1 The word “euthanasia,” which is derived from tne Greek for “good death,” is often used interchangeably with such terms as “mercy killing,” “death with dignity,” “right to die,” and “painless inducement of death.” However, there are some subtle—but nevertheless significant—distinctions between these terms, which are discussed in various places throughout the text. While recognizing its often negative connotations, the author has chosen to use the word “euthanasia” in this Article purely for the sake of convenience. The meaning intended, however, is as described in the text. The word “euthanasia” is not used in the Model Act.

2 For an overview of a variety of issues relating to euthanasia, see generally Survey, Euthanasia: Criminal, Tort, Constitutional and Legislative Considerations, 48 Notre Dame Lawyer 1202 (1973)Google Scholar [hereinafter cited as Survey].

3 381 U.S. 479 (1965). Griswold recognized the existence of a “penumbra of rights,” including a “right of privacy,” guaranteed by the federal Constitution although not specifically enumerated therein. The exact parameters of the right of privacy are not clearly defined, although the right has been held applicable to such activities as abortion, see Roe v. Wade, 410 U.S. 113 (1972), and contraception, see Griswold, and Eisenstadt v. Baird, 405 U.S. 438 (1972). In the recent and much-publicized case of In the Matter of Karen Quinlan, 137 N.J. Super. 227, 348 A.2d 816 (1975), 70 N.J. 10, 355 A.2d 647 (1976), the lower court refused to extend the right of privacy to include the right to die; however, the New Jersey Supreme Court overruled the lower court’s decision, in large part because it felt that “Presumably this right [of privacy] is broad enough to encompass a patient’s decision to decline medical treatment under certain circumstances.” The court did not use the term “right to die,” although in practical effect the “right of privacy” becomes a “right to die” in the circumstances of that case. See In the Matter of Karen Quinlan, 70 NJ. 10, 355 A.2d 647 (1976).

4 See generally Forkosch, Privacy, Human Dignity, Euthanasia—Are These Independent Consitutional Rights?, 3 U.S.F.V. L. REV. 1 (1974).

5 A Life Magazine poll of 41,000 readers in 1972 showed that “91% believe a terminal patient should be permitted to refuse further treatment that will artificially prolong life.” LIFE, Aug. 11, 1972, at 38-39.

6 The first proposals for euthanasia legislation in the United States were made in New York and Nebraska in 1938.

7 See Kutner, Due Process of Euthanasia: The Living Will, A Proposal, 44 Ind. L.J. 539, 546 (1969) [hereinafter cited as Kutner]. In some modern European criminal codes, motive is among the elements used in determining the nature of the offense.

8 See generally Sanders, Euthanasia: None Dare Call It Murder, 60 J. Crim. L.C. & P.S. 351 (1969)Google Scholar.

9 See, e.g., In The Matter of Karen Quinlan, 137 N.J. Super. 277, 348 A.2d 816 (1975); 70 N.J. 10, 355 A.2d 647 (1976). In that case, the father of an incompetent adult asked the court to authorize expressly the discontinuance of all extraordinary means of keeping his daughter alive. The father asserted, inter alia, that his daughter had a “constitutional right to die.” In ruling that “there is no constitutional right to die that can be asserted by a parent for his incompetent adult child,” the lower court may have intended deliberately to bypass the question of whether there exists a constitutional right to die assertable by the individual on his own behalf. On appeal, the New Jersey Supreme Court held that the constitutional “right of privacy” encompasses “a patient’s decision to decline medical treatment under certain circumstances.” By stating that “. . . the State’s interest contra weakens and the individual’s right to privacy grows as the degree of bodily invasion increases and the prognosis dims,” the court seems to have limited the right to decline treatment only to those extreme situations (like Karen Quinlan’s) in which death is a virtual certainty. Hence, the right enunciated by the court becomes a functional, though not a literal, equivalent of the right to die. 70 N .J. 10,355 A.2d, 647 (1976).

