DISCUSSION POST

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IN R E Q U IN LA N

70 N .J. 10 (1976)

355 A .2d 647

IN TH E M ATTE R O F KARE N Q U IN LAN , AN ALLE G E D IN CO M PE TE N T.

The Suprem e Court of N ew Jersey.

A rgued January 26, 1976.

D ecided M arch 31, 1976.

M r. Paul W . A rmstrong and M r. James M . Crowley, a m em ber of the N ew York bar, argued the cause

for appellant Joseph T. Q uinlan (M r. Paul W . A rmstrong, attorney).

M r. D aniel R. Coburn argued the cause for respondent G uardian ad Litem Thom as R. Curtin.

M r. W illiam F. H yland, Attorney G eneral of N ew Jersey, argued the cause for respondent State of

N ew Jersey (M r. H yland, attorney; M r. D avid S. Baime and M r. John D eCicco, D eputy Attorneys G eneral,

of counsel; M r. Baime, M r. D eCicco, M s. Jane E. D eaterly, M r. D aniel Louis G rossman and M r. Robert E.

Rochford, D eputy Attorneys G eneral, on the brief).

M r. D onald G . Collester, Jr., M orris County Prosecutor, argued the cause for respondent County of

M orris.

M r. Ralph Porzio argued the cause for respondents Arshad Javed and Robert J. M orse (M essrs. Porzio,

Bromberg and N ewman, attorneys; M r. Porzio, of counsel; M r. Porzio and M r. E. N eal Zimmermann, on the

brief).

M r. Theodore E.B. Einhorn argued the cause for respondent Saint Clare's H ospital.

M r. Edward J. Leadem filed a brief on behalf of amicus curiae N ew Jersey Catholic Conference.

The opinion of the C ourt w as delivered by HUG HES, C .J.

[ 70 N.J. 18 ]

TH E LITIG A TIO N

The central figure in this tragic case is Karen Ann Q uinlan, a New Jersey

resident. At the age of 22, she lies in a debilitated and allegedly m oribund state at Saint C lare's

Hospital in D enville, New Jersey. The litigation has to do, in final analysis, w ith her life, — its

continuance or cessation, — and the responsibilities, rights and duties, w ith regard to any fateful

decision concerning it, of her fam ily, her guardian, her doctors, the hospital, the State through its law

enforcem ent authorities, and finally the courts of justice.

The issues are before this C ourt follow ing its direct certification of the action under the rule, R .

2:12-1, prior to hearing in the Superior C ourt, Appellate D ivision, to w hich the appellant (hereafter

"plaintiff") Joseph Q uinlan, Karen's father, had appealed the adverse judgm ent of the C hancery

D ivision.

D ue to extensive physical dam age fully described in the able opinion of the trial judge, Judge 12/14/12 This Document is Provided by Leagle.com

2/22 www.leagle.com/PrintDocument.aspx M uir, supporting that judgm ent, Karen allegedly w as incom petent. Joseph Q uinlan sought the

adjudication of that incom petency. He w ished to be appointed guardian of the person and property of

his daughter. It w as proposed by him that such letters of guardianship, if granted, should contain an

express pow er to him as guardian to authorize the discontinuance of all extraordinary m edical

procedures now allegedly sustaining Karen's vital processes and hence her life, since these

m easures, he asserted, present no hope of her eventual recovery. A guardian ad litem w as

appointed by Judge M uir to represent the interest of the alleged incom petent.

By a supplem ental com plaint, in view of the extraordinary nature of the relief sought by plaintiff

and the involvem ent therein of their several rights and responsibilities, other parties w ere added.

These included the treating physicians and the hospital, the relief sought being that they be

restrained from interfering w ith the carrying out of any such extraordinary

[ 70 N.J. 19 ]

authorization in the event it w ere to be granted by the court. Joined, as w ell, w as the Prosecutor of

M orris C ounty (he being charged w ith responsibility for enforcem ent of the crim inal law ), to enjoin

him from interfering w ith, or projecting a crim inal prosecution w hich otherw ise m ight ensue in the

event of, cessation of life in Karen resulting from the exercise of such extraordinary authorization

w ere it to be granted to the guardian.

The Attorney G eneral of New Jersey intervened as of right pursuant to R . 4:33-1 on behalf of the

State of New Jersey, such intervention being recognized by the court in the pretrial conference order

(R . 4:25-1 et seq.) of Septem ber 22, 1975. Its basis, of course, w as the interest of the State in the

preservation of life, w hich has an undoubted constitutional foundation.1

The m atter is of transcendent im portance, involving questions related to the definition and

existence of death; the prolongation of life through artificial m eans developed by m edical technology

undream ed of in past generations of the practice of the healing arts;2 the im pact of such durationally

[ 70 N.J. 20 ]

indeterm inate and artificial life prolongation on the rights of the incom petent, her fam ily and society in

general; the bearing of constitutional right and the scope of judicial responsibility, as to the

appropriate response of an equity court of justice to the extraordinary prayer for relief of the plaintiff.

Involved as w ell is the right of the plaintiff, Joseph Q uinlan, to guardianship of the person of his

daughter.

Am ong his "factual and legal contentions" under such Pretrial O rder w as the follow ing:

I. Legal and Medical Death

(a) Under the existing legal and m edical definitions of death recognized by the State of New Jersey, Karen

Ann Quinlan is dead.

This contention, m ade in the context of Karen's profound and allegedly irreversible com a and

physical debility, w as discarded during trial by the follow ing stipulated am endm ent to the Pretrial

O rder:

Under any legal standard recognized by the State of New Jersey and also under standard

m edical practice, Karen Ann Q uinlan is presently alive.

O ther am endm ents to the Pretrial O rder m ade at the tim e of trial expanded the issues before the

court. The Prosecutor of M orris C ounty sought a declaratory judgm ent

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as to the effect any affirm ation by the court of a right in a guardian to term inate life-sustaining

procedures w ould have w ith regard to enforcem ent of the crim inal law s of New Jersey w ith

reference to hom icide. Saint C lare's Hospital, in the face of trial testim ony on the subject of "brain

death," sought declaratory judgm ent as to:

W hether the use of the criteria developed and enunciated by the Ad Hoc C om m ittee of the

Harvard M edical School on or about August 5, 1968, as w ell as sim ilar criteria, by a physician to

assist in determ ination of the death of a patient w hose cardiopulm onary functions are being

artificially sustained, is in accordance w ith ordinary and standard m edical practice.3

It w as further stipulated during trial that Karen w as indeed incom petent and guardianship w as

necessary, although there exists a dispute as to the determ ination later reached by the court that

such guardianship should be bifurcated, and that M r. Q uinlan should be appointed as guardian of the

trivial property but not the person of his daughter.

After certification the Attorney G eneral filed as of right (R . 2:3-4) a cross-appeal3.1 challenging

the action of the trial court in adm itting evidence of prior statem ents m ade by Karen w hile com petent

as to her distaste for continuance of life by extraordinary m edical procedures, under circum stances

not unlike those of the present case. These quoted statem ents w ere m ade in the context of several

conversations w ith regard to others term inally ill and being subjected to like heroic m easures. The

statem ents w ere advanced as evidence of w hat she w ould w ant done in such a contingency as now

exists. She w as said to have firm ly evinced her w ish, in like circum stances, not to have her life

prolonged by the otherw ise futile use of extraordinary m eans. Because w e

[ 70 N.J. 22 ]

agree w ith the conception of the trial court that such statem ents, since they w ere rem ote and

im personal, lacked significant probative w eight, it is not of consequence to our opinion that w e

decide w hether or not they w ere adm issible hearsay. Again, after certification, the guardian of the

person of the incom petent (w ho had been appointed as a part of the judgm ent appealed from )

resigned and w as succeeded by another, but that too seem s irrelevant to decision. It is, how ever, of

interest to note the trial court's delineation (in its supplem ental opinion of Novem ber 12, 1975) of the

extent of the personal guardian's authority w ith respect to m edical care of his w ard:

M r. C oburn's appointm ent is designed to deal w ith those instances w herein D r. M orse,4 in the

process of adm inistering care and treatm ent to Karen Q uinlan, feels there should be concurrence on

the extent or nature of the care or treatm ent. If M r. and M rs. Q uinlan are unable to give concurrence,

then M r. C oburn w ill be consulted for his concurrence.

Essentially then, appealing to the pow er of equity, and relying on claim ed constitutional rights of

free exercise of religion, of privacy and of protection against cruel and unusual punishm ent, Karen

Q uinlan's father sought judicial authority to w ithdraw the life-sustaining m echanism s tem porarily

preserving his daughter's life, and his appointm ent as guardian of her person to that end. His request

w as opposed by her doctors, the hospital, the M orris C ounty Prosecutor, the State of New Jersey,

and her guardian ad litem .

TH E FA C TU A L B A S E

An understanding of the issues in their basic perspective suggests a brief review of the factual

base developed in the

[ 70 N.J. 23 ]

testim ony and docum ented in greater detail in the opinion of the trial judge. In re Q uinlan,137

N.J.Super. 227 (C h. D iv. 1975). 12/14/12 This Document is Provided by Leagle.com

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O n the night of April 15, 1975, for reasons still unclear, Karen Q uinlan ceased breathing for at

least tw o 15 m inute periods. She received som e ineffectual m outh-to-m outh resuscitation from

friends. She w as taken by am bulance to New ton M em orial Hospital. There she had a tem perature of

100 degrees, her pupils w ere unreactive and she w as unresponsive even to deep pain. The history

at the tim e of her adm ission to that hospital w as essentially incom plete and uninform ative.

