Cruzan Ex Rel. Cruzan v. Harmon

760 S.W.2d 408, 1988 Mo. LEXIS 102, 1988 WL 122100

• Court: Supreme Court of Missouri
• Decided: November 16, 1988
• Docket: 70813
• Status: Published

Opinions

ROBERTSON, Judge.

Nancy Cruzan lies in a persistent vegetative state in the Mount Vernon State Hospital. Lester L. Cruzan, Jr., and Joyce Cru-zan, her parents and co-guardians, requested that employees of the hospital terminate artificial hydration and nutrition for Nancy. The hospital’s employees refused to carry out this request without authority from a court. The Cruzans filed a declaratory judgment action seeking a judicial sanction of their wishes. Following a hearing, the trial court entered its order directing the employees of the State of Missouri to “cause the request of the co-guardians to withdraw nutrition or hydration to be carried out.” The trial court held that to the extent that Sections 459.010(3) and 459.055, RSMo 1986, set forth a public policy of the General Assembly prohibiting the withholding and withdrawal of nutrition and hydration under all circumstances, such statutes violate Nancy Cruzan’s right to liberty, due process of law and equal protection under the state and federal constitutions. Both the state and the guardian ad litem appealed.¹ A single issue is presented: May a guardian order that all nutrition and hydration be withheld from an incompetent ward who is in a persistent vegetative state, who is neither dead within the meaning of Section 194.005, RSMo 1986, nor terminally ill? We have jurisdiction. Mo. Const, art. V, § 3. Because we find that the trial court erroneously declared the law, we reverse.

I.

We review this case under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment of the trial court “will be sustained ... unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.”

At 12:54 a.m., January 11, 1983, the Missouri Highway Patrol dispatched Trooper Dale Penn to the scene of a single car accident in Jasper County, Missouri. Penn arrived six minutes later to find Nancy Beth Cruzan lying face down in a ditch, approximately thirty-five feet from her overturned vehicle. The trooper examined Nancy and found her without detectable respiratory or cardiac function.

At 1:09 a.m., Paramedics Robert Williams and Rick Maynard arrived at the accident scene; they immediately initiated efforts to revive Nancy. By 1:12 a.m., cardiac function and spontaneous respiration had recommenced. The ambulance crew transported Nancy to the Freeman Hospital where exploratory surgery revealed a laceration of the liver. A CAT scan showed no significant abnormalities of her brain. The attending physician diagnosed a probable cerebral contusion compounded by significant anoxia (deprivation of oxygen) of unknown duration. The trial judge found that a deprivation of oxygen to the brain approaching six minutes would result in permanent brain damage; the best estimate of the period of Nancy’s ano-xia was twelve to fourteen minutes.

Nancy remained in a coma for approximately three weeks following the accident. Thereafter, she seemed to improve somewhat and was able to take nutrition orally. Rehabilitative efforts began. In order to assist her recovery and to ease the feeding process, a gastrostomy feeding tube was surgically implanted on February 7, 1983, with the consent of her (then) husband.

Over a substantial period of time, valiant efforts to rehabilitate Nancy took place, without success. She now lies in the Mount Vernon State Hospital.² She receives the totality of her nutrition and hydration through the gastrostomy tube.

The trial court found that (1) her respiration and circulation are not artificially maintained and are within the normal limits of a thirty-year-old female; (2) she is “oblivious to her environment except for reflexive responses to sound and perhaps painful stimuli”; (3) she suffered anoxia of the brain resulting in a “massive enlargement of the ventricles filling with cerebro-spinal fluid in the area where the brain has degenerated” and that “cerebral cortical atrophy is irreversible, permanent, progressive and ongoing”; (4) “her highest cognitive brain function is exhibited by her grimacing perhaps in recognition of ordinarily painful stimuli, indicating the experience of pain and apparent response to sound”; (5) she is a spastic quadriplegic; (6) her four extremities are contracted with irreversible muscular and tendon damage to all extremities; (7) “she has no cognitive or reflexive ability to swallow food or water to maintain her daily essential needs” and that “she will never recover her ability to swallow sufficient [sic] to satisfy her needs.” In sum, Nancy is diagnosed as in a persistent vegetative state. She is not dead.³ She is not terminally ill. Medical experts testified that she could live another thirty years.

The trial court found that Nancy expressed, in “somewhat serious conversation” that if sick or injured she would not want to continue her life unless she could live “halfway normally.” Based on this conversation, the trial court concluded that “she would not wish to continue with nutrition and hydration.”

The court concluded that no state interest outweighed Nancy’s “right to liberty” and that to deny Nancy’s co-guardians authority to act under these circumstances would deprive Nancy of equal protection of the law. The court ordered state employees to “cause the request of the co-guardians to withdraw nutrition or hydration to be carried out.”

II.

As we said, this case presents a single issue for resolution: May a guardian order that food and water be withheld from an incompetent ward who is in a persistent vegetative state but who is otherwise alive within the meaning of Section 194.005, RSMo 1986, and not terminally ill? As the parties carefully pointed out in their thoughtful briefs, this issue is a broad one, invoking consideration of the authority of guardians of incompetent wards, the public policy of Missouri with regard to the termination of life-sustaining treatment and the amorphous mass of constitutional rights generally described as the “right to liberty”, “the right to privacy”, equal protection and due process.

This is also a case in which euphemisms readily find their way to the fore, perhaps to soften the reality of what is really at stake. But this is not a case in which we are asked to let someone die. Nancy is not dead. Nor is she terminally ill. This is a case in which we are asked to allow the medical profession to make Nancy die by starvation and dehydration. The debate here is thus not between life and death; it is between quality of life and death. We are asked to hold that the cost of maintaining Nancy’s present life is too great when weighed against the benefit that life conveys both to Nancy and her loved ones and that she must die.

To be sure, no one carries a malevolent motive to this litigation. Only the coldest heart could fail to feel the anguish of these parents who have suffered terribly these many years. They have exhausted any wellspring of hope which might have earlier accompanied their now interminable bedside vigil. And we understand, for these loving parents have seen only defeat through the memories they hold of a vibrant woman for whom the future held but promise.

Finally, we are asked to decide this case as a court of law. Neither this, nor any court lays proper claim to omniscience. We share the limits borne by all as human beings, only too aware of our earthbound perspective and frustrated by what we cannot now know. Our role is a limited one to which we remain true only if our decision is firmly founded on legal principles and reasoned analysis. And we must remember that we decide this case not only for Nancy, but for many, many others who may not be surrounded by the loving family with which she is blessed.

A.

While this is a case of first impression in Missouri, the courts of some of our sister states have grappled with similar issues.⁴ Nearly unanimously, those courts have found a way to allow persons wishing to die, or those who seek the death of a ward, to meet the end sought.⁵

The seminal case is In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976). Karen Quinlan suffered severe brain damage as a result of anoxia. Medical experts diagnosed her as terminally ill and in a persistent vegetative state. A respirator assisted her breathing; a feeding tube provided her nourishment. The experts believed that she could not survive without the respirator. The trial court found that there was no reasonable possibility that she would return to a cognitive or sapient life.

Karen’s father sought judicial permission to disconnect the respirator, believing that death would follow quickly;⁶ the expert medical testimony so advised him.⁷ The New Jersey Supreme Court found a right of privacy in Karen to terminate her life under this “non-cognitive, vegetative existence”. In striking a balance between Karen’s right of privacy and the state’s interest in life, the court said:

We think that the State’s interest contra weakens and the individual’s right to privacy, grows as the degree of bodily invasion increases and the prognosis dims. Ultimately there comes a point at which the individual’s rights overcome the State interest.

