Surrogate health care decisions and same-sex relationships.
Subject: Gay couples (Social aspects)
Gay couples (Laws, regulations and rules)
Health care industry (Social aspects)
Health care industry (Laws, regulations and rules)
Author: Murphy, Timothy F.
Pub Date: 05/01/2011
Publication: Name: The Hastings Center Report Publisher: Hastings Center Audience: Academic; Professional Format: Magazine/Journal Subject: Biological sciences; Health Copyright: COPYRIGHT 2011 Hastings Center ISSN: 0093-0334
Issue: Date: May-June, 2011 Source Volume: 41 Source Issue: 3
Topic: Event Code: 930 Government regulation; 940 Government regulation (cont); 980 Legal issues & crime; 290 Public affairs Advertising Code: 94 Legal/Government Regulation Computer Subject: Government regulation; Health care industry
Geographic: Geographic Scope: Illinois; New York Geographic Code: 1U3IL Illinois; 1U2NY New York
Accession Number: 268403518
Full Text: Early in 2011, Illinois joined the ranks of states that recognize civil unions between both same-sex and opposite-sex couples. (1) The law gives partners in these unions "the same legal obligations, responsibilities, protections and benefits as are afforded or recognized by the law of Illinois to spouses." (2) Despite the fact that Illinois and most other states still reserve marriage for opposite-sex couples, the option of civil unions will make it easier for some couples to make health care decisions for one another should one of them become incapacitated.

Surrogate decision-makers for health care are a significant topic for everyone, but the issue has special resonance for same-sex couples because the law in most jurisdictions excludes same-sex couples from the benefits that marriage and some civil unions confer in those health care decisions. Through marriage, states provide wives and husbands the legal right to make decisions for their incapacitated spouses as a matter of course. By contrast, men and women who are in relationships not recognized by the state in any way--whether same-sex or opposite-sex relationships--generally lack legal standing to make those kinds of decisions, no matter how long the partners have been together or the depth of their commitment to one another. In some states, coupled but unmarried people may gain that standing through civil unions, but most jurisdictions in the United States recognize neither those unions nor same-sex marriage.

Cloud State University professor Karen Thompson learned about the marginal status of same-sex partners the hard way when her partner, Sharon Kowalski, became incapacitated in a 1983 accident. Despite Kowalski's relationship with Thompson, physicians turned to the injured woman's parents for decisions about care. The Kowalski family excluded Thompson from any decisions about the woman with whom she had had a commitment ceremony. (3) Thompson was, however, unwilling to cede decisions about her partner's well-being, in part because she thought poor choices were being made. Thompson took to the courts and the media to advocate on her partner's behalf. Only in 1991 did the Minnesota Court of Appeals grant Thompson's petition for guardianship, calling the couple a "family of affinity." (4)

Many legal jurisdictions in the United States have neither this kind of court precedent nor a statute to authorize men and women in same-sex relationships to make health care decisions for partners who become incapacitated. Most states have recognized a hierarchy of decision-makers for incapacitated patients, but these usually make no specific mention of same-sex partners. (5) Under those laws, it is typically legal guardians who are entitled to make decisions for incapacitated people in their charge. If there are no court-appointed guardians, then spouses are entitled to make those decisions. If there are no spouses, then adult children or--after them--the patient's parents make the decisions. The list goes on from there to adult siblings, then adult grandchildren. After this circle of relatives is exhausted, clinicians may turn to close friends, but if there are also no identifiable friends, clinicians may turn to guardians of the estate. Gay or lesbian partners do not appear as such in these hierarchies. States permitting same-sex marriage will recognize partners in those relationships as spouses, and states permitting civil unions typically treat partners in those relationships as spouses, but other states specifically forbid same-sex marriage, do not permit civil unions, and do not recognize common-law marriages. (6) Gay and lesbian partners in these states will qualify as surrogate decision-makers only as close friends, and even then, they will only be called upon if no one higher on the list is available and willing to make decisions.

In practice, some clinicians involve same-sex partners in discussions about patient care, especially when the domestic partner has good relationships with the patient's family members. When there are no disagreements between domestic partners and legally recognized surrogates, there is no need to parse statutory entitlements closely. A state's ladder of decision-makers is not, of course, the only mechanism for identifying surrogate decision-makers. For those willing to plan ahead, all adults are entitled to execute a durable power-of-attorney for health care to identify the person they wish to make health care decisions on their behalf in case of their inability to do so, and that someone can be a same-sex partner. But without taking that extra step, same-sex partners often have no legal standing as decision-makers so long as they are not in legally recognized relationships and so long as anyone else is higher up in the hierarchy laid out in surrogate decision-maker statutes. Family members entitled to make decisions might cede the right to make decisions to the same-sex partner under these circumstances, but then again, they are not required to do so.

