Abstract
Recognizing that GLBTI individuals are often barred from visiting their partners in hospitals or from acting as health care surrogates for incapacitated partners, President Obama directed the Department of Health and Human Services to address these issues. In response, the department amended its rules to prohibit hospitals from restricting, limiting, or denying visitation privileges on the basis of gender identity or sexual orientation. But the changes do not affect the designation of a health care surrogate, a matter largely governed by state law. Therefore, subject to state law, same-sex partners can still be legally barred from making health care decisions for their incapacitated partners, and it remains essential that they execute advance directives and appoint one another as their health care proxies.
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Notes
It is debatable whether the CMS is correct in asserting that it “[does] not have the authority … to compel one State to recognize a legal relationship that is established in another State” (HHS 2010, 70835). But such a discussion is beyond the scope of this response.
The Amendment suggests ways in which hospitals could determine the appropriateness of a visitor if the patient is incapacitated and there is no surrogate decision-maker (HHS 2010, 70837). While the Amendment prohibits hospitals from discriminating against visitors based on sexual orientation, other statutes require hospitals to comply with a surrogate’s decision. So, if a surrogate refuses to welcome a visitor based on his or her sexual orientation, it is unlikely that the hospital would override this decision, even if the visitor has otherwise established her appropriateness according to the Amendment. Whether the surrogate is making a proper substituted judgment for the incapacitated patient could be challenged in court.
Very few American jurisdictions still recognize cohabitation for a statutory period as a common-law marriage. Usually, a court has to declare the cohabitation a marriage before the parties can benefit from legal rights reserved for married people.
For example, North Carolina is the latest state amending its constitution to define “marriage between one man and one woman [as] the only domestic legal union that shall be valid or recognized in [the] State” (cited in UNC-TV and the N.C. Center for Voter Education 2012, ¶3). According to the Human Rights Campaign, 30 states, including North Carolina, have amended their constitutions restricting marriage to the union of one man and one woman (HRC 2012).
References
Cartwright, C. 2012. Ethical challenges in end-of-life care for GLBTI individuals. Journal of Bioethical Inquiry 9(1): 113–114.
Department of Health and Human Services, Centers for Medicare & Medicaid Services. 2010. Medicare and Medicaid programs: Changes to the hospital and critical access hospital conditions of participation to ensure visitation rights for all patients. Federal Register 75(223): 70831–70844. http://www.gpo.gov/fdsys/pkg/FR-2010-11-19/pdf/2010-29194.pdf.
Human Rights Campaign (HRC). 2012. Statewide marriage prohibitions. May 10. http://www.hrc.org/files/assets/resources/US_Marriage_Prohibition.pdf.
The President. 2010. Respecting the rights of hospital patients to receive visitors and to designate surrogate decision makers for medical emergencies: Memorandum for the Secretary of Health and Human Services. Federal Register 75(75): 20511–20512. http://www.gpo.gov/fdsys/pkg/FR-2010-04-20/html/2010-9211.htm.
UNC-TV and the N.C. Center for Voter Education. 2012. North Carolina voter guide: Amendment One. http://ncvoterguide.org/amendment/index.php.
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The original article by Colleen Cartwright, published in the Journal of Bioethical Inquiry, 9(1): 113–114, can be located at DOI 10.1007/s11673-011-9345-8.
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Hernandez, J.O. Gay Rights One Baby-Step at a Time: Protecting Hospital Visitation Rights for Same-Sex Partners While the Lack of Surrogacy Rights Lingers. Bioethical Inquiry 9, 361–363 (2012). https://doi.org/10.1007/s11673-012-9388-5
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DOI: https://doi.org/10.1007/s11673-012-9388-5