355 A.2d at 664. In light of Karen’s inability to exercise the right herself the court wrote:

The only practical way to prevent destruction of the right is to permit the guardian and family of Karen to render their best judgment ... as to whether she would exercise it in these circumstances. [W]e determine that Karen’s right of privacy may be asserted in her behalf, in this respect, by her guardian and family under the particular circumstances presented by this record.

Id.

Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 (1977), involved a mentally retarded resident of a state school suffering from acute myeloblastic monocytic leukemia, in need of chemotherapy, but incapable of giving informed consent for the treatment. The court recognized a general right to refuse medical treatment in appropriate circumstances and held that such a right extends to incompetents. Given Saik-ewicz’ lifetime incompetency, the court adopted a substituted judgment standard for determining whether Saikewicz, if competent, would have elected to undergo chemotherapy. While recognizing that most persons in a similar situation would choose to lengthen their life through the treatments available, the court found that Saikewicz’ inability to cooperate with the treatment and inability to understand the disruption in his routine, particularly the severe side effects produced by the drugs, rendered it likely that if Saikewicz could, he would decide against the treatment.

The court found a constitutional basis for the refusal-of-treatment decision, but eschewed the cognitive, sapient, quality of life considerations found in Quinlan. “To the extent that [quality of life even if treatment can bring about remission] equates the value of life with any measure of the quality of life, we firmly reject it.” 370 N.E.2d at 432. Instead, the Massachusetts court found the extraordinary nature of the treatment presented a sufficiently massive invasion of a person’s privacy to warrant a decision against undergoing treatment.

In 1981, the New York Court of Appeals advanced a different theoretical approach to refusal-of-treatment decisions. In In re Storar and In re Eichner, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981), the court found the common law right to refuse treatment sufficient to warrant termination of treatment (Eichner) and rejected the substituted judgment analysis in matters relating to persons who experienced lifetime incompetency (Storar). The court found a discussion of constitutional rights unnecessary to its decisions.

In Eichner, Brother Joseph Fox, a member of the Society of Mary, suffered cardiac arrest during an operation. Oxygen depletion resulted in severe brain damage; Fox lost the ability to breathe without a respirator. In “formal” discussions consistent with his role as a teacher in a Catholic high school and a mission of promulgating Catholic moral principles, Fox discussed the Karen Quinlan care and stated that he wanted nothing extraordinary done to keep him alive. The court found his common law right to refuse treatment controlling under the circumstances, given the solemn and “formal” nature of Fox’ expressed desire to forego extraordinary medical treatment.

John Storar was a profoundly retarded 52-year-old suffering from metastatic cancer. His life expectancy was three to six months. He continually lost blood, requiring blood transfusions of two units every eight to fifteen days. Without the transfusions, medical experts believed Storar would bleed to death. His mother asked that the transfusions be stopped. Testimony at trial characterized the transfusions as “analogous to food — they would not cure the cancer, but would eliminate the risk of death from another treatable cause.” 438 N.Y.S.2d at 275, 420 N.E.2d at 73.

The court recognized that Storar never possessed sufficient mental competency to render a decision as to extraordinary life sustaining procedures. Departing from the analysis in Saikewicz, the New York Court of Appeals found it “unrealistic to attempt to determine whether he would want to continue potentially life prolonging treatment if he were competent.” 438 N.Y.S. at 275, 420 N.E.2d at 72. Instead, the court reasoned that Storar’s condition was no different from that of any infant. A court would not allow a parent to deny a child all treatment for a condition which threatens his life; a parent’s refusal to allow blood transfusions in the face of an infant bleeding to death presents a “classic” example of the court’s power to order treatment in the face of parental refusal. Storar’s blood transfusions could not be terminated.

Quinlan, Saikewicz, and Eichner/Storar provide the legal basis for all of the cases which followed. These three cases limit themselves to circumstances in which the patient is terminally ill. Cases which follow, however, recognize no such restraint, but extend the principles upon which the Quinlan-Saikewicz-Eickner/ Storar trilogy rely, to persons who are not terminally ill.

In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985), attempted to determine the circumstances under which “life-sustaining treatment may be withheld or withdrawn from incompetent, institutionalized, elderly patients with severe and permanent mental and physical impairments and a limited life expectancy.”⁸ 486 A.2d at 1216. Specifically, 84-year-old Claire Conroy’s guardian sought to remove a nasogastric feeding tube by which she received her nutrition.

The court formulated three tests to assist in making a determination as to the withdrawal of life-sustaining procedures. These tests are arguably the only ones adopted by a court which adequately consider the state’s interest in life in the context of life-sustaining treatment. First, when clear and convincing evidence exists that an incompetent patient would refuse treatment under the circumstances were he able to do so, the guardian may exercise a substituted judgment to achieve that end. This is denominated the subjective test.

A second test, designated the limited objective test, is applied in the absence of clear and convincing evidence of the patient’s wishes, but where there is a measure of trustworthy evidence that the patient would have refused the treatment. Noting that “it is naive to pretend that the right to self-determination serves as the basis for substituted decision making....” 486 A.2d at 1231, the court went on to permit the termination of life support “if it is manifest that such action would further the patient’s best interests....” Id. Thus, where it is clear that the burden of the patient’s unavoidable pain and suffering outweighs the benefits of continued life, termination could follow.

A third test, characterized as the pure objective test, is operable where there is no evidence of the patient’s desires as to life sustaining treatment. Where the “effect of administering life-sustaining treatment would be inhumane” due to severe, recurring and unavoidable pain, treatment may be terminated. 486 A.2d at 1232.

Ms. Conroy never expressed an opinion as to life-sustaining treatments, nor did the medical evidence show that feeding by the nasogastric tube was particularly painful. Since Ms. Conroy did not meet any of the three tests, the court would have refused to permit the withdrawal of the feeding tube.⁹

Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 497 N.E.2d 626 (1986), went beyond Conroy on facts similar to Nancy’s case. Paul Brophy suffered a ruptured aneurysm and due to oxygen deprivation to the brain, entered a persistent vegetative state. The trial court found that Brophy was neither dead, terminally ill, nor in danger of imminent death. His heart functioned without mechanical assistance as did his respiratory system. A gastrosto-my tube provided food and water.

The court found that if Brophy were able to do so, he would decide to discontinue the feeding tube. While recognizing that the state’s interest in life must be considered, the court reasoned that the state’s interest could not overcome Brophy’s right to discontinue treatment. The court allowed Brophy’s guardian to exercise his substituted judgment to terminate feeding.

At about the time the Supreme Judicial Court of Massachusetts considered Brophy, the California Court of Appeals decided Bouvia v. Superior Court, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986). There a 28-year-old, quadriplegic woman afflicted with severe cerebral palsy sought removal of the nasogastric tube by which she was fed. The court characterized her as “intelligent, very mentally competent.” 225 Cal.Rptr. at 300. Finding it “immaterial that the removal of the nasogastric tube will hasten or cause Bouvia’s eventual death,” 225 Cal.Rptr. at 305, the court held that Bouvia’s right to live her life in dignity and peace outweighed the state’s interest in preserving life and preventing suicide.

