JOURNAL OF LAW AND HEALTH, Volume 7: Pages 107-130. (1992)


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A. Compelled Organ and Tissue Donation

        The doctrine of substituted judgment has been misinterpreted and misapplied in several situations. Courts have misused this doctrine in cases of compelled organ and tissue donation by minors and incompetents, compulsory sterilization of minors and incompetents, and removal and denial of life-sustaining treatment to minors and incompetents.

        The case which established precedent for applying the substituted judgment doctrine to situations involving incompetents and organ donation was the Kentucky decision in of Strunk v. Strunk.23 This Kentucky court asked the question:

Does a court of equity have the power to permit a kidney to be removed from an incompetent ward of the state upon petition of his committee, who is also his mother, for the purpose of being transplanted into the body of his brother, who is dying of a fatal kidney disease?24

Tommy Strunk was twenty-eight years old and dying of kidney disease.25 His brother Jerry was twenty-seven years old and was committed to the a state hospital and school for the incompetent.26 His mental age was approximately six years.27 Tommy's entire family was tested for possible tissue compatibility for a transplant, but only Jerry's tissue was found to be acceptable.28

        This Kentucky court permitted the transplant in his situation and held that in the

peculiar circumstances of this case it would not only be beneficial to Tommy but also beneficial to Jerry because Jerry was greatly dependent upon Tommy, emotionally as well as psychologically, and that his well-being would be jeopardized more severely by the loss of his brother than by removal of a kidney.29

The court in this case based its decision on two key factors. The first was the "benefit" that would be bestowed upon Jerry by giving his kidney,30 and he second was what the court perceived to be the "minimal" degree of risk associated with the procedure.31 The court applied the substituted judgment doctrine based on these factors and held that, "[t]he right to act for the incompetent in all cases has become recognized in this country as the doctrine of substituted judgment and is broad enough not only to cover property but also to cover all matters touching on the well-being of the ward."32
        This risk/benefit analysis has been criticized for being a utilitarian manipulation of the substituted judgment doctrine. In situations similar to Strunk, the benefit incurred by the incompetent can be vaguely and loosely construed, and there are no criteria or standards for determining what constitutes a benefit or how much benefit must be shown in each particular case.33 Additionally the substituted judgment doctrine mandates that the court do what the incompetent would do if he were competent to make a decision. In Strunk, the court based the substituted judgment clearly on its view of a benefit flowing to the incompetent. "Yet the presence of a benefit does not justify nonconsensual intrusions on competent persons. Rather the determinative factors appears to be consent or choice - persons may choose or consent to actions which bring them little or negative benefit."34 The benefits standard articulated in Strunk assumes three things. First, that an individual will always do what is "beneficial" to her and second, that a possible psychological "benefit" may be enough to allow a medical procedure to be performed under the doctrine of substituted judgment. Finally, it assumes that any "benefit" is enough to permit a court to allow a guardian to substitute her judgment for that of an incompetent who has never been competent under the law to make a decision. If the incompetent's life under the substituted judgment doctrine is to be protected and respected, and the standard is to be correctly applied, the precedent articulated in Strunk is improper.

        The Wisconsin Supreme Court recognized some of these inherent problems in In re Guardianship of Pescinski.35 This court held:

[a]n incompetent particularly should have his own interests protected. Certainly no advantage should be taken of him. In the absence of real consent on his part, and in a situation where no benefit to him has been established, we fail to find any authority for the county court, or this court, to approve this operation.37

Here, the court recognized the principle of substituted judgment the same way the Strunk court did. By limiting the scope of Strunk's benefit rule the court was able to reject its application is these circumstances.

        The dissent in the decision recognized the one reason for the courts judgment may have been its concern with the eugenic arguments reminiscent of Nazi Germany.38 Further, the dissent articulated another misinterpretation of the substituted judgment doctrine. It first makes a proper analysis of the doctrine stating: " the court in effect does for the incompetent whit is is sure he would do himself if he had the power to act."39 Then, however, the dissent makes an improper analysis of the goal of the substituted judgment doctrine writes, "[t]his approach gives the incompetent the benefit of the doubt, endows him with the finest qualities of his humanity, assumes the goodness of his nature instead of assuming the opposite.40 The assumptions by the dissent in Pescinski make the doctrine of substituted judgment an objective one bestowing the best qualities upon all incompetent persons instead of recognizing substituted judgment as a subjective doctrine, unique to each individual and his own beliefs and ideals.