In March 2010, New York state took a major leap forward in regard to health care decisions for gay and lesbian couples, whether they are in legally recognized marriages or not. (7) New York adopted a surrogate decision-maker statute that puts domestic partners on a par with spouses without tying that status to legally recognized marriages or civil unions. (8) Legal guardians remain at the top of the New York hierarchy when it comes to making decisions for incapacitated patients, but next in line, spouses and domestic partners have that authority. Most people don't have legal guardians since courts usually appoint them only as necessary to protect the welfare of people under certain circumstances, so ordinarily, spouses and domestic partners will make decisions for the incapacitated patient. This makes good moral and health care sense because spouses and domestic partners can usually be trusted to have the welfare of their incapacitated wives, husbands, or partners in mind as they make decisions. Their lives are intimately wrapped up with one another, and they are typically in the best position to estimate what the incapacitated party might wish done. This is not to say that there won't be uncertainty about what is best for any given patient, but it does acknowledge that gay and lesbian domestic partners can sometimes do better in guiding health care decisions than other family members, even parents and siblings. After all, not all blood relationships are close and supportive.

To add precision to the law, New York defines domestic partners as those persons who are registered as such in a registry maintained by an employer, a state, a municipality, or a foreign jurisdiction. (9) New York law also recognizes domestic partners in other ways besides registries--for example, by coverage under the partner's employment or health insurance, by economic dependence, by economic interdependence in regard to income and expenses, by common ownership of property, by children in common, or by having expressed signs of intent to marry or otherwise become domestic partners. Not everyone can qualify as a domestic partner: those who have certain blood relations, anyone less than eighteen years of age, and any person adopted by the patient in question are excluded. Of course, some same-sex couples are legally married in the eyes of other states, and the New York law makes provision for them as well, by recognizing relationships "similar to" domestic partnership.

New York is not the first jurisdiction to make a place for domestic partners (outside marriage or civil unions) in health care decisions. The province of Ontario in Canada affords decision-making authority to the "incapable person's spouse or partner." (10) Ontario defines both spouses and partners in terms of their legal relationship or their social relationship. Spouses are persons married to one another, persons who live "in a conjugal relationship outside marriage" for at least a year and have a child, or persons who have specifically entered into a "cohabitation agreement." The Ontario law also goes on to define partner as "either of two persons who have lived together for at least one year and have a close personal relationship that is of primary importance in both person's lives." Same-sex couples are recognized under this definition no less than opposite-sex couples.

No statute, however inclusive, can solve all problems of surrogate decision-making. For example, the New York statute permits physicians to turn to spouses or domestic partners for guidance, but a given patient may have both a spouse and a domestic partner. Some people begin new relationships without the benefit of divorce from marriage, and that goes for people who walk away from opposite-sex relationships and enter same-sex relationships, as well. The way the law is written, neither the legal spouse nor the domestic partner has priority over the other as a decision-maker. Since human relationships are often fractious, conflict between these two parties remains a possibility, but these difficulties exist elsewhere in surrogate-decision laws and are not reason enough to put spouses and domestic partners at different ranks in decision-making. For example, surrogate statutes in the United States do not ordinarily prioritize one adult child above the other, and adult siblings can disagree--sometimes profoundly--about what health care decisions are best for their parents, for example. In these circumstances, a U.S. physician will need to tamp down disagreements as far as possible, usually by initiating discussions that lead to one person speaking on behalf of all parties entitled to participate in surrogate decisions. Should the need arise, the same tactic could be deployed for spouses and domestic partners in conflict with one another. All things considered, it is better to have these kinds of problems than to have no place at all for domestic partners in decision-making on behalf of people whose lives they share.

Ontario law makes provision for conflicts of this kind by uncoupling married people if a domestic partner is also in the picture. Suppose an incapacitated person has both a spouse and a same-sex partner. The marriage notwithstanding, Ontario law would not recognize the legal spouse as the decision-maker if the spouses were "living separate and apart as a result of a breakdown of their relationship." In other words, patients do not have to be divorced or legally separated from their spouses, only estranged and living apart, in order for the domestic partner's rights as a decision-maker to take effect. If physicians are unable to make the relevant determinations about who is living with whom, where, and which relationships are broken, the law provides for an intervention by a public guardian. By itself, this intervention would not necessarily prioritize the legal spouse over the domestic partner.

