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The Guardian Speaks

Terri Schiavo's guardian ad litem files his report; there's bad news and good news.

11:00 PM, Dec 3, 2003 • By WESLEY J. SMITH
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THERE IS A BULL ELEPHANT in the living room of the Terri Schiavo case that many adamantly refuse to see. Terri's husband Michael Schiavo has fallen in love with another woman. He has lived with his "fiancé" now for many years. The couple has been blessed with two children together. By any reasonable standard of judgment, falling in love with, committing to, and siring children by another woman estranges a husband from his wife. Indeed, in a divorce case, these facts would undoubtedly be construed as actions amounting to legal abandonment.

For those who adamantly insist on framing the story line of the Schiavo controversy as a contest between a loving husband who only wants to do right by his as-good-as-dead wife versus desperate parents who just can't let their daughter go, Michael's domestic circumstances are, to say the least, inconvenient. Their answer? Just don't mention it. Refuse to grapple with its meaning. Pretend that Schiavo's quasi-remarriage--or domestic partnership, if you prefer--simply doesn't exist.

First Judge George Greer decided to accede to Schiavo's request to dehydrate Terri in utter indifference to the fact that Michael has, in his own words, "moved on." Then, it was the establishment media, which rarely reference Schiavo's fiancé and children in their descriptions of the case. And now it is Jay Wolfson, Terri's recently appointed guardian ad litem. On December 1, he filed a 38-page, closely detailed report on the controversy and its history without even once mentioning Schiavo's current enjoyment of connubial bliss.

WOLFSON'S RETICENCE in this matter is most puzzling. He writes, quite properly, that his job as Terri's guardian at litem is to "stand exclusively in [Terri's] shoes." This being so, how could he refuse to grapple with the fundamental questions: Would Terri want her husband--who has, in effect, remarried--to decide whether she lives or dies? Or, would she prefer that her parents, who have remained steadfastly loyal to her alone since her injury in 1990, be in charge of her medical decisions?

The issue isn't about moralizing. It isn't about punishing Schiavo for having sex outside of his marriage. It is understandable that he created a new life for himself.

But having done so, shouldn't he then let go of his old life? After all, his loyalties are no longer exclusively with Terri. He has other important responsibilities, other intimacies, indeed, a whole new family. Any fair analysis of this case must consider these facts, their implications, and what Terri would make of them. Wolfson's failure to do so means that he did not fully stand in her shoes.

Wolfson also seems to buy into "personhood theory," the predominate view in bioethics that people with severe cognitive impairments are less than fully equal persons, and hence, have fewer rights. Expressing his belief that Terri is in a persistent vegetative state (PVS) and that her behavior recorded on videos is "reflexive, rather than cognitive," and thus "neither conscious nor aware activities," Wolfson references Descartes' proposition, "Cognito, [sic] ergo sum," (I think, therefore, I am). "This logic would imply," he writes, "that unless we are aware and conscious, we cease to be." If Wolfson really believes this, it means that he views Terri as essentially dead. If so, he should not be her guardian ad litem.

Still, despite these reservations, it is clear that Wolfson took his responsibilities to Terri very seriously and has made a good faith attempt to perform his work. He visited her frequently and, to his credit, admits that Terri "has a distinct presence about her," which may be another way of saying that he does indeed view her as a unique and fully human person. He also attempted to become an honest broker between Schiavo and the Schindlers, claiming that he came close to achieving a settlement that would have provided for future medical testing of Terri. Whether this is the proper role for someone standing in Terri's shoes can be debated. But, it was probably worth a try even though compromise seems unlikely in a case in which one side is utterly dedicated to keeping her alive and the other side just as committed to seeking her death.

Most importantly, Wolfson recommended that Terri be allowed a swallow test, writing that if she "has a reasonable hope of regaining any swallowing function" that her feeding tube should not be removed. Terri shouldn't be forced to justify her existence by passing any tests, of course. But, if the several medical and rehabilitation experts who have opined in affidavits that Terri is a good candidate for relearning how to swallow are right, Jay Wolfson's recommendation might just turn out to be the crucial turning point that ultimately saves Terri's life.

Wesley J. Smith is a senior fellow at the Discovery Institute and an attorney for the International Task Force on Euthanasia and Assisted Suicide. His current book is the updated and revised "Forced Exit: The Slippery Slope from Assisted Suicide to Legalized Murder."