Jim Henley makes the entirely reasonable argument that a weighing of the felicific calculus in the matter of Terri Schiavo would seem to lean heavily toward the parents:
[I]f Terry Schiavo’s parents are willing to assume “custody†of her and provide for her care, why would that not be an acceptable outcome for all concerned? Michael can have a divorce and remarry. His parents get the fulfillment they wish or the punishment they deserve.
[….]
That leaves the vigorous living as our scope of concern. Killing her would, on all evidence, cause her parents grievous woe. Maintaining her husband̢۪s responsibility for her care and feeding would perpetuate a leaden ache in his life. Legalities aside, why not make the switch of responsibility and send everyone on their way?
In an update to the post, he notes Matt Yglesias‘ argument on the need for legal structure.
[A]s they say on Seinfeld, we’re trying to live in a society here. That society is governed by laws. You can’t have the Congress going around trying to make post hoc revisions and exceptions to state laws. These decisions regarding people in permanent vegetative states are difficult, and there need to be rules governing how to deal with them.
Quite right. There are all manner of practical reasons not to treat all cases de novo rather than as part of a body of law. Clogging the court dockets, the drain on society’s resources, the prolonging of the anguish of all concerned, etc. seem to mitigate against that.
The default position for those without a living will should be that the next of kin decides. For an unmarried person, that would be the parents. For a married person, that would be the spouse. Absent compelling evidence otherwise, we must presume that the next of kin is in the best position to represent the best interests of those unable to make medical or legal decisions for themselves.
As noted in the post below, there seems to be an incredible indifference to what the law is here, with both sides (the litigants as well as interested outside parties, including various political leaders) willing to use whatever means necessary to achieve their preferred outcome. While understandable from a human-emotional perspective, such is not the way to achieve a livable society.