Three days later, D r. M orse exam ined Karen at the request of the New ton adm itting physician,

D r. M cG ee. He found her com atose w ith evidence of decortication, a condition relating to

derangem ent of the cortex of the brain causing a physical posture in w hich the upper extrem ities are

flexed and the low er extrem ities are extended. She required a respirator to assist her breathing. D r.

M orse w as unable to obtain an adequate account of the circum stances and events leading up to

Karen's adm ission to the New ton Hospital. Such initial history or etiology is crucial in neurological

diagnosis. R elying as he did upon the New ton M em orial records and his ow n exam ination, he

concluded that prolonged lack of oxygen in the bloodstream , anoxia, w as identified w ith her condition

as he saw it upon first observation. W hen she w as later transferred to Saint C lare's Hospital she

w as still unconscious, still on a respirator and a tracheotom y had been perform ed. O n her arrival D r.

M orse conducted extensive and detailed exam inations. An electroencephalogram (EEG ) m easuring

electrical rhythm of the brain w as perform ed and D r. M orse characterized the result as "abnorm al

but it show ed som e activity and w as consistent w ith her clinical state." O ther significant neurological

tests, including a brain scan, an angiogram , and a lum bar puncture w ere norm al in result. D r. M orse

testified that Karen has been in a state of com a, lack of consciousness,

[ 70 N.J. 24 ]

since he began treating her. He explained that there are basically tw o types of com a, sleep-like

unresponsiveness and aw ake unresponsiveness. Karen w as originally in a sleep-like unresponsive

condition but soon developed "sleep-w ake" cycles, apparently a norm al im provem ent for com atose

patients occurring w ithin three to four w eeks. In the aw ake cycle she blinks, cries out and does

things of that sort but is still totally unaw are of anyone or anything around her.

D r. M orse and other expert physicians w ho exam ined her characterized Karen as being in a

"chronic persistent vegetative state." D r. Fred Plum , one of such expert w itnesses, defined this as a

"subject w ho rem ains w ith the capacity to m aintain the vegetative parts of neurological function but

w ho * * * no longer has any cognitive function."

D r. M orse, as w ell as the several other m edical and neurological experts w ho testified in this

case, believed w ith certainty that Karen Q uinlan is not "brain dead." They identified the Ad Hoc

C om m ittee of Harvard M edical School report (infra) as the ordinary m edical standard for determ ining

brain death, and all of them w ere satisfied that Karen m et none of the criteria specified in that report

and w as therefore not "brain dead" w ithin its contem plation.

In this respect it w as indicated by D r. Plum that the brain w orks in essentially tw o w ays, the

vegetative and the sapient. He testified:

W e have an internal vegetative regulation w hich controls body tem perature w hich controls

breathing, w hich controls to a considerable degree blood pressure, w hich controls to som e degree

heart rate, w hich controls chew ing, sw allow ing and w hich controls sleeping and w aking. W e have a

m ore highly developed brain w hich is uniquely hum an w hich controls our relation to the outside

w orld, our capacity to talk, to see, to feel, to sing, to think. Brain death necessarily m ust m ean the

death of both of these functions of the brain, vegetative and the sapient. Therefore, the presence of

any function w hich is regulated or governed or controlled by the deeper parts of the brain w hich in

laym en's term s m ight be considered purely vegetative w ould m ean that the brain is not biologically

dead.

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Because Karen's neurological condition affects her respiratory ability (the respiratory system being a

brain stem function) she requires a respirator to assist her breathing. From the tim e of her

adm ission to Saint C lare's Hospital Karen has been assisted by an M A-1 respirator, a sophisticated

m achine w hich delivers a given volum e of air at a certain rate and periodically provides a "sigh"

volum e, a relatively large m easured volum e of air designed to purge the lungs of excretions.

Attem pts to "w ean" her from the respirator w ere unsuccessful and have been abandoned.

The experts believe that Karen cannot now survive w ithout the assistance of the respirator; that

exactly how long she w ould live w ithout it is unknow n; that the strong likelihood is that death w ould

follow soon after its rem oval, and that rem oval w ould also risk further brain dam age and w ould curtail

the assistance the respirator presently provides in w arding off infection.

It seem ed to be the consensus not only of the treating physicians but also of the several qualified

experts w ho testified in the case, that rem oval from the respirator w ould not conform to m edical

practices, standards and traditions.

The further m edical consensus w as that Karen in addition to being com atose is in a chronic and

persistent "vegetative" state, having no aw areness of anything or anyone around her and existing at

a prim itive reflex level. Although she does have som e brain stem function (ineffective for respiration)

and has other reactions one norm ally associates w ith being alive, such as m oving, reacting to light,

sound and noxious stim uli, blinking her eyes, and the like, the quality of her feeling im pulses is

unknow n. She grim aces, m akes sterotyped cries and sounds and has chew ing m otions. Her blood

pressure is norm al.

Karen rem ains in the intensive care unit at Saint C lare's Hospital, receiving 24-hour care by a

team of four nurses characterized, as w as the m edical attention, as "excellent." She is nourished by

feeding by w ay of a nasal-gastro tube and is routinely exam ined for infection, w hich under these

[ 70 N.J. 26 ]

circum stances is a serious life threat. The result is that her condition is considered rem arkable

under the unhappy circum stances involved.

Karen is described as em aciated, having suffered a w eight loss of at least 40 pounds, and

undergoing a continuing deteriorative process. Her posture is described as fetal-like and grotesque;

there is extrem e flexion-rigidity of the arm s, legs and related m uscles and her joints are severely

rigid and deform ed.

From all of this evidence, and including the w hole testim onial record, several basic findings in

the physical area are m andated. Severe brain and associated dam age, albeit of uncertain etiology,

has left Karen in a chronic and persistent vegetative state. No form of treatm ent w hich can cure or

im prove that condition is know n or available. As nearly as m ay be determ ined, considering the

guarded area of rem ote uncertainties characteristic of m ost m edical science predictions, she can

never be restored to cognitive or sapient life. Even w ith regard to the vegetative level and

im provem ent therein (if such it m ay be called) the prognosis is extrem ely poor and the extent

unknow n if it should in fact occur.

She is debilitated and m oribund and although fairly stable at the tim e of argum ent before us (no

new inform ation having been filed in the m eanw hile in expansion of the record), no physician risked

the opinion that she could live m ore than a year and indeed she m ay die m uch earlier. Excellent

m edical and nursing care so far has been able to w ard off the constant threat of infection, to w hich

she is peculiarly susceptible because of the respirator, the tracheal tube and other incidents of care

in her vulnerable condition. Her life accordingly is sustained by the respirator and tubal feeding, and

rem oval from the respirator w ould cause her death soon, although the tim e cannot be stated w ith This Document is Provided by Leagle.com

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m ore precision.

The determ ination of the fact and tim e of death in past years of m edical science w as keyed to

the action of the heart and blood circulation, in turn dependent upon pulm onary

[ 70 N.J. 27 ]

activity, and hence cessation of these functions spelled out the reality of death.5

D evelopm ents in m edical technology have obfuscated the use of the traditional definition of

death. Efforts have been m ade to define irreversible com a as a new criterion for death, such as by

the 1968 report of the Ad Hoc C om m ittee of the Harvard M edical School (the C om m ittee com prising

ten physicians, an historian, a law yer and a theologian), w hich asserted that:

From ancient tim es dow n to the recent past it w as clear that, w hen the respiration and heart

stopped, the brain w ould die in a few m inutes; so the obvious criterion of no heart beat as

synonym ous w ith death w as sufficiently accurate. In those tim es the heart w as considered to be the

central organ of the body; it is not surprising that its failure m arked the onset of death. This is no

longer valid w hen m odern resuscitative and supportive m easures are used. These im proved

activities can now restore "life" as judged by the ancient standards of persistent respiration and

continuing heart beat. This can be the case even w hen there is not the rem otest possibility of an

individual recovering consciousness follow ing m assive brain dam age. ["A D efinition of Irreversible

C om a," 205 J.A.M .A. 337, 339 (1968)].

The Ad Hoc standards, carefully delineated, included absence of response to pain or other

stim uli, pupilary reflexes, corneal, pharyngeal and other reflexes, blood pressure, spontaneous

respiration, as w ell as "flat" or isoelectric electroencephalogram s and the like, w ith all tests repeated

"at least 24 hours later w ith no change." In such circum stances, w here all of such criteria have been

m et as show ing "brain death," the C om m ittee recom m ends w ith regard to the respirator:

[ 70 N.J. 28 ]

The patient's condition can be determ ined only by a physician. W hen the patient is hopelessly

dam aged as defined above, the fam ily and all colleagues w ho have participated in m ajor decisions

concerning the patient, and all nurses involved, should be so inform ed. D eath is to be declared and

then the respirator turned off. The decision to do this and the responsibility for it are to be taken by

the physician-in-charge, in consultation w ith one or m ore physicians w ho have been directly involved

in the case. It is unsound and undesirable to force the fam ily to m ake the decision. [205 J.A.M .A.,

supra at 338 (em phasis in original)].

But, as indicated, it w as the consensus of m edical testim ony in the instant case that Karen, for

all her disability, m et none of these criteria, nor indeed any com parable criteria extant in the m edical

w orld and representing, as does the Ad Hoc C om m ittee report, according to the testim ony in this

case, prevailing and accepted m edical standards.

