John is an active United States Marine Sniper who has lived an
adventurous life of danger and intense experiences including multiple
wartime deployments and hazardous commando operations,
skydiving, motorcycle racing, and Ironman Triathlon competitions. He
is well know to enjoy the company of other daredevils and is widely
known to be a hard drinking “tough guy.” Camping in heavily wooded
wilderness areas with minimal supplies, a tomahawk, enough water for
the initial 8-hour hike, and sufficient material to assemble animal traps
for food is his idea of a fun week long get-away.
John is married to Susan, a demure and bookish intellectual who has
published several scholarly articles in leading scientific journals on
quantum theory and theoretic mathematical models of an everexpanding universe. She enjoys urban life, opera, ballet, the comforts
of modern living, especially air conditioning, and a carefully planned
gluten free vegan diet.
To all who know Susan and John, they appear to be polar opposites.
They are utterly disinterested in each other’s favorite activities except
one: their greatest mutual joy is spending time together and they are
madly and irrevocably head-over-heels in love with each other. John
worships the ground Susan walks on and she considers him the most
perfect and admirable man she has ever known or could ever conjure
in her imagination. Their marriage has been deeply rewarding. They
have, however, one wound that weighs heavily on their collective heart:
despite their deepest desire they have been unable to produce
children. Susan has suffered five miscarriages and many
complications from subsequent surgeries.
2
Six months ago John sustained a terrible injury. While spear fishing in
shallow water flats in the Gulf of Mexico a stingray pierced his foot and
he suffered an immediate and unexpected allergic reaction. His
companions moved rapidly to transport him for medical care but the
remote region of the Florida panhandle was far removed from any
hospital. By the time they got him to a clinic he had lapsed into a coma.
He has never regained consciousness. The attending physicians have
declared his condition one known as “persistent vegetative state”
(PVS) with no hope of every regaining cognitive function or any
awareness of his environment.
John has an advanced medical directive appointing a proxy in the
event of his incapacity. In it he directs that should he be terminal with
less than six months to live or should be diagnosed as PVS, he wants
reasonable comfort measures but no “life prolonging procedures.” The
document is a standard form document made available to all enlistees
and was signed by John upon his enlistment in the Marine Corps at 18
years of age, long before he met and married Susan. John never
modified the document in any way. He never mentioned it to Susan
and she was unaware of its existence. The directive appoints John’s
mother, Beth, as his proxy decision maker. Beth only became aware
of the appointment when John’s commanding officer and attending
physician called her to disclose its existence two weeks ago after John
was transferred from a Florida hospital to a Veteran’s Administration
hospital near his home in Montana.
Beth has determined, given his “hopeless” condition, that the assisted
nutrition and hydration currently being provided via tube feeding and
IV liens should be withdrawn. Susan is distraught and opposes that
decision. It is her hope that John may recover consciousness but even
if he does not, she would like to care for him at home. There is a long
term catastrophic disability insurance policy in place that would cover
in-home 24 hour a day home health aide care with daily visits from a
Registered Nurse. There is no durational or financial limit to the
coverage and it would guarantee John’s long-term care as long as he
survived. However, Beth is adamant to carry out John’s proxy
document instruction and sincerely believes that it her maternal and
legal duty to give effect to his expressed desire to avoid life-prolonging
procedures.
3
Susan has proposed a compromise – keep John on assisted nutrition
and hydration for six more months. If there were no change in his
condition Susan would drop her objection to withdrawing nutrition and
hydration but only after a procedure to harvest John’s sperm cells. Her
plan would then be to have her own ova harvested and a group of
embryos created by in-vitro fertilization. Given her history of
miscarriage, she would contract with a surrogate to carry one or more
of the embryos to term. Beth believes in-vitro fertilization and surrogacy
exploitive of women and will not agree. After much negotiation and
mediation by grief counselors at the VA, Beth has agreed to drop her
objection to the IVF procedures on three conditions: 1) the process
must begin immediately with no further “artificial” prolonging of John’s
hopeless condition; 2) that she, Beth, be the surrogate mother who will
be implanted with the embryos, and 3) that at least two children be
carried to term, one of whom will remain with Beth after birth and to
whom Susan would renounce all parental rights so that Beth may adopt
him or her. Susan will never agree to give up one of her children.
While this soap opera has been playing out, news of the clash between
Susan and Beth has made its way to powerful political officials in
Montana. They have engineered passage of a new state law that
provides that any health care proxy appointment shall be deemed
automatically repealed upon marriage of the principal if the spouse is
not the appointed proxy agent, and upon divorce if the former spouse
is the proxy agent.
Please identify the constitutional and other legal issues related to
the bioethics topics we have studied in the foregoing factual
account. The key to this paper is not the “correct” legal answer
but rather identification of legal issues and subsequent logical
analysis
Sample Solution