In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987), presents facts similar to this case. Nancy Jobes was pregnant and in excellent health. Following an automobile accident and during surgery to remove the child killed in her womb in the accident, she lost oxygen flow to her brain. Irreversible brain damage followed; she needed assistance breathing and received nourishment through a tube inserted into the jejunum of her small intestine. Her husband sought permission to remove her feeding tube.

The tests established by this same court in Conroy were not applicable. The court found that Mrs. Jobes’ previous statements about refusing life support under conditions like Karen Quinlan’s were

remote, general, spontaneous, and made in casual circumstances. Indeed, they closely track the examples of evidence that we have explicitly characterized as unreliable. See Conroy ... 486 A.2d at 1238 (negating probative value of ‘an offhand remark about not wanting to live under certain circumstances made by a person when young and in the peak of health’)....

529 A.2d at 443.

Instead of relying on Conroy, the court determined that cases involving persistently vegetative patients required a return to Quinlan. Assuming again that a persistently vegetative patient would choose to have all life support terminated if able, the court determined that Ms. Jobes’ family could make the determination to remove her life support. Given the court’s reasoning, one must assume that the family’s right to make that decision is unbridled given the patient’s inability to voice objection.¹⁰ Again, the court was able to discount entirely the state’s interest in the preservation of life, finding it “difficult to conceive of a case in which the State could have an interest strong enough to subordinate a patient’s right to choose not to be sustained in a persistent vegetative state” 529 A.2d at 444, quoting In re Peter, 108 N.J. 365, 529 A.2d 419, 427 (1987) (emphasis added).

Against this background, we turn to consider the arguments of the parties in the case at hand.

III.

On the dispositive point, the State argues that the trial court erred in “holding that a refusal to allow withdrawal of nutrition and hydration under the facts of this case would deny Nancy Cruzan’s ‘right to liberty’ and that to deny the coguardians the authority to act on her behalf would deprive her of equal protection of the laws.” Respondents support the trial court’s order by urging that Nancy has both a common law and constitutional right to be free from “invasive, unwanted and nonbeneficial” medical treatment, and that her right to refuse such treatment survives incompetency and may be exercised by her guardians as substituted decisionmakers.

A. The Right to Refuse Treatment

The common law recognizes the right of individual autonomy over decisions relating to one’s health and welfare.¹¹ From this root of autonomy, the common law developed the principle that a battery occurs when a physician performs a medical procedure without valid consent. Hershley v. Brown, 655 S.W.2d 671, 676 (Mo.App.1983). The doctrine of informed consent arose in recognition of the value society places on a person’s autonomy and as the primary vehicle by which a person can protect the integrity of his body. If one can consent to treatment, one can also refuse it. Thus, as a necessary corollary to informed consent, the right to refuse treatment arose. “The patient’s ability to control his bodily integrity ... is significant only when one recognizes that this right also encompasses a right to informed refusal.” Conroy, 486 A.2d at 1222.

A decision as to medical treatment must be informed.

There are three basic prerequisites for informed consent: the patient must have the capacity to reason and make judgments, the decision must be made voluntarily and without coercion, and the patient must have a clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment, along with a full understanding of the nature of the disease and the prognosis.

Wanzer, Adelstein, Cranford, Federman, Hook, Moertel, Safar, Stone, Taussig & Van Eys, “The Physician’s Responsibility Toward Hopelessly Ill Patients,” 310 New Eng. J. Med., 955, 957 (1984). In the absence of these three elements, neither consent nor refusal can be informed. Thus, it is definitionally impossible for a person to make an informed decision — either to consent or to refuse — under hypothetical circumstances; under such circumstances, neither the benefits nor the risks of treatment can be properly weighed or fully appreciated.

B: The Right to Privacy

Quinlan, and cases which follow it, announce that a patient’s right to refuse medical treatment also arises from a constitutional right of privacy. Although some courts find that right embedded in their state constitutions 12, the privacy argument is most often founded on decisions of the United States Supreme Court, primarily Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Unfortunately, the bare statement that the right of privacy extends to treatment decisions is seldom accompanied by any reasoned analysis as to the scope of that right or its application to the refusal of life-sustaining treatment.

Neither the federal nor the Missouri constitutions expressly provide a right of privacy. In State v. Walsh, 713 S.W.2d 508, 513 (Mo. banc 1986), this Court was asked to recognize an unfettered right of privacy. We declined to do so.¹³ This is consistent with our view that Missouri’s constitution must be interpreted according to its plain language and in a manner consistent with the understanding of the people who adopted it. State ex rel. Danforth v. Cason, 507 S.W.2d 405, 408-09 (Mo. banc 1973). We thus find no unfettered right of privacy under our constitution that would support the right of a person to refuse medical treatment in every circumstance.

If Nancy possesses such a right, it must be found to derive from the federal constitutional right to privacy announced by the United States Supreme Court. That Court “has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the [United States] Constitution.” Roe v. Wade, 410 U.S. at 152, 93 S.Ct. at 726. The Supreme Court has not, however, extended the right of privacy to permit a patient or her guardian to direct the withdrawal of food and water. We are left to determine for ourselves whether the penumbral right of privacy encompasses a right to refuse life-sustaining medical treatment.

Quinlan is the first case to apply a right of privacy to decisions regarding the termination of life-sustaining treatment. In deciding the applicability of the right to such determinations, Quinlan first cites Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), for the proposition that the right of privacy exists and, without further analysis states: “Presumably this right is broad enough to encompass a patient’s decision to decline medical treatment under certain circumstances, in much the same way as it is broad enough to encompass a woman’s decision to terminate a pregnancy under certain conditions.” 355 A.2d at 663, citing Roe v. Wade. The presumption invoked by the New Jersey Supreme Court provides the precedent for the extension of this right of privacy by other courts whose decisions permitting the termination of life sustaining treatment is founded on privacy.

Yet Roe itself counsels against such a broad reading.

The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past.

Roe, 410 U.S. at 154, 93 S.Ct. at 727.

The language in Roe is not an aberration. The Supreme Court’s most recent privacy decision resisted expansion of the privacy right. In Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), the Supreme Court considered whether the right to privacy extended to the conduct of homosexuals. Noting that the prior right to privacy cases focused on a common theme of procreation and relationships within the bonds of marriage, the court refused to extend the right of privacy beyond those bounds, arguing that such an extension amounted to the discovery of a new right.

Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.... There should be, therefore, great resistance to expand the substantive reach of those clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.

Bowers, 478 U.S. at 194-95, 106 S.Ct. at 2846 (emphasis added).

Based on our anaylsis of the right to privacy decisions of the Supreme Court, we carry grave doubts as to the applicability of privacy rights to decisions to terminate the provision of food and water to an incompetent patient.¹⁴ As will be seen, however, even if we recognize such a broadly sweeping right of privacy, a decision by Nancy’s co-guardians to withdraw food and water under these circumstances cannot be sustained.

C. The State’s Interests

1.

Neither the right to refuse treatment nor the right to privacy are absolute; each must be balanced against the State’s interests to the contrary. Four state interests have been identified: preservation of life, prevention of homicide and suicide, the protection of interests of innocent third parties and the maintenance of the ethical integrity of the medical profession. See Section 459.055(1), RSMo 1986; Brophy, 497 N.E.2d at 634. In this case, only the state’s interest in the preservation of life is implicated.

