SB 764

By Tom Tomlinson

MHR readers will be interested in tracking the progress of Michigan Senate Bill 764, introduced in the Fall legislative session and referred to the Committee on Family and Human Services. The bill would amend the state probate code to provide special protections for a fetus being carried by a legally incapacitated person. Specifically, the bill provides that:

1. If medical care, treatment, or service for a legally incapacitated individual presents a risk of injury to or death of an unborn person, the legally incapacitated individual’s guardian shall report that risk to the court. The court shall appoint a guardian ad litem to represent the interest of the unborn person.

 

2. If he or she accepts the appointment under this section, the guardian ad litem shall investigate and make a recommendation concerning the medical care, treatment, or service. The guardian ad litem shall make a report of the investigation and recommendation in writing or recorded testimony.

3. A person who has possession or control of information, reports, or records regarding a legally incapacitated individual shall give a guardian ad litem appointed under this section access to the information, reports, or records.

4. A guardian ad litem appointed under this section may engage legal counsel and do whatever is necessary to defend and protect the interests of the unborn person.

The proposed Senate bill would fill this legal vacuum with the assumption that the interests and rights of an unborn child are at least potentially on a par with, and might supersede, those of the incapacitated person. This is a principle that would readily be accepted by those with right-to-life convictions, and such convictions are no doubt what motivates the sponsors of this bill. However, even those who generally support the right to choose abortion might be able to envision circumstances when the stakes for the incapacitated person are so low, and the stakes for a viable fetus are so high, that the interests of the fetus might plausibly take precedence, at least in the absence of any previously-expressed wishes of the patient to the contrary. Imagine, for example, the situation of a pregnant patient, near term, who is now comatose and near death. Unless there was evidence that she would refuse such interventions, sustaining her on life support long enough to improve the chances of the baby’s intact survival seems an ethically reasonable course of action.

The question is whether such possibly acceptable applications of the proposed law can justify its passage. We have to consider what its implications would be when it is applied to the whole range of situations in which incapacitated pregnant women might be placed. Some of those are very worrisome. One has to do with the potential interference with a woman’s right to control her medical treatment. To make the previous scenario even remotely plausible for those without right-to-life convictions, I had to stipulate that we had no evidence regarding the patient’s wishes in the matter. What if she had expressed her wish to have treatment stopped under such circumstances, or her patient advocate in good faith represented this as her view? The Senate bill wouldn’t require that these wishes be ignored. But it would require that their implementation be delayed pending the appointment of a guardian ad litem, the guardian ad litem’s investigation, and the eventual outcome of a probate court hearing. This delay becomes even more troubling if we consider that the patient may not be comatose, but alert enough to be suffering the effects of her illness and its treatment.

Such threats to the patient’s rights and interest arise not only in situations when treatment should be withdrawn, but when it should be provided. Imagine a pregnant developmentally disabled woman with a court-appointed guardian who is diagnosed with an aggressive cancer, which requires treatment with chemotherapy and radiation which pose risks to normal fetal development. Here a delay might well compromise the prognosis for this patient’s successful treatment.

In so obstructing the protection of incapacitated women’s rights and interest, the bill sets up a double standard. At least so long as Roe v. Wade stands, adult pregnant women with legal capacity don’t have to prove to a court that their decision to have an abortion, or to accept or refuse medical treatment, duly protects the best interests of their fetus. It’s hard to imagine an acceptable ethical reason for singling out decisions for incapacitated women for special legal scrutiny. Is it that as a rule, being incapacitated, their rights and interests are less compelling than those of competent women, and so more likely to be plausibly overridden by the interests of the fetus? But decades of court cases, from Quinlan on, have taught us that their wishes are equally deserving of respect, where they are known. And surely, their interest in avoiding pointless suffering, and in preserving health and function, is equally strong.

The cynical might conclude that the sponsors are hoping we competent citizens won’t much notice or care what happens to incapacitated citizens. Those who do care should keep an eye on SB 764.

(To track health-related legislation, go to www.MichiganLegislature.org. The site allows you to set up a free account that will notify you of legislation being introduced.)

Tom Tomlinson , PhD
Director, the Center for Ethics and
Humanities in the Life Sciences