Case No.
05 CVS 379
IN THE COURT OF APPEALS FOR THE STATE OF WAKE
JEREMY JOHNSON, and
NANCY JOHNSON,
Appellants,
v.
RUDI JOHNSON,
Appellee.
BRIEF FOR APPELLANTS
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................................... ii
STATEMENT OF THE ISSUE PRESENTED FOR REVIEW ..................................................... 1
STATEMENT OF THE CASE....................................................................................................... 1
STATEMENT OF THE FACTS .................................................................................................... 1
SUMMARY OF THE ARGUMENT ............................................................................................. 3
ARGUMENT .................................................................................................................................. 5
A. PARENTS MAY TENDER PROXY CONSENT FOR ORGAN DONATION ON
BEHALF OF THEIR MINOR CHILDREN SINCE THEY HAVE TRADITIONALLY
DECIDED MATTERS CONCERNING THEIR CHILDREN’S UPBRINGING AND
WELFARE ..........................................................................................................................6
B. THE COURT SHOULD SUBSTITUTE ITS JUDGMENT FOR RUDI AND ALLOW
THE TRANSPLANT SINCE THERE IS EVIDENCE OF PAST GIFT-GIVING, THE
BROTHERS SHARE A CLOSE RELATIONSHIP, AND THE OPERATION POSES
MINIMAL RISKS TO RUDI .............................................................................................8
C. THE TRANSPLANT WOULD BE IN RUDI’S BEST INTEREST SINCE HE SHARES
A CLOSE RELATIONSHIP WITH HIS BROTHER, IT POSES MINIMAL RISKS TO
HIM, AND HE HAS A LIMITED UNDERSTANDING OF THE REDUCTION IN
REJECTION RATES IF A PORTION OF HIS LIVER IS USED ..................................11
1. Rudi will benefit from the liver donation since he shares a close relationship with his
brother who is facing a medical crisis and Rudi’s liver provides the best option for
recovery........................................................................................................................12
2. Rudi will benefit from the liver donation since his parents have made an informed
decision based on the best interest of each child, and there is a close relationship
between the potential donor and the donee…………………………………………..14
CONCLUSION .............................................................................................................................16
i
TABLE OF AUTHORITIES
CASES
Anderson v. Liberty Lobby, 477 U.S. 242 (1986)
Bonner v. Moran, 126 F.2d 121 (D.C. Cir. 1941)
Celotex Corp. v. Catrett, 477 U.S. 317 (1986)
Curran v. Bosze, 566 N.E.2d 1319 (Ill. 1990)
Griswold v. Connecticut, 381 U.S. 479 (1965)
Hart v. Brown, 289 A.2d 386 (Conn. Super. Ct. 1972)
In re Brice, 8 N.W.2d 576 (Iowa 1943)
In re Guardianship of Estate of Neal, 406 S.W.2d 496 (Tex. Civ. App. 1996)
In re Longeway, 549 N.E.2d 292 (Ill. 1990)
In re McCauley, 565 N.E.2d 411 (Mass. 1991)
Little v. Little, 576 S.W.2d 493 (Tex. Civ. App. 1979)
Roe v. Wade, 410 U.S. 113 (1973)
Santosky v. Kramer, 455 U.S. 745 (1982)
Strunk v. Strunk, 445 S.W.2d 145 (Ky. Ct. App. 1969)
STATUTES
Ala. Code 1975 § 22-8-9
ii
STATEMENT OF THE ISSUE PRESENTED FOR REVIEW
UNDER WAKE COMMON LAW, DOES A PARENT HAVE THE RIGHT TO
COMPEL A MINOR CHILD’S PARTICIPATION IN AN ORGAN DONATION FOR
THE BENEFIT OF A SIBLING WHEN THE BROTHERS HAVE A CLOSE
RELATIONSHIP, THE POTENTIAL DONOR DOES NOT UNDERSTAND THAT
HIS LIVER DONATION OFFERS THE BEST OPTION, AND THE SURGERY
POSES MINIMAL RISKS TO THE RECIPIENT?
STATEMENT OF THE CASE
This action arises out of a dispute between the parties as to whether parent-guardians
have the right to compel their minor child’s participation in a medical procedure to donate a
portion of that child’s liver to a sibling. On August 9, 2012, Plaintiffs, Jeremy Johnson and
Nancy Johnson, filed suit against Defendant, Rudi Johnson, in the Superior Court of Forest
County in the State of Wake. Plaintiffs seek a declaratory judgment allowing the parent
guardians to authorize the medical procedure on behalf of their minor child. On August 17,
2012, Defendant filed an Answer contending that Wake common law prohibits guardians from
compelling donative transfers of a minor’s property rights. Following discovery, Defendant filed
a Motion for Summary Judgment on August 25, 2013, which the Superior Court granted on
January 17, 2013. Plaintiffs filed an expedited appeal, which this Court granted on January 25,
2013. This matter is now before this Court.
STATEMENT OF THE FACTS
Chad Johnson (“Chad”) is a fourteen-year-old boy in critical need of a liver donation
because he suffers from Alpha-1 Antitypsin Deficiency, an incurable liver disease. Rudi
Johnson (“Rudi”), Chad’s younger brother, is the best candidate, but opposes the surgery despite
the life-saving benefits to his brother and his parents’ consent.
Chad’s condition has become unstable, and a living donor is his best option because he is
currently low on the cadaveric liver donation list. Living donor liver transplantation (“LDLT”),
1
the most common alternative, involves sectioning portions of the donor’s liver for transplantation
into the recipient without any permanent damage to the donor. All immediate members of the
Johnson family have been tested, but the best potential donor is Rudi because his parents have a
history of social drinking and smoking. Additionally, the use of a portion of Rudi’s liver reduces
the risks of rejection by at least 10%. LDLT poses very low risks to the donor since each lobe of
the liver can function independently and is capable of regenerating. The performing surgeon,
Chris Henry, stated that 60% of Rudi’s right lobe would be used, which would not place him at a
greater risk. Rudi refuses the operation because he is scared, confused, and does not fully
understand Chad’s condition. David Pollack (“Pollack”), a psychologist who met with Rudi on
numerous occasions, testified that Rudi possesses a general understanding of Chad’s illness, but
does not fully comprehend the complexities and urgency of the situation. According to Pollack,
Rudi does not seem to understand that his liver donation is the best option to ