Spousal rights rooted in laws

PINELLAS PARK, Fla. — Marianne Clark cannot understand why the woman who gave birth to Terri Schiavo, dried her tears and nursed her cuts and bruises counts less to the courts than the husband who asked that Schiavo's feeding tube be removed.

"You have a husband who hasn't been faithful, and he's the one the judges all listen to," the Sarasota woman said from a protest line outside the hospice where Schiavo was in her second week without food or water. "There's nothing like a mother. A mother knows her child, and nobody else should be able to make that decision."

Some Christian conservatives and others who want to prolong Schiavo's life do not see why her husband gets to decide her fate. But the role of the spouse as next of kin and decision-maker has deep roots in both civil and biblical law.

"It's odd that conservative Christians would be making this claim," said Christopher Schroeder, director of the public-law program at Duke University. "You can find biblical passages that say once you have a union like this, the union's all that matters. The parents drop out of the picture."

Bob and Mary Schindler say their daughter was a practicing Roman Catholic and would have wanted to be sustained after suffering severe brain damage in 1990. But the courts accepted Michael Schiavo's testimony that his wife's expressed wish was not to be kept alive artificially.

"The courts didn't ask Michael Schiavo, 'What do you want to do to Terri?' They asked him, 'What do you think Terri would want you to do?' " said University of Florida research associate Barbara Noah, who lectures on medical law and bioethics.

Michael Schiavo, as the husband, has been allowed to make all kinds of intimate decisions about her care. The courts not only gave him permission to have the feeding tube removed March 18, but also let him determine how often she is given Holy Communion, where she will be buried and whether even to allow her parents to attend the funeral.

The practice of giving the spouse decision-making authority stretches back to English common law, when a woman basically became a non-person when she married, said Herma Hill Kay, an expert on marriage law at the University of California, Berkeley.

The laws giving one spouse direction over the other's affairs are now gender-neutral.

Clark and other protesters have accused Michael Schiavo of violating "God's law" by withholding nourishment from his wife and by having had two children over the years with his live-in girlfriend.

But the legal tradition now separating Terri Schiavo from her parents' presumed protection also has a foundation in biblical law. In Genesis 2:24, it reads: "Therefore, a man leaves his father and his mother and cleaves to his wife, and they become one flesh."

Terri Schiavo had the right to leave written instructions giving someone else control over her medical care, and that person would have taken precedence over the husband, Noah said. In the absence of written instructions, the spouse generally gets precedence over the parents, on the presumption that the spouse lived with the incapacitated person and was most familiar with the patient's recent thinking, she said.