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Can Same-Sex Partners Consent to Organ Donation?

Published online by Cambridge University Press:  06 January 2021

Roderick T. Chen  and
Alexandra K. Glazier
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Extract

As more same-sex couples enter into civil unions and domestic partnerships, the courts and other institutions are beginning to consider the implications of these partnerships in several areas of the law. A Georgia appeals court, for example, recently published the first opinion addressing this issue, ruling that a civil union of two women, obtained in Vermont, was not equivalent to a marriage for the purposes of interpreting a child custody agreement entered into in Georgia. As many observers predicted, the enactment of legislation recognizing same-sex partnerships has profound implications on the practice of family law, trust and estate law and healthcare law.

This Article focuses on an area of healthcare law in which the legal status of a civil union or domestic partnership could have significant consequences—organ donations. In particular, it explores whether a civil union or domestic partner is an appropriate party to consent to an organ donation.

Type
Research Article
Information
American Journal of Law & Medicine , Volume 29 , Issue 1 , March 2003 , pp. 31 - 44
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2003

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Footnotes

†

Roderick T. Chen is an associate in the healthcare group at Ropes & Gray in Boston, Massachusetts. He received a J.D. at Duke University School of Law and a B.A. in Biomedical Ethics and American History at Brown University.

‡

Alexandra K. Glazier is an associate in the healthcare group at Ropes & Gray in Boston, Massachusetts. She received a J.D. at Boston University School of Law and an M.P.H. at Boston University School of Public Health. She received a B.A. in Biomedical Ethics at Brown University.

References

1 Burns v. Burns, 560 S.E.2d 47, 49 (Ga. Ct. App. 2002).

2 Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993), reconsideration granted in part 875 P.2d 225 (Haw. 1993), appeal after remand 910 P.2d 112 (Haw. 1996), on remand 1996 WL 694235 (Haw. Cir. Ct. 1996).

3 See, e.g., Coolidge, David Orgon, The Hawaii Marriage Amendment: Its Origins, Meaning and Fate, 22 U. HAW. L. REV. 19 (2000)Google Scholar; Kristen, Elizabeth, Recent Developments: The Struggle for Same-Sex Marriage Continues, 14 BERKELEY WOMEN's L.J. 104 (1999)Google Scholar; Brian Burnette, W., Note, Hawaii's Reciprocal Beneficiaries Act: An Effective Step in Resolving the Controversy Surrounding Same Sex Marriage, 37 BRANDEIS L.J. 81 (1998-1999)Google Scholar; Note, In Sickness and in Health, in Hawaii and Where Else?: Conflict of Laws and Recognition of Same-Sex Marriages, 109 HARV. L. REV. 2038 (1996).

4 HAW. CONST. art. 1, § 23.

5 HAW. REV. STAT. ANN. § 572-1 (Michie 1999).

6 1997 Haw. Sess. Laws 383 (codified at HAW. REV. STAT. ANN. ch. 572C). For discussion on this legislative compromise, see sources cited supra note 3.

7 HAW. REV. STAT. ANN. § 572C-1. Only couples that meet the following criteria may qualify: (1) each of the parties must be at least eighteen years old; (2) neither of the parties can be married nor a party to another reciprocal beneficiary relationship; (3) the parties must be legally prohibited from marrying one another under Hawaii law; (4) the consent of either party must not have been obtained by force, duress or fraud; and (5) each of the parties must sign a declaration of reciprocal beneficiary law as provided under the law. Id. § 572C-4.

8 Id. §§ 509-2, 560:2-201, -202, -208, -209, -301, -711, -802, -804.

9 Id. § 663-3.

10 Id. § 431:10A-601. The law states: “Any other law to the contrary notwithstanding, reciprocal beneficiary family coverage … shall be made available to reciprocal beneficiaries … but only to the extent that family coverage … is currently available to individuals who are not reciprocal beneficiaries.” Id. § 431:10A-601(a). The Hawaii Attorney General interpreted this law to apply only to insurance companies and not to mutual benefit societies or health maintenance organizations. Haw. Op. Att’y Gen. No. 97-05 (1997) (recognizing that this interpretation will drastically reduce the number of individuals with access to reciprocal beneficiary family coverage).

11 HAW. REV. STAT. ANN. § 323-2 (Michie 1999).

12 Id. § 327-3.

13 Many same-sex couples have taken advantage of Vermont's civil union law since its passage. More than 2,700 civil union ceremonies have been performed, with more than 2,100 couples coming from out-of-state, particularly from Massachusetts, New York and California. Ferdinand, Pamela, With Vermont in the Lead, Controversy Progresses; Battle Over Same-Sex Unions Moves to Other States, WASH. POST, Sept. 4, 2001, at A3Google Scholar.