W e have adverted to the "brain death" concept and Karen's disassociation w ith any of its

criteria, to em phasize the basis of the m edical decision m ade by D r. M orse. W hen plaintiff and his

fam ily, finally reconciled to the certainty of Karen's im pending death, requested the w ithdraw al of life

support m echanism s, he dem urred. His refusal w as based upon his conception of m edical

standards, practice and ethics described in the m edical testim ony, such as in the evidence given by

another neurologist, D r. Sidney D iam ond, a w itness for the State. D r. D iam ond asserted that no

physician w ould have failed to provide respirator support at the outset, and none w ould interrupt its

life-saving course thereafter, except in the case of cerebral death. In the latter case, he thought the

respirator w ould in effect be disconnected from one already dead, entitling the physician under

m edical standards and, he thought, legal concepts, to term inate the supportive m easures. W e note 12/14/12 This Document is Provided by Leagle.com

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D r. D iam ond's distinction of m ajor surgical or transfusion procedures in a term inal case not involving

cerebral death, such as here:

The subject has lost hum an qualities. It w ould be incredible, and I think unlikely, that any

physician w ould respond to a sudden hem orrhage, m assive hem orrhage or a loss of all her

defensive blood

[ 70 N.J. 29 ]

cells, by giving her large quantities of blood. I think that * * * m ajor surgical procedures w ould be out

of the question even if they w ere know n to be essential for continued physical existence.

This distinction is adverted to also in the testim ony of D r. Julius Korein, a neurologist called by

plaintiff. D r. Korein described a m edical practice concept of "judicious neglect" under w hich the

physician w ill say:

D on't treat this patient anym ore, * * * it does not serve either the patient, the fam ily, or society in

any m eaningful w ay to continue treatm ent w ith this patient.

D r. Korein also told of the unw ritten and unspoken standard of m edical practice im plied in the

foreboding initials D NR (do not resuscitate), as applied to the extraordinary term inal case:

C ancer, m etastatic cancer, involving the lungs, the liver, the brain, m ultiple involvem ents, the

physician m ay or m ay not w rite: D o not resuscitate. * * * [I]t could be said to the nurse: if this m an

stops breathing don't resuscitate him . * * * No physician that I know personally is going to try and

resuscitate a m an riddled w ith cancer and in agony and he stops breathing. They are not going to put

him on a respirator. * * * I think that w ould be the height of m isuse of technology.

W hile the thread of logic in such distinctions m ay be elusive to the non-m edical lay m ind, in

relation to the supposed im perative to sustain life at all costs, they nevertheless relate to m edical

decisions, such as the decision of D r. M orse in the present case. W e agree w ith the trial court that

that decision w as in accord w ith D r. M orse's conception of m edical standards and practice.

W e turn to that branch of the factual case pertaining to the application for guardianship, as

distinguished from the nature of the authorization sought by the applicant. The character and general

suitability of Joseph Q uinlan as guardian for his daughter, in ordinary circum stances, could not be

doubted. The record bespeaks the high degree of

[ 70 N.J. 30 ]

fam ilial love w hich pervaded the hom e of Joseph Q uinlan and reached out fully to em brace Karen,

although she w as living elsew here at the tim e of her collapse. The proofs show ed him to be deeply

religious, im bued w ith a m orality so sensitive that m onths of tortured indecision preceded his belated

conclusion (despite earlier m oral judgm ents reached by the other fam ily m em bers, but unexpressed

to him in order not to influence him ) to seek the term ination of life-supportive m easures sustaining

Karen. A com m unicant of the R om an C atholic C hurch, as w ere other fam ily m em bers, he first

sought solace in private prayer looking w ith confidence, as he says, to the C reator, first for the

recovery of Karen and then, if that w ere not possible, for guidance w ith respect to the aw esom e

decision confronting him .

To confirm the m oral rightness of the decision he w as about to m ake he consulted w ith his

parish priest and later w ith the C atholic chaplain of Saint C lare's Hospital. He w ould not, he testified,

have sought term ination if that act w ere to be m orally w rong or in conflict w ith the tenets of the

religion he so profoundly respects. He w as disabused of doubt, how ever, w hen the position of the

R om an C atholic C hurch w as m ade know n to him as it is reflected in the record in this case. W hile it

is not usual for m atters of religious dogm a or concepts to enter a civil litigation (except as they m ay 12/14/12 This Document is Provided by Leagle.com

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bear upon constitutional right, or som etim es, fam ilial m atters; cf. In re Adoption of E,59 N.J. 36

(1971)), they w ere rightly adm itted in evidence here. The judge w as bound to m easure the character

and m otivations in all respects of Joseph Q uinlan as prospective guardian; and insofar as these

religious m atters bore upon them , they w ere properly scrutinized and considered by the court.

Thus germ ane, w e note the position of that C hurch as illum inated by the record before us. W e

have no reason to believe that it w ould be at all discordant w ith the w hole of Judeo-C hristian tradition,

considering its central respect and reverence for the sanctity of hum an life. It w as in this sense of

relevance that w e adm itted as am icus curiae the New Jersey

[ 70 N.J. 31 ]

C atholic C onference, essentially the spokesm an for the various C atholic bishops of New Jersey,

organized to give w itness to spiritual values in public affairs in the statew ide com m unity. The position

statem ent of Bishop Law rence B. C asey, reproduced in the am icus brief, projects these view s:

(a) The verification of the fact of death in a particular case cannot be deduced from any religious

or m oral principle and, under this aspect, does not fall w ithin the com petence of the church; — that

dependence m ust be had upon traditional and m edical standards, and by these standards Karen

Ann Q uinlan is assum ed to be alive.

(b) The request of plaintiff for authority to term inate a m edical procedure characterized as "an

extraordinary m eans of treatm ent" w ould not involve euthanasia. This upon the reasoning expressed

by Pope Pius XII in his "allocutio" (address) to anesthesiologists on Novem ber 24, 1957, w hen he

dealt w ith the question:

D oes the anesthesiologist have the right, or is he bound, in all cases of deep unconsciousness,

even in those that are com pletely hopeless in the opinion of the com petent doctor, to use m odern

artificial respiration apparatus, even against the w ill of the fam ily?

His answ er m ade the follow ing points:

1. In ordinary cases the doctor has the right to act in this m anner, but is not bound to do so unless this is

the only way of fulfilling another certain m oral duty.

2. The doctor, however, has no right independent of the patient. He can act only if the patient explicitly or

im plicitly, directly or indirectly gives him the perm ission.

3. The treatm ent as described in the question constitutes extraordinary m eans of preserving life and so

there is no obligation to use them nor to give the doctor perm ission to use them .

4. The rights and the duties of the fam ily depend on the presum ed will of the unconscious patient if he or

she is of legal age, and the fam ily, too, is bound to use only ordinary m eans.

5. This case is not to be considered euthanasia in any way; that would never be licit. The interruption of

attem pts at resuscitation, even when it causes the arrest of circulation, is not m ore than an indirect cause

of the cessation of life, and we m ust apply in this case the principle of double effect.

[ 70 N.J. 32 ]

So it w as that the Bishop C asey statem ent validated the decision of Joseph Q uinlan:

C om petent m edical testim ony has established that Karen Ann Q uinlan has no reasonable hope

of recovery from her com atose state by the use of any available m edical procedures. The

continuance of m echanical (cardiorespiratory) supportive m easures to sustain continuation of her

body functions and her life constitute extraordinary m eans of treatm ent. Therefore, the decision of

Joseph * * * Q uinlan to request the discontinuance of this treatm ent is, according to the teachings of

the C atholic C hurch, a m orally correct decision. (em phasis in original) 12/14/12 This Document is Provided by Leagle.com

9/22 www.leagle.com/PrintDocument.aspx

And the m ind and purpose of the intending guardian w ere undoubtedly influenced by factors

included in the follow ing reference to the interrelationship of the three disciplines of theology, law and

m edicine as exposed in the C asey statem ent:

The right to a natural death is one outstanding area in w hich the disciplines of theology, m edicine

and law overlap; or, to put it another w ay, it is an area in w hich these three disciplines convene.

M edicine w ith its com bination of advanced technology and professional ethics is both able and

inclined to prolong biological life. Law w ith its felt obligation to protect the life and freedom of the

individual seeks to assure each person's right to live out his hum an life until its natural and inevitable

conclusion. Theology w ith its acknow ledgm ent of m an's dissatisfaction w ith biological life as the

ultim ate source of joy * * * defends the sacredness of hum an life and defends it from all direct

attacks.

These disciplines do not conflict w ith one another, but are necessarily conjoined in the

application of their principles in a particular instance such as that of Karen Ann Q uinlan. Each m ust

in som e w ay acknow ledge the other w ithout denying its ow n com petence. The civil law is not

expected to assert a belief in eternal life; nor, on the other hand, is it expected to ignore the right of

the individual to profess it, and to form and pursue his conscience in accord w ith that belief. M edical

science is not authorized to directly cause natural death; nor, how ever, is it expected to prevent it

w hen it is inevitable and all hope of a return to an even partial exercise of hum an life is irreparably

lost. R eligion is not expected to define biological death; nor, on its part, is it expected to relinquish its

responsibility to assist m an in the form ation and pursuit of a correct conscience as to the

acceptance of natural death

[ 70 N.J. 33 ]

w hen science has confirm ed its inevitability beyond any hope other than that of preserving biological

life in a m erely vegetative state.

And the gap in the law is aptly described in the Bishop C asey statem ent:

In the present public discussion of the case of Karen Ann Q uinlan it has been brought out that

responsible people involved in m edical care, patients and fam ilies have exercised the freedom to

term inate or w ithhold certain treatm ents as extraordinary m eans in cases judged to be term inal, i.e.,

cases w hich hold no realistic hope for som e recovery, in accord w ith the expressed or im plied

intentions of the patients them selves. To w hatever extent this has been happening it has been

w ithout sanction in civil law . Those involved in such actions, how ever, have ethical and theological

literature to guide them in their judgm ents and actions. Furtherm ore, such actions have not in

them selves underm ined society's reverence for the lives of sick and dying people.

It is both possible and necessary for society to have law s and ethical standards w hich provide

freedom for decisions, in accord w ith the expressed or im plied intentions of the patient, to term inate

or w ithhold extraordinary treatm ent in cases w hich are judged to be hopeless by com petent m edical

authorities, w ithout at the sam e tim e leaving an opening for euthanasia. Indeed, to accom plish this, it

m ay sim ply be required that courts and legislative bodies recognize the present standards and

practices of m any people engaged in m edical care w ho have been doing w hat the parents of Karen

Ann Q uinlan are requesting authorization to have done for their beloved daughter.

Before turning to the legal and constitutional issues involved, w e feel it essential to reiterate that

the "C atholic view " of religious neutrality in the circum stances of this case is considered by the C ourt

only in the aspect of its im pact upon the conscience, m otivation and purpose of the intending

guardian, Joseph Q uinlan, and not as a precedent in term s of the civil law .

If Joseph Q uinlan, for instance, w ere a follow er and strongly influenced by the teachings of 12/14/12 This Document is Provided by Leagle.com

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Buddha, or if, as an agnostic or atheist, his m oral judgm ents w ere form ed w ithout reference to

religious feelings, but w ere nevertheless form ed and viable, w e w ould w ith equal attention and high

respect consider these elem ents, as bearing upon his character,

[ 70 N.J. 34 ]

m otivations and purposes as relevant to his qualification and suitability as guardian.

It is from this factual base that the C ourt confronts and responds to three basic issues:

1. W as the trial court correct in denying the specific relief requested by plaintiff, i.e., authorization for

term ination of the life-supporting apparatus, on the case presented to him ? Our determ ination on that

question is in the affirm ative.

2. W as the court correct in withholding letters of guardianship from the plaintiff and appointing in his stead

a stranger? On that issue our determ ination is in the negative.

3. Should this Court, in the light of the foregoing conclusions, grant declaratory relief to the plaintiff? On that

question our Court's determ ination is in the affirm ative.

This brings us to a consideration of the constitutional and legal issues underlying the foregoing

determ inations.

C O N S TITU TIO N A L A N D LE G A L IS S U E S

At the outset w e note the dual role in w hich plaintiff com es before the C ourt. He not only raises,

derivatively, w hat he perceives to be the constitutional and legal rights of his daughter Karen, but he

also claim s certain rights independently as parent.

Although generally a litigant m ay assert only his ow n constitutional rights, w e have no doubt that

plaintiff has sufficient standing to advance both positions.

W hile no express constitutional language lim its judicial activity to cases and controversies, New

Jersey courts w ill not render advisory opinions or entertain proceedings by plaintiffs w ho do not have

sufficient legal standing to m aintain their actions. W alker v. Stanhope,23 N.J. 657, 660 (1957).

How ever, as in this case, New Jersey courts com m only grant declaratory relief. D eclaratory

Judgm ents Act, N .J.S.A. 2A:16-50 et seq. And our courts

[ 70 N.J. 35 ]

hold that w here the plaintiff is not sim ply an interloper and the proceeding serves the public interest,

standing w ill be found. W alker v. Stanhope, supra, 23 N .J. at 661-66; Koons v. Atlantic C ity Bd. of

C om m 'rs, 134 N .J.L. 329, 338-39 (S up. C t. 1946), aff'd, 135 N .J.L. 204 (E. & A. 1947). In C rescent

Park Tenants Ass'n v. R ealty Equities C orp.,58 N.J. 98 (1971), Justice Jacobs said:

* * * [W ]e have appropriately confined litigation to those situations w here the litigants concerned

w ith the subject m atter evidenced a sufficient stake and real adverseness. In the overall w e have

given due w eight to the interests of individual justice, along w ith the public interest, alw ays bearing in

m ind that throughout our law w e have been sw eepingly rejecting procedural frustrations in favor of

"just and expeditious determ inations on the ultim ate m erits." [58 N .J. at 107-08 (quoting from

Tum arkin v. Friedm an,17 N.J.Super. 20, 21 (App. D iv. 1951), certif. den., 9 N.J. 287 (1952))].

The father of Karen Q uinlan is certainly no stranger to the present controversy. His interests are

real and adverse and he raises questions of surpassing im portance. M anifestly, he has standing to

assert his daughter's constitutional rights, she being incom petent to do so.

I. The Free Exercise of R eligion 12/14/12 This Document is Provided by Leagle.com

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W e think the contention as to interference w ith religious beliefs or rights m ay be considered and

dealt w ith w ithout extended discussion, given the acceptance of distinctions so clear and sim ple in

their precedential definition as to be dispositive on their face.

Sim ply stated, the right to religious beliefs is absolute but conduct in pursuance thereof is not

w holly im m une from governm ental restraint. John F. Kennedy M em orial H osp. v. H eston,58 N.J.

576, 580-81 (1971). So it is that, for the sake of life, courts som etim es (but not alw ays) order blood

transfusions for Jehovah's W itnesses (w hose religious beliefs abhor such procedure), Application of

President & D irectors of G eorgetown C ollege, Inc., 118 U .S. App. D .C . 80, 331 F.2d 1000 (D .C .

C ir.), cert. den., 377 U.S. 978,

[ 70 N.J. 36 ]

84 S.C t. 1883, 12 L.Ed.2d 746 (1964); U nited States v. G eorge,239 F.Supp. 752 (D . C onn. 1965);

John F. Kennedy M em orial H osp. v. H eston, supra; Powell v. C olum bian Presbyterian M edical

C enter,49 M isc.2d 215, 267 N.Y.S.2d 450 (Sup. C t. 1965); but see In re O sborne,294 A.2d 372 (D .C .

C t. App. 1972); In re Estate of Brooks,32 Ill.2d 361, 205 N.E.2d 435 (Sup. C t. 1965); Erickson v.

D ilgard,44 M isc.2d 27, 252 N.Y.S.2d 705 (Sup. C t. 1962); see generally Annot., "Pow er O f C ourts O r

O ther Public Agencies, In The Absence of Statutory Authority, To O rder C om pulsory M edical C are

for Adult," 9 A.L.R .3d 1391 (1966); forbid exposure to death from handling virulent snakes or

ingesting poison (interfering w ith deeply held religious sentim ents in such regard), e.g., H ill v. State,

38 Ala. App. 404, 88 So.2d 880 (C t. App.), cert. den., 264 Ala. 697, 88 So.2d 887 (Sup. C t. 1956);

State v. M assey, 229 N.C . 734, 51 S.E.2d 179 (Sup. C t.), appeal dism issed sub nom ., Bunn v.

N orth C arolina, 336 U.S. 942, 69 S.C t. 813, 93 L.Ed. 1099 (1949); State ex rel. Swann v. Pack, ___

Tenn. ___, 527 S.W .2d 99 (Sup. C t. 1975), cert. den., ___ U .S. ___, 96 S.C t. 1429, 47 L.Ed.2d 360

(1976); and protect the public health as in the case of com pulsory vaccination (over the strongest of

religious objections), e.g., W right v. D eW itt School D ist. 1, 238 Ark. 906, 385 S.W .2d 644 (Sup. C t.

1965); M ountain Lakes Bd. of Educ. v. M aas,56 N.J.Super. 245 (App. D iv. 1959), aff'd o.b., 31 N.J.

537 (1960), cert. den., 363 U.S. 843, 80 S.C t. 1613, 4 L.Ed. 2d 1727 (1960); M cC artney v. Austin,57

M isc.2d 525, 293 N.Y.S.2d 188 (Sup. C t. 1968). The public interest is thus considered param ount,

w ithout essential dissolution of respect for religious beliefs.

W e think, w ithout further exam ples, that, ranged against the State's interest in the preservation

of life, the im pingem ent of religious belief, m uch less religious "neutrality" as here, does not reflect a

constitutional question, in the circum stances at least of the case presently before the C ourt.

[ 70 N.J. 37 ]

M oreover, like the trial court, w e do not recognize an independent parental right of religious freedom

to support the relief requested. 137 N .J. Super. at 267-68.

II. C ruel and U nusual Punishm ent

Sim ilarly inapplicable to the case before us is the C onstitution's Eighth Am endm ent protection

against cruel and unusual punishm ent w hich, as held by the trial court, is not relevant to situations

other than the im position of penal sanctions. Historic in nature, it stem m ed from punitive excesses in

the infliction of crim inal penalties.6 W e

[ 70 N.J. 38 ]

find no precedent in law w hich w ould justify its extension to the correction of social injustice or

hardship, such as, for instance, in the case of poverty. The latter often condem ns the poor and

deprived to horrendous living conditions w hich could certainly be described in the abstract as "cruel

and unusual punishm ent." Yet the constitutional base of protection from "cruel and unusual

punishm ent" is plainly irrelevant to such societal ills w hich m ust be rem edied, if at all, under other

concepts of constitutional and civil right. 12/14/12 This Document is Provided by Leagle.com

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So it is in the case of the unfortunate Karen Q uinlan. Neither the State, nor the law , but the

accident of fate and nature, has inflicted upon her conditions w hich though in essence cruel and

m ost unusual, yet do not am ount to "punishm ent" in any constitutional sense.

Neither the judgm ent of the court below , nor the m edical decision w hich confronted it, nor the

law and equity perceptions w hich im pelled its action, nor the w hole factual base upon w hich it w as

predicated, inflicted "cruel and unusual punishm ent" in the constitutional sense.

III. The R ight of Privacy7

It is the issue of the constitutional right of privacy that has given us m ost concern, in the

exceptional circum stances of this case. Here a loving parent, qua parent and raising the rights of his

incom petent and profoundly dam aged daughter, probably irreversibly doom ed to no m ore than a

biologically vegetative rem nant of life, is before the court. He seeks authorization to abandon

specialized technological procedures w hich can only m aintain for a tim e a body having

[ 70 N.J. 39 ]

no potential for resum ption or continuance of other than a "vegetative" existence.

