Shepherd on the Schiavo Case

New on SSRN: Lois Shepherd, Shattering the Neutral Surrogate Myth in End-of-Life Decisionmaking: Terri Schiavo and Her Family. The abstract:

In the Terri Schiavo case, different family members who want the legal authority to make decisions for Terri Schiavo have sought different treatment options - with results as opposed as life and death. Had the case not come before the courts, Michael Schiavo, Terri's husband, would have had Terri's feeding tube removed long ago; Terri's parents, Mary and Robert Schindler, if either had been named surrogate in Michael's stead, would continue feeding her indefinitely. Recognizing, as the Schiavo case highlights, that who among family members speaks for the patient can determine the course of treatment or non-treatment for a patient, it is necessary to turn renewed attention to the question of why families, whether we define them as spouses or parents, are involved in the end-of-life decisionmaking of their relatives. Are they merely a representative or even fiduciary of the patient or are they stakeholders in their own right? Do we look to family members as surrogates because they ensure a sounder process, a neutral process, for determining patient preferences and interests, or do we look to family members as surrogates because we recognize that families want to be (and perhaps should be?) involved? This paper argues that some deference to family members' own interests can be justified on the grounds of a broad notion of patient self-determination, but some degree of deference might also be justified out of respect for family members' own interests. Our law should not demand strict neutrality of these family members, but should acknowledge that their interests may have value as well. At the same time, there must be limits: the family's preferences and interests should not be allowed to overshadow those of the patient.