Curran v. Bosze

delivered the opinion of the court:

Allison and James Curran are SVz-year-old twins. Their mother is Nancy Curran. The twins have lived with Ms. Curran and their maternal grandmother since their birth on January 27,1987.

The twins’ father is Tamas Bosze. Ms. Curran and Mr. Bosze have never been married. As a result of an action brought by Ms.. Curran against Mr. Bosze concerning the paternity of the twins, both Mr. Bosze and the twins underwent a blood test in November of 1987. The blood test confirmed that Mr. Bosze is the father of the twins. On February 16, 1989, Mr. Bosze and Ms. Curran entered into an agreed order (parentage order) establishing a parent-child relationship. The parentage order states that Ms. Curran “shall have the sole care, custody, control and educational responsibility of the minor children.” Section B, paragraph 4, of the order provides:

“In all matters of importance relating to the health, welfare and education of the children, Mother shall consult and confer with Father, with a view toward adopting and following a harmonious policy. Mother shall advise Father of which school the children will attend and both parents shall be given full access to the school records of the children.”

Section M of the parentage order provides that the court retain jurisdiction over the parties and subject matter for the purposes of enforcing the agreed order.

Mr. Bosze is the father of three other children: a son, age 23; Jean Pierre Bosze, age 12; and a one-year-old daughter. Ms. Curran is not the mother of any of these children. Each of these children has a different mother. Jean Pierre and the twins are half-siblings. The twins have met Jean Pierre on two occasions. Each meeting lasted approximately two horns.

Jean Pierre is suffering from acute undifferentiated leukemia (AUL), also known as mixed lineage leukemia. Mixed lineage leukemia is a rare form of leukemia which is difficult to treat. Jean Pierre was initially misdiagnosed as having acute lymphocytic leukemia (ALL) in June 1988, in Colombia, South America. Jean Pierre was brought to America in August 1988, and has been treated by Dr. Jong Kwon since that time. Jean Pierre was treated with chemotherapy and went into remission. Jean Pierre experienced a testicular relapse in January 1990, and a bone marrow relapse in mid-June 1990. Dr. Kwon has recommended a bone marrow transplant for Jean Pierre.

Mr. Bosze asked Ms. Curran to consent to a blood test for the twins in order to determine whether the twins were compatible to serve as bone marrow donors for a transplant to Jean Pierre. Mr. Bosze asked Ms. Curran to consent to the twins’ undergoing a bone marrow harvesting procedure if the twins were found to be compatible. After consulting with the twins’ pediatrician, family members, parents of bone marrow donors and bone marrow donors, Ms. Curran refused to give consent to the twins’ undergoing either the blood test or the bone marrow harvesting procedure.

On June 28, 1990, Mr. Bosze filed an emergency petition in the circuit court of Cook County. The petition informed the court that Jean Pierre “suffers from leukemia and urgently requires a [bone] marrow transplant from a compatible donor. Without the transplant he will die in a short period of time, thereby creating an emergency involving life and death.” The petition stated that persons usually compatible for serving as donors are parents or siblings of the recipient, and Jean Pierre’s father, mother, and older brother had been tested and rejected as compatible donors.

According to the petition, “[t]he only siblings who have potential to be donors and who have not been tested are the children, James and Allison.” The petition stated Ms. Curran refused to discuss with Mr. Bosze the matter of submitting the twins to a blood test to determine their compatibility as potential bone marrow donors for Jean Pierre. The petition stated the blood test “is minimally invasive and harmless, and no more difficult than the paternity blood testing which the children have already undergone.” According to the petition, there would be no expense involved to Ms. Curran.

In the petition, Mr. Bosze requested the court find a medical emergency to exist and order and direct Ms. Curran to “forthwith produce the parties’ minor children *** at Lutheran General Hospital *** for the purpose of compatibility blood testing.” Further, Mr. Bosze requested in the petition that “if the children, or either of them, are compatible as donors, that the Court order and direct that [Ms. Curran] produce the children, or whichever one may be compatible, for the purpose of donating bone marrow to their sibling.”