W e have no doubt, in these unhappy circum stances, that if Karen w ere herself m iraculously

lucid for an interval (not altering the existing prognosis of the condition to w hich she w ould soon

return) and perceptive of her irreversible condition, she could effectively decide upon discontinuance

of the life-support apparatus, even if it m eant the prospect of natural death. To this extent w e m ay

distinguish H eston, supra, w hich concerned a severely injured young w om an (D elores Heston),

w hose life depended on surgery and blood transfusion; and w ho w as in such extrem e shock that

she w as unable to express an inform ed choice (although the C ourt apparently considered the case

as if the patient's ow n religious decision to resist transfusion w ere at stake), but m ost im portantly a

patient apparently salvable to long life and vibrant health; — a situation not at all like the present

case.

W e have no hesitancy in deciding, in the instant diam etrically opposite case, that no external

com pelling interest of the State could com pel Karen to endure the unendurable, only to vegetate a

few m easurable m onths w ith no realistic possibility of returning to any sem blance of cognitive or

sapient life. W e perceive no thread of logic distinguishing betw een such a choice on Karen's part

and a sim ilar choice w hich, under the evidence in this case, could be m ade by a com petent patient

term inally ill, riddled by cancer and suffering great pain; such a patient w ould not be resuscitated or

put on a respirator in the exam ple described by D r. Korein, and a fortiori w ould not be kept against

his will on a respirator.

Although the C onstitution does not explicitly m ention a right of privacy, Suprem e C ourt decisions

have recognized that a right of personal privacy exists and that certain areas of privacy are

guaranteed under the C onstitution. Eisenstadt v. Baird,405 U.S. 438, 92 S.C t. 1029, 31 L.Ed.2d 349

(1972); Stanley v. G eorgia,394 U.S. 557, 89 S.C t. 1243,

[ 70 N.J. 40 ]

22 L.Ed.2d 542 (1969). The C ourt has interdicted judicial intrusion into m any aspects of personal

decision, som etim es basing this restraint upon the conception of a lim itation of judicial interest and

responsibility, such as w ith regard to contraception and its relationship to fam ily life and decision.

G riswold v. C onnecticut,381 U.S. 479, 85 S.C t. 1678, 14 L.Ed.2d 510 (1965).

The C ourt in G riswold found the unw ritten constitutional right of privacy to exist in the penum bra

of specific guarantees of the Bill of R ights "form ed by em anations from those guarantees that help

give them life and substance." 381 U .S. at 484, 85 S.C t. at 1681, 14 L.Ed.2d at 514. Presum ably this

right is broad enough to encom pass a patient's decision to decline m edical treatm ent under certain 12/14/12 This Document is Provided by Leagle.com

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circum stances, in m uch the sam e w ay as it is broad enough to encom pass a w om an's decision to

term inate pregnancy under certain conditions. R oe v. W ade,410 U.S. 113, 153, 93 S.C t. 705, 727,

35 L.Ed.2d 147, 177 (1973).

Nor is such right of privacy forgotten in the New Jersey C onstitution. N .J. C onst. (1947), Art. I,

par. 1.

The claim ed interests of the State in this case are essentially the preservation and sanctity of

hum an life and defense of the right of the physician to adm inister m edical treatm ent according to his

best judgm ent. In this case the doctors say that rem oving Karen from the respirator w ill conflict w ith

their professional judgm ent. The plaintiff answ ers that Karen's present treatm ent serves only a

m aintenance function; that the respirator cannot cure or im prove her condition but at best can only

prolong her inevitable slow deterioration and death; and that the interests of the patient, as seen by

her surrogate, the guardian, m ust be evaluated by the court as predom inant, even in the face of an

opinion contra by the present attending physicians. Plaintiff's distinction is significant. The nature of

Karen's care and the realistic chances of her recovery are quite unlike

[ 70 N.J. 41 ]

those of the patients discussed in m any of the cases w here treatm ents w ere ordered. In m any of

those cases the m edical procedure required (usually a transfusion) constituted a m inim al bodily

invasion and the chances of recovery and return to functioning life w ere very good. W e think that the

State's interest contra w eakens and the individual's right to privacy grow s as the degree of bodily

invasion increases and the prognosis dim s. Ultim ately there com es a point at w hich the individual's

rights overcom e the State interest. It is for that reason that w e believe Karen's choice, if she w ere

com petent to m ake it, w ould be vindicated by the law . Her prognosis is extrem ely poor, — she w ill

never resum e cognitive life. And the bodily invasion is very great, — she requires 24 hour intensive

nursing care, antibiotics, the assistance of a respirator, a catheter and feeding tube.

O ur affirm ation of Karen's independent right of choice, how ever, w ould ordinarily be based upon

her com petency to assert it. The sad truth, how ever, is that she is grossly incom petent and w e

cannot discern her supposed choice based on the testim ony of her previous conversations w ith

friends, w here such testim ony is w ithout sufficient probative w eight. 137 N .J. Super. at 260.

Nevertheless w e have concluded that Karen's right of privacy m ay be asserted on her behalf by her

guardian under the peculiar circum stances here present.

If a putative decision by Karen to perm it this non-cognitive, vegetative existence to term inate by

natural forces is regarded as a valuable incident of her right of privacy, as w e believe it to be, then it

should not be discarded solely on the basis that her condition prevents her conscious exercise of the

choice. The only practical w ay to prevent destruction of the right is to perm it the guardian and fam ily

of Karen to render their best judgm ent, subject to the qualifications hereinafter stated, as to w hether

she w ould exercise it in these circum stances. If their conclusion is in the affirm ative this decision

should be accepted by a society the overw helm ing

[ 70 N.J. 42 ]

m ajority of w hose m em bers w ould, w e think, in sim ilar circum stances, exercise such a choice in the

sam e w ay for them selves or for those closest to them . It is for this reason that w e determ ine that

Karen's right of privacy m ay be asserted in her behalf, in this respect, by her guardian and fam ily

under the particular circum stances presented by this record.

R egarding M r. Q uinlan's right of privacy, w e agree w ith Judge M uir's conclusion that there is no

parental constitutional right that w ould entitle him to a grant of relief in propria persona. Id. at 266.

Insofar as a parental right of privacy has been recognized, it has been in the context of determ ining

the rearing of infants and, as Judge M uir put it, involved "continuing life styles." See W isconsin v.

Yoder,406 U.S. 205, 92 S.C t. 1526, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters,268 U.S. 510, 12/14/12 This Document is Provided by Leagle.com

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45 S.C t. 571, 69 L.Ed. 1070 (1925); M eyer v. N ebraska,262 U.S. 390, 43 S.C t. 625, 67 L.Ed. 1042

(1923). Karen Q uinlan is a 22 year old adult. Her right of privacy in respect of the m atter before the

C ourt is to be vindicated by M r. Q uinlan as guardian, as hereinabove determ ined.

IV. The M edical Factor

Having declared the substantive legal basis upon w hich plaintiff's rights as representative of

K aren m ust be deem ed predicated, w e face and respond to the assertion on behalf of defendants

that our prem ise unw arrantably offends prevailing m edical standards. W e thus turn to consideration

of the m edical decision supporting the determ ination m ade below , conscious of the paucity of pre-

existing legislative and judicial guidance as to the rights and liabilities therein involved.

A significant problem in any discussion of sensitive m edical-legal issues is the m arked, perhaps

unconscious, tendency of m any to distort w hat the law is, in pursuit of an exposition of w hat they

w ould like the law to be. Now here is this barrier to the intelligent resolution of legal controversies

m ore obstructive than in the debate over

[ 70 N.J. 43 ]

patient rights at the end of life. Judicial refusals to order lifesaving treatm ent in the face of contrary

claim s of bodily self-determ ination or free religious exercise are too often cited in support of a

preconceived "right to die," even though the patients, w anting to live, have claim ed no such right.

C onversely, the assertion of a religious or other objection to lifesaving treatm ent is at tim es

condem ned as attem pted suicide, even though suicide m eans som ething quite diferent in the law .

[Byrn, "C om pulsory Lifesaving Treatm ent For The C om petent Adult," 44 Fordham L. R ev. 1 (1975)].

Perhaps the confusion there adverted to stem s from m ention by som e courts of statutory or

com m on law condem nation of suicide as dem onstrating the state's interest in the preservation of

life. W e w ould see, how ever, a real distinction betw een the self-infliction of deadly harm and a self-

determ ination against artificial life support or radical surgery, for instance, in the face of irreversible,

painful and certain im m inent death. The contrasting situations m entioned are analogous to those

continually faced by the m edical profession. W hen does the institution of life-sustaining procedures,

ordinarily m andatory, becom e the subject of m edical discretion in the context of adm inistration to

persons in extrem is? And w hen does the w ithdraw al of such procedures, from such persons

already supported by them , com e w ithin the orbit of m edical discretion? W hen does a determ ination

as to either of the foregoing contingencies court the hazard of civil or crim inal liability on the part of

the physician or institution involved?

