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January 24, 1990


The opinion of the court was delivered by: McCURN, Chief Judge.



This court issued an order to show cause on January 22, 1990, directing the Syracuse Veterans Administration Medical Center ("VA") to show cause why an order should not be made directing the VA to remove Mr. Doyle Deel from a mechanical respirator.*fn1 The parties appeared before this court on January 23, 1990, and the court received testimony on this issue.

In 1987, Mr. Deel developed a bone marrow failure known as aplastic anemia, and received a bone marrow transplant from his brother as donor, at a Veterans Administration hospital in Seattle, Washington. Subsequent to that procedure, Mr. Deel developed "graft-versus-host" disease, in which the cells of the donor's bone marrow attack the body of the recipient. As a direct result of this complication, Mr. Deel developed bronchiolitis obliterans, a degenerative respiratory ailment which sometimes causes lung failure.

Mr. Deel is currently a patient in the medical intensive care unit at the VA in Syracuse, where his breathing has been artificially supported by a mechanical respirator since October 1989. According to affidavits signed by Mr. Deel; his wife, Kathleen Deel; one of his treating physicians, Stephen Landaw; and his attorney, John Marzocchi, Mr. Deel wishes for the use of artificial respiration to be discontinued. Disconnecting the mechanical respirator may possibly result in Mr. Deel's death, according to the testimony of Dr. Landaw. Dr. Landaw states in his affidavit that Mr. Deel is fully mentally competent to make this decision, and has done so with knowledge of the likely consequences. Mr. Deel states in his affidavit that:

  I no longer wish to have the mechanical
  respirator attached to my body. I wish for the
  mechanical respirator to be removed from my body
  and that I be allowed to breathe on my own will.
  If I am unable to breathe without the respirator
  I would prefer to die and not have the respirator
  re-attached to my body. . . . I make this
  application to the Court of my own free will with
  full awareness of the possible results of
  removing me from the mechanical respirator.
  Mrs. Deel states in her affidavit and testified before the court that she has communicated with Mr. Deel, and he has expressed his wish to her that the mechanical respirator be removed. Mrs. Deel also consents to discontinuing the artificial respiration. In addition, Dr. Landaw states that he is in support of Mr. Deel's decision. Mr. Deel also has three sons, ages 19, 17, and 11. The eldest son, Doyle Deel, testified that he is in support of his father's decision.

Mr. Deel has signed a "Do Not Resuscitate Order" containing a specific directive that he is not to be reconnected if he is removed from the mechanical respirator. The VA has refused to remove Mr. Deel from the respirator, but apparently would have no objection if it were ordered by the court.


The government has a recognized interest in the preservation of life, and thus has a right, and perhaps a duty, to provide available life-sustaining medical treatment. Gray by Gray v. Romeo, 697 F. Supp. 580 (D.R.I. 1988). Thus, the question presented is whether a person has a constitutional right to refuse such treatment which would outweigh the government's interest. Id. at 584.

The U.S. Supreme Court has never confronted the issue of whether a person may refuse or discontinue life-sustaining treatment if the discontinuance may result in death. The Supreme Court has, however, articulated a principle of self-determination that encompasses the right of an individual to control his or her own body, subject to certain governmental interests. See, e.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (abortion); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (contraceptives). The Court also recognized long ago the right of an individual to control medical decisions affecting his or her body. In 1891 the Supreme Court held that a court could not order a plaintiff to submit to a surgical examination, stating that:

  [n]o right is held more sacred, or is more
  carefully guarded by the common law, than the
  right of every individual to the possession and
  control of his own person, free from all
  restraint or interference of others, unless by
  clear and unquestionable authority of law.

Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891).

Although the Supreme Court has not addressed the question, it is now generally accepted in the lower courts that a person has a constitutional right, whether termed as a liberty interest protected by the Due Process Clause, or an aspect of the right to privacy contained in the notions of personal freedom which underwrote the Bill of Rights, to refuse or discontinue life-sustaining medical treatment. See Gray by Gray, 697 F. Supp. at 586; Tune v. Walter Reed Army Medical Hospital, 602 F. Supp. 1452, 1454 (D.D.C. 1985); see also In the Matter of Westchester County Medical Center, 72 N.Y.2d 517, 534 N YS.2d 886, 531 N.E.2d 607 (1988). As the court stated in Tune, a person "has a paramount right to control the disposition to be made of his or her body, absent a compelling countervailing governmental interest," even if the decision results in that person's death. Tune, 602 F. Supp. at 1454. In Tune, the ...

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