Medical Cases Pose New Legal, Ethical Challenges
In recent weeks, the courts in San Diego have been called upon to settle an uncommon number of cases having to do with the beginning and the ending of life, cases made possible by advances in modern medicine and scientific knowledge. If we have believed or hoped that impossibly complex bioethical issues would somehow be settled by specialists or professionals, we know now that some will have to be resolved by us and by our neighbors.
We live in a day when scientific achievements that once were viewed as rare not only have become common but also have practical applications, making it impossible to sidestep questions we never expected to confront.
As scientific advancements come faster than we can incorporate them into our ethical and legal structures, a litigious society is turning to the courts not only to settle disputes and adjudge wrong but also for preemptive protection against legal liability.
What ties the cases of Pamela Rae Stewart, Lydia Haro and Anna Hirth together is that they all involve ordinary people who found themselves on an agonizing scientific, ethical and legal frontier. Pamela Rae Stewart is a 27-year-old-woman who was accused by the district attorney of ignoring her doctor’s instructions while she was pregnant, causing her child to be born with fatal birth defects. Lydia Haro is an infant conceived by the implantation of her father’s sperm in a hired surrogate mother. Anna Hirth is a 92-year-old woman rendered comatose after a choking accident more than a year ago; she is kept alive by a feeding tube.
The criminal case, the child custody case and the right-to-die case each ended up in a courtroom. Although none ultimately was decided by a jury, in the future some similar cases undoubtedly will be.
Today there are few laws or guidelines to help judges find the way out of some of these tangled disputes. In the case of Lydia Haro, Superior Court Judge William Pate presided over a settlement that allows her biological mother the same type of limited custody rights that divorced fathers often receive.
Pate explained that it was the duty of the court to “see that the best interests of the child prevail.” Few could argue with that, but it seems an inadequate response to the trend of child-bearing business deals, some of which inevitably will not work out as contractually arranged.
No laws now on the books deal with the circumstances surrounding the Pamela Rae Stewart case either, so the district attorney’s office used a statute intended to address parental child support to prosecute her for allegedly violating her physician’s instructions, including to refrain from using street drugs, while pregnant.
Though Municipal Judge E. Mac Amos Jr. found that Stewart had not violated that law, he raised the possibility that the Legislature could in some circumstances “restrict the actions of pregnant women.” It takes little imagination to foresee the controversy that would surround any attempt to protect the dependent fetus by limiting the freedoms of its mother in ways that others are not governed.
Our experience with letting a person in a vegetative state die rather than prolonging what seems to be a meaningless life is greater than with the other two kinds of cases. But the situation involving Anna Hirth stretches the parameters with which we are comfortable.
Hirth’s daughter is seeking to have a feeding tube removed from her mother so that she can die. But the elderly woman’s physician, Dr. Allen Jay, says that, while she has limited brain activity, she still responds to touch and shows some cognizance of the people with her. “It’s not like turning off the respirator,” Jay said. “This would be active starvation.”
Superior Court Judge Milton Milkes first ruled that legal precedent and human decency dictated that he order the removal of the tube. But when Jay refused and said he was unable to find another doctor to do it, and nurses at the La Mesa nursing home where Hirth is being cared for also balked, Milkes backed off his ruling and said the burden to have the tube removed now falls on the daughter.
These three cases still seem remarkable to us, but that is not likely to be so for much longer. The fact that they involve people ranging in age from 8 months to 92 years is illustrative of how pervasive such matters will become. Even today in San Diego County, the moral fiber of other families and individuals is no doubt being tested by circumstances not too different from these cited. Some of those involved may find their own solutions in long-held religious or family values; others will wind up in the courts.
What is certain is that we cannot depend on the wisdom of aged universities or the genius of modern research centers to resolve the inevitable conflicts between widely held societal values and the growing respect for individual freedoms. All this will eventually be hashed out in the legislative process. But before laws can be passed that will appropriately address these hard questions, we must first wrestle with them in our own hearts and minds so that enlightened standards can ultimately emerge.