10 Roe v. Wade, 410 U.S. 113 (1972).

11 The recent case of Dr. Kenneth Edelin, Commonwealth v. Edelin, Crim. No. 81823 (Super. Ct. Mass. Feb. —, 1975), is an example. Dr. Edelin performed an abortion within the guidelines set forth in Roe v. Wade, but was nevertheless found guilty of manslaughter, apparently on the grounds that the aborted fetus was viable at the time it was aborted.

12 See generally Kamisar, Some N on-Religious Views Against Proposed “Mercy-Killing” Legislation, 42 Minn. L. Rev. 969 (1958)Google Scholar [hereinafter cited as Kamisar]. Professor Kamisar, writing in 1958, concluded that “the only Anglo-American prosecution involving an alleged mercykilling physician seems to be the case of Dr. Herman Sander” (emphasis added).

A second case involving an alleged mercy-killing physician recently resulted in the defendant’s acquittal. Dr. Vincent A. Montemarano was acquitted by a jury on February 5, 1974 of murdering a terminally ill cancer patient with an intravenous injection of potassium chloride. Boston Globe, Feb. 6, 1974, at 2, col. 4.

13 Among the alternatives not discussed in the text are the “living will” and the “antidys- thanasia contract.”

First proposed in 1969, the so-called living will is a document quite similar to the advance declaration of the Model Act. Kutner, supra note 7. It is an expression of an individual’s consent to euthanasia. By itself, however, it has no legal effect, and therefore has limited practical value without accompanying legislation. See Vodiga, Euthanasia and the Right to Die—Moral, Ethical and Legal Perspectives, 51 Chi-Kent L. Rev. 1 (1974)Google Scholar [hereinafter cited as Vodiga].

The antidysthanasia contract is a contract between the patient and those who will be responsible for his care. In one sense it improves upon the living will because it legally is binding. It falls short of the Model Act, however, because it treats the individual’s written declaration as merely an “offer” which must be “accepted” by a physician before it has any legally binding effect. Thus, the individual does not maintain the same degree of control over the euthanasia decision as he does under the Model Act. See Smyth, Anti-Dysthanasia Contracts: A Proposal for Legalizing Death With Dignity, 5 Pacific L.J. 738 (1974)Google Scholar [hereinafter cited as Smvth].

14 Vodiga, supra note 13, at 3.

15 Rep. Walter W. Sackett, Jr., M.D., sponsor of several bills in Florida, stated to the United States Senate Special Committee on Aging that his proposed statute “. . . has nothing to do with Euthanasia.” Address by Rep. Walter W. Sackett, Jr., M.D. to U.S. Senate Special Committee on Aging, Aug. 7, 1972, at 1. Rep. Sackett prefers the term “Death With Dignity” because he feels it does not carry the same controversial and misunderstood connotation that “euthanasia” carries.

16 The following comment on two 1973 Oregon euthanasia bills is illustrative of the controversies stirred by the legislative proposals:

Letter from Cecil L. Edwards, Secretary of Oregon State Senate, to Ronald P. Kaplan, Jan. 29, 1974, on file in the offices of the American Journal Of Law & Medicine.

17 One of the most complete legal studies of euthanasia has concluded that “American law has established few instances in which the taking of human life is permissible.” Survey, supra note 1, at 1247.

18 See, e.g., Smyth, supra note 13.

19 Louisell, Euthanasia and Biathanasia: On Dying and Killing, 22 Catholic U. L. Rev. 723 (1973)Google Scholar [hereinafter cited as Louisell].

20 The most frequent criticism of euthanasia (and especially of involuntary euthanasia) along ethical or sociological grounds has been based upon the so-called “wedge” theory, which refers to the possibility that any system of involuntary euthanasia, however limited, will open the door to the subsequent “beneficent” extinction of the aged, the mentally ill, and other persons whose lives are, to some, not worth living or not worth saving. See Kamisar, supra note 12.