        The Court of Appeals of Louisiana, Fourth Circuit, faced a similar situation in In re Richardson.41 In this case, however, the possible donor was a minor, Roy, who was mentally retarded. The father in this case wished to compel the mother to consent to the operation. Since the possible donor was a child, the court rejected the substituted judgment doctrine articulated in Strunk, and stated that under Louisiana law the goal of the decision was to "promote the ultimate best interest of a minor."42 Counsel for the plaintiff in this case argued that the transplant could be in Roy's best interest because the donee could take care of Roy after the death of his parents. The Richardson Court held: "[s]uch an event is not only highly speculative, but in view of all the facts, highly unlikely. We find that surgical intrusion and loss of a kidney clearly would be against Roy's best interest."43

        Here a court refused to accept the substituted judgment doctrine as proper in cases involving a retarded minor, and instead chose to apply the best interests standard. Unlike the Strunk court, the Richardson court refused to allow a potential care relationship to constitute a "benefit" that would be in the incompetent's best interest. The Richardson court recognized that removal of a kidney could rarely be in an incompetent patient's best interest.44 This court correctly refused to apply the substituted judgment doctrine, and also decided that benefit is not a proper element to be considered in making a substituted judgment.

        The concurrence in his case refused even to apply a best interests standard in this particular situation. Judge Gulotta wrote:

I am of the opinion that before the court might exercise its awesome authority in such an instance and before it considers the best interest of the child, certain requirements must be met. I am of the opinion that it must be clearly established that the surgical intrusion is urgent, that there are no reasonable alternatives, and that the contingencies are minimal.45

Here, a judge refused to apply the doctrine of substituted judgment or a best interests standard and held the decision to a high level review. Judge Gulotta recognized the compelling need to protect mentally retarded minors from bodily intrusions that may be detrimental to their health.

        A Connecticut court faced with a unique situation in the case of Hart v. Brown,46 chose to apply the substituted judgment doctrine articulated in Strunk. Here, parents of identical twins who were seven years and ten months old petitioned the court to allow a kidney transplantation from one twin to the other. This case was particularly unusual because it involved an isograft donation, which is a "perfect match" and does not carry the risk of rejection involved in other kidney transplantation.47 The Hart v. Brown court wrote that "the surgical risk is no greater than the risk of the anesthesia..." and that "[t]he only real risk would be the trauma to the one remaining kidney, but testimony indicated that such trauma is extremely rare in civilian life."48 The Hart court then applied the benefits analysis set forth in Strunk and stated that there would be immense benefit to the donor in that the donor would be better off in a family that was happy than in a family that was distressed and that it would be a great loss to the donor if the donee were to die from her illness.49

        While the court applied the benefits analysis in this case, it also recognized the uniqueness of an isograft transplant. Second, the court recognized that the donor was a minor who did not suffer from impaired mental capabilities.50 Based on these facts, the court held that the natural parents of the children would be able to substitute their consent for that of their minor children after a close investigation of their motives.51

        Here it appears likely that the court approved the application of the substituted judgment doctrine as the parents' motives were likely to be pure since neither child was suffering from mental impairment.52

        The analysis in this case was a risk/benefit one which weighed in favor of allowing the donation based on unique circumstances. The court recognized that the twins were extremely close and that the family life of the surviving twin would be greatly damaged by the death of her sister. Overall, the court applied a benefits analysis as it related to the healthy twin and how the operation would affect the balance of her life and development. It can be argued, therefore that this should have been called a best interests analysis and that after weighing the alternatives surgery was, in fact, in the healthy child's best interests, even if it may not be what she would have decided if competent. It is interesting to note that the court acknowledged that '[t]he donor has been informed of the operation and insofar as she may be capable of understanding she desires to donate her kidney so that her sister may return to her."53

        Here a court applied a new version of the doctrine of substituted judgment. It allowed a parent's judgment to be substituted for a minor's child's in the case of a compelled organ donation. This child had not yet developed the capacity to consent; yet understood that she did not want her sister to die. This decision was based on what the court and the parents believed the child would do if she were mature enough to fully understand the nature of the procedure. In essence, this is not a substituted judgment, but a combination of substituted judgment and best interests. A court allowed parents to substitute their judgment for that of their child, who could not consent, based on what they believed was in the child's best interests, and what they believed the child would decide if competent. Since the child had never been legally competent, however, this is not technically a substituted judgment.