The court ordered Mr. Bosze and Ms. Curran to prepare briefs on the court’s authority to grant the relief requested, and the cause was continued for presentation of medical testimony until July 2, 1990. Both Ms. Curran and Mr. Bosze testified at the hearing. Mr. Bosze called Dr. Jong Kwon, Jean Pierre’s treating physician, and Mr. Steven Epstein, a 48-year-old man who had received a bone marrow transplant from his brother. Ms. Curran called Dr. Frank L. Johnson, a physician who has performed bone marrow transplants for 19 years. After hearing the testimony of the witnesses, and the arguments of counsel for both Ms. Curran and Mr. Bosze, the court ruled on July 18, 1990, that it did not have authority to grant Mr. Bosze’s petition.

On July 19, 1990, Mr. Bosze filed a notice of appeal and an emergency motion for direct appeal to this court pursuant to Supreme Court Rule 302(b) (107 Ill. 2d R. 302(b)). This court granted Mr. Bosze’s motion on July 20,1990.

On August 9, 1990, counsel for Mr. Bosze and Ms. Curran appeared before this court for oral argument. On August 10, 1990, this court remanded the cause to the circuit court for further proceedings. This court directed Mr. Bosze to make the twins parties-defendants to the cause, and ordered that a guardian ad litem be appointed to represent the twins. Mr. Bosze was further directed to make Jean Pierre a party-plaintiff to the cause, and a guardian ad litem was ordered to be appointed to represent Jean Pierre. Upon remand, counsel for Mr. Bosze and Ms. Curran, as well as the guardian ad litem for Jean Pierre and the guardian ad litem for the twins, were to be permitted to present further evidence.

After the cause was remanded, the circuit court heard the extensive testimony of several witnesses. Ms. Curran called Dr. Bennett L. Leventhal, a physician and professor of psychiatry and pediatrics; Dr. Jay Lance Lechtor, an anesthesiologist in charge of pediatric anesthesia; and Dr. Arthur F. Kohrman, a physician and professor of pediatrics. Ms. Curran also testified. Mr. Bosze called Dr. Bruce Camitta, a physician who has been performing bone marrow transplants for 18 years. Mr. Bosze called Ms. Janet Heumann, Ms. Maureen Watowicz, and Ms. Judy Swanson, all of whom are parents who have had one of their children donate bone marrow to a sibling. Mr. Bosze also called Mr. Steve Swanson, who had donated bone marrow to his sister. The guardian ad litem for the twins called Mr. Bosze as an adverse witness, and Dr. Kwon.

After hearing the testimony of the witnesses, the arguments of counsel, and the arguments of the guardians ad litem, the circuit court denied Mr. Bosze’s petition for emergency relief. All parties have filed briefs before this court. Motions by the Roger Baldwin Foundation of the American Civil Liberties Union, Inc., and the Illinois Trial Lawyers Association to file amicus curiae briefs were denied.

I

Mr. Bosze and the guardian ad litem for Jean Pierre strenuously argue that the doctrine of substituted judgment, recognized by this court in In re Estate of Longeway (1989), 133 Ill. 2d 33, and In re Estate of Greenspan (1990), 137 Ill. 2d 1, should be applied in this case to determine whether or not the twins would consent, if they were competent to do so, to the bone marrow donation if they, or either of them, were compatible with Jean Pierre. The doctrine of substituted judgment requires a surrogate decisionmaker to “attempt[ ] to establish, with as much accuracy as possible, what decision the patient would make if [the patient] were competent tó do so.” (Longeway, 133 Ill. 2d at 49.) Mr. Bosze and the guardian ad litem for Jean Pierre contend the evidence clearly and convincingly establishes that the twins, if competent, would consent to the bone marrow harvesting procedure.

Ms. Curran and the guardian ad litem for the twins vigorously object to the application of the doctrine of substituted judgment in this case. It is the position of Ms. Curran and the guardian ad litem for the twins that it is not possible to establish by clear and convincing evidence whether the SVz-year-old twins, if they were competent — that is, if they were not minors but were adults with the legal capacity to consent — would consent or refuse to consent to the proposed bone marrow harvesting procedure. According to Ms. Curran and the guardian ad litem for the twins, the decision whether or not to give or withhold consent to the procedure must be determined by the best-interests-of-the-child standard. Ms. Curran and the guardian ad litem for the twins argue that the evidence reveals it is not in the best interests of the children to require them to submit to the bone marrow harvesting procedure.