21 One such argument was suggested by the limited holding of the lower court in the Quinlan case, 137 N.J. Super. 227, 348 A.2d 816 (1975); 70 N.J. 10, 355 A.2d 647 (1976). That holding implicitly suggests that if there is a constitutional right to die, it is assertable only by the individual himself. If this is the case, then any statute permitting euthanasia where the individual has played no role in the decision (and perhaps even some in which he plays only a minor or indirect role) would be unconstitutional. On appeal of the Quinlan case, the New Jersey Supreme Court appeared to disagree, stating that:

22 Kamisar, supra note 12; Louisell, supra note 19.

23 See generally Comment, Informed Consent and the Dying Patient, 83 Yale L.J. 1632 (1974)CrossRefGoogle Scholar.

24 Louisell, supra note 19.

25 See, e.g., H.B. 251 (1973), H.B. 30 (1975), Del. Legislature.

26 G. Williams, The Sanctity Of Life And The Criminal Law 331 (1957) [hereinafter cited as Williams ].

27 Id. at 334.

28 Survey, supra note 1, at 1252.

29 Kamisar, supra note 12, at 986.

30 Survey, supra note 1, at 1253.

31 Williams, supra note 26, at 331.

32 Survey, supra note 1, at 1253.

33 N. ST. John-Stevas, The Right To Life 55 (1963).

34 Survey, supra note 1, at 1253.

35 See, e.g., H.B. 137, Mont. Legislature (1973) and S.B. 179, Ore. Legislature (1973), both of which permit euthanasia in certain situations of “brain death,” a condition which may not meet the technical requirement of “terminal” illness. The problem of defining “death” is discussed in the text at page 64.

36 Survey, supra note 1, at 1253.

37 H. Trowell, The Unfinished Debate On Euthanasia 17 (1973) [hereinafter cited as TROWELL].

38 Voluntary Euthanasia Act of 1969.

39 Kutner, supra note 7, at 544.

40 Trowell, supra note 37, at 24.

41 Id. at 17.

42 The proposal would have amended Section 2 of Article I of the Florida Constitution to read:

43 Sackett, Death With Dignity, 64 S. MED. J. 330, 331 (1971).

44 H.B. 3184, Fla. Legislature (1969).

45 Note, Death With Dignity: A Recommendation for Statutory Change, 22 U. FLA. L. Rev. 368 (1970)Google Scholar. Rep. Sackett’s proposal did not specify a form for the advance declaration, as many bills have done.

46 The figures in the text are based on responses of the various state legislatures to the author’s request for proposed euthanasia legislation introduced in the legislatures and the status thereof.

47 H.B. 744, Alas. Legislature (1976); S.B. 1177, Ariz. Legislature (1976); A.B. 3060, Cal. Legislature (1976); H.B. 251 (1973), H.B. 30 (1975), Del. Legislature; H.B. 407 (1973), H.B. 239 (1975), H.B. 2463 (1976), Fla. Legislature; H.B. 1679 Ga. Legislature (1976); H.B. 342, Hawaii Legislature (1975); H.B. 143 (1969), H.B. 95 (1975), Idaho Legislature; H.B. 74 (1974), H.B. 11 (1975), H.B. 618 (1975), Ill. Legislature; S.B. 207, Iowa Legislature (1975); H.B. 265, Ky. Legislature (1976); S.B. 700 (1974), H.B. 764 (1975), S.B. 596 (1975), Md. Legislature; H.B. 3641 (1974), H.B. 2297 (1975), Mass. Legislature; H.B. 1082, Mo. Legislature (1975); H.B. 137 (1973), H.B. 256 (1975), Mont. Legislature; S.B. 179, H.B. 2997, Ore. Legislature (1973); H.B. 5196, R.I. Legislature (1975); H.B. 1384, Tenn. Legislature (1976); H.B. 620, Va. Legislature (1976); S.B. 2881, Wash. Legislature (1975); S.B. 358, W. Va. Legislature (1972); S.B. 670 (1971), S.B. 715 (1971), A.B. 1207 (1975), Wis. Legislature.

The above listing does not include a bill proposing euthanasia legislation which has just been introduced, but as this Article goes to press has not yet been printed, in the Ohio Legislature.