        This case most closely parallels the situation in Curran v. Bosze introduced at the beginning of this article.54 the primary differences are that the potential donors in Curran were substantially younger than the potential donor in Hart, and the potential success of the procedure was substantially lower in Curran than in Hart. Curran rejected the substituted judgment doctrine stating that there could be no clear and convincing evidence of the twin's intent at such a young age. (three and one half years.)55 The Hart court, however, accepted the doctrine as permissible. It should also be recognized that the family unit was intact in the Hart case and both parents consented, while the parents were never married in Curran and the custodial parent disapproved of the procedure.56 While one of the cases accepted the substituted judgment doctrine in a situation involving a minor and the other rejected it, these cases can be reconciled based on facts alone.

        Possibly the best way to put the Hart decision in context is to recognize it as a unique application of the substituted judgment doctrine in a unique situation. What actually occurred is a "substituted consent" based on the child's limited understanding of the procedure she would have to go through to save her sister, combined with what the court believed the child would want, and what the court believed was in the child's best interests. Overall, this is not a traditional application nor a theoretically correct application of the substituted judgment doctrine. Instead of viewing this case as a precedent, therefore, it should be viewed as an unusual application of the substituted judgment doctrine to an isolated set of facts and circumstances. While the results may seem "fair" and beneficial to all, this case cannot stand for the proposition that parents can always substitute their judgment for the judgment minor children in the case of compelled organ or tissue donation. Curran v. Bosce recognizes this and rejects this standard in a similar situation.

        There are several problems with the application of the substituted judgment doctrine in cases of compelled organ donation. Ordinarily, "when the mental or social condition of the patient or subject precludes legally effective consent to a personal intrusion... respect for persons usually entails prohibiting the intrusive activity."57 Because children and the mentally impaired have never developed the capacity to consent under the law, courts have frequently used a convoluted version of the substituted judgment doctrine involving a "benefits" analysis. The problem with this standard, as illustrated in Strunk, is that a "benefit" can be construed as any psychological benefit to the incompetent, no matter how slight. It is almost bizarre to recognize that in cases such as Strunk, a court has held that the possible "psychological benefit" to an institutionalized individual of not losing a relative justifies a surgical invasion of the incompetent's body and removal of his organ. Even more disturbing is that often the parents of an incompetent, who are attempting to save a life of their "normal" child, are the individuals entrusted with making the substituted judgment for their incompetent child. While courts also appoint a guardian ad litem to aid in these decisions, it in the judgment of the parent or legal guardian that courts hold in the highest regard.

        In analyzing the "benefit" construed upon an incompetent, courts frequently disregard the risks involved in organ donation:

If the risks were trivial, a question of principle would still exist, but the chances of abuse would be lowered. To make a substituted judgment concerning an organ trans- plant, it is essential to be clear about the effect of the transplant on the donor, since a competent person similarly situated is likely to consider the consequences to himself. To an incompetent, who may be less able to understand the transplant procedures or to adapt to the unfamiliar surroundings in a hospital, the risks of an organ transplant may be even greater.58

While several courts have analyzed organ transplant cases based on the "minimal risks" involved in organ donation,59 few courts have recognized that these risks may be magnified for the mentally incompetent.

        Authors have argued that, "[u]se of an institutionalized incompetent might inspire his attendants to devote special care and attention to him out of a sense of obligation or otherwise. Or, as a condition or natural result of the organ donation, it might be decided to assure the incompetent the best of medical care ..."60 These types or arguments are at best speculative and attempt to justify what can only be viewed as invasions of the bodily integrity of incompetents to benefit others considered more valuable by our society.

B. Compulsory Sterilization

        Just as the doctrine of substituted judgment has been tragically misapplied in cases of compelled organ donation, it has also been misused in cases involving compulsory sterilization of incompetents. The best example of this misuse is found in the 1978 case of Stump v. Sparkman.61 In this case, a circuit court judge permitted the sterilization of a fifteen year old girl upon petition of her mother. The mother stated that her somewhat retarded daughter had been associating with older men and that it would be in her best interests to undergo tubal ligation "to prevent `unfortunate circumstances' ..." in the future.62 The judge permitted the procedure and the daughter was told that she was to have her appendix removed. Two years later, she was married and found out the true state of her procedure when she attempted to become pregnant.63 Although the key issue the Supreme Court examined in this case was whether the judge acted within his jurisdiction and was therefore immune from liability,64 it is important to note that a judge accepted a mother's "substituted judgment" regarding sterilization, which was clearly without her daughter's consent. Deception was even used to lure the daughter into the medical procedure. This case is a clear demonstration that the judgment of an incompetent and that the substituted judgment of a parent may not always be in a child's best interest when the child is mentally retarded.