This court recognized the doctrine of substituted judgment in Longeway. The issue addressed by this court in Longeway was whether the guardian of a formerly competent, now incompetent, seriously ill adult patient may exercise a right to refuse artificial nutrition and hydration on behalf of his or her ward and, if so, how this right may be exercised. This court determined that a right to refuse life-sustaining medical treatment exists in our State’s common law and in provisions of the Illinois Probate Act. This court held that the common law right to refuse medical treatment includes, under the appropriate circumstances, artificial nutrition and hydration.

Under common law, “a patient normally must consent to medical treatment of any kind. Consent is required to maintain the right of personal inviolability.” (Longeway, 133 Ill. 2d at 44.) Further, “because a physician must obtain consent from a patient prior to initiating medical treatment, it is logical that the patient has a common law right to withhold consent and thus refuse treatment.” (Longeway, 133 Ill. 2d at 45.) “No 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 [the individual’s] own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pacific Ry. Co. v. Botsford (1891), 141 U.S. 250, 251, 35 L. Ed. 734, 737,11 S. Ct. 1000, 1001.

At issue in Longeway was not the personal exercise by the patient of the right to refuse medical treatment, “but rather *** the exercise of this common law right through a surrogate.” (Longeway, 133 Ill. 2d at 45.) This court determined that section 11a — 17 of the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. IIOV2, par. 11a-17), which permits a guardian to make provisions for the ward’s “support, care, comfort, health, education and maintenance,” impliedly authorizes a guardian to exercise the right to refuse sustenance on the ward’s behalf. Longeway, 133 Ill. 2d at 45.

In Longeway, this court held that a guardian may exercise the right to refuse artificial sustenance on behalf of a ward in accordance with certain guidelines. This court determined that the doctrine of substituted judgment had been implicitly adopted by the General Assembly in the Powers of Attorney for Health Care Law, which states: “[Y]our agent will have authority *** to obtain or terminate any type of health care, including withdrawal of food and water *** if your agent believes such action would be consistent with your intent and desires.” Ill. Rev. Stat. 1987, ch. IIOV2, par. 804 — 10.

This court recognized two sources of appropriate evidence by which a guardian may be guided in determining whether a formerly competent, now incompetent, patient would choose to refuse artificial nutrition and hydration. The first source requires the surrogate to “determine if the patient had expressed explicit intent regarding this type of medical treatment prior to becoming incompetent.” (Longeway, 133 Ill. 2d at 49.) If there is no clear evidence of such intent, then the patient’s personal value system must guide the surrogate:

“ ‘ “[E]ven if no prior specific statements were made, in the context of the individual’s entire prior mental life, including his or her philosophical, religious and moral views, life goals, values about the purpose of life and the way it should be lived, and attitudes toward sickness, medical procedures, suffering and death, that individual’s likely treatment/nontreatment preferences can be discovered. Family members are most familiar with this entire life context. Articulating such knowledge is a formidable task, requiring a literary skill beyond the capacity of many, perhaps most, families. But the family’s knowledge exists nevertheless, intuitively felt by them and available as an important decisionmaking tool.” ’ Jobes, 108 N.J. at 415, 529 A.2d at 445, quoting Newman, Treatment Refusals for the Critically Ill: Proposed Rules for the Family, the Physician and the State, 3 N.Y.L. Sch. Hum. Rts. Ann. 45-46 (1985).” (Longeway, 133 Ill. 2d at 49-50.)

The guardian is required to prove by clear and convincing evidence whether the incompetent patient, if competent, would choose to terminate artificial nutrition and hydration if the guardian is to be allowed to substitute his or her judgment for the incompetent’s judgment. Longeway, 133 Ill. 2d at 50-51.

The best-interests standard, by which a guardian, in the exercise of his or her judgment, determines what is best for the ward, was rejected by this court in Longeway as an inappropriate vehicle by which a guardian may be guided in determining whether an incompetent patient, in either an irreversible coma or a persistent vegetative state, should have artificial nutrition and hydration withdrawn. This court rejected the best-interests standard because “it lets another make a determination of a patient’s quality of life, thereby undermining the foundation of self-determination and inviolability of the person upon which the right to refuse medical treatment stands.” (Longeway, 133 Ill. 2d at 49.) By requiring a guardian to proceed under the doctrine of substituted judgment instead of the best-interests standard, the inquiry is necessarily focused on whether the formerly competent, now incompetent, patient had ever manifested an intent as to whether he or she would consent or refuse to consent to artificial nutrition and hydration.

In Greenspan, this court addressed the issue of the use of the doctrine of substituted judgment by a guardian of an incompetent person in a chronic vegetative state. The guardian of Mr. Greenspan requested leave of court to order the withdrawal of artificial nutrition and hydration as “Mr. Greenspan’s surrogate and in order to give effect to what are represented as Mr. Greenspan’s own wishes.” (Greenspan, 137 Ill. 2d at 15.) It was argued by court-appointed amicus curiae, Americans United for Life (AUL), that the discontinuance of Mr. Greenspan’s artificial nutrition and hydration would result in his death and would not be in Mr. Greenspan’s best interests.

In Greenspan, this court stated: “Though a guardian’s duty is to act in a ward’s best interest, such a standard is necessarily general and must be adapted to particular circumstances. One such circumstance is a ward’s wish to exercise common law, statutory, or constitutional rights, which may sometimes influence or even override a guardian’s own perception of best interests.” Greenspan, 137 Ill. 2d at 17.

Further, this court stated:

“This tension between a ward’s legal rights of volition and a guardian’s own judgment of the ward’s best interests resembles the tension this court discerned in Longeway (133 Ill. 2d at 48-49) between the best-interests and substituted-judgment theories for deciding whether .to discontinue an incompetent and terminally ill patient’s artificial life support.

In Longeway, this court approved application of the substituted-judgment theory, which requires a surrogate decisionmaker to establish, as accurately as possible, what the patient would decide if competent. (Longeway, 133 Ill. 2d at 49.) Ascertainment of what the patient would decide must be based on clear and convincing evidence of the patient’s intent, derived either from a patient’s explicit expressions of intent or from knowledge of the patient’s personal value system. Longeway, 133 Ill. 2d at 49-51, citing In re Jobes (1987), 108 N.J. 394, 415, 529 A.2d 434, 445.

If it is clearly and convincingly shown that Mr. Greenspan’s wishes would be to withdraw artificial nutrition and hydration, and if the other established criteria for permitting such withdrawal are met, Mr. Greenspan’s imputed choice cannot be governed by a determination of best interests by the public guardian, AUL, or anyone else. Otherwise, the substituted-judgment procedure would be vitiated by a best-interests guardianship standard, elevating other parties’ assessments of the meaning and value of life — or, at least, their assessments of what a reasonable individual would choose — over the affected individual’s own common law right to refuse medical treatment. Accordingly, the public guardian is not prevented by a best-interests standard from seeking relief in accordance with Mr. Greenspan’s wishes as determined by substituted-judgment procedure.” Greenspan, 137 Ill. 2d at 17-18.

Mr. Bosze argues that the twins, if they had the legal capacity, would have the right to consent or refuse to consent to the proposed bone marrow harvesting procedure. Mr. Bosze argues that if the doctrine of substituted judgment is not applied in this case, the twins’ right to consent or refuse to consent to medical treatment, which they would have if they were competent, would be violated. Since the twins are without legal capacity to consent or refuse to consent to the proposed bone marrow harvesting procedure, and since the parents do not agree, Mr. Bosze argues that both his and Ms. Curran’s opinions regarding whether the twins should serve as bone marrow donors should be read out of the equation, and the court, applying the doctrine of substituted judgment, should look solely to what the twins would decide to do if they were competent. Mr. Bosze argues that the standard of the best interests of the child, traditionally the standard in cases involving minors, may not be used because this court rejected the best-interests standard in Longeway and Greenspan.

In Longeway, however, this court did “not pass[ ] on the viability of the best-interests theory in Illinois, [and] we decline[d] to adopt it in [that] case because we believe[d] the record demonstrate^] the relevancy of the substituted-judgment theory.” (Longeway, 133 Ill. 2d at 49.) Concerning the use of the doctrine of substituted judgment, this court in Longeway recognized that “[a] dilemma [exists] *** when the patient is an infant or life-long incompetent who never could have made a reasoned judgment about his [or her] quality of life.” (Longeway, 133 Ill. 2d at 49.) Mr. Bosze argues that this dilemma was resolved by this court in Longeway when it stated that “although actual, specific express intent would be helpful and compelling, the same is not necessary for the exercise of substituted judgment by a surrogate.” Longeway,, 133 Ill. 2d at 50.