In addition to these bills, a number of states have dealt with euthanasia in other ways. For example, as noted in the text, several attempts have been made in Florida to amend the state constitution to include as a basic right the right “to die with dignity.” See, e.g., H.J.R. 3007 (1974), H.J.R. 2575 (1976), Fla. Legislature.

Article I, Section 10 of the Louisiana Constitution of 1974 provides, in part, that “No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment.” The categorization of euthanasia with torture and punishment is contrary to the whole notion of euthanasia as an avoidance of torture and punishment. Interestingly, Louisiana also has a statute (40 L.R.S. § 1299.46, added in 1975) which implicitly declares a “right of a person eighteen years of age or over to refuse to consent to medical or surgical treatment as to his own person.” In light of the above constitutional provison, § 1299.46 would appear to be unconstitutional, although the issue has not yet come before the courts.

A.B. 4444, introduced in California in 1974, would have added to the enumeration of personal rights in the state’s Civil Code a provision that “Every person has the right to die without prolongation of life by extraordinary medical means.” The proposal, which died in committee, was not accompanied by any implementing legislation.

Colorado and Massachusetts have introduced resolutions calling for the study of possible euthanasia legislation. The Colorado resolution is still being considered. H.J.R. 1007, Colo. Legislature (1976). In 1974, Massachusetts adopted H.B. 5944, calling for a study of euthanasia legislation, only after a bill proposing actual euthanasia legislation was reported out of committee adversely, The following year, H.B. 6043, a measure almost identical to H.B. 5944, was defeated by a greater than 2-1 margin.

H.B. 2097 and S.B. 2005, Minn. Legislature (1976), provide that it is no defense to a wrongful death action or to certain felonies that after the tortious or criminal act was committed medical treatment was withdrawn from the victim. Query, whether the proposal would apply where the tortious or criminal act is the withdrawal of medical treatment.

The recently-enacted “Protection of the Abused or Neglected Elderly Act” in North Carolina provides, in part, that the state will provide services to prevent the abuse or neglect of the elderly. “Abuse” includes “the willful deprivation by a caretaker of services which are necessary to maintain mental and physical health.” Whether this can be read to prohibit euthanasia is unclear. N.C.G.S. § 108-91 et seq.

48 H.B. 407, Fla. Legislature (1973), is the only bill to have passed a vote of an entire branch of a state legislature. Under the sponsorship of Dr. Sackett, it passed the Florida House of Representatives by a vote of 56-50 in 1973, after having been defeated on its first consideration by that body only nine days earlier. However, it died on the Senate calendar in the same year. H.B. 137, Mont. Legislature (1973), was defeated in the House of that state by a vote of 76-15. Letter from Edwin A. Smith, Clerk of Montana House of Representatives to Ronald P. Kaplan, January 31, 1974 on file in the offices of the American Journal Of Law & Medicine. The author’s information as to the history and status of these bills is based largely upon responses from the various state legislatures to his request for such information.

49 H.B. 342, Hawaii Legislature (1975); H.B. 143, Idaho Legislature (1969); H.B. 137 (1973), H.B. 256 (1975), Mont. Legislature; H.B. 251 (1973), H.B. 30 (1975), Del. Legislature. Note, however, that Sections 8(5) and 9(2) of the Montana bill speak of giving a “death medication” to the patient.

50 H.B. 2997, Ore. Legislature (1973); S.B. 358, W. Va. Legislature (1972).

51 H.B. 1679, Ga. Legislature (1976); H.B. 265, Ky. Legislature (1976).

52 See, e.g., Vaughn, The Right to Die, 10 Calif. Western L. Rev. 613, 624 (1974).

53 Section 5 of H.B. 1082, Mo. Legislature (1975), provides:

Section 3 of H.B. 618, Ill. Legislature (1975), provides:

54 See, e.g., H.B. 744, Alas. Legislature (1976), which provides:

55 See, e.g., H.B. 1384, Tenn. Legislature (1976). Some bills specifically provide that a physician need not honor a patient’s request for euthanasia. See, e.g., S.B. 1177, Ariz. Legislature (1976).