        In Wentzel v. Montgomery County Hospital, Inc.,65 the Court of Appeals of Maryland wavered between application of the substituted judgment doctrine and a best interests standard. In this case the mother and grandmother of a 13 year old mentally incompetent female petitioned the court to permit sterilization because of her inability to understand and handle her own bodily functions.66 Ultimately the court applied a best interests standard in this situation as the incompetent was a minor. The court cited Strunk as precedent and also cited In Re Mary Moe67 which held that a trial court should apply the substituted judgment doctrine to cases when it must determine whether to authorize sterilization.68 The Wentzel court, which ultimately permitted the sterilization, seems uncertain as to which standard it actually applied. The dissent in this case, however, makes it clear that substituted judgment is the proper standard in this situation:

Thus, under the doctrine of substituted judgment, in determining whether to authorize sterilization, the trial court must not be concerned solely with objective criteria of what is in the best interests of the incompetent minor, but rather must place primary emphasis upon the decision that would be made by the incompetent minor if he or she were competent. Only by so doing can the incompetent minor's personal fundamental rights be fully protected and, therefore, the incompetent minor's best interests be fully preserved.69

This dissenting judge also assumes that the substituted judgment doctrine and the best interests standard can be equated with each other and that best interests are the ultimate result of substituted judgment.

        Two courts however have recognized the abuse of the substituted judgment doctrine in the cases of compulsory sterilization. In In re A.W.,70 the Supreme Court of Colorado, sitting En Banc, refused to allow the sterilization of a 12 year old incompetent girl based on her parents' substituted judgment. This court held that:

Simply allowing the parents or guardians of the mentally retarded person to substituted their decision and consent to sterilization for that of the incompetent person is not an adequate solution to the problem. Consent by parents to the sterilization of their mentally retarded offspring has a history of abuse which indicates that parents, at least, in this limited context, cannot be presumed to have an identity of interest with their children.71

This court recognized that the inconvenience and difficulties associated with caring for an incompetent child may cause parents to make decisions that infringe upon their offspring's procreational rights.72

        This conflict of interest is also recognized in the case of Conservatorship of Valerie N.73 The California Court of Appeals held that there is "[a]n increasing awareness of conflicts which may exist between incompetent persons and those who are charged with their care."74 This California court went on to state:

[B]ecause many unknown and variable considerations are thus involved in a decision whether or not to undergo or impose sterilization, it is perceptibly necessary that the procedure be limited to persons who are able to give informed consent. The limitation protects the fundamental right of an incompetent person to bear children.75

While several courts have recognized the varying motivations of parents and guardians in situations involving compulsory sterili- zation, few courts have recognized this problem in cases of organ donation. This distinction can easily be traced to a benefits analysis. In cases of organ donation, the person to be benefitted may receive life or health. Without this surgery, the donee may die or be subjected to a painful and difficult lifestyle. It is also argued that the donor may benefit psychologically. In situations involving sterilization, however, it is the guardians who are benefitted both physically, as they do not have to deal with the problems of menstru- ation and conception, and psychologically, as they do not have to worry about promiscuity. The detriment to the incompetent female, however, may arguably be too great as she loses her fundamental right to bear children. In situations where the benefit involves the life or health of a competent individual, such as cases of organ donation, as opposed to a guardian's peace of mind, as in sterilization cases, courts are more willing to apply the doctrine of substituted judgment and infringe upon the rights of an incompetent person.

