make decisions about medical care. There is less precedent for giving the next of kin the right to kill a patient, either directly or via medical neglect, although there is some, particularly in the case of very young children. Deference to a family's wish for the death of a stricken member may comfort the family by giving them some sense of control and closure. But - although many people would trust the decision of a spouse who decided on their death - it doesn't seem to me to be a good idea to give the right to kill to family members. Allowing family members, or anyone else, to put to death a person who has not consented to it is an invitation to abuse. In fact, it is an abuse. When mandated by the state, as in this case, it is also a clear violation of due process protection.
Even more problematic is the fact that the "family decision" rhetoric frames this issue as a dispute between two parties: Theresa Schiavo's husband on one side, and her parents and siblings on the other. The husband's rights, the parents' rights... but there is, of course, someone missing from this picture. Theresa Schiavo herself, in this view, is utterly subsumed in her relatives' interests - regardless of whether you take the husband's side or the parents'.
This isn't right either. Theresa Schiavo has, I maintain, rights of her own that must be respected. I would believe this even if her husband and parents were in complete agreement concerning the desirability of denying food and water. In that case, there would no longer be a "family dispute", but the question of Theresa Schiavo's rights, and whether her family members may overrule those rights, either in Theresa's interests as perceived by them or in their own, would still remain. There would still be something to argue about in court even if the family were in agreement.
(In this particular case, there is also the question of whether Michael Schiavo remains Theresa Schiavo's husband in anything but name, since he has a fiancee and the couple live together and have two children. If he is considered to have abandoned his marital relationship, then the decision would go back to her parents as next of kin. Obviously, this would change the result in this case, but I don't think it changes the principle involved.)
(to be continued)