56 H.B. 251 (1973), H.B. 30 (1975), Del. Legislature.

57 See, e.g., A.B. 3060, Cal. Legislature (1976) [“The Legislature finds that adult persons have the fundamental right to control the decisions relating to the rendering of their own medical care .... ”]; H.B. 256, Mont. Legislature (1975) [“This legislation is written for the primary purpose of giving to every citizen the right to choose for himself how he wishes to die . . . S.B. 358, W. Va. Legislature (1972) [“Every person shall have the right to die with dignity . . . .”].

58 See discussion at footnote 3, supra.

59 One can think of several illustrations: cases permitting capital punishment [e.g., Furman v. Georgia, 408 U.S. 238 (1972)]; cases permitting refusal of life-sustaining treatment [e.g., Erickson v. Dilgard, 44 Mise. 2d 27. 252 N.Y.S.2d 705 (1962); In Re Estate of Brooks, 32 I11.2d 361, 205 N.E.2d 435 (1965)]; and perhaps even the abortion cases [Roe v. Wade, 410 U.S. 113 (1972)].

60 See, e.g., H.B. 342, Hawaii Legislature (1975).

61 S.B. 207, Iowa Legislature (1975).

62 H.B. 1384, Tenn. Legislature (1976).

63 H.B. 620, Va. Legislature (1976).

64 An example of a statute which does not reflect a recognition of the issue is H.B. 744 in Alaska, which provides only for the “withdrawal of life-sustaining mechanisms.” Such language seems equivalent only to “termination” and not to “withholding.” A more blatant example is H.B. 30, Del. Legislature (1975), which provides that in certain cases “death with dignity shall be granted,” but does not give even a hint as to how this is to be carried out.

65 See, e.g., H.B. 744, Alas. Legislature (1976), described in footnote 64, supra, which contains no clue as to what is a “life-sustaining mechanism.”

66 See, e.g., S.B. 358, W. Va. Legislature (1972) [“. . . artificial, extraordinary, extreme or radical medical or surgical means or procedures calculated to prolong . . . life.”].

67 See, e.g., H.B. 1082, Mo. Legislature (1975). See also H.B. 265, Ky. Legislature (1976), which, in addition to the general language quoted in the text, is the only proposal to spell out specific types of treatment which may be refused. These include:

• (a) Artificial respirators to promote breathing;

• (b) Heart massage, pacemakers or other machines for stimulation of the heart muscle;

• (c) Kidney machines;

• (d) Transplantation of vital organs; and

• (e) Prolonged intravenous feeding.

68 S.B. 207, Iowa Legislature (1975).

69 The “locality” standard is similar to that often used in malpractice cases in determining the standard of care owed by a physician. It may well be that, in a prosecution for wrongful termination of treatment under the Act, a “locality” standard would be imposed judicially even though not expressly written into the statute.

70 S.B. 1146, Ariz. Legislature (1976). See also H.B. 95, Idaho Legislature (1975), and H.B. 620, Va. Legislature (1976).

71 H.B. 618, Ill. Legislature (1975).

72 H.B. 342, Hawaii Legislature (1975). See also H.B. 143, Idaho Legislature (1969).

73 The statute should distinguish between illness and injury, which several have failed to do. See, e.g., H.B. 2997, Ore. Legislature (1973), and H.B. 30, Del. Legislature (1975). See also H.B. 1082, Mo. Legislature (1975), which covers only “illness or accident.”

74 See, e.g., H.B. 744, Alas. Legislature (1976), which permits euthanasia only where a physician determines “that there is no expectation that the declarant will regain health and that but for the use of life-sustaining mechanisms the declarant would immediately die” (emphasis added). See also H.B. 239, Fla. Legislature (1975), which permits euthanasia where the patient is suffering from an “illness or injury that would result in natural expiration of life regardless of the use or discontinuance of medical treatment to sustain the life processes.” A shorter form of this provision is found in H.B. 764, Md. Legislature (1975), which permits euthanasia “[w]hen there is no reasonable expectation of the person’s recovery from a terminal illness, disease or condition.” It should be noted, however, that the latter two proposals do not require an assessment that death immediately would follow the cessation of treatment.