The state’s interest in life embraces two separate concerns: an interest in the prolongation of the life of the individual patient and an interest in the sanctity of life itself. As to the former,

The concern for preservation of the life of the patient normally involves an interest in the prolongation of life. Thus, the State’s interest in preserving life is very high when “human life [can] be saved where the affliction is curable.” Saikewicz, ... 370 N.E.2d at 425-426. That interest wanes when the underlying affliction is incurable and “would soon cause death regardless of any medical treatment.” Commissioner of Corrections v. Myers, [379 Mass. 255] 399 N.E.2d 452, 456 (Mass.1979). Saikewicz, supra. The calculus shifts when the issue is not “whether, but when, for how long, and at what cost to the individual that life may be briefly extended.” Id. [370 N.E.2d] at 426.

Brophy, 497 N.E.2d at 635 (emphasis added).

The state’s interest in prolonging life is particularly valid in Nancy’s case. Nancy is not terminally ill. Her death is imminent only if she is denied food and water. Medical evidence shows Nancy will continue a life of relatively normal duration if allowed basic sustenance.

The state’s concern with the sanctity of life rests on the principle that life is precious and worthy of preservation without regard to its quality. This latter concern is especially important when considering a person who has lost the ability to direct her medical treatment. In such a circumstance, we must tread carefully, with due regard for those incompetent persons whose wishes are unknowable but who would, if able, choose to continue life-sustaining treatment. Any substantive principle of law which we adopt must also provide shelter for those who would choose to live — if able to choose — despite the inconvenience that choice might cause others.

At the beginning of life, Missouri adopts a strong predisposition in favor of preserving life. Section 188.010, RSMo 1986, announces the “intention of the General Assembly of Missouri to grant the right to life to all humans, born and unborn....” Section 188.015(7), RSMo 1986, determines that a fetus is viable “when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial lifesupport systems” (emphasis added). Section 188.130, RSMo 1986, denies a cause of action for wrongful life and wrongful birth.

At the end of life, this State maintains its policy strongly favoring life. In response to the dilemmas which attend the increasing ability of medical science to maintain life where death would have come quickly in former days, legislatures across the country adopted so-called “Living Will” statutes. These permit a competent person to decree in a formal document that she would refuse death prolonging medical treatment in the event of terminal illness and an accompanying inability to refuse such treatment as a result of incompetency.

The Uniform Rights of the Terminally Ill Act (URITA) provided the basis for many of these acts. Missouri’s statute, Sections 459.010, et seq., RSMo 1986, is modeled after URITA, but with substantial modifications which reflect this State’s strong interest in life.

URITA defines “life-sustaining treatment” as “any medical procedure or intervention that, when administered to a qualified patient, will serve only to prolong the dying process.” URITA § 1(4). Missouri chose to call such treatment a “death-prolonging procedure” which is defined as

any medical procedure or intervention which, when applied to a patient, would serve only to prolong artificially the dying process and where, in the judgment of the attending physician pursuant to usual and customary medical standards, death will occur within a short time whether or not such procedure is utilized. Death-prolonging procedure shall not include the administration of medication or the performance of medical procedure deemed necessary to provide comfort care or to alleviate pain nor the performance of any procedure to provide nutrition or hydration.

Section 459.010(3), RSMo 1986 (emphasis added).

URITA defines a “terminal condition” as “an incurable or irreversible condition that, without the administration of life-sustaining treatment, will, in the opinion of the attending physician, result in death within a relatively short time.” URITA, § 1(9). Section 459.010(6) defines a “terminal condition” as “an incurable or irreversible condition which ... is such that a death will occur within a short time regardless of the application of medical procedures.”

Section 2 of URITA sets out the recommended form of the declaration as to the termination of life-sustaining treatment.¹⁵ Our General Assembly adds, inter alia, the following statement to the recommended form: “It is not my intent to authorize affirmative or deliberate acts or omissions to shorten my life rather only to permit the natural process of dying.” Section 459.-015.3, RSMo 1986. In a manner consistent with this provision, Section 459.055(5), RSMo 1986, plainly states: “Sections 459.-010 to 459.055 do not condone, authorize or approve mercy killing or euthanasia nor permit any affirmative or deliberate act or omission to shorten or end life.”

None of the parties argue that Missouri’s Living Will statute applies in this case. First, the law did not take effect until after Nancy’s accident. Second, even if the law had been effective, Nancy had not executed a living will. The statute’s import here is as an expression of the policy of this State with regard to the sanctity of life. We intend no judgment here as to whether the common law right to refuse medical treatment is broader than the Living Will statute. Beyond the broad policy statement it makes, that statute is not at issue in this case. The trial court erred in finding its provisions unconstitutional.

2.

It is tempting to equate the state’s interest in the preservation of life with some measure of quality of life. As the discussion which follows shows, some courts find quality of life a convenient focus when justifying the termination of treatment. But the state’s interest is not in quality of life. The broad policy statements of the legislature make no such distinction; nor shall we. Were quality of life at issue, persons with all manner of handicaps might find the state seeking to terminate their lives. Instead, the state’s interest is in life; that interest is unqualified.

D. Balancing the Patient’s Rights and the State’s Interest

In casting the balance between the patient’s common law right to refuse treatment/constitutional right to privacy and the state’s interest in life, we acknowledge that the great majority of courts allow the termination of life-sustaining treatment. In doing so, these courts invariably find that the patient’s right to refuse treatment outweighs the state’s interest in preserving life. In some cases, that result is the product of a hopeless medical prognosis; in others, the court allows concerns with quality of life to discount the state’s interest in life. Quinlan, of course, is the source in each instance. Although Quinlan dealt with a terminally-ill person, it did so in language sufficiently broad that courts cite it for much different purposes.

On the one hand, Quinlan based its decision on Karen Quinlan’s constitutional right to privacy. While recognizing that privacy rights must be balanced against the state’s interest in life, the court found that Karen’s treatment was so extraordinary and so invasive that the state’s interest paled in comparison. Though unstated, one can properly assume from Quinlan that the state’s interest might prevail were the patient undergoing ordinary medical treatment. This focus on the extraordinary/ordinary dichotomy provided a ready standard by which the patient’s interest could be assessed in a constitutional sense against the state’s interest in life.

Since Quinlan, the medical profession moved to abandon any distinction between extraordinary and ordinary treatment in considering the propriety of withdrawing life-sustaining treatment.¹⁶ Conroy, decided by the same court six years later, found distinctions focusing on the type of treatment unpersuasive. “[W]hile the analysis may be useful in weighing the implications of the specific treatment for the patient, essentially it merely restates the question: whether the burdens of treatment so clearly outweigh its benefit to the patient that continued treatment would be inhumane.” 486 A.2d at 1235.

This change of focus by the medical community led courts away from constitutional foundations for decisions in this area. “The erosion of distinctions based on treatment complicated constitutional analysis since there was no other readily apparent standard which courts could use to calibrate the burden of an individual’s privacy right inflicted by particular kinds of treatment.” Tribe, American Constitutional Law, 1365 (2d ed. 1988).

Perhaps realizing the difficulty of applying a constitutional standard which relied too heavily on medical technology, several courts, led by Eichner, abandoned right to privacy reasoning, focusing instead on the common law right to refuse treatment.