Immediately following this statement in Longeway, however, this court stated: “In this case, Mrs. Longeway’s guardian must substitute her judgment for that of Longeway’s, based upon other clear and convincing evidence of Longeway’s intent.” (Emphasis added.) (Longeway, 133 Ill. 2d at 50-51.) This language addressed the instance where a formerly competent, now incompetent, patient had never “expressed explicit intent regarding [the] type of medical treatment prior to becoming incompetent.” (Longeway, 133 Ill. 2d at 49.) This language did not address the dilemma of a guardian substituting the judgment of one who never has been able to make “a reasoned judgment about his [or her] quality of life.” (Longeway, 133 Ill. 2d at 49.) In applying the doctrine of substituted judgment, “the key element in deciding to refuse or withdraw artificial sustenance is determining the patient’s intent.” Longeway, 133 Ill. 2d at 51.

Under the doctrine of substituted judgment, a guardian of a formerly competent, now incompetent, person may look to the person’s life history, in all of its diverse complexity, to ascertain the intentions and attitudes which the incompetent person once held. There must be clear and convincing evidence that the formerly competent, now incompetent, person had expressed his or her intentions and attitudes with regard to the termination of artificial nutrition and hydration before a guardian may be authorized to exercise, on behalf of the incompetent person, the right of the incompetent person to terminate artificial sustenance.

If the doctrine of substituted judgment were to be applied in this case, the guardian of the SVa-year-old twins would have to substitute his or her judgment for that of the twins, based upon clear and convincing evidence of the twins’ intent. (Longeway, 133 Ill. 2d at 50-51.) Because each twin is only ZVz years of age, neither has yet had the opportunity to develop “actual, specific express intent,” or any other form of intent, with regard to serving as a bone marrow donor. We agree with Ms. Curran and the guardian ad litem for the twins that it is not possible to determine the intent of a SVa-year-old child with regard to consenting to a bone marrow harvesting procedure by examining the child’s personal value system. It is not possible to discover the child’s “ ‘ “likely treatment/nontreatment preferences” ’ ” by examining the child’s “ ‘ “philosophical, religious and moral views, life goals, values about the purpose of life and the way it should be lived, and attitudes toward sickness, medical procedures, suffering and death.” ’ ” (Longeway, 133 Ill. 2d at 50, quoting In re Jobes (1987), 108 N.J. 321, 486 A.2d 1209.) The twins have not yet developed the power of self-determination and are not yet capable of making an informed, rational decision based upon all the available information concerning the risks and benefits associated with serving as bone marrow donors. There is no evidence by which a guardian may be guided in ascertaining whether these SVz-year-old children, if they were adults, would or would not consent to a bone marrow harvesting procedure for another child, their half-brother whom they have met only twice.

The doctrine of substituted judgment requires clear and convincing proof of the incompetent person’s intent before a court may authorize a surrogate to substitute his or her judgment for that of the incompetent. Any lesser standard would “undermin[e] the foundation of self-determination and inviolability of the person upon which the right to refuse medical treatment stands.” (Longeway, 133 Ill. 2d at 49.) A guardian attempting to prove what a SVz-year-old child would or would not do in a given set of circumstances at a given time in the distant future would have to rely on speculation and conjecture.

Neither justice nor reality is served by ordering a SVz-year-old child to submit to a bone marrow harvesting procedure for the benefit of another by a purported application of the doctrine of substituted judgment. Since it is not possible to discover that which does not exist, specifically, whether the SVz-year-old twins would consent or refuse to consent to the. proposed bone marrow harvesting procedure if they were competent, the doctrine of substituted judgment is not relevant and may not be applied in this case.

II

Several courts from sister jurisdictions have addressed the issue whether the consent of a court, parent or guardian, for the removal of a kidney from an incompetent person for transplantation to a sibling, may be legaily effective. These cases have been addressed by the parties. While not mandatory authority to this court, these cases are illustrative of the complexities involved when otherwise healthy minors or incompetent persons, who lack the legal capacity to give consent, are asked to undergo an invasive surgical procedure for the benefit of a sibling.

In Strunk v. Strunk (Ky. 1969), 445 S.W.2d 145, the Kentucky Court of Appeals, in a 4 to 3 decision, determined that a court of equity had the power to permit a kidney to be removed from a mentally incompetent ward of the State, upon the petition of his committee, his mother, for transplantation into his 28-year-old brother who was dying from a kidney disease. The ward of the State was a 27-year-old man who had the mental capacity of a six-year-old.

