Surrogate Health Care Decisions and Same-Sex Relationships

Early in 2011, Illinois joined the ranks of states that recognize civil unions between both same-sex and opposite-sex couples. (1) The law gives partners in these unions "the same legal obligations, responsibilities, protections and benefits as are afforded or recognized by the law of Illinois to spouses." (2) Despite the fact that Illinois and most other states still reserve marriage for opposite-sex couples, the option of civil unions will make it easier for some couples to make health care decisions for one another should one of them become incapacitated. Surrogate decision-makers for health care are a significant topic for everyone, but the issue has special resonance for same-sex couples because the law in most jurisdictions excludes same-sex couples from the benefits that marriage and some civil unions confer in those health care decisions. Through marriage, states provide wives and husbands the legal right to make decisions for their incapacitated spouses as a matter of course. By contrast, men and women who are in relationships not recognized by the state in any way--whether same-sex or opposite-sex relationships--generally lack legal standing to make those kinds of decisions, no matter how long the partners have been together or the depth of their commitment to one another. In some states, coupled but unmarried people may gain that standing through civil unions, but most jurisdictions in the United States recognize neither those unions nor same-sex marriage. Cloud State University professor Karen Thompson learned about the marginal status of same-sex partners the hard way when her partner, Sharon Kowalski, became incapacitated in a 1983 accident. Despite Kowalski's relationship with Thompson, physicians turned to the injured woman's parents for decisions about care. The Kowalski family excluded Thompson from any decisions about the woman with whom she had had a commitment ceremony. (3) Thompson was, however, unwilling to cede decisions about her partner's well-being, in part because she thought poor choices were being made. Thompson took to the courts and the media to advocate on her partner's behalf. Only in 1991 did the Minnesota Court of Appeals grant Thompson's petition for guardianship, calling the couple a "family of affinity." (4) Many legal jurisdictions in the United States have neither this kind of court precedent nor a statute to authorize men and women in same-sex relationships to make health care decisions for partners who become incapacitated. Most states have recognized a hierarchy of decision-makers for incapacitated patients, but these usually make no specific mention of same-sex partners. (5) Under those laws, it is typically legal guardians who are entitled to make decisions for incapacitated people in their charge. If there are no court-appointed guardians, then spouses are entitled to make those decisions. If there are no spouses, then adult children or--after them--the patient's parents make the decisions. The list goes on from there to adult siblings, then adult grandchildren. After this circle of relatives is exhausted, clinicians may turn to close friends, but if there are also no identifiable friends, clinicians may turn to guardians of the estate. Gay or lesbian partners do not appear as such in these hierarchies. States permitting same-sex marriage will recognize partners in those relationships as spouses, and states permitting civil unions typically treat partners in those relationships as spouses, but other states specifically forbid same-sex marriage, do not permit civil unions, and do not recognize common-law marriages. (6) Gay and lesbian partners in these states will qualify as surrogate decision-makers only as close friends, and even then, they will only be called upon if no one higher on the list is available and willing to make decisions. In practice, some clinicians involve same-sex partners in discussions about patient care, especially when the domestic partner has good relationships with the patient's family members. …