75 H.B. 342, Hawaii Legislature (1975), which permits euthanasia where there is “a serious physical illness or impairment medically thought in the patient’s case to be incurable and expected to cause him severe distress or render him incapable of rational existence.”

76 See, e.g., H.B. 137 (1973) and H.B. 256 (1975), Mont. Legislature, which permit euthanasia where the patient has either:

• (a) a serious physical disability which is diagnosed as incurable and terminal, with no expectation of regaining health; or

• (b) a condition of brain damage or deterioration such that a person’s normal mental faculties are severely and irreparably impaired to the extent that he has been rendered incapable of leading a rational existence.

Note, however, that the Montana bills do not distinguish adequately between illness and injury. Sec footnote 73, supra. H.B. 143, Idaho Legislature (1969), which otherwise is similar to the Montana proposals, is superior in this respect; it separates paragraph (a) of the Montana bills into two separate paragraphs. See paragrahs (a) and (b) of H.B. 143, quoted in footnote 80, infra.

77 See generally Compton, Telling the Time of Human Death by Statute: An Essential and Progressive Trend, 31 Wash, And Lee L. Rev. 521 (1974)Google Scholar; and Harvard Medical School Ad Hoc Committee to Examine the Definition of Brain Death, Report: A Definition of Irreversible Coma, 205 J.A.M.A. 337 (1968)Google Scholar.

A substantial number of state legislatures have introduced (and several have passed) bills creating a statutory definition of death. Most of these bills permit a determination of death based on cessation of the functioning of the brain, even though the patient otherwise remains “alive.” See, e.g., Cal. Health & Safety Code 7180, which provides that:

78 See, e.g, H.B. 137 (1973) and H.B. 256 (1975), Mont. Legislature, and H.B. 251, Del. Legislature (1973).

79 See the discussion of the so-called “wedge theory” at footnote 20, supra.

80 H.B. 143, Idaho Legislature (1969), permits euthanasia where the patient has either:

• (a) a condition of physical illness thought in the patient’s case to be incurable and terminal and expected to cause him severe distress; or

• (b) a condition of grievous physical affliction occasioning the patient serious injury or disability thought to be permanent and expected to cause him severe distress; or

• (c) a condition of physical brain damage or deterioration such that the pa-tient’s normal mental faculties are severely and irreparably impaired.

81 Some proposed bills do not require the patient to execute a declaration, but instead require him to petition the court for an order permitting euthanasia. See H.B. 1679, Ga. Legislature (1976), and H.B. 265, Ky. Legislature (1976).

82 See, e.g., H.B. 342, Hawaii Legislature (1975).

83 See, e.g., H.B. 239, Fla. Legislature (1975). See also H.B. 251, Del. Legislature (1973), which allows the declaration to be oral rather than written.

84 At least one state would permit a person, at his option, to consent to euthanasia in some but not all of the circumstances in which he qualifies for it, by allowing him to strike from his declaration those conditions under which he does not want euthanasia performed. Thus, for example, he could consent to euthanasia if he should suffer “brain death,” but not if he should suffer a terminal illness. See H.B. 143, Idaho Legislature (1969).

85 See, e.g., H.B. 744, Alas. Legislature (1976).

86 See, e.g., H.B. 1082, Mo. Legislature (1975).

87 See, e.g., H.B. 256, Mont. Legislature (1975).

88 See, e.g., S.B. 207, Iowa Legislature (1975).

89 See, e.g., H.B. 1384, Tenn. Legislature (1976).

90 Kamisar, supra note 12, at 986.

91 See, e.g., S.B. 358, W. Va. Legislature (1972).

92 See, e.g., H.B. 137, Mont. Legislature (1973), which provides that:

The final clause strongly suggests that the declarant need not be ill at the time he makes his declaration.