The common law right to refuse treatment is not absolute. It too must be balanced against the state’s interest in life. From its early application in Quinlan and Eichner, both of which involved terminally-ill patients, courts have read the right in an everbroadening manner. Brophy led the way. There the court found that an incompetent patient’s imputed desire to terminate treatment outweighed the state’s interest despite the fact that the patient had a fairly long life expectancy if feeding continued. Bouvia and In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987), took the next step; they found that the state’s interest in preserving life is not compelling when a competent patient wishes to have life-sustaining treatment withdrawn.

No longer relying on the nature of the treatment to provide a standard, courts began to focus on the patient’s medical prognosis and the individual patient’s assessment of the quality of her life in the face of that prognosis. And in the face of a prognosis which promised no reasonable hope of recovery and which the patient found undesirable, the patient’s choice prevailed over the state’s interest.

Commentators do not find this analysis persuasive. Taken to its logical end, this standard ultimately makes prognosis irrelevant. “This situation is conducive to a rhetorical justification of the cases — authorizing the patient’s choice is merely allowing an inexorable dying process to continue. While this distinction is rhetorically convenient, it is not easily justifiable by principle: where the patient’s right to refuse medical treatment is constant, the patient's condition and prognosis would no longer seem to be relevant.” Tribe, American Constitutional Law at 1366. Once prognosis becomes irrelevant, and the patient’s choice always more important than the state’s interest, this standard leads to the judicial approval of suicide. Tribe, supra at 1367.

This result can be obtained only if the state’s interest in the preservation of life is substantially discounted. Yet courts manage to find the states’ interests wanting and allow surrogates to choose the death of patients by invoking a nearly unbridled right to refuse treatment. For an explanation, we revert to Quinlan.

Prior to Quinlan, the common law preferred to err on the side of life. Choices for incompetents were made to preserve life, not hasten death.¹⁷ Quinlan changed the calculus. Moving from the common law’s prejudice in favor of life, Quinlan subtly recast the state’s interest in life as an interest in the quality of life (cognitive and sapient), struck a balance between quality of life and Karen Quinlan’s right to privacy and permitted the termination of a life sustaining procedure. By the rhetorical device of replacing a concern for life with quality of life, the court managed “to avoid affronting previously accepted norms” in reaching its decision. Alexander, “Death by Directive”, 28 Santa Clara L.Rev 67, 82 (1988).

As we previously stated, however, the state’s interest is not in quality of life. The state’s interest is an unqualified interest in life. In striking the balance between a patient’s right to refuse treatment or her right to privacy and the state’s interest in life, we may not arbitrarily discount either side of the equation to reach a result which we find desirable.

We turn now to the facts of this case. Nancy’s guardians invoke her common law right to refuse treatment and her constitutional right of privacy as bases for their decision to stop feeding Nancy. They claim that her prognosis is hopeless, that her treatment is invasive and that were she able, she would refuse the continuation of tubal feeding. We will consider each of these separately.

First, the evidence is clear and convincing that Nancy will never interact meaningfully with her environment again. She will remain in a persistent vegetative state until her death. She is totally dependent on others for her care. Respondents contend that the patient’s interest must prevail when medical treatment “serves only to prolong a life inflicted with an incurable condition.” In re Colyer, 99 Wash.2d 114, 660 P.2d 738, 743 (1983).

As we have said, a focus on prognosis as a basis for permitting the right-to-refuse treatment choice is problematic. Where the patient is not terminally ill, as here, the profoundly diminished capacity of the patient and the near certainty that that condition will not change leads inevitably to quality of life considerations. The argument made here, that Nancy will not recover, is but a thinly veiled statement that her life in its present form is not worth living. Yet a diminished quality of life does not support a decision to cause death.

Second, Nancy’s counsel argues that her treatment is invasive. The invasion took place when the gastrostomy tube was inserted with consent at a time when hope remained for recovery. Presently, the tube merely provides a conduit for the introduction of food and water. The continuation of feeding through the tube is not heroically invasive.

This second argument requires us to assume that artificial hydration and nutrition are medical treatments. There is substantial disagreement on this point among physicians and ethicists.¹⁸ Dr. Cranford so testified at trial. Arguments on each side are compelling.¹⁹ The temptation here is to allow medical terminology to dictate legal principle. “Using medical explanations ... has utility for the courts. It removes the responsibility for decisions that seem harsh when explained in plainer language.” Alexander, “Death by Directive”, 28 Santa Clara L.Rev 67, 83 (1988). If the testimony at trial that Nancy would experience no pain even if she were allowed to die by starvation and dehydration is to be believed, it is difficult to argue with any conviction that feeding by a tube already in place constitutes a painful invasion for her. And common sense tells us that food and water do not treat an illness, they maintain a life.

The medical argument, if carried to its natural conclusion, takes us into a dangerous realm; it seems to say that treatment which does not cure can be withdrawn. But “[w]hen we permit ourselves to think that care is useless if it preserves the life of the embodied human being without restoring cognitive capacity, we fall victim to the old delusion that we have failed if we cannot cure and that there is, then, little point to continue care.” Green, “Setting Boundaries for Artificial Feeding”, The Hastings Center Report, December, 1984, 12, 13 (emphasis in original).

The issue is not whether the continued feeding and hydration of Nancy is medical treatment; it is whether feeding and providing liquid to Nancy is a burden to her. Conroy. We refuse to succumb to the semantic dilemma created by medical determinations of what is treatment; those distinctions often prove legally irrelevant. For the reasons stated, we do not believe the care provided by artificial hydration and nutrition is oppressively burdensome to Nancy in this case.

Third, the co-guardians argue that “Nancy’s statements alone are enough to stop this artificial treatment.” These statements are best summarized in the testimony of Nancy’s roommate that she “would not want to continue her present existence without hope as it is.” But “informally expressed reactions to other people’s medical condition and treatment do not constitute clear proof of a patient’s intent.” Jobes, 529 A.2d at 443, citing Conroy, 486 A.2d at 1209.

Our earlier discussion about informed consent noted the requirements for consent or refusal to be truly informed. A decision to refuse treatment, when that decision will bring about death, should be as informed as a decision to accept treatment. If offered to show informed refusal, the evidence offered here “would be woefully inadequate. It is all the more inadequate to support a refusal that will result in certain death.” In re Gardner, 534 A.2d 947, 957 (Clifford, J., dissenting.) As the court said in Jobes, “All of the statements about life-support that were attributed to Mrs. Jobes were remote, general, spontaneous, and made in casual circumstances. Indeed they closely track the examples of evidence that we have explicitly characterized as unreliable.” Jobes, 529 A.2d at 443. Likewise, statements attributable to Nancy in this case are similarly unreliable for the purpose of determining her intent.

B.

The state’s relevant interest is in life, both its preservation and its sanctity. Nancy is not dead. Her life expectancy is thirty years.

Nancy’s care requirements, while total, are not burdensome to Nancy. The evidence at trial showed that the care provided did not cause Nancy pain. Nor is that care particularly burdensome for her, given that she does not respond to it.

Finally, there is no evidence that Nancy is terminally ill. The quality of her life is severely diminished to be sure. Yet if food and water are supplied, she will not die.

Given the fact that Nancy is alive and that the burdens of her treatment are not excessive for her, we do not believe her right to refuse treatment, whether that right proceeds from a constitutional right of privacy or a common law right to refuse treatment, outweighs the immense, clear fact of life in which the state maintains a vital interest.