The existence and nature of the m edical dilem m a need hardly be discussed at length, portrayed

as it is in the present case and com plicated as it has recently com e to be in view of the dram atic

advance of m edical technology. The dilem m a is there, it is real, it is constantly resolved in accepted

m edical practice w ithout attention in the courts, it pervades the issues in the very case w e here

exam ine. The branch of the dilem m a involving the doctor's responsibility and the relationship of the

court's duty w as thus conceived by Judge M uir:

[ 70 N.J. 44 ]

D octors * * * to treat a patient, m ust deal w ith m edical tradition and past case histories. They m ust

be guided by w hat they do know . The extent of their training, their experience, consultation w ith other

physicians, m ust guide their decision-m aking processes in providing care to their patient. The

nature, extent and duration of care by societal standards is the responsibility of a physician. The

m orality and conscience of our society places this responsibility in the hands of the physician. W hat

justification is there to rem ove it from the control of the m edical profession and place it in the hands

of the courts? [137 N .J. Super. at 259]. Such notions as to the distribution of responsibility, heretofore generally entertained, should

how ever neither im pede this C ourt in deciding m atters clearly justiciable nor preclude a re-

exam ination by the C ourt as to underlying hum an values and rights. D eterm inations as to these

m ust, in the ultim ate, be responsive not only to the concepts of m edicine but also to the com m on

m oral judgm ent of the com m unity at large. In the latter respect the C ourt has a non-delegable judicial

responsibility.

Put in another w ay, the law , equity and justice m ust not them selves quail and be helpless in the

face of m odern technological m arvels presenting questions hitherto unthought of. W here a Karen

Q uinlan, or a parent, or a doctor, or a hospital, or a State seeks the process and response of a

court, it m ust answ er w ith its m ost inform ed conception of justice in the previously unexplored

circum stances presented to it. That is its obligation and w e are here fulfilling it, for the actors and

those having an interest in the m atter should not go w ithout rem edy.

C ourts in the exercise of their parens patriae responsibility to protect those under disability have

som etim es im plem ented m edical decisions and authorized their carrying out under the doctrine of

"substituted judgm ent." H art v. Brown, 29 C onn.Sup. 368, 289 A.2d 386, 387-88 (Super. C t. 1972);

Strunk v. Strunk,445 S.W .2d 145, 147-48 (Ky. C t. App. 1969). For as Judge M uir pointed out:

"As part of the inherent pow er of equity, a C ourt of Equity has full and com plete jurisdiction over

the persons of those w ho labor

[ 70 N.J. 45 ]

under any legal disability. * * * The C ourt's action in such a case is not lim ited by any narrow bounds,

but it is em pow ered to stretch forth its arm in w hatever direction its aid and protection m ay be

needed. W hile this is indeed a special exercise of equity jurisdiction, it is beyond question that by

virtue thereof the C ourt m ay pass upon purely personal rights." [137 N .J. Super. at 254 (quoting from

Am . Jur.2d, Equity § 69 (1966))].

But insofar as a court, having no inherent m edical expertise, is called upon to overrule a

professional decision m ade according to prevailing m edical practice and standards, a different

question is presented. As m entioned below , a doctor is required

"to exercise in the treatm ent of his patient the degree of care, know ledge and skill ordinarily

possessed and exercised in sim ilar situations by the average m em ber of the profession practicing in

his field." Schueler v. Strelinger,43 N.J. 330, 344 (1964). If he is a specialist he "m ust em ploy not

m erely the skill of a general practitioner, but also that special degree of skill norm ally possessed by

the average physician w ho devotes special study and attention to the particular organ or disease or

injury involved, having regard to the present state of scientific know ledge". C lark v. W ichm an,72

N.J.Super. 486, 493 (App. D iv. 1962). This is the duty that establishes his legal obligations to his

patients. [137 N .J. Super. at 257-58].

The m edical obligation is related to standards and practice prevailing in the profession. The

physicians in charge of the case, as noted above, declined to w ithdraw the respirator. That decision

w as consistent w ith the proofs below as to the then existing m edical standards and practices.

Under the law as it then stood, Judge M uir w as correct in declining to authorize w ithdraw al of the

respirator.

How ever, in relation to the m atter of the declaratory relief sought by plaintiff as representative of

Karen's interests, w e are required to reevaluate the applicability of the m edical standards projected

in the court below . The question is w hether there is such internal consistency and rationality in the

application of such standards as should w arrant their constituting an ineluctable bar to the

effectuation

[ 70 N.J. 46 ] 12/14/12 This Document is Provided by Leagle.com

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[ 70 N.J. 46 ]

of substantive relief for plaintiff at the hands of the court. W e have concluded not.

In regard to the foregoing it is pertinent that w e consider the im pact on the standards both of the

civil and crim inal law as to m edical liability and the new technological m eans of sustaining life

irreversibly dam aged.

The m odern proliferation of substantial m alpractice litigation and the less frequent but even m ore

unnerving possibility of crim inal sanctions w ould seem , for it is beyond hum an nature to suppose

otherw ise, to have bearing on the practice and standards as they exist. The brooding presence of

such possible liability, it w as testified here, had no part in the decision of the treating physicians. As

did Judge M uir, w e afford this testim ony full credence. But w e cannot believe that the stated factor

has not had a strong influence on the standards, as the literature on the subject plainly reveals. (See

footnote 8, infra). M oreover our attention is draw n not so m uch to the recognition by D rs. M orse and

Javed of the extant practice and standards but to the w idening am biguity of those standards

them selves in their application to the m edical problem s w e are discussing.

The agitation of the m edical com m unity in the face of m odern life prolongation technology and its

search for definitive policy are dem onstrated in the large volum e of relevant professional

com m entary.8

[ 70 N.J. 47 ]

The w ide debate thus reflected contrasts w ith the relative paucity of legislative and judicial guides

and standards in the sam e field. The m edical profession has sought to devise guidelines such as

the "brain death" concept of the Harvard Ad Hoc C om m ittee m entioned above. But it is perfectly

apparent from the testim ony w e have quoted of D r. Korein, and indeed so clear as alm ost to be

judicially noticeable, that hum ane decisions against resuscitative or m aintenance therapy are

frequently a recognized de facto response in the m edical w orld to the irreversible, term inal, pain-

ridden patient, especially w ith fam ilial consent. And these cases, of course, are far short of "brain

death."

W e glean from the record here that physicians distinguish betw een curing the ill and com forting

and easing the dying; that they refuse to treat the curable as if they w ere dying or ought to die, and

that they have som etim es refused to treat the hopeless and dying as if they w ere curable. In this

sense, as w e w ere rem inded by the testim ony of D rs. Korein and D iam ond, m any of them have

refused to inflict an undesired prolongation of the process of dying on a patient in irreversible

condition w hen it is clear that such "therapy" offers neither hum an nor hum ane benefit. W e think

these attitudes represent a balanced im plem entation of a profoundly realistic perspective on the

m eaning of life and death and that they respect the w hole Judeo-C hristian tradition of regard for

hum an life. No less w ould they seem consistent w ith the m oral m atrix of m edicine, "to heal,"

[ 70 N.J. 48 ]

very m uch in the sense of the endless m ission of the law , "to do justice."

Yet this balance, w e feel, is particularly difficult to perceive and apply in the context of the

developm ent by advanced technology of sophisticated and artificial life-sustaining devices. For those

possibly curable, such devices are of great value, and, as ordinary m edical procedures, are

essential. C onsequently, as pointed out by D r. D iam ond, they are necessary because of the ethic of

m edical practice. But in light of the situation in the present case (w hile the record here is som ew hat

hazy in distinguishing betw een "ordinary" and "extraordinary" m easures), one w ould have to think

that the use of the sam e respirator or like support could be considered "ordinary" in the context of the

possibly curable patient but "extraordinary" in the context of the forced sustaining by cardio-

respiratory processes of an irreversibly doom ed patient. And this dilem m a is sharpened in the face 12/14/12 This Document is Provided by Leagle.com

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respiratory processes of an irreversibly doom ed patient. And this dilem m a is sharpened in the face

of the m alpractice and crim inal action threat w hich w e have m entioned.

W e w ould hesitate, in this im perfect w orld, to propose as to physicians that type of im m unity

w hich from the early com m on law has surrounded judges and grand jurors, see, e.g., G rove v. Van

D uyn, 44 N .J.L. 654, 656-57 (E. & A. 1882); O 'R egan v. Scherm erhorn, 25 N .J. M isc. 1, 19-20 (Sup.

C t. 1940), so that they m ight w ithout fear of personal retaliation perform their judicial duties w ith

independent objectivity. In Bradley v. Fisher, 80 U .S. (13 W all.) 335, 347, 20 L.Ed. 646, 649 (1872),

the Suprem e C ourt held:

[I]t is a general principle of the highest im portance to the proper adm inistration of justice that a

judicial officer, in exercising the authority vested in him , shall be free to act upon his ow n convictions,

w ithout apprehension of personal consequences to him self.

Lord C oke said of judges that "they are only to m ake an account to G od and the King [the

State]." 12 C oke R ep. 23, 25, 77 Eng. R ep. 1305, 1307 (S.C . 1608).

[ 70 N.J. 49 ]

Nevertheless, there m ust be a w ay to free physicians, in the pursuit of their healing vocation, from

possible contam ination by self-interest or self-protection concerns w hich w ould inhibit their

independent m edical judgm ents for the w ell-being of their dying patients. W e w ould hope that this

opinion m ight be serviceable to som e degree in am eliorating the professional problem s under

discussion.

A technique aim ed at the underlying difficulty (though in a som ew hat broader context) is

described by D r. Karen Teel, a pediatrician and a director of Pediatric Education, w ho w rites in the

Baylor Law R eview under the title "The Physician's D ilem m a: A D octor's View : W hat The Law

Should Be." D r. Teel recalls:

Physicians, by virtue of their responsibility for m edical judgm ents are, partly by choice and partly

by default, charged w ith the responsibility of m aking ethical judgm ents w hich w e are som etim es

illequipped to m ake. W e are not alw ays m orally and legally authorized to m ake them . The physician

is thereby assum ing a civil and crim inal liability that, as often as not, he does not even realize as a

factor in his decision. There is little or no dialogue in this w hole process. The physician assum es

that his judgm ent is called for and, in good faith, he acts. Som eone m ust and it has been the

physician w ho has assum ed the responsibility and the risk.