C. Refusal and Withdrawal of Life-sustaining Treatment

        The medical situation best designed for application of the substituted judgment doctrine is the decision to refuse or discontinue life-sustaining treatment. This is only true however, in situations where a patient was once competent. Frequently, this situation involves a person who has become incompetent through disease or accident but who has already developed a system of ideals and beliefs which can be applied in making a substituted judgment. Paradoxically, this has been the situation in which courts are most reluctant to apply the substituted judgment doctrine. The only Supreme Court decision involving the substituted judgment doctrine in this situation is Cruzan v. Missouri Department of Health.76 In Cruzan, the Supreme Court held that due process did not require a state to accept the substituted judgment of close family members without substantial proof that their views reflect those of the patient.77 Even though Nancy Cruzan had made general statements about her desire to discontinue her life if she were in a vegetative state,78 the Supreme Court did not find this to be sufficient evidence of her intent. The tenor of the Supreme Court's opinion also recognized that Nancy Cruzan's parents were people with the best possible motives and concerns.79 Additionally the Court wrote that "there is no automatic assurance that the view of close family members will necessarily be the same as the patient's would have been had she been confronted with the prospect of her situation while competent."80

        In the case of an incompetent sixty-seven year old male with an I.Q. of ten, however the Supreme Judicial Court of Massachussetts came to a dramatically different decision. In Superintendent of Belchertown State School v. Saikewicz,81 a Superintendent of a state institution petitioned the court to make a decision regarding administration of chemotherapy treatments for a man suffering from acute myeloblastic monocytic leukemia. Ultimately, the court let this decision turn on a general right of all persons to refuse medical treatment and extended this right to include those who are incompetent.82 This court applied the substituted judgment doctrine, and distinguished this case from other right to die cases in stating:

To make a worthwhile comparison, one would have to ask whether a majority of people would choose chemotherapy if they were told that something outside of their previous experience was going to be done to them, that this something would cause them pain and discomfort, that they would be removed to strange surroundings and possibly restrained for extended periods of time, and that the advantages of this course of action were measured by concepts of time and mortality beyond their ability to comprehend.83

While this court found that most people in a similar situation to Mr. Saikewicz elect to undergo chemotherapy,84 this court held that the decision to withhold treatment from Mr. Saikewicz "was based on a regard for his actual interests and preferences. ..."85 This decision was based primarily on Mr. Saikewicz's inability to understand the treatment he would have to undergo.86 While this court may actually have been making a decision that was in Mr. Saikewicz's best interests, the court's reasoning is twisted is such a manner as to allow this decision to be a substituted judgment. Technically, this court based its decision on what Mr. Saikewicz would have decided if competent. Theoretically, however, Mr. Saikewicz can never have made such a decision and therefore cannot have the doctrine of substituted judgment applied. While this case may arguably have been correctly decided, it could not have been decided applying the doctrine of substituted judgment.

        Mr. Saikewicz, who had never been able to express any sort of opinion regarding chemotherapy treatments, was permitted to have his guardian's judgment substituted for his in this situation. Ms. Cruzan, who had expressed some opinions regarding her situation, was not permitted to have her parents' judgment substituted for hers. While Cruzan was decided after Saikewicz, the key distinguishing factor is that Mr. Saikewicz had never been competent while Ms. Cruzan had been. Additionally Missouri required a standard of clear and convincing evidence while Massachussetts did not. In a case where substituted judgment could not in theory be applied, a court chose to apply the doctrine. In a case where substituted judgment could reasonably have been applied, however, the Supreme Court refused to do so.

        Prior to the Cruzan decision, several courts permitted the use of substituted judgment for removal of life-sustaining medical treatment from persons in an irreversible vegetative state.87 Cruzan, however, is not viewed as controlling precedent in all situations involving removal of life-sustaining treatment. The Supreme Court did not mandate that courts apply the standard of clear and convincing evidence required in the state of Missouri.88 Rather, Cruzan permitted the states to apply such a standard.

        Additionally, Cruzan does not serve as a precedent in cases such as Saikewicz. The Cruzan decision applies to persons once competent, who through accident or illness remain in a persistent vegetative state. Saikewicz, however, stands for the proposition that the court may apply the doctrine of substituted judgment to situations where a person who has never been competent under the law must decide whether to accept or reject life prolonging treatment. While the Saikewicz court presents its decision under the rubric of "the right to refuse medical treatment," this application is particularly dangerous in cases involving the mentally deficient. As medical costs increase and medical technology improves, the doctrine of substituted judgment may be applied in a utilitarian manner to deprive incompetents of medical care they may be entitled to. Although it has been argued that, "the substituted judgment doctrine is explicitly non-utilitarian, and makes no claim that the rights of incompetents may be overridden to advance the interests of others, where the rights of competents may not be similarly overridden,"89 this is exactly what has been done in cases such as Strunk and Saikewicz. When the life of an incompetent become devalued to aid another or refuse a human being medical treatment, the substituted judgment doctrine has reached its most ominous appli- cation. It creates generic reasonable idiots who may be prone to giving their organs or their lives away.90