K Guardianship Issues

Nancy is incompetent; she cannot make informed choices concerning her medical treatment. We therefore do not decide any issue in this case relating to the authority of competent persons to suspend life-sustaining treatment in the face of terminal illness or otherwise. Our focus here is expressly limited to those instances in which the person receiving the life-sustaining treatment is unable to render a decision by reason of incompetency.

Section 475.120.3, RSMo 1986, provides that the guardian of an incapacitated ward shall provide for the ward’s “care, treatment, habilitation, education, support and maintenance” and has the power to:

(2) Assure that the ward receives medical care and other services that are needed;

(3) Promote and protect the care, comfort, safety, health, and welfare of the ward;

(4) Provide required consents on behalf of the ward; ....

The statute makes no provision for the termination of medical treatment; to the contrary, it places an express, affirmative duty on guardians to assure that the ward receives medical care and provides the guardian with the power to give consent for that purpose. We thus find no statutory basis for the argument that the guardian possesses authority, as a guardian, to order the termination of medical treatment.

Assuming, arguendo, the guardian possesses such power, it must be derivative of the rights which the incompetent maintains as a person. Having found that such rights do exist, Quinlan held, broadly and without precedential support, that the right of privacy and the right to refuse medical treatment may be exercised by surrogates in the event of incompetency. In this manner a rationale was bom to reach the end sought.²⁰ Recall the language of Quinlan: “The only practical way to prevent destruction of the right is to permit the guardian and family of Karen to render their best judgment, subject to the qualifications²¹ hereinafter stated, as to whether she would exercise it in these circumstances.” 355 A.2d at 664.

As we said, these rights have been explained as rooted in personal autonomy and self-determination. Autonomy means self law — the ability to decide an issue without reference to or responsibility to any other. It is logically inconsistent to claim that rights which are found lurking in the shadow oí me Bill of Rights and which spring from/Concerns for personal autonomy can be exercised by another absent the most rigid of formalities.

Given the fact that these patients are irreversibly comatose or in a chronic vegetative state, attributing “rights” to these patients at all is somewhat problematic. ... To be sure, these patients are not “dead” in most of the increasingly multiple senses of the term, but the task of giving content to the notion that they have rights, in the face of the recognition that they could make no decisions about how to exercise any such rights, remains a difficult one.

Tribe, American Constitutional Law, at 1368, n. 25. In discussing the constitutional right of privacy, the United States Supreme Court wrote that the right of privacy, when exercised in an abortion context, is one that cannot be vetoed by any third party.

[T]he State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient.... Any independent interest the parent may have in the termination of the minor daughter’s pregnancy is no more weighty than the right of privacy of the competent minor mature enough to have become pregnant.

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74, 75, 96 S.Ct. 2831, 2843, 2844, 49 L.Ed.2d 788 (1975).

Assuming, arguendo, that the right of privacy may be exercised by a third parly in the absence of strict formalities assigning that right, the risk of arbitrary deci-sionmaking and grave consequences attaches all the more when the third party seeks to cause the death of an incompetent. Just as the State may not delegate to any person the right to veto another’s right to privacy choices, no person can assume that choice for an incompetent in the absence of the formalities required under Missouri’s Living Will statutes or the clear and convincing, inherently reliable evidence absent here.

Nor do we believe that the common law right to refuse treatment — founded in personal autonomy — is exercisable by a third party absent formalities. A guardian’s power to exercise third party choice arises from the state’s authority, not the constitutional rights of the ward. The guardian is the delegatee of the state’s parens patriae power. In re Link, 713 S.W.2d 487, 493 (Mo. banc 1986).

Cases which relied on the doctrine of substituted judgment to permit guardians to choose termination of life support simply failed to consider the source of the guardian’s authority to decide. Instead those decisions assumed, without benefit of legal precedent, that the guardian’s power to decide is derivative of the incompetent’s right to decide, if competent. See Quinlan, 355 A.2d at 664. That the doctrine has an historical antecedent, Saikewicz, 370 N.E.2d at 431, does not change its raison d’etre or the scope of its reach. To fail to appreciate the legal foundation is to risk permitting the application of the doctrine in an unprincipled manner.

As applied in right-to-terminate-treatment decisions, the doctrine of substituted judgment is applied in abrogation of the state’s parens patriae power, not in furtherance of it. In cases like this one, the doctrine authorizes a guardian to cause the death of a ward unilaterally, without interference by the state, and contrary to the state’s vital interests in preserving life and in assuring the safekeeping of those who cannot care for themselves.

As one commentary warns:

[T]hird party consent allows the truly involuntary to be declared voluntary, thus bypassing constitutional, ethical and moral questions, and avoiding the violation of taboos. Third party consent is a miraculous creation of the law — adroit, flexible, and useful in covering the unseemly reality of conflict with the patina of cooperation.

Price and Burt, “Sterilization, State Action, and the Concept of Consent,” Law and Psychology Review, p. 58 (Spring 1975).

IV.

In sum, we hold that the co-guardians do not have authority to order the withdrawal of hydration and nutrition to Nancy. We further hold that the evidence offered at trial as to Nancy’s wishes is inherently unreliable and thus insufficient to support the co-guardians claim to exercise substituted judgment on Nancy’s behalf. The burden of continuing the provision of food and water, while emotionally substantial for Nancy’s loved ones, is not substantial for Nancy. The State’s interest is in the preservation of life, not only Nancy’s life, but also the lives of persons similarly situated yet without the support of a loving family. This interest outweighs any rights invoked on Nancy’s behalf to terminate treatment in the face of the uncertainty of Nancy’s wishes and her own right to life.

This State has expressed a strong policy favoring life. We believe that policy dictates that we err on the side of preserving life. If there is to be a change in that policy, it must come from the people through their elected representatives. Broad policy questions bearing on life and death issues are more properly addressed by representative assemblies. These have vast fact and opinion gathering and synthesizing powers unavailable to courts; the exercise of these powers is particularly appropriate where issues invoke the concerns of medicine, ethics, morality, philosophy, theology and law. Assuming change is appropriate, this issue demands a comprehensive resolution which courts cannot provide.

The efforts of courts to establish guidelines have been less than satisfactory. In Quinlan, the New Jersey Supreme Court attempted to establish guidelines for decisions concerning the termination of life support apparatus. More than ten years later, that same court wrote, “We recognize, ... that given the fundamental societal questions that must be resolved, the Legislature is the proper branch of government to set guidelines in this area....” In re Farrell, 529 A.2d at 407. Quinlan had failed to provide sufficient guidelines to meet the broad diversity of cases presenting termination of life-support issues.

To the extent that courts continue to invent guidelines on an ad hoc, piecemeal basis, legislatures, which have the ability to address the issue comprehensively, will feel no compulsion to act and will avoid making the potentially unpopular choices which issues of this magnitude present.

There is another compelling reason to leave changes in policy in this area to the legislature. Representative bodies generally move much more deliberately than do courts; they are a bit slow and ponderous. Courts, on the other hand, are facile and eager to find and impose a solution. But

[t]he medico-legal challenge in this debate is not, as is so often said, to overcome the failure of the law to keep pace with medical technology. The challenge is to prevent the dilemmas of medical decision-making from forcing upon us undesirable changes in the law.

Koop and Grant, “The ‘Small Beginnings’ of Euthanasia: Examining the Erosion in Legal Prohibitions Against Mercy-Killing,” 2 Journal of Law, Ethics & Public Policy 585, 616 (1986). When facing issues of life and death, society is best served when decisions are surefooted, not swift and ultimately uncertain.

V.

