Right To Die

Generally, an individual who is an adult and who has a competent mind has a right to determine what shall be done with his or her own body and to control the course of his/her medical treatment.  In other words, a conscious adult patient who is mentally competent has the right to refuse medical treatment, even when the best medical opinion deems it essential to save his/her life[i].

The right to refuse medical treatment anticipates all forms of medical treatment, including lifesaving and life sustaining procedures.  On behalf of a disabled person, this right is exercised by that person’s guardian[ii].  However, the declaration of a qualified patient to withhold or withdraw life sustaining procedures may not be implemented by the denial of food, water, or of such medication and medical procedures that are necessary to provide comfort care and to alleviate pain[iii].

It is to be noted that the right of a woman to refuse invasive medical treatment derived from her rights to privacy is not diminished during pregnancy.  The woman retains the same right to refuse invasive treatment, even of lifesaving or other beneficial nature that she can exercise when she is not pregnant[iv].  An incompetent person has the right to have life sustaining medical treatment terminated if it is established that such person expressed the desire to invoke that right when s/he was competent.

A court deciding to withhold or withdraw life sustaining medical treatment from a dependent child must consider the following[v]:

  • child’s present levels of physical, sensory, emotional and cognitive functioning;
  • quality of life, life expectancy and prognosis for recovery with and without treatment;
  • nature and degree of physical pain or suffering resulting from the medical condition;
  • whether the treatment provided is causing or may cause pain, suffering, or serious complications;
  • pain or suffering to the child if the treatment is withdrawn;
  • whether any particular treatment will be proportionate or disproportionate in terms of the benefits to be gained by versus the burdens caused to the child;
  • likelihood that pain or suffering resulting from withholding of treatment could be avoided or minimized;
  • degree of humiliation, dependence and loss of dignity resulting from the condition and treatment;
  • opinions of the family, the reasons behind the opinions, and the reasons why the family has no opinion or cannot agree on a course of treatment;
  • motivations of the family in advocating a particular course of treatment;
  • child’s preference, if it can be ascertained, for treatment.

Similarly, a permanently comatose child has an independent right to discontinuance of artificially sustained life through the mechanical invasion of the child’s body and that an appropriate representative may judicially assert that right on behalf of the child[vi].  Likewise, parents may also be subjected to prosecution in some jurisdictions if they fail to provide lifesaving treatment for children whose conditions may be cured by treatment or whose impaired bodily functions may be restored.  Therefore, failure to provide needed medical care, regardless of the parent’s religious beliefs, can constitute the lack of due caution basis by which the parent may be convicted of involuntary manslaughter[vii].

However, the right to refuse medical treatment is not absolute.  The privacy right upon which a right to die has sometimes been based extends only to situations where state action exists.  The right to refuse medical treatment is not absolute, because the state has an interest in protecting the sanctity of the lives of its citizens.

The state can intervene if the interests of the state outweigh the interests of the patient in refusing medical treatment. Under this circumstance, courts generally consider four state interests[viii]:

  • Preservation of life;
  • Prevention of suicide;
  • Protection of third parties;
  • Ethical integrity of the medical profession.

Although the U.S. constitution does not explicitly guarantee a right of privacy, the court decisions have recognized that a right of personal privacy exists and that certain areas of privacy are guaranteed under the constitution[ix].  An adult who is incurably and terminally ill has a constitutional right of privacy that encompasses the right to refuse treatment that serves only to prolong the dying process, if there is no countervailing state interest[x].

[i] In re Application of Eichner, 102 Misc. 2d 184 (N.Y. Sup. Ct. 1979)

[ii] Mack v. Mack, 329 Md. 188 (Md. 1993)

[iii] Id

[iv] People v. Brown (In re Brown), 294 Ill. App. 3d 159 (Ill. App. Ct. 1st Dist. 1997)

[v] In re Christopher I., 106 Cal. App. 4th 533 (Cal. App. 4th Dist. 2003)

[vi] In re P.V.W., 424 So. 2d 1015 (La. 1982)

[vii] Walker v. Superior Court, 194 Cal. App. 3d 1090 (Cal. App. 3d Dist. 1986)

[viii] Id

[ix] In re Quinlan, 70 N.J. 10 (N.J. 1976)

[x] In re Welfare of Colyer, 99 Wn.2d 114 (Wash. 1983)


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