93 H.B. 143, Idaho Legislature (1969).

94 The other bill, H.B. 342, Hawaii Legislature (1975), is only slightly different than the Oregon proposal.

95 See, e.g., S.B. 1146, Ariz. Legislature (1976).

96 Some bills permit a parson who is unable to sign his own declaration to direct another to execute it on the declarant’s behalf. See, e.g., H.B. 95, Idaho Legislature (1975).

97 S.B. 670, Wis. Legislature (1971); S.B. 358, W. Va. Legislature (1972); H.B. 2997, Ore. Legislature (1973); H.B. 1679, Ga. Legislature (1976); H.B. 30, Del. Legislature (1975).

98 S.B. 670, Wis.-Legislature (1971); S.B. 358, W. Va. Legislature (1972).

99 If the declaration is non-binding, this might not always be the case.

100 H.B. 2997, Ore. Legislature (1973), limits vicarious consent to situations in which there is “. . . an absence of actual notice of contrary indications by the individual who is terminally ill . . .”

101 See, e.g., S.B. 670, Wis. Legislature (1971).

102 H.B. 30, Del. Legislature (1975).

103 H.B. 1679, Ga. Legislature (1976).

104 H.B. 30, Del. Legislature (1975).

105 See, e.g., H.B. 2997, Ore. Legislature (1973).

106 See, e.g., S.B. 358, W. Va. Legislature (1972).

107 See, e.g., A.B. 3060, Cal. Legislature (1976) [72 hours]; H.B. 342, Hawaii Legislature (1975) [30 days].

108 H.B. 618, Ill. Legislature (1975), and S.B. 358, W. Va. Legislature (1972) are the only bills which contain no revocation provision.

109 See, e.g., S.B. 1146, Ariz. Legislature (1976).

110 A.B. 3060, Cal. Legislature (1976), states that the declaration “. . . may be revoked at any time by the declarant, without regard to his mental state or competency . . . .”

111 See, e.g., H.B. 342, Hawaii Legislature (1975).

112 S.B. 715, Wis. Legislature (1971), in providing that “Such document [advance declaration] may be revoked ... in writing or orally,” at least raises the possibility that one other than the declarant may revoke a declaration.

113 See, e.g., A.B. 3060, Cal. Legislature (1976).

114 See, e.g., H.B. 95, Idaho Legislature (1975).

115 See, e.g., H.B. 342, Hawaii Legislature (1975).

116 The Euthanasia Education Council suggests that the declaration (“living will”) be distributed to the declarant’s doctor, clergyman, lawyer, and family members.

117 The successor of H.B. 137, H.B. 256, proposed in Montana in 1975, contains an unusual provision which restricts a declarant to one revocation. If subsequently he should execute a second declaration, it could not be revoked.

118 A.B. 3060, Cal. Legislature (1976), requires a revocation to be communicated to the attending physician before it becomes effective.

H.B. 620, Va. Legislature (1976), provides that:

119 See, e.g, H.B. 95, Idaho Legislature (1975).

120 One bill which does require a dated declaration is S.B. 1177, Ariz. Legislature (1976). However, that same bill does not require a revocation to be dated.

121 The extent to which the physician should control the euthanasia process is a topic of considerable disagreement among the commentators. Compare Kamisar, supra note 12, with WILLIAMS, supra note 26.

122 H.B. 1082, Mo. Legislature (1975).

123 Kutner, supra, note 7, at 551.

124 Even those bills which involve the courts in the euthanasia process require the participation of physicians in the decision-making process. See, e.g., H.B. 1679, Ga. Legislature (1976).

125 Kamisar, supra note 12, at 998. Professor Kamisar feels that there is a significant danger of erroneous diagnoses. In addition, even where a diagnosis is correct, Kamisar is concerned that euthanasia may be performed on patients who could have benefited from new medical procedures which might be perfected during their lifetimes.

126 H.B. 744, Alas. Legislature (1976), provides that:

• (a) Before withdrawing life-sustaining mechanisms from a patient, the physician in charge must be satisfied that the patient has authorized the action as provided in this chapter, the conditions of the authorization are met, and all steps proposed to be taken under it are in accord with the patient’s last known wishes.