14 VT. STAT. ANN. tit. 15, § 1202 (Supp. 2002). In order to enter into a civil union, the parties must satisfy the following criteria: (1) Not be a party to another civil union or a marriage; (2) Be of the same sex and therefore excluded from the marriage laws of this state; (3) Meet the criteria and obligations set forth in 18 V.S.A. chapter 106. Id.

15 Id. § 1201.

16 Id. § 1204(b).

17 Id.

18 Id. It should be noted, however, that a civil union partner cannot be treated as a spouse for the purposes of obtaining federal benefits. The Federal Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), defines “marriage” and “spouse” for the purposes of federal law. Under federal law, the word “marriage” refers to the legal union between one man and one woman as husband and wife, and the word “spouse” refers to a person of the opposite sex who is a husband or wife. Federal Defense of Marriage Act § 3 (codified at 1 U.S.C. § 7). Thus, parties to a civil union are not treated as spouses for the federal tax laws and other federal rights and benefits. For further discussion on the Federal Defense of Marriage Act, see infra Section III.C.1.

19 VT. STAT. ANN. tit. 18, § 5240 (2000).

20 Act of Oct. 14, 2001, ch. 893, 2001 Cal. Stat. 893. Similar to Hawaii, see supra note 5, and Vermont, see supra note 14, California reserves marriage for heterosexual couples. CAL. FAM. CODE § 300 (West 2002).

21 2001 Cal. Stat. 893.

22 Id. § 49 (amending CAL. PROB. CODE § 4716).

23 CAL. HEALTH & SAFETY CODE § 7151 (West 2002).

24 See, e.g., A.B. 4981, 2001 Leg., 224th Sess. (N.Y. 2001); H.B. 5590, 2001 Leg., Jan. Sess. (R.I. 2001); A.B. 721, 2001 Leg., 95th Sess. (Wis. 2002).

25 2002 Conn. Legis. Serv. 105, § 16 (West).

26 In addition, gay rights advocates in Massachusetts sued the Department of Public Health (DPH) to force the Department to recognize same-sex marriages. Yvonne Abraham, Gays Seek Right to Marry: Mass. Lawsuit Goes Beyond Civil Unions, BOSTON GLOBE, April 12, 2001, at A1. The lawsuit asked the state court to force the DPH, which oversees marriage certificates, to issue certificates to same-sex couples. See infra note 73.

27 For the purposes of this Article, the term “domestic partnership” refers to both Hawaii's reciprocal beneficiaries and California's domestic partnerships. Vermont's civil union, however, is distinguished from domestic partnership because Vermont law specifically equates a civil union partner to a spouse, VT. STAT. ANN. tit. 15, § 1204(b) (Supp. 2002), whereas no such provision exists under Hawaii or California law.

28 It is the laws of the state in which an organ donation will occur that controls.

29 Fentiman, Linda C., Organ Donation as National Service: A Proposed Federal Organ Donation Law, 27 SUFFOLK U. L. REV. 1593, 1596 (1993)Google Scholar.

30 UNIF. ANATOMICAL GIFT ACT § 3(a) (amended 1987), 8A U.L.A. 40 (1993).

31 Id. § 3(a)(1).

32 Id. § 3(a).

33 HAW. REV. STAT. ANN. § 327-3 (Michie 2000).

34 VT. STAT. ANN. tit. 18, § 5240 (2000).

35 Id. tit. 15, § 1204.

36 Act of Oct. 14, 2001, ch. 893, 2001 Cal Stat. 893, § 49 (codified at CAL. PROB. CODE § 4716).

37 U.S. CONST. art. IV, § I. The Supreme Court has noted that the animating purpose of this clause was:

to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.

Milwaukee County v. M.E. White Co., 296 U.S. 268, 277 (1935).

38 VT. STAT. ANN. tit. 15, § 1201.

39 Baker v. Gen. Motors Corp., 522 U.S. 222, 232 (1998) (internal quotations omitted) (quoting Pac. Empl. Ins. Co. v. Indus. Accident Comm’n, 306 U.S. 493, 501 (1939)). However, the full faith and credit obligation is exacting with regard to judgments. See id. at 233 (“A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.”).

40 Id. at 233.

41 RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 283(2) (1971) (emphasis added).

42 Id. § 283(1).

43 One legal scholar has noted that courts have rarely used the public policy exception to invalidate an out-of-state marriage entered into by domiciliaries. Cox, Barbara J., Same-Sex Marriage and the Public Policy Exception in Choice-of-Law: Does It Really Exist?, 16 QUINNIPIAC L. REV. 61 (1996)Google Scholar. Another scholar has argued that the public policy exception violates the Full Faith and Credit Clause. Kramer, Larry, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 YALE L. J. 1965 (1997)Google Scholar. Notwithstanding the potential merits of these arguments, it is necessary to review the potential public policy considerations because it is likely that courts will do so in any analysis of a civil union or a domestic partnership.

