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Grounds for marriage

Can a person in a vegetative state get married? And if not, why not? 

A recent interesting case involved a woman who was denied the right to marry her fiancé because he was in a persistent vegetative state (PVS) and hence, could neither sign the marriage certificate nor utter verbal consent.

The essential question for the court was: does the other party to a marriage need to be cognisant of the proceedings for it to be recognised at law? The court held in the affirmative.

Shortly before surgery, which unexpectedly involved an anoxic brain injury resulting in an unresponsive PVS brain-dead condition, the man (the potential husband) proposed to his female partner for a second time. She answered yes, also for the second time. Despite having been together for 38 years, the couple had not been able to marry due to financial and family commitments. The fiancée was legally recognised as the man’s heir and as the primary surrogate (medical) decision-maker.

Notably the marriage itself would not change her financial position in respect to the other members of his family – there was no financial gain to be had. Post-surgery, her position could be summarised as wanting to be married to accord with her partner’s last stated wish and because it would provide legal recognition of a loving relationship that had lasted nearly four decades.

The obvious starting point was to ask whether the male partner was deceased. After all, you cannot at law marry a deceased person. It was established that he was breathing (via a ventilator) and,consequently, his heart was beating and his lungs functioning. But was he dead? If not, then he was arguably alive. It was not until a ventilator is turned off that the time of death is usually called. Further in arguendo, if a person rushed in and stabbed a knife into his heart or slit his throat then for the sake of the criminal law the perpetrator would undoubtedly be charged with murder (necessarily thereby recognising the man as being alive). In this scenario the criminal law does not distinguish between being alive or dead with reference to being connected to a ventilator.

Another argument may be that the relevant Marriage Act requires that each person be able to sign the marriage licence. Obviously, because of his condition, the male partner was unable to perform this action, thus justifying a denial of the marriage licence. As a matter of legal consistency is this logical? First, the fiancée is the medical decision-making proxy and therefore does not require contemporaneous written consent from the patient to make life-taking or -making decisions on his behalf. Is not the decision and action graver for turning off a ventilator than entering into a marriage? Yet in the former case, prior written consent will suffice and be recognised at law as reflecting the patient`s wishes.

If a further objection to this line of reasoning were that the medical power of attorney was in writing and the intention to marry was not (that is, it was solely verbal) then why does the law not care for such distinctions on other occasions? Legally the act of marriage is a contract. A verbal contract has the same rights and responsibilities arising out of its creation as does a written contract. For a contract to be binding one does not need a signature, so why here? The verbal proposal (or offer) was accepted as having occurred. Every day many decisions are made concerning patients in PVS requiring relatives, loved ones and friends to be extensively  consulted (in the absence of a medical power of attorney) to obtain a sufficient anecdotal oral or verbal collected body of evidence to be representative of previously expressed wishes (to terminate life support). Why the distinction between the acceptability of verbal evidence for end of life decision-making and the requirement for a signature regarding a marriage contract?

An argument could be that this case ensures that one person cannot change the legal status of another without the other’s explicit contemporaneous approval. In this case after all it was impossible for the man to give contemporaneous consent to the confirmatory formal ceremony; marriage is an act requiring the explicit consent of each of the parties to enter into a contract – after all marriage changes the normative status of a person in a way that most think requires that person’s overt consent.

Extending this, commentator Mark Bratton argues that the moment society enters the realm of positive rights, it enters the domain of public policy and there are, arguably, good public policy reasons why the law should not endorse asymmetrical arrangements of this sort. He states that marriage is not simply a contract between two autonomous individuals but a publicly acclaimed covenant importing a range of social responsibilities and expectations which distinguishes it from other contracts such as in commercial relationships.

No such nuance was reported as being required by the County Clerk in his reasoning in refusing this request, stating that the couple were simply unable to enter into a marriage because, “… the other party involved would have no idea what’s going on … I just think that’s not what marriage is supposed to be about.”

A final, delicate, matter is the necessary act of consummation, or absence thereof. But that point is beyond the scope of this article (and the author) and he is certainly not going there!

Scott Trueman is a lecturer in the school of nursing, midwifery and nutrition at James Cook University, Queensland. 

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