• (b) Before withdrawing life-sustaining mechanisms from a mentally incompetent patient or one who is incapable of communication, the physician in charge shall ascertain that the patient authorized the action as provided in this chapter, and the conditions of the authorization are met.

See also A.B. 3060, Cal. Legislature (1976); H.B. 342, Hawaii Legislature (1975); H.B. 137 (1973) and H.B. 256 (1975), Mont. Legislature; and S.B. 179, Ore. Legislature (1973).

127 See, e.g., S.B. 1177, Ariz. Legislature (1976), which provides that:

See also H.B. 95, Idaho Legislature (1975); H.B. 3641 (1974) and H.B. 2297 (1975), Mass. Legislature; H.B. 2997, Ore. Legislature (1973); H.B. 5196, R.I. Legislature (1975); H.B. 1384, Tenn. Legislature (1976); and H.B. 620, Va. Legislature (1976).

128 See, e.g., A.B. 3060, Cal. Legislature (1976).

129 H.B. 256, Mont. Legislature (1975).

130 See, e.g., S.B. 1177, Ariz. Legislature (1976).

131 The possible exception is in California, where A.B. 3060 grants immunity only to physicians and health facilities, but seems to permit other persons to withhold or terminate treatment [“Nothing in this chapter shall impair or supersede any right which any person may have to effect the withholding or withdrawal of extraordinary life-sustaining procedures in any lawful manner.”].

132 Only H.B. 251, Del. Legislature (1973), and H.B. 618, Ill. Legislature (1975), contain no immunity provision.

133 S.B. 358, W. Va. Legislature (1972).

134 See, e.g., H.B. 143, Idaho Legislature (1973), and S.B. 179, Ore. Legislature (1973).

135 S.B. 1177, Ariz. Legislature (1976).

136 Note, Death With Dignity: A Recommendation for Statutory Change, supra note 45, at 371.

137 See, e.g., Address by Rep. Walter W, Sackett, Jr., M.D., supra note 15, at 4.

138 See, e.g., S.B. 1177, Ariz. Legislature (1976).

139 H.B. 95, Idaho Legislature (1975), and H.B. 620, Va. Legislature (1976), are virtually identical to the Arizona bill.

140 See H.B. 342, Hawaii Legislature (1973), and H.B. 143, Idaho Legislature (1969). See also A.B. 3060, Cal. Legislature (1976), which makes an unusual distinction by punishing one who conceals or withholds knowledge of an oral, but not a written, revocation.

141 See, e.g., S.B. 1177, Ariz. Legislature (1976).

142 See A.B. 3060, Cal. Legislature (1976).

143 H.B. 137 (1973) and H.B. 256 (1975), Mont. Legislature.

144 H.B. 143, Idaho Legislature (1969).

145 H.B. 1679, Ga. Legislature (1976), and H.B. 265, Ky. Legislature (1976).

146 S.B. 1177, Ariz. Legislature (1976), and H.B. 95, Idaho Legislature (1975).

147 See, e.g., S.B. 1177, Ariz. Legislature (1976).

148 See, e.g., H.B. 143, Idaho Legislature (1969).

149 See, e.g., S.B. 207, Iowa Legislature (1975).

150 See, e.g., H.B. 256, Mont. Legislature (1976).

151 See, e.g., S.B. 715, Wis. Legislature (1971).

152 See, e.g., H.B. 256, Mont. Legislature (1975).

153 See generally Kutner, supra note 7, at 543, 544.

154 See, e.g., H.B. 407, Fla. Legislature (1973).

155 See, e.g., H.B. 143, Idaho Legislature (1969).

156 See, e.g., H.B. 764, Md. Legislature (1975), which permits, but does not require, the filing of the declaration.

157 See, e.g., S.B. 179, Ore. Legislature (1973).

158 See, e.g., H.B. 143, Idaho Legislature (1969).

159 See, e.g., H.B. 256, Mont. Legislature (1975).