44 See infra notes 50–52 and accompanying text.

45 Pub. L. No. 104-199, 110 Stat. 2419 (1996).

46 Id. § 2 (codified at 28 U.S.C. § 1738C (2000)).

47 One legal scholar noted that this interpretation would be constitutionally suspect. Strasser, Mark, When Is a Parent Not a Parent? On DOMA, Civil Unions, and Presumptions of Parenthood, 23 CARDOZO L. REV. 299 (2001)Google Scholar. Professor Strasser notes that courts have recognized a constitutional right to interstate transit in requiring a state to recognize a marriage which is valid in a sister domiciliary state. Id. at 303-04 (citing Ex parte Kinney, 14 F. Cas. 602, 606 (E.D. Va. 1879)). Other scholars have argued that DOMA is an unconstitutional exercise of power by Congress. Koppelman, Andrew, Dumb and DOMA: Why the Defense of Marriage Act Is Unconstitutional, 83 IOWA L. REV. 1 (1997)Google Scholar; Wolfson, Evan & Melcher, Michael F., Constitutional and Legal Defects in the ‘Defense of Marriage’ Act, 16 QUINNIPIAC L. REV. 221 (1996)Google Scholar. For a constitutional defense of DOMA, see Rensberger, Jeffrey L., Same-Sex Marriages and the Defense of Marriage Act: A Deviant View of an Experiment in Full Faith and Credit, 32 CREIGHTON L. REV. 409 (1998)Google Scholar; Silberman, Linda J., Can the Island of Hawaii Bind the World? A Comment on Same-Sex Marriage and Federalism Values, 16 QUINNIPIAC L. REV. 191 (1996)Google Scholar.

48 For a good discussion of the Federal DOMA and the states’ defenses of marriage acts, see generally Strasser, supra note 47.

49 See, e.g., ALA. CODE § 30-1-19(e) (1998); ARIZ REV. STAT. ANN. § 25-101(c) (2000); IDAHO CODE § 32-209 (Michie 1996); IND. CODE § 31-11-1-1(b) (1997); N.C. GEN. STAT. 51-1.2 (1999); OKLA. STAT. ANN. tit. 43, § 3.1 (West 2001); 23 PA. CONS. STAT. ANN. § 1704 (West Supp. 2001); S.D. CODIFIED LAWS § 25-1-38 (Michie Supp. 2001); WASH. REV. CODE ANN. § 26.04.020 (West 2001).

50 IND. CODE ANN. § 31-11-1-1 (West 1999).

51 ME. REV. STAT. ANN. tit. 19-A, § 701(5) (West 1998). Maine law also contains the following:

The union of one man and one woman joined in traditional monogamous marriage is of inestimable value to society; the State has a compelling interest to nurture and promote the unique institution of traditional monogamous marriage in the support of harmonious families and the physical and mental health of children; and that the State has the compelling interest in promoting moral values inherent in traditional monogamous marriage.

Id. § 650(1)(A).

52 ARIZ. REV. STAT. ANN. 25-101(c).

53 See, e.g., ARK. CODE ANN. § 9-11-208(c) (Michie 2002); GA. CODE ANN. § 19-3-3.1(b) (2002); KY. REV. STAT. ANN. § 402.045(1) (Michie 2001); LA. CIV. CODE ANN. art. 89 (West 1999); MINN. STAT. ANN. § 517.03(4)(b) (West Supp. 2003); VA. CODE ANN. § 20-45.2 (Michie 2000).

54 VA. CODE. ANN. § 20-45.2.

55 LA. CIV. CODE ANN. art. 89; see also ARK. CODE ANN. § 9-11-208(c); GA. CODE ANN. § 19-3-3.1(b); KY. REV. STAT. ANN. § 402.045(1); MINN. STAT. ANN. § 517.03(4)(b).

56 See, e.g., ALASKA STAT. 25.05.013(a) (Lexis 2000); FLA. STAT. ANN. § 741.212(1) (West Supp. 2003); W. VA. CODE ANN. 48-2-603 (Michie 2001).

57 NEB. CONST. art. 1, § 29 (adopted 2000).

58 FLA. STAT. ANN. § 741.212(1) (emphasis added); see also ALASKA STAT. § 25.05.013(a); W. VA. CODE ANN. § 48-2-603 (Lexis Supp. 2001).

59 ME. REV. STAT. ANN. tit. 19-A, § 701(1) (West 1998).

60 Id. § 701(1-A).

61 MASS. GEN. LAWS ch. 207, § 10 (1998).

62 DeFranco, Elaine M., Choice of Law: Will a Wisconsin Court Recognize a Vermont Civil Union?, 85 MARQ. L. REV. 251 (2001)Google Scholar.