The mother petitioned the county court for authority to proceed with the kidney transplant. The county court “found that the operation was necessary, that under the peculiar circumstances of this case it would not only be beneficial to [the ward’s brother] but also beneficial to [the ward] because [the ward] was greatly dependent upon [his brother], emotionally and psychologically, and that [the ward’s] well-being would be jeopardized more severely by the loss of his brother than by the removal of a kidney.” Strunk, 445 S.W.2d at 146.

Testimony before the county court included the ward’s psychiatrist who opined that the death of the ward’s brother would have “an extremely traumatic effect upon [the ward].” (Strunk, 445 S.W.2d at 146.) The Department of Mental Health recommended the operation take place, and stressed in its recommendation the importance of the close relationship between the two brothers. Appeal was taken to the circuit court, which adopted the findings of the county court. The circuit court “found that it would be to the best interest of the ward of the state that the procedure be carried out.” Strunk, 445 S.W.2d at 147.

The Strunk court had before it the recommendation of both of the ward’s parents and the Department of Mental Health that the kidney transplant take place. Also before the Strunk court was the incompetent person’s guardian ad litem, who “continually questioned the power of the state to authorize the removal of an organ from the body of an incompetent who is a ward of the state.” (Strunk, 445 S.W.2d at 147.) The Strunk court noted that the case before it was unique, and looked to . the doctrine of substituted judgment for guidance.

The Strunk court stated:

“The right to act for the incompetent in all cases has become recognized in this country as the doctrine of substituted judgment and is broad enough not only to cover property but also to cover all matters touching on the well-being of the ward. The doctrine has been recognized in American courts since 1844.

‘The “doctrine of substituted judgment,” which apparently found its first expression in the leading English case of Ex parte Whitebread (1816) 2 Meriv 99, 35 Eng Reprint 878 (Ch), supra §3(a), was amplified in Re Earl of Carysfort (1840) Craig & Ph 76, 41 Eng Reprint 418, where the principle was made to apply to one who was not next of kin of the lunatic but a servant of his who was obliged to retire from his service by reason of age and infirmity. The Lord Chancellor permitted the allowance of an annuity out of the income of the estate of the lunatic earl as a retiring pension to the latter’s aged personal servant, although no supporting evidence could be found, the court being “satisfied that the Earl of Carysfort would have approved if he had been capable of acting himself.” ’ Annot., 24 A.L.R.Sd 863 (1969).” Strunk, 445 S.W.2d at 148.-

The Strunk court determined that the statutory “power given to a committee *** would not extend so far as to allow a committee to subject his ward to the serious surgical techniques here under consideration unless the life of his ward be in jeopardy.” {Strunk, 445 S.W.2d at 149.) However, the Strunk court was of “the opinion that a chancery court does have sufficient inherent power to authorize the operation. The circuit court having found that the operative procedures in this instance are to the best interest of [the ward] and this finding having been based upon substantial evidence, we are of the opinion the judgment should be affirmed.” Strunk, 445 S.W.2d at 149.

The dissent noted that the majority opinion was “predicated upon the authority of an equity court to speak for one who cannot speak for himself” {Strunk, 445 S.W.2d at 149 (Steinfeld, J., dissenting)) and “upon the finding of the circuit court that there will be psychological benefits to the ward” {Strunk, 445 S.W.2d at 150 (Steinfeld, J., dissenting)). The dissent concluded that it was:

“unwilling to hold that the gates should be open to permit the removal of an organ from an incompetent for transplant, at least until such time as it is conclusively demonstrated that it will be of significant benefit to the incompetent. The evidence here does not rise to that pinnacle. To hold that committees, guardians or courts have such awesome power even in the persuasive case before us, could establish legal precedent, the dire result of which we cannot fathom. Regretfully I must say no.” Strunk, 445 S.W.2d at 151 (Steinfeld, J., dissenting).

