Published on Sunday, March 27, 2005 by the Long Island, NY Newsday
For Gays, It Happens All the Time
Couples often arent allowed to visit their partners in a hospital, let alone make choices about loved ones care
by Tina Susman
As the fight over Terri Schiavo's fate played out in court, gay and lesbian organizations watched quietly from the sidelines, aware that any outcome would speak to one of the key motivations in their quest for same-sex marriage: the right to make medical decisions for a partner.
It's an issue faced regularly by same-sex couples, and the battle that Michael Schiavo waged with his in-laws as he sought to remove his wife's feeding tube only underscored their difficulties, said David Buckel of the New York-based gay rights group Lambda Legal.
"It certainly resonates with us," said Buckel, director of marriage-related activities for Lambda Legal. "If folks look at this situation and see that a spouse is struggling to carry out the wishes of his loved one, imagine what folks face when they don't even have access to the spousal relationship because they can't get married."
Just such a situation landed a lesbian couple in the national spotlight 20 years ago, after a drunk driver slammed into a car driven by Sharon Kowalski, then 27, leaving her comatose. Kowalski's longtime partner, Karen Thompson, then 37, a physical education teacher at St. Cloud State University in Minnesota, sued Kowalski's parents for guardianship after they refused to recognize the women's relationship, blocked Thompson from visiting Kowalski, and disagreed with Thompson on Kowalski's care.
After a bitter legal battle lasting nearly a decade, a court sided with Thompson. She still cares for Kowalski, who emerged from her coma with severe brain damage and other physical problems.
Gay-rights groups had hoped the case would mark a turning point in their effort to have more say over partners' medical treatment, but it hasn't always worked that way. While some states such as California, Vermont and New Jersey grant medical decision-making rights to registered domestic partners, most, including New York, offer limited rights or none at all.
Partners of gay hospital patients often can't even visit, much less make life-and-death decisions for their loved ones, particularly if blood relatives object, said Carissa Cunningham of Gay&Lesbian Advocates&Defenders, a Boston-based group.
GLAD is representing several couples in a lawsuit to try to force the Connecticut Department of Public Health to recognize same-sex marriage. Two of the women involved, Carol Conklin, 51, and Janet Peck, 53, of Colchester, Conn., have been together nearly 30 years but say they still are not ensured access to each other in the hospital.
After Peck underwent major surgery, Conklin was initially denied permission to visit her in intensive care. When she identified herself as Peck's partner, the attending nurse said she did not know what that meant. Conklin was not allowed to designate herself Peck's next of kin during another hospitalization.
"It's very routine. It happens all the time," said Cunningham.
Such cases rarely make headlines, but they are no less tragic than the Schiavos' situation.
Two years ago, a Baltimore jury rejected a claim by Bill Flanigan, 38, of San Francisco, who sued Baltimore's Shock Trauma Center of the University of Maryland medical system after it did not let him visit his partner, 32-year-old Robert Daniel, as he died of AIDS. "By the time he finally got into the hospital room, his partner had lost consciousness and never regained it, and they never had a chance to say goodbye," said Buckel.
The hospital denied the accusations of discrimination.
Two of the women involved in the landmark lawsuit that led the Massachusetts Supreme Court to clear the way for same-sex marriages last year said they were prompted by medical concerns. When 59-year-old Linda Davies learned that she required double hip replacement surgery, she and her partner of more than 30 years, Gloria Bailey, 63, discovered that there was no guarantee Bailey would be allowed unfettered access to Davies during her 11-day recovery.
"Some hospitals said they could not guarantee Gloria would be allowed in," said Davies, who lives with Bailey in Orleans, Mass., and queried several hospitals before choosing one for the operation. "We realized how much we really needed to be married when I went into the hospital. That's when we realized how vulnerable we were."
Opponents of gay marriage say same-sex couples can opt to register as domestic partners or enter civil unions, but such partnerships don't always include the power to make major medical decisions for each other.
In addition, because such rights differ by state, there is no guarantee that a couple will be able to share in each other's medical decisions should disaster strike far from home. Flanigan and Daniel, for example, were from California, but they were in Maryland when Daniel fell ill.
And gay activists say even if they have gone through the legal machinations of having their partners declared health-care proxies, hospitals might be unfamiliar with such rights or simply refuse to respect them. If the partners don't happen to be carrying the paperwork to prove their status, they can similarly be refused their rights, said Buckel.
© Copyright 2005 Newsday Inc.