New York's new surrogate law was a long time coming, and it had stalled many times since the New York State Task Force on Life and Law first proposed a version in 1992. (11) For gay and lesbian couples in that state, the wait was certainly worth it, given the shift in public opinion toward homosexual men and women that has unfolded in the interim. In 2003, for example, the U.S. Supreme Court struck down the right of states to criminalize sex between men and between women--a right it had upheld as recently as 1986. The Supreme Court said that its Lawrence v. Texas decision had no bearing on the question of same-sex marriage, but it also pointed to the value of same-sex relationships to the men and women in them as one reason to invalidate criminal sanctions against sodomy: "It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice." (12) Sex, the court says, can be part of a "personal bond" that is more enduring than the physical contact of bodies. This kind of analysis may not justify same-sex marriage, legally speaking, but it certainly points to a need to pay more heed to the relationships men and women have that do not it the paradigm of opposite-sex marriage.

In different ways, some states and provinces have rejected the view that coupled gay men and coupled lesbians should have no formal standing in the law to make decisions for one another. The surrogacy laws of New York and Illinois do not apply only to same-sex partners, of course, but they have special benefit for those relationships since marriage is not equally available to same-sex people, and neither is civil union. Even in the jurisdictions that do permit same-sex marriage and civil unions, not all same-sex couples will want them. Men and women who stand outside marriage for reasons of choice or legal impediment (such as state defense of marriage acts) should not be excluded from health care decisions affecting the people most important to them. That exclusion remains a live problem.

In 2007, a lesbian woman complained in court that a Florida hospital turned her away from the bedside of her dying partner, even though she said she had legal authorization to serve as decision-maker. (13) The court found that the hospital was guilty of no wrongdoing, but the allegation resonated with many gay and lesbian people as emblematic of their marginal status under the law. In April 2010, President Barack

Obama sent a memorandum to the secretary of the Department of Health and Human Services directing her to ensure that hospitals receiving federal funds "respect the rights of patients to designate visitors" and that these visitors--whoever they are--should be given the same degree of visitation as family members. (14) Obama also directed the secretary to ensure that hospitals receiving federal funds comply with regulations requiring respect for legally authorized decision-makers. (15)

Some commentators in the profamily camp object not only to same-sex marriage, but also to civil unions, claiming that they will weaken marriage. It is hard to see that respect for gay men and lesbians choosing their own visitors and decision-makers can damage marriage in any significant way. If we look squarely at the social facts, same-sex partners can and do commit to one another in ways that are meaningful to them and valuable to their children when they have them. It is morally dubious to subordinate the welfare and happiness of the people in same-sex relationships to the symbolism of a rigid conception of marriage. In the name of access and equity, it is important for all jurisdictions to find a way to extend the power of surrogate decision-making to people who commit to one another in same-sex relationships and in opposite-sex relationships, too. Same-sex marriage will help accomplish that goal, civil unions can do their part, too, and--for those who do not want that kind of legal status--so will laws that acknowledge same-sex relationships as a reasonable threshold for serving as a surrogate decision-maker.

(1.) M. Davey, "Illinois Governor Signs Civil Union Law," New York Times, January 31, 2011.

(2.) Illinois Public Act 096-1513, sec. 20.

(3.) K. Thompson and J. Andrzejewski, Why Can't Sharon Kowalski Come Home (San Francisco, Calif.: Aunt Lute Press, 1989).

(4.) C. Charles, The Sharon Kowalski Case: Lesbian and Gay Rights on Trial (Lawrence: University Press of Kansas, 2003).

(5.) 755 ILCS 40/25.

(6.) 750 ILCS 5/212.

(7.) A. Hartocollis, "Law Dictates Who Decides on Care for the Incapable," New York Times, March 18, 2010.

(8.) Laws of New York 2010, Family Health Care Decisions Act, Art. 29B, sec. 2965, "Surrogate Decision-Making."

(9.) vitalrecords/domesticpartnerships/Pages/default.aspx.

(10.) Ontario Healthcare Consent Act 1996, at 4.3.5.

(11.) New York State Task Force on Life and the Law, When Others Must Choose: Deciding for Patients without Capacity, 1992.

(12.) Lawrence v. Texas 539 U.S. 558, II. (2003).

(13.) Langbehn v. Jackson Memorial Hospital, U.S. Southern District of Florida, Miami Division, September 28, 2009.

(14.) B. Obama, "Presidential Memorandum--Hospital Visitation," The White House, April 15, 2010, presidential-memorandum-hospital-visitation; see also S.G. Stolberg, "Obama Widens Medical Rights for Gay Partners," New York Times, April 15, 2010; C. Levine, "President Obama's Groundbreaking Order on Hospital Visitation and Decision-Making," Bioethics Forum, April 19, 2010, Bioethicsforum/Post.aspx?id=4617&blogid=140.

(15.) M. Shear, "Obama Extends Hospital Visitation Rights to Same-Sex Partners of Gays," Washington Post, April 16, 2010.

Timothy F. Murphy, "Surrogate Health Care Decisions and Same-Sex Relationships," Hastings Center Report 41, no. 3 (2011): 24-27.
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