63 UNIF. ANATOMICAL GIFT ACT § 3 (amended 1987), 8A U.L.A. 40 (1993).

64 See, e.g., MASS. GEN. LAWS. ch. 113, § 8; N.H. REV. STAT. ANN. § 291-A:4 (1999); CONN. GEN. STAT. ANN. § 19a-279c (1997).

65 See National Organ Transplant Act, Pub. L. No. 98-507, 98 Stat. 2339 (1984) (current version at 42 U.S.C. §§ 273-274 (2000)); see also 63 Fed. Reg. 16,296 (April 2, 1998) (establishing procedures governing the operation of the Organ Procurement and Transplantation Network to reduce the growing gap between the demand for organs and their supply).

66 See, e.g., N.H. REV. STAT. ANN. § 137-J (1996); N.Y. PUB. HEALTH LAW § 2981 (McKinney 2002); CAL. PROB. CODE § 4711 (West Supp. 2002).

67 See, e.g., N.H. REV. STAT. ANN. § 291-A:4(I). These states, however, list healthcare proxies lower in priority than a spouse or other close relatives. Presumably, this is because one may be married, but wish for a different individual to make medical decisions (i.e., one might designate an adult child rather than a spouse as the healthcare proxy). The ranking of healthcare proxies under other categories of individuals also reflects the legal assumption that the disposition of the body will rest with the family members and, therefore, their consent to a donation is necessary to prevent the potential for a mutilation claim. See, e.g., Brotherton v. Cleveland, 923 F.2d 477, 482 (6th Cir. 1991) (holding that a coroner who, acting pursuant to state law, used decedent's corneas for anatomical gifts without giving the widow the opportunity to refuse to give consent deprived the widow of her property interests in her husband's body without due process of law).

68 Only one state court has considered the legal status of a civil union or domestic partnership. The Georgia Court of Appeals recently held that a civil union obtained in Vermont was not to be treated as a marriage under Georgia law. Burns v. Burns, 560 S.E. 2d 47, 49 (Ga. Ct. App. 2002). The court considered whether to enforce a consent decree pursuant to a divorce between Darian and Susan Burns. The consent decree provided that no child visitations would occur during any time that the party being visited cohabited with or had overnight stays with any adult to whom that party was not legally married or related within the second degree. After the divorce, Susan Burns entered into a civil union with her same-sex partner in Vermont. A trial court subsequently ruled that she was violating the consent decree. Id. at 48.

Susan Burns argued that she and her same-sex partner were legally “married” in the State of Vermont and should be considered married in Georgia pursuant to the full faith and credit clause. The appeals court rejected this argument, noting that a civil union was not a marriage under Vermont law and that the consent decree did not mention civil unions. The court added that even if same-sex marriages were recognized in Vermont, Georgia's public policy (as expressed in its defense of marriage act) was to refuse to recognize same-sex marriages. Id. at 48-49.

69 HAW. REV. STAT. § 327-3 (Michie 2000).

70 Id.

71 CAL. HEALTH & SAFETY. CODE § 7151 (West 2002).

72 Act of Oct. 14, 2001, ch. 893, 2001 Cal Stat. 893, § 49 (codified at CAL. PROB. CODE § 4716).

73 See Goodridge v. Dep't of Public Health, No. 2001-1647-A, 2002 WL 1299135, at *14 (Mass. Super. May 7, 2002) (rejecting an attempt by seven same-sex couples to require the Massachusetts Department of Public Health to issue them marriage licenses).

74 See, e.g., ARIZ. REV. STAT. ANN. 25-101(c) (2000); IND. CODE ANN. § 31-11-1-1 (West 1999); ME. REV. STAT. ANN. tit. 19-A, § 701(5) (West 1998); see also supra text accompanying notes 50-52.

75 See, e.g., LA. CIV. CODE ANN. art. 89 (West 1999); VA. CODE ANN. § 20-45.2 (Michie 2000); see also supra text accompanying notes 53-55.

76 The Louisiana legislature has done just that. See LA. CIV. CODE ANN. art. 89.

77 One could attempt to argue, however, that the authority to consent to organ donation is neither a right nor a privilege typically reserved for spouses.

78 NEB. CONST. art. 1, § 29 (adopted 2000).

79 HAW. REV. STAT. ANN. § 327-3 (Michie 1999). Vermont's civil union law requires terms like “spouse” and “family” to include partners to civil unions in their definitions. This would include such partners in Vermont's Anatomical Gift Act. Compare VT. STAT. ANN. tit. 18, § 5240 (2000) with VT. STAT. ANN. tit. 15, § 1204 (Supp. 2002); see supra text accompanying notes 18-19.