We find no principled legal basis which permits the coguardians in this case to choose the death of their ward. In the absence of such a legal basis for that decision and in the face of this State’s strongly stated policy in favor of life, we choose to err on the side of life, respecting the rights of incompetent persons who may wish to live despite a severely diminished quality of life.

The judgment of the circuit court is reversed.

BILLINGS, C.J., and RENDLEN, J., and REINHARD, Special Judge, concur.

BLACKMAR and HIGGINS, JJ., dissent in separate opinions filed.

WELLIVER, J., dissents in separate opinion filed and concurs in dissenting opinions of BLACKMAR and HIGGINS, JJ.

1 . The guardian ad litem finds himself in the predicament of believing that it is in Nancy's “best interest to have the tube feeding discontinued,” but "feeling that an appeal should be made because our responsibility to her as attorneys and guardians ad litem was to pursue this matter to the highest court in the state in view of the fact that this is a case of first impression in the State of Missouri.”

2 . The court determined that the State is bearing the entire economic cost of Nancy’s care.

3 . Section 194.005, RSMo 1986, provides:

For all legal purposes, the occurrence of human death shall be determined in accordance with the usual and customary standards of medical practice, provided that death shall not be determined to have occurred unless the following minimal conditions have been met:

(1) When respiration and circulation are not artificially maintained, there is an irreversible cessation of spontaneous respiration and circulation; or

(2) When respiration and circulation are artificially maintained, and there is total and irreversible cessation of all brain function, including the brain stem and that such determination is made by a licensed physician.

4 . The following is a list of state court cases since 1976 addressing the initiation or removal of life-sustaining treatment: ARIZONA: Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987); CALIFORNIA: Barber v. Super. Ct. of State of Cal., 147 Cal.App.3d 1006, 195 Cal.Rptr. 484 (1983), Dority v. Super. Ct. of San Bernadino County, 145 Cal.App.3d 273, 193 Cal.Rptr. 288 (1983), Bartling v. Glendale Adventist Medical Center, 184 Cal.App.3d 961, 229 Cal.Rptr. 360 (1986), Bouvia v. Super Ct. of Los Angeles, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986), In re Drabick III, 200 Cal.App.3d 185, 245 Cal.Rptr. 840 (1988); COLORADO: Trujillo v. Dist. Ct. in & for Tenth Judicial Dist., 198 Colo. 419, 601 P.2d 1072 (1979); CONNECTICUT: Foody v. Manchester Memorial Hospital, 40 Conn.Supp. 127, 482 A.2d 713 (1984); DELAWARE: Severns v. Wilmington Medical Center, 425 A.2d 156 (Del.Ch.1980); FLORIDA: Satz v. Perlmutter, 362 So.2d 160 (Fla.Dist.Ct.App.1978); In re Guardianship of Barry, 445 So.2d 365 (Fla.Dist.Ct.App.1984); John F. Kennedy Memorial Hospital v. Bludworth, 452 So.2d 921 (Fla.1984), Corbett v. D'Alessandro, 487 So.2d 368 (Fla.Dist.Ct.App.1986), Wons v. Public Health Trust of Dade County, 500 So.2d 679 (Fla.Dist.Ct.App.1987); GEORGIA: In re L.H.R., 253 Ga. 439, 321 S.E.2d 716 (1984); IOWA: Morgan v. Olds, 417 N.W.2d 232 (Iowa App.1987); LOUISIANA: In re PVW, 424 So.2d 1015 (La.1982); MAINE: In re Joseph v. Gardner, 534 A.2d 947 (Me.1987); MASSACHUSETTS: Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977), In re Dinnerstein, 6 Mass.App.Ct. 466, 380 N.E.2d 134 (1978), In re Spring, 380 Mass. 629, 405 N.E.2d 115 (1980), Custody of a Minor, 385 Mass. 697, 434 N.E.2d 601 (1982), In the matter of Hier, 18 Mass.App.Ct. 200, 464 N.E.2d 959 (1984), Brophy v. New England Sinai Hosp., 398 Mass. 417, 497 N.E.2d 626 (1986); MINNESOTA: In the matter of Torres, 357 N.W.2d 332 (Minp. 1986); NEW JERSEY: In the matter of Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), In the Matter of Conroy, 98 N.J. 321, 486 A.2d 1209 (1985), Iafelice v. Luchs, 206 N.J.Super. 103, 501 A.2d 1040 (1985), In the Matter of Clark, 210 N.J.Super. 548, 510 A.2d 136 (Ch.Div.1986), In the Matter of Requena, 213 N.J.Super. 475, 517 A.2d 886 (Ch.Div.1986), In the Matter of Visbeck, 210 N.J.Super. 527, 510 A.2d 125 (Ch.Div.1986), In the Matter of Farrell, 108 N.J. 335, 529 A.2d 404 (1987), In the Matter of Jobes, 108 NJ. 394, 529 A.2d 434 (1987), In the Matter of Peter, 108 NJ. 365, 529 A.2d 419 (1987); NEW YORK: In the Matter of Eichner, 102 Misc.2d 184, 423 N.Y.S.2d 580 (N.Y.Sup.Ct.1979), In the Matter of Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981), In the Matter of Lydia E. Hall Hospital v. Cinque, 116 Misc.2d 477, 455 N.Y.S.2d 706 (N.Y.Sup.Ct.1982), A.B. v. C., 124 Misc.2d 672, 477 N.Y.S.2d 281 (N.Y.Sup.Ct.1984), Crouse Irving Memorial Hospital v. Paddock, 127 Misc.2d 101, 485 N.Y.S.2d 443 (N.Y.Sup.Ct.1985), In the Matter of Saunders, 129 Misc.2d 45, 492 N.Y.S.2d 510 (N.Y.Sup.Ct.1985), In the Matter of Delio, 134 Misc.2d 206, 510 N.Y.S.2d 415 (N.Y.Sup.Ct.1986), In re Harvey “U", 116 A.D.2d 351, 501 N.Y.S.2d 920 (N.Y.App.Div.1986), In the Matter of O'Brien, 135 Misc.2d 1076, 517 N.Y.S.2d 346 (N.Y.Sup.Ct.1986), Vogel v. Forman, 134 Misc.2d 395, 512 N.Y.S.2d 622 (N.Y.Sup.Ct.1986), In the Matter of Fink, 135 Misc.2d 270, 514 N.Y.S.2d 893 (N.Y.Sup.Ct.1987), In the Matter of Weinstein, 136 Misc.2d 931, 519 N.Y.S.2d 511 (N.Y.Sup.Ct.1987); OHIO: Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 426 N.E.2d 809 (1980), In re Milton, 29 Ohio St.3d 20, 505 N.E.2d 255 (1987); PENNSYLVANIA: In re Estate of Dorone, 349 Pa.Super. 59, 502 A.2d 1271 (1985); WASHINGTON: In the Matter of Colyer, 99 Wash.2d 114, 660 P.2d 738 (1983), Dinino v. State of Washington, 102 Wash.2d 327, 684 P.2d 1297 (1984), In the Matter of Hamlin, 102 Wash.2d 810, 689 P.2d 1372 (1984), In the Matter of Ingram, 102 Wash.2d 827, 689 P.2d 1363 (1984), In re Guardianship of Grant, 109 Wash.2d 545, 747 P.2d 445 (1987).

5 . The dissenters adopt a "me too" posture without burdening themselves with any analysis of the legal reasoning upon which Quinlan and cases following it rely. The dissenters work backwards, choosing a result then creating reasons to "support” it. It is our duty in a case of first impression in this state not only to consider precedents from other states, but also to determine their strength. We have found them wanting and refuse to eat "on the insane root which takes the reason prisoner.” Shakespeare, MacBeth, I, iii.

6 . Karen Quinlan lived nine years after the respirator was disconnected.

7 . When asked if he wanted Karen’s nasogastric feeding tube removed, Mr. Quinlan replied, "Oh no, that is her nourishment.” Ramsey, “Prolonged Dying: Not Medically Indicated,” 6 Hastings Cent.Rep. 14 (1976).

8 . The court intended to apply its tests only in circumstances in which the patient had a life expectancy of no more than one year. 486 A.2d at 1231.

9 . Ms. Conroy died during the pendency of the litigation.

10 . This conclusion is troublesome, given the court’s rejection of the patient’s statements regarding life support as inherently unreliable. One wonders if contrary statements would be similarly unreliable and leave the decision entirely in the hands of a guardian.

11 . “The right of self-determination and individual autonomy has its roots deep in our history.” Brophy, 497 N.E.2d at 633. At this point, courts regularly turn to J.S. Mill for inspiration. ”[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or to forebear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right.” Mill, On Liberty, in 43 Great Books of the Western World 271 (R. Hutchins ed. 1952). Aside from citing Mill for the proposition announced, courts seldom indulge the temptation to determine whether one person’s autonomy and self-determination can be exercised by another, though the very terms seem to indicate that these rights are not alienable, unless so determined by the person for whom they are exercised.

12 . At least five state courts which authorized the refusal of life-sustaining treatment found a right of privacy expressly provided in their state constitutions. See, e.g., Bouvia v. Superior Court, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986); In re Guardianship of Barry, 445 So.2d 365 (Fla.Dist.Ct.App.1984) (noting state constitution was amended after Satz v. Perlmutter, 362 So.2d 160 (Fla.Dist.Ct.App.1978) to recognize a right to privacy in medical treatment decisions); Matter of Quinlan, 70 N.J. 10, 355 A.2d 647 (1976); Matter of Welfare of Colyer, 99 Wash.2d 114, 660 P.2d 738 (1983); Rasmussen by Mitchell v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987).

13 . In Barber v. Time, Inc., 348 Mo. 1199, 1205-06, 159 S.W.2d 291, 294 (1942), this Court stated that a right of privacy may grow out of a constitutional right. The Barber decision provides protection against the publication of private facts and springs from the well-known tort of invasion of privacy. We find its discussion inapplicable in cases involving decisions of personal autonomy.

14 . This is not a matter of forfeiture of a constitutional right because that term implies some state action which deliberately removes or limits a constitutional right.

15 . Section 2(b) of URITA reads:

A declaration may, but need not, be in the following form:

DECLARATION

If I should have an incurable or irreversible condition that will cause my death within a relatively short time, and I am no longer able to make decisions regarding my medical treatment, I direct my attending physicians, pursuant to the Uniform Rights of the Terminally Ill Act of this State, to withhold or withdraw treatment that only prolongs the process of dying and is not necessary to my comfort or to alleviate pain.

16 . The testimony in this case tends to confirm this trend. Dr. Ronald Cranford indicated that hydration and nutrition, however administered is medical treatment; for Cranford, the controlling factors are the patient's desires and those of her family. In cases like Nancy’s "if you decided in terms of what the patient wanted or in terms of what the family wanted or the relationship between the two, to discontinue artificial feeding through the gastrostomy tube and then attempt to feed her through a syringe or spoon feeding would make no sense whatsoever in terms of the overall moral standard of decision making.”

17 . Missouri courts have ordered blood transfusions for infants and children over the religious objection of parents in order to preserve the child’s life and health. Morrison v. State, 252 S.W.2d 97 (Mo.App.1952). See also Jehovah’s Witnesses v. King County Hosp., 278 F.Supp. 488 (W.D.Wash.1967), aff'd, 390 U.S. 598, 88 S.Ct. 1260, 20 L.Ed.2d 158 (1968); In re Ivey, 319 So.2d 53 (Fla.App.1975); People v. Labrenz, 411 Ill. 618, 104 N.E.2d 769 (1952); State v. Petricone, 37 N.J. 463, 181 A.2d 751, cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962); In re Clark, 21 Ohio Op.2d 86, 185 N.E.2d 128 (Ohio Comm.Pleas 1962); Mitchell v. Davis, 205 S.W.2d 812 (Tex.Civ.App.1947).

18 . AMA guidelines would permit withdrawal. Opinion 2.18 of the Current Opinions of the Council on Ethical and Judicial Affairs of the American Medical Association adopted in 1986 reads in pertinent part:

Even if death is not imminent but a patient’s coma is beyond doubt irreversible and there are adequate safeguards to confirm the accuracy of the diagnosis and with the concurrence of those who have responsibility for the care of the patient, it is not unethical to discontinue all means of life-prolonging medical treatment.

Life-prolonging medical treatment includes medication and artificially or technologically supplied respiration, nutrition or hydration. In treating a terminally ill or irreversible comatose patient, the physician should determine whether the benefits of treatment outweigh its burdens. At all times, the dignity of the patient should be maintained.

In its amicus brief, the American Medical Association states that it is not unethical in certain circumstances for a physician to comply with the request of a patient or surrogate to withdraw life-prolonging medical treatment.

19 . The other amicus curiae briefs filed in this case illustrate the split in thinking.

The American Academy of Neurology in its amicus brief states that Nancy is a "prisoner of medical technology” and that she and her family should be set free.

Concern for Dying urges that "decisions to apply, withhold or withdraw medical care and technology are a matter of personal, not medical, judgment, and that such decisions should be made in accordance with a patient’s wishes, values and beliefs.”

The Society for the Right to Die, Inc., avers that there is a "fundamental right to refuse life-sustaining treatment" and that “that right can be exercised on behalf of a permanently unconscious individual.”

The Brief of the SSM Health Care System and the Center for Health Care Ethics, St. Louis University Medical Center states that ”[w]ithin the Christian foundation, the withholding and withdrawing of medical treatment, including artificial nutrition and hydration, is acceptable."

The brief of the Association for Retarded Citizens of the United States and the Ethics and Advocacy Task Force of the Nursing Home Action Group, however, assert that a course such as that set out by the trial court would “threaten the affirmation and fundamental right to and interest in life of people with disabilities. It would subject them to radical and insidious discrimination based on their disabilities.”

The brief of the Missouri Citizens for Life argues that neither the state nor federal constitution allows a competent person to starve or die of thirst and certainly no guardian can make that decision for an incompetent.

20 . Saikewicz adopts substituted judgment to a remarkable end. Substituted judgment in that case permits the decisionmaker to assume that he is an incompetent who becomes competent but continues to weigh the decision as though incompetent.

21 . "The 'qualification' that the [court] alluded to was the notion of preserving a 'cognitive, sapient life.’ ... In other words, the reduced prospects of what the court called a ‘cognitive’ and ‘sapient’ life would be taken as prima facie grounds for the inference that the patient would not wish to preserve her life.” Arkes, " ‘Autonomy’ and the ‘Quality of Life’: The Dismantling of Moral Terms,” Issues in Law & Medicine, Vol. 2, No. 6, 421, 428 (1987).