       23 445 S.W.2d 145 (Ky.1969)
       24 Id. at 145.
       25 Id. at 146.
       26 Id.
       27 Id.
       28 Id.
       29 Id.
       30 Id.
       31 445 S.W.2d at 148.
       32 Id.
       33 See John A. Robertson, Organ Donations by Incompetents and the Substituted Judgment Doctrine, 76 COLUMBIA L. REV. 48,56 (1976).
       34 Id.
       35 226 N.W.2d 180 (Wis. 1975)
       36 Id. at 181.
       37 Id. at 182.
       38 Id. at 183.
       39 226 N.W.2d at 184.
       40 Id.
       41 284 So. 2d 185 (La. 1973).
       42 Id. at 187.
       43 Id.
       44 Id.
       45 Id. at 188.
       46 289 A.2d 386 (Conn. 1972)
       47 Id. at 388 (a one egg twin carries identical genetic material which eliminates all risk of rejection).
       48 Id. at 389.
       49 Id.
       50 289 A.2d at 391.
       51 Id. at 390.
       52 Id. at 391.
       53 Id. at 389.
       54 See supra note 4 and accompanying text.
       55 566 N.E.2d at 1325. The court based its decision on the fact that, "It is not possible to discover the child's 'likely treatment/nontreatment preferences' by examining the child's philosophical, religious and moral views, life goals, values about the purpose of life and the way it should be lived, and attitudes towards sickness, medical procedures, suffering and death." Id. at 1326 (quoting in Estate of Longeway, 549 N.E.2d 292-299 (Ill. 1989, (quoting In re Jobs, 529 A.2d 434,445 (N. J. 1987) citations omitted)).
       56 566 N.E.2d at 1321.
       57 Robertson, supra note 33, at 50. Robertson also writes that "the use of children and the institutionalized mentally impaired in experimentation cannot be rationalized in terms of consent precisely because they are incapable of consent." Id. While organ transplantation is not "experimental," the theory is the same. Surgery performed on persons incapable of consent cannot be rationalized in terms of consent.
       58 Id. at 69 (footnotes omitted). The Curran court, which rejects the substituted judgment doctrine, carefully evaluates the risks inherent in the surgery:

[w]hile the incidence of risk is not very high, the risk is medically significant. When a 3 1/2-year-old child undergoes a bone marrow harvesting procedure, the child is put under general anesthesia. Special needles are put through the skin into the hip bones at the side on both sides of the child and at the front on both sides. Dr. Johnson testified that in order to obtain the amount of bone marrow which would be necessary for a transplant to Jean Pierre, the bone would have to be punctured 100 separate times.
Curran v. Bosze, 566 N.E.2d at 1333.
       59 Strunk supra note 2, 445 S.W.2d at 149.
       60 Robertson, supra note 33, at 70.
       61 435 U.S. 349 (1978).
       62 Id. at 351.
       63 Id. at 353.
       64 Id. at 364. While the Court held Judge Stump immune from damages, it recognized that the judge's approval of the petition was in error.
       65 Id. 447 A.2d 1244 (Md. 1982), cert. denied, 459 U.S. 1147 (1983).
       66 Id. 447 A.2d at 1246.
       67 432 N.E.2d 712 (Mass. 1982).
       68 Wentzel, 447 A.2d at 1251 (citing In re Mary Moe, 432 N.E.2d 712 (Mass. 1982)). While the court decided that the substituted judgment doctrine was the proper test to apply, this court, and the Wentzel court confused this doctrine with the best interests standard: The Supreme Judicial Court of Massachusetts concluded that the trial court--a court of general equity jurisdiction--possessed inherent equitable power to grant a petition for sterilization, shown it to be in the best interest for the mentally incompetent ward. In so holding, the court said "that the [trial] court is to determine whether to authorize sterili- zation when requested by the parents or guardian by finding the incompetent would so choose if competent. Id.
       69 Id. at 1263 (Davidson, J., dissenting).
       70 637 P.2d 366 (Colo. 1981); but see Buck v. Bell, 274 U.S. 200 (1927), upholding a Virginia sterilization statute and making the infamous sterilization that "[t]hree generations of imbeciles are enough." 274 U.S. at 207.
       71 637 P.2d at 370 (footnotes omitted).
       72 Id. These fears include sexual promiscuity and exploitation. The court recognizes procreational rights as fundamental and also recognizes that sterilization has been greatly abused by guardians in the past.
       73 199 Cal. Reporter. 478 (Cal. Ct. App. 1984), aff'd 707 P.2d 760 (Cal. 1985). The appellate court affirmed the decision of the trial court in holding that conservators were not entitled to have conservatee sterilized. The Supreme Court of California affirmed, holding that the California statute prohibiting sterilization of those under conservatorship "[d]eprives developmentally disabled persons of privacy and liberty interests...." Id. at 771-72. The Court explicitly ruled, however, that its judgment was without prejudice to a renewed petition to establish that sterilization was necessary to the conservatee's habilitation. Id. at 762. In assuming that those who are incompetent has a right to procreative choice the court may have made a drastic mistake in reasoning. As observed in Chief Justice Bird's dissent:
Today's holding will permit the state, through the legal fiction of substituted consent, to deprive many women permanently of the right to conceive and bear children. The majority can run roughshod over this fundamental constitutional right in a misguided attempt to guarantee a right of procreative choice for one they assume has never been capable of choice and never will be. Yet precisely because choice and consent are meaningless concepts when applied to such a person, the majority's invocation of the theory of procreative choice and the fiction of substituted consent cannot withstand constitutional scrutiny.
Id. at 781-82 (Bird, C.J., dissenting)
       74 199 Cal Rptr. at 486 (citing Stump v. Sparkman, 435 U.S. 349,351 (1978)).
       75 Id. Procreation has been recognized as a fundamental right for over fifty years. See Skinner v. Oklahoma, 316 U.S. 535 (1942).
       76 497 U.S. 261 (1990).
       77 Id. at 285-86.
       78 Id. at 285. Nancy "`[e]xpressed thoughts at age twenty-five in somewhat serious conversation with a housemate friend that if sick or injured she would not wish to continue her life unless she could live at least halfway normally....'" Id. at 268.
       79 Id.
No doubt is engendered by anything in this record but that Nancy Cruzan's mother and father are loving and caring persons. If the state were required by the United States Constitution to repose a right of "substituted judgment" with anyone, the Cruzans would surely qualify. But we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself. Close family members may have a strong feeling--a feeling not at all ignoble or unworthy, but not entirely disinterested, either--that they do not wish to witness the continuation of the life of a loved one which they regard as hopeless, meaningless, and even degrading.
Id. at 286.
       80 Cruzan, 497 U.S. at 286.
       81 370 N.E.2d 417 (Mass. 1977).
       82 Id. at 427. "To protect the incompetent person within its power, the State must recognize the dignity and worth of such a person and afford to that person the same panoply of rights and choices it recognizes in competent persons." Id. at 428. Here again, a court is applying a theory of choice to a person who is not capable of such a "choice" under the law.
       83 Id. at 430.
       84 Id. at 431.
       85 Id. at 492.
       86 Id. The two factors considered by the probate judge to weigh in favor of administering chemotherapy were: (1) the fact that most people elect chemotherapy and (2) the chance of a longer life. Both are appropriate indicators of what Saikewicz himself would have wanted, provided that due allowance is taken for this individuals present and future incompetency. We have already discussed the perspective this brings to the fact that most people choose to undergo chemotherapy. With regard to the second factor, the chance of a longer life carries the same weight for Saikewicz as for any other person, the value of life under the law having no relation to intelligence or social position. Id. at 431. It is ironic, therefore, that this court chose to permit this procedure after recognizing that the life of an incompetent has the same value as the life of a competent individual.
       87 See generally In re Estate of Longeway, 549 N.E.2d 292 (Ill. 1989) (recognizing that the guardianship of a terminally ill patient in an irreversible coma may exercise the right to refuse artificial nutrition and hydration); In re Jobes, 529 A.2d 434 (N.J. 1987) (noting that the right of patient in an irreversible vegetative state to determine whether to refuse life sustaining treatment can be exercised by a patient's family or close friend).
       88 Cruzan, 497 U.S. at 282,284.
       89 See Robertson, supra note 33, at 76.
       90 Harmon, supra note 7, at 41.

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