I suggest that it w ould be m ore appropriate to provide a regular forum for m ore input and

dialogue in individual situations and to allow the responsibility of these judgm ents to be shared. M any

hospitals have established an Ethics C om m ittee com posed of physicians, social w orkers, attorneys,

and theologians, * * * w hich serves to review the individual circum stances of ethical dilem m a and

w hich has provided m uch in the w ay of assistance and safeguards for patients and their m edical

caretakers. G enerally, the authority of these com m ittees is prim arily restricted to the hospital setting

and their official status is m ore that of an advisory body than of an enforcing body.

The concept of an Ethics C om m ittee w hich has this kind of organization and is readily

accessible to those persons rendering m edical care to patients, w ould be, I think, the m ost

prom ising direction for further study at this point. * * * * * * [This w ould allow ] som e m uch needed

dialogue regarding these issues and [force] the point of exploring all of the options for a particular

patient. It diffuses the responsibility for m aking these judgm ents. M any physicians, in m any

circum stances, w ould w elcom e this sharing of responsibility. I believe that such an entity could

[ 70 N.J. 50 ] 12/14/12 This Document is Provided by Leagle.com

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lend itself w ell to an assum ption of a legal status w hich w ould allow courses of action not now

undertaken because of the concern for liability. [27 Baylor L. R ev. 6, 8-9 (1975)].

The m ost appealing factor in the technique suggested by D r. Teel seem s to us to be the

diffusion of professional responsibility for decision, com parable in a w ay to the value of m ulti-judge

courts in finally resolving on appeal difficult questions of law . M oreover, such a system w ould be

protective to the hospital as w ell as the doctor in screening out, so to speak, a case w hich m ight be

contam inated by less than w orthy m otivations of fam ily or physician. In the real w orld and in

relationship to the m om entous decision contem plated, the value of additional view s and diverse

know ledge is apparent.

W e consider that a practice of applying to a court to confirm such decisions w ould generally be

inappropriate, not only because that w ould be a gratuitous encroachm ent upon the m edical

profession's field of com petence, but because it w ould be im possibly cum bersom e. Such a

requirem ent is distinguishable from the judicial overview traditionally required in other m atters such

as the adjudication and com m itm ent of m ental incom petents. This is not to say that in the case of an

otherw ise justiciable controversy access to the courts w ould be foreclosed; w e speak rather of a

general practice and procedure.

And although the deliberations and decisions w hich w e describe w ould be professional in nature

they should obviously include at som e stage the feelings of the fam ily of an incom petent relative.

D ecision-m aking w ithin health care if it is considered as an expression of a prim ary obligation of the

physician, prim um non nocere, should be controlled prim arily w ithin the patient-doctor-fam ily

relationship, as indeed w as recognized by Judge M uir in his supplem ental opinion of Novem ber 12,

1975.

If there could be created not necessarily this particular system but som e reasonable

counterpart, w e w ould have no

[ 70 N.J. 51 ]

doubt that such decisions, thus determ ined to be in accordance w ith m edical practice and prevailing

standards, w ould be accepted by society and by the courts, at least in cases com parable to that of

Karen Q uinlan.

The evidence in this case convinces us that the focal point of decision should be the prognosis

as to the reasonable possibility of return to cognitive and sapient life, as distinguished from the

forced continuance of that biological vegetative existence to w hich Karen seem s to be doom ed.

In sum m ary of the present Point of this opinion, w e conclude that the state of the pertinent

m edical standards and practices w hich guided the attending physicians in this m atter is not such as

w ould justify this C ourt in deem ing itself bound or controlled thereby in responding to the case for

declaratory relief established by the parties on the record before us.

V. Alleged C rim inal Liability

Having concluded that there is a right of privacy that m ight perm it term ination of treatm ent in the

circum stances of this case, w e turn to consider the relationship of the exercise of that right to the

crim inal law . W e are aw are that such term ination of treatm ent w ould accelerate Karen's death. The

C ounty Prosecutor and the Attorney G eneral m aintain that there w ould be crim inal liability for such

acceleration. Under the statutes of this State, the unlaw ful killing of another hum an being is crim inal

hom icide. N .J.S.A. 2A:113-1, 2, 5. W e conclude that there w ould be no crim inal hom icide in the

circum stances of this case. W e believe, first, that the ensuing death w ould not be hom icide but

rather expiration from existing natural causes. Secondly, even if it w ere to be regarded as hom icide,

it w ould not be unlaw ful. 12/14/12 This Document is Provided by Leagle.com

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These conclusions rest upon definitional and constitutional bases. The term ination of treatm ent

pursuant to the right of privacy is, w ithin the lim itations of this case, ipso facto

[ 70 N.J. 52 ]

law ful. Thus, a death resulting from such an act w ould not com e w ithin the scope of the hom icide

statutes proscribing only the unlaw ful killing of another. There is a real and in this case determ inative

distinction betw een the unlaw ful taking of the life of another and the ending of artificial life-support

system s as a m atter of self-determ ination.

Furtherm ore, the exercise of a constitutional right such as w e have here found is protected from

crim inal prosecution. See Stanley v. G eorgia, supra, 394 U .S. at 559, 89 S.C t. at 1245, 22 L.Ed.2d

at 546. W e do not question the State's undoubted pow er to punish the taking of hum an life, but that

pow er does not encom pass individuals term inating m edical treatm ent pursuant to their right of

privacy. See id. at 568, 89 S.C t. at 1250, 22 L.Ed.2d at 551. The constitutional protection extends to

third parties w hose action is necessary to effectuate the exercise of that right w here the individuals

them selves w ould not be subject to prosecution or the third parties are charged as accessories to

an act w hich could not be a crim e. Eisenstadt v. Baird, supra, 405 U .S. at 445-46, 92 S.C t. at 1034-

35, 31 L.Ed.2d at 357-58; G riswold v. C onnecticut, supra, 381 U .S. at 481, 85 S.C t. at 1679-80, 14

L.Ed.2d at 512-13. And, under the circum stances of this case, these sam e principles w ould apply to

and negate a valid prosecution for attem pted suicide w ere there still such a crim e in this State.9

[ 70 N.J. 53 ]

VI. The G uardianship of the Person

The trial judge bifurcated the guardianship, as w e have noted, refusing to appoint Joseph

Q uinlan to be guardian of the person and lim iting his guardianship to that of the property of his

daughter. Such occasional division of guardianship, as betw een responsibility for the person and the

property of an incom petent person, has roots deep in the com m on law and w as w ell w ithin the

jurisdictional capacity of the trial judge. In re R ollins, 65 A.2d 667, 679-82 (N.J. C ty. C t. 1949).

The statute creates an initial presum ption of entitlem ent to guardianship in the next of kin, for it

provides:

In any case w here a guardian is to be appointed, letters of guardianship shall be granted * * * to

the next of kin, or if * * * it is proven to the court that no appointm ent from am ong them w ill be to the

best interest of the incom petent or his estate, then to such other proper person as w ill accept the

sam e. [N .J.S.A. 3A:6-36. See In re R oll,117 N.J.Super. 122, 124 (App. D iv. 1971)].

The trial court w as apparently convinced of the high character of Joseph Q uinlan and his general

suitability as guardian under other circum stances, describing him as "very sincere, m oral, ethical

and religious." The court felt, how ever, that the obligation to concur in the m edical care and

treatm ent of his daughter w ould be a source of anguish to him and w ould distort his "decision-

m aking processes." W e disagree, for w e sense from the w hole record before us that w hile M r.

Q uinlan feels a natural grief, and understandably sorrow s because of the tragedy w hich has befallen

his daughter, his strength of purpose and character far outw eighs these sentim ents and qualifies

him em inently for guardianship of the person as w ell as the property of his daughter. Hence w e

discern no valid reason to overrule the statutory intendm ent of preference to the next of kin.

[ 70 N.J. 54 ]

D E C LA R A TO R Y R E LIE F

W e thus arrive at the form ulation of the declaratory relief w hich w e have concluded is 12/14/12 This Document is Provided by Leagle.com

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appropriate to this case. Som e tim e has passed since Karen's physical and m ental condition w as

described to the C ourt. At that tim e her continuing deterioration w as plainly projected. Since the

record has not been expanded w e assum e that she is now even m ore fragile and nearer to death

than she w as then. Since her present treating physicians m ay give reconsideration to her present

posture in the light of this opinion, and since w e are transferring to the plaintiff as guardian the choice

of the attending physician and therefore other physicians m ay be in charge of the case w ho m ay

take a different view from that of the present attending physicians, w e herew ith declare the follow ing

affirm ative relief on behalf of the plaintiff. Upon the concurrence of the guardian and fam ily of Karen,

should the responsible attending physicians conclude that there is no reasonable possibility of

K aren's ever em erging from her present com atose condition to a cognitive, sapient state and that

the life-support apparatus now being adm inistered to Karen should be discontinued, they shall

consult w ith the hospital "Ethics C om m ittee" or like body of the institution in w hich Karen is then

hospitalized. If that consultative body agrees that there is no reasonable possibility of Karen's ever

em erging from her present com atose condition to a cognitive, sapient state, the present life-support

system m ay be w ithdraw n and said action shall be w ithout any civil or crim inal liability therefor on the

part of any participant, w hether guardian, physician, hospital or others.10 W e herew ith specifically so

hold.

[ 70 N.J. 55 ]

C O N C LU S IO N

W e therefore rem and this record to the trial court to im plem ent (w ithout further testim onial

hearing) the follow ing decisions:

1. To discharge, with the thanks of the Court for his service, the present guardian of the person of Karen

Quinlan, Thom as R. Curtin, Esquire, a m em ber of the Bar and an officer of the court.

