Can a person in a vegetative state get married?

By Luke Davies

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Recently in Illinois, a woman, Colette Purifoy, has been denied a marriage license because her fiancé, John Morris, who is in a vegetative state, cannot sign the marriage form and consent (Find the story here, here, here, and here). In 2009, just before the surgery during which his anoxic brain injury was inflicted (leaving him in his current, unresponsive condition), Morris proposed to Purifoy for a second time. She said ‘Yes’, also for the second time. The couple has been together for 38 years, but hasn’t been able to marry as a result of financial and family commitments.

The state of Illinois doesn’t recognize common law partnerships, but Purifoy is recognized as an heir to Morris, and she is also his primary surrogate decision-maker. The marriage itself wouldn’t change Purifoy’s financial condition with respect to the other members of Morris’ family—though the couple would benefit from the tax breaks available to those in legally recognized relationships. Purifoy has stated that she wants to be married both to act on Morris’ last stated wish, and because it would provide legal recognition of a relationship that has lasted nearly four decades. The Illinois Marriage and Dissolution of Marriage Act, however, requires that each person be able to sign the marriage license. Morris, because of his condition, is unable to perform this action, and thus the license was denied.

How should we think about the judge’s decision to deny the license? We could simply state that it is a case of not allowing one person to change the legal status of another without that other’s explicit, contemporaneous approval. That is, we could agree with the judge in stating that marriage is an act that requires the explicit consent of each of the parties. In normal cases, this seems right. Marriage changes the normative status of a person in a way that we think requires that person’s consent. Without that consent, the change of status doesn’t seem legitimate. The problem in the case of Morris and Purifoy is that theirs isn’t a normal case. Morris is unable to consent; Purifoy makes his decisions for him. It seems to me, then, that we should think about the judge’s upholding of the strict requirements of the Marriage and Dissolution of Marriage Act as making a statement about the limits of surrogate decision-making. To be more specific, the judge is upholding the view that marriage is something that cannot be consented to by a surrogate decision maker. This seems wrong to me; here’s why:

The best-case scenario for a surrogate decision maker is that he or she be able to make the decisions that the person on whose behalf he or she acts would have made were that person able to do so. The more explicit the wishes of the person who is currently incapable with respect to the decision, the stronger the case for the surrogate acting on those wishes. If, for example, Morris had openly and consistently maintained that, if he were in a vegetative state, then he would want a Do Not Resuscitate order enacted, then it would be an obligation of the decision-maker to inform the doctors of that desire. To do otherwise, would be to act against his wishes. If we think—as I believe we should—that surrogate decision-making should primarily serve as a way of promoting the autonomy of the person for whom decisions are being made, then ignoring such wishes would constitute a violation of that person’s autonomy [1]. This isn’t just the case for medical decision-making. If a person is considered to be globally incompetent to make decisions—meaning, incompetent to make any decision at all—then his or her surrogate will be required to make non-medical choices as well. Those choices should also be consistent, when possible, with the explicitly stated wishes of the person. In the case under discussion, we know that Morris wanted to marry Purifoy, and it is Purifoy’s desire to act on that wish.

There are a number of grounds on which we can question the validity of a choice made by a surrogate decision maker. These include: the possible risk to the ward, the lack of stated wishes with respect to the decision at hand, conflicting accounts of what the person wanted, etc. None of these considerations are relevant here. We might, however, think that there is a conflict of interest because Purifoy wants to marry Morris (she has, after all, accepted his proposals twice). If this were the case, then we might be able to question her suitability for making this particular choice on Morris’ behalf. But, here are two reasons to think this shouldn’t support the judge’s decision.

First, the surrogate’s receipt of a benefit as a result of acting on behalf of the ward should not, in itself, be a cause for disallowing the decision—especially when the intention of the ward at the time he or she was competent is clear. When a surrogate decision maker is someone close to the ward, it shouldn’t be surprising that some of the intended actions of the ward would benefit the decision maker. If there is ample evidence for the decision, and no conflicting accounts from other close associates (as in this case), then the receipt of a benefit should not count against the suitability of the surrogate decision maker. Second, even if Purifoy herself was unable to act as the surrogate in this case, there appears to be ample enough evidence of Morris’ intention that another person would still be able to make the choice on his behalf. With clearly stated intentions, and no possible conflict of interest, it seems hard to deny the validity of this decision.

Finally, one might also object that marriage isn’t the sort of thing for which surrogate decision-making is appropriate; that it is the type of decision that must always be made by the person on his or her own behalf. This seems wrong to me as well. There are many decisions that are far more significant to a person’s life than marriage. Some of these decisions will become the charge of surrogate decision makers. So, to say that marriage is a choice not amenable to surrogate decision-making is to claim there is something special about the institution. But, it seems to me that the onus should be placed on those who believe it is special to demonstrate that fact, rather than the other way around. Where does this leave us with respect to John Morris and Colette Purifoy? Hopefully, it leaves us disagreeing with the judge’s decision. It seems to me that there is no reason why they should be prohibited from marrying.

 

[1] Of course, if the person had no stated wishes with respect to the decision that needs to be made, then the surrogate must act either 1) in accordance with what he or she believes would be consistent with what the person would have wanted; or, 2) when there is no indication of what the person would have wanted, the surrogate must seek to promote the person’s well-being to the greatest extent possible (where promoting well-being will most often mean promoting the physical condition of the person). See Brock and Buchanan Deciding for Others: the Ethics of Surrogate Decision Making (Cambridge UP, 1990) for discussion.

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3 Responses to Can a person in a vegetative state get married?

  • Mark Bratton says:

    Thank you Luke for this interesting post.

    With DNR we are not comparing ‘like with like’. In the UK, your can prospectively refuse life-sustaining treatment provided the requisite formalities are satisfied, but you cannot demand treatment as of right, though your treating clinicians would have a duty to supply optimal treatment. Is a change of normative status of this sort something for which we can claim a positive right? The moment we enter the realm of positive rights, we enter the domain of public policy, and there are, arguably, good public policy reasons why the law should not endorse asymmetrical arrangements of this sort, e.g. marriage is not simply a contract between two autonomous individuals but a publicly acclaimed covenant importing a range of social responsibilities and expectations which distinguish it from, e.g., commercial relationships.

  • Bouke Versteegh says:

    This is not an ethical problem, but a political problem. Clearly they can’t get married, because marriage is a voluntary agreement, and a person in a vegetative state can’t agree to anything. If he had already decided to leave his money to his partner, than that should just happen, no ethical issue there. But, she can’t have a tax break from the inheritance.

    Now, you may think that it is unfair that she has to pay these taxes. The solution lies not in debating whether they should be considered married or not. The solution is in wondering whether it is fair to tax unmarried couples, and not married couples.

  • Timothy Murphy says:

    In building his case to allow a woman to marry a man in a persistent vegetative state (PVS), Davies says that in the long interval between 1975 and 2009, the two were “not able to marry as a result of financial and family commitments.”

    This interpretation of the couple’s circumstances strikes me as too indulgent. Civil marriages in the couple’s home state – Illinois – can be despatched in no more time than it takes to shop for a few groceries. It is not inconsistent with the facts to say, therefore, that the couple chose not to marry as the decades rolled along.

    It does not follow either that a (second) proposal of marriage, just prior to the man’s fateful surgery would necessarily have led to a marriage either. Who knows but that more “financial and family commitments” would gotten in the way again?

    These doubts do not mean that no one should marry a person in al PVS, but I’m not sure that living together without the status of marriage doesn’t better express the intentions of the two people in this case. After all, the couple exercised vastly more choices against marriage than to secure it for themselves.

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