In Hart v. Brown (Super. 1972), 29 Conn. Supp. 368, 289 A.2d 386, the parents of identical twins, age 7 years and 10 months, sought permission to have a kidney from the healthy twin transplanted into the body of the seriously ill twin who was suffering from a kidney disease. The parents brought a declaratory judgment action, as parents and natural guardians of the twins, seeking a declaration that they had the right to consent to the proposed operation. Guardians ad litem for each of the twins were appointed. Defendants in the declaratory judgment action were the physicians and the hospital at which the proposed kidney transplantation operation was to take place; the defendants had refused to use their facilities unless the court “declare[d] that the parents and/ or guardians ad litem of the minors have the right to give their consent to the operation upon the minor twins.” Hart, 29 Conn. Supp. at 369, 289 A.2d at 387.

The court in Hart concluded it had the power to determine that the parents have the right to consent to the operation “using the doctrines of law as stated in the Strunk case, in the Bonner case, and in the Massachusetts cases.” (Hart, 29 Conn. Supp. at 377, 289 A.2d at 391.) The Massachusetts cases referred to by the Hart court were unreported cases where the “commonwealth of Massachusetts ruled that a court of equity does have the power to permit the natural parents of minor twins to give their consent to a procedure such as is being contemplated by this court.” (Hart, 29 Conn. Supp. at 370-71, 289 A.2d at 387.) The Hart court stated Bonner v. Moran (D.C. Cir. 1941), 126 F.2d 121, was “authority *** that nontherapeutic operations can be legally permitted on a minor as long as the parents or other guardians consent to the procedure.” (Hart, 29 Conn. Supp. at 376, 289 A.2d at 390.) In Bonner, a 15-year-old minor child’s consent to removal of a skin patch for the benefit of his cousin was held legally ineffective.

The court in Hart noted it was “not being asked to act where a person is legally incompetent. The matter, however, does involve two minors who do not have the legal capacity to consent.” (Hart, 29 Conn. Supp. at 370, 289 A.2d at 387.) The Hart court referred to the Strunk court’s decision that a court of equity has the power to permit the natural parent of a 27-year-old mental incompetent to give her consent, using the doctrine of substituted judgment, to a kidney transplantation operation. The court in Hart stated:

“The court [in Strunk] held that a court of equity does have such power, applying also the ‘doctrine of substituted judgment.’

Therefore, this court is of the opinion that it has the power to act in this matter.” Hart, 29 Conn. Supp. at 371, 289 A.2d at 388.

The Hart court reviewed the medical testimony presented concerning the kidney transplant which “indicate[d] that scientifically this type of procedure is a ‘perfect’ transplant.” (Hart, 29 Conn. Supp. at 375, 289 A.2d at 389.) The court also noted that a psychiatrist examined the proposed donor and testified the proposed donor “has a strong identification with her twin sister.” (Hart, 29 Conn. Supp. at 374, 289 A.2d at 389.) Further, the psychiatrist testified “that if the expected successful results are achieved they would be of immense benefit to the donor in that the donor would be better off in a family that was happy than in a family that was distressed and in that it would be a very great loss to the donor if the donee were to die from her illness.” (Hart, 29 Conn. Supp. at 374-75, 289 A.2d at 389.) The court in Hart considered the testimony of the psychiatrist to be “of limited value only because of the ages of the minors.” Hart, 29 Conn. Supp. at 375, 289 A.2d at 390.

Both guardians ad litem gave their consent to the procedure. Both parents gave their consent to the procedure. A clergyperson testified that the natural parents were “making a morally sound decision.” (Hart, 29 Conn. Supp. at 375, 289 A.2d at 390.) The Hart court found the testimony of the parents showed they reached their decision to consent “only after many hours of agonizing consideration.” (Hart, 29 Conn. Supp. at 375, 289 A.2d at 390.) The twin who would serve as the kidney donor “ha[d] been informed of the operation and insofar as she may be capable of understanding she desires to donate her kidney so that her sister may return to her.” Hart, 29 Conn. Supp. at 375, 289 A.2d at 389.

The Hart court stated:

“To prohibit the natural parents and the guardians ad litem of the minor children the right to give their consent under these circumstances, where there is supervision by this court and other persons in examining their judgment, would be most unjust, inequitable and injudicious. Therefore, natural parents of a minor should have the right to give their consent to an isograft kidney transplantation procedure when their motivation and reasoning are favorably reviewed by a community representation which includes a court of equity.

It is the judgment of this court that [the parents] have the right, under the particular facts and circumstances of this matter, to give their consent to the operations.” {Hart, 29 Conn. Supp. at 378,

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