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Abstract

The Maine Legislature recently enacted a law authorizing the execution and use of living wills. The execution of a living will, essentially a document of "informed consent," allows a person to preserve in a legally recognized form his desire that, once he has been diagnosed to have a terminal medical condition and is no longer competent to make treatment decisions, the doctor should discontinue all life-sustaining procedures. With the passage of this act, Maine has joined thirty-four other states and the District of Columbia in enacting living will provisions. In addition, the National Conference of Commissioners on Uniform State Laws has approved the Uniform Rights of Terminally Ill Act on which Maine based its own statute. The popularity of living will legislation has been a direct response to the difficult legal and moral questions which unavoidably have accompanied the swift advances in medical science of the past two decades. In particular, legislatures are seeking to address the suffering of people who are kept alive without any hope of recovery through state-of-the-art medical procedures and the most technically advanced mechanical devices. Legislatures are striving to strike a balance between the individual's desire not to be kept alive by medical procedures that only prolong the suffering attendant upon dying and the community's concern with the moral implications of consciously failing to do all that is within its power to help those who, in extremis, are no longer able to help themselves. The problem legislatures face in addressing the plight of the terminally ill is heightened by an awareness that an individual approaching death is most vulnerable to and most dependent upon the powers and designs of those around him. This period of physical dependency presents forcefully the dilemma concerning the proper relationship between the individual and the state: When may the state require treatment through intrusive medical procedures of a person approaching death? Since the tragic case of Karen Quinlan forced this issue into the national consciousness in 1976, legal and ethical commentators, the courts, and state legislatures have reached a general consensus that a patient has a right to terminate those medical procedures that serve only to prolong the dying process. None of these groups, however, has recognized a general "right to die," and most have explicitly rejected euthanasia, suicide, and mercy-killing as acceptable means for bringing about a terminal patient's death. Despite this underlying consensus, there remains substantial disagreement concerning when the termination of medical care simply allows the dying process to take its course and when that termination amounts to some form of euthanasia. This Comment discusses the proper balance between the individual's interest in controlling the course of his own medical treatment and the state's interest in protecting the well-being of those who, nearing death, are no longer able to care for themselves. The Comment argues that although a terminal patient may generally have a right to order the withdrawal of life-sustaining procedures, important moral and practical arguments suggest limitations on that right which would preclude terminating nutrition and hydration.

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