2. To appoint Joseph Quinlan as guardian of the person of Karen Quinlan with full power to m ake

decisions with regard to the identity of her treating physicians.

W e repeat for the sake of em phasis and clarity that upon the concurrence of the guardian and

fam ily of Karen, should the responsible attending physicians conclude that there is no reasonable

possibility of Karen's ever em erging from her present com atose condition to a cognitive, sapient

state and that the life-support apparatus now being adm inistered to Karen should be discontinued,

they shall consult w ith the hospital "Ethics C om m ittee" or like body of the institution in w hich Karen is

then hospitalized. If that consultative body agrees that there is no reasonable possibility of Karen's

ever em erging from her present com atose condition to a cognitive, sapient state, the present life-

support system m ay be w ithdraw n and said action shall be w ithout any civil or crim inal liability

therefor, on the part of any participant, w hether guardian, physician, hospital or others.

By the above ruling w e do not intend to be understood as im plying that a proceeding for judicial

declaratory relief is necessarily required for the im plem entation of com parable decisions in the field

of m edical practice.

M odified and rem anded.

For m odification and rem andm ent — C hief Justice HUG HES, Justices M O UNTAIN, SULLIVAN,

PASHM AN, C LIFFO R D and SC HR EIBER and Judge C O NFO R D — 7.

O pposed — None.

F o o tn o te s 12/14/12 This Document is Provided by Leagle.com

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1. The im portance of the preservation of life is m em orialized in various organic docum ents. The Declaration of

Independence states as self-evident truths "that all m en * * * are endowed by their Creator with certain unalienable

Rights, that am ong these are Life, Liberty and the pursuit of Happiness." This ideal is inherent in the Constitution of the

United States. It is explicitly recognized in our Constitution of 1947 which provides for "certain natural and unalienable

rights, am ong which are those of enjoying and defending life * * *." N.J. Const. (1947), Art. I, par. 1. Our State

governm ent is established to protect such rights, N.J. Const. (1947), Art. I, par. 2, and, acting through the Attorney

General (N.J.S.A. 52:17A-4(h)), it enforces them .

Back to Reference

2. Dr. Julius Korein, a neurologist, testified:

A. * * * [Y]ou've got a set of possible lesions that prior to the era of advanced technology and advances in medicine

were no problem inasmuch as the patient would expire. They could do nothing for themselves and even external

care was limited. It was — I don't know how many years ago they couldn't keep a person alive with intravenous

feedings because they couldn't give enough calories. Now they have these high caloric tube feedings that can

keep people in excellent nutrition for years so what's happened is these things have occurred all along but the

technology has now reached a point w here you can in fact start to replace anything outside of the brain to maintain

something that is irreversibly damaged.

Q. Doctor, can the art of medicine repair the cerebral damage that was sustained by Karen?

A. In my opinion, no. * * *

Q. Doctor, in your opinion is there any course of treatment that will lead to the improvement of Karen's condition?

A. No.

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3. The Harvard Ad Hoc standards, with reference to "brain death," will be discussed infra.

Back to Reference

3.1 This cross-appeal was later inform ally withdrawn but in view of the im portance of the m atter we nevertheless deal

with it.

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4. Dr. Robert J. Morse, a neurologist, and Karen's treating physisician from the tim e of her adm ission to Saint Clare's

Hospital on April 24, 1975 (reference was m ade supra to "treating physicians" nam ed as defendants; this term

included Dr. Arshad Javed, a highly qualified pulm onary internist, who considers that he m anages that phase of

Karen's care with prim ary responsibility to the "attending physician," Dr. Morse).

Back to Reference

5. Death. The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the

blood, and a cessation of the anim al and vital functions consequent thereon, such as respiration, pulsation, etc. Black's

Law Dictionary 488 (rev. 4th ed. 1968).

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6. It is generally agreed that the Eighth Am endm ent's provision of "[n]or cruel and unusual punishm ents inflicted" is

drawn verbatim from the English Declaration of Rights. See 1 W m . & M., sess. 2, c. 2 (1689). The prohibition arose in

the context of excessive punishm ents for crim es, punishm ents that were barbarous and savage as well as

disproportionate to the offense com m itted. See generally Granucci, "`Nor Cruel and Unusual Punishm ents Inflicted:'

The Original Meaning," 57 Calif. L. Rev. 839, 844-60 (1969); Note, "The Cruel and Unusual Punishm ent Clause and the

Substantive Crim inal Law," 79 Harv. L. Rev. 635, 636-39 (1966). The principle against excessiveness in crim inal

punishm ents can be traced back to Chapters 20-22 of the Magna Carta (1215). The historical background of the Eighth

Am endm ent was exam ined at som e length in various opinions in Furm an v. Georgia,408 U.S. 238, 92 S.Ct. 2726, 33 L.

Ed 2d 346 (1972).

The Constitution itself is silent as to the m eaning of the word "punishm ent." W hether it refers to the variety of legal

and non-legal penalties that hum an beings endure or whether it m ust be in connection with a crim inal rather than

a civil proceeding is not stated in the docum ent. But the origins of the clause are clear. And the cases construing it

have consistently held that the "punishm ent" contem plated by the Eighth Am endm ent is the penalty inflicted by a

court for the com m ission of a crim e or in the enforcem ent of what is a crim inal law. See, e.g., Trop v. Dulles,356

U.S. 86, 94-99, 78 S.Ct. 590, 594-97, 2 L.Ed. 2d 630, 638-41 (1957). See generally Note, "The Effectiveness of the

Eighth Am endm ent: An Appraisal of Cruel and Unusual Punishm ent," 36 N.Y.U.L. Rev. 846, 854-57 (1961). A 12/14/12 This Document is Provided by Leagle.com

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deprivation, forfeiture or penalty arising out of a civil proceeding or otherwise cannot be "cruel and unusual

punishm ent" within the m eaning of the constitutional clause.

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7. The right we here discuss is included within the class of what have been called rights of "personality." See Pound,

"Equitable Relief against Defam ation and Injuries to Personality," 29 Harv. L. Rev. 640, 668-76 (1916). Equitable

jurisdiction with respect to the recognition and enforcem ent of such rights has long been recognized in New Jersey.

See, e.g., Vanderbilt v. Mitchell, 72 N.J. Eq. 910, 919-20 (E. & A. 1907).

Back to Reference

8. See, e.g., Downing, Euthanasia and the Right to Death (1969); St. John-Stevas, Life, Death and the Law (1961);

W illiam s, The Sanctity of Hum an Life and the Crim inal Law (1957); Appel, "Ethical and Legal Questions Posed by

Recent Advances in Medicine," 205 J.A.M.A. 513 (1968); Cantor, "A Patient's Decision To Decline Life-Saving Medical

Treatm ent: Bodily Integrity Versus The Preservation of Life," 26 Rutgers L. Rev. 228 (1973); Claypool, "The Fam ily Deals

with Death," 27 Baylor L. Rev. 34 (1975); Elkington, "The Dying Patient, The Doctor and The Law," 13 Vill. L. Rev. 740

(1968); Fletcher, "Legal Aspects of the Decision Not to Prolong Life," 203 J.A.M.A. 65 (1968); Forem an, "The Physician's

Crim inal Liability for the Practice of Euthanasia," 27 Baylor L. Rev. 54 (1975); Gurney, "Is There A Right To Die? — A

Study of the Law of Euthanasia," 3 Cum b.-Sam . L. Rev. 235 (1972); Mannes, "Euthanasia vs. The Right To Life," 27

Baylor L. Rev. 68 (1975); Sharp & Crofts, "Death with Dignity and The Physician's Civil Liability," 27 Baylor L. Rev. 86

(1975); Sharpe & Hargest, "Life-saving Treatm ent for Unwilling Patients," 36 Fordham L. Rev. 695 (1968); Skegg,

"Irreversibly Com atose Individuals: `Alive' or `Dead'?," 33 Cam b. L.J. 130 (1974); Com m ent, "The Right to Die," 7

Houston L. Rev. 654 (1970); Note, "The Tim e of Death — A Legal, Ethical and Medical Dilem m a," 18 Catholic Law. 243

(1972); Note, "Com pulsory Medical Treatm ent: The State's Interest Re-evaluated," 51 Minn. L. Rev. 293 (1966).

Back to Reference

9. An attem pt to com m it suicide was an indictable offense at com m on law and as such was indictable in this State as a

com m on law m isdem eanor. 1 Schlosser, Crim inal Laws of New Jersey § 12.5 (3d ed. 1970); see N.J.S.A. 2A:85-1. The

legislature downgraded the offense in 1957 to the status of a disorderly persons offense, which is not a "crim e" under

our law. N.J.S.A. 2A:170-25.6. And in 1971, the legislature repealed all crim inal sanctions for attem pted suicide.

N.J.S.A. 2A:85-5.1. Provision is now m ade for tem porary hospitalization of persons m aking such an attem pt. N.J.S.A.

30:4-26.3a. W e note that under the proposed New Jersey Penal Code (Oct. 1971) there is no provision for crim inal

punishm ent of attem pted suicide. See Com m entary, § 2C:11-6. There is, however, an independent offense of "aiding

suicide." § 2C:11-6b. This provision, if enacted, would not be incrim inatory in circum stances sim ilar to those presented

in this case.

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10. The declaratory relief we here award is not intended to im ply that the principles enunciated in this case m ight not be

applicable in divers other types of term inal m edical situations such as those described by Drs. Korein and Diam ond,

supra, not necessarily involving the hopeless loss of cognitive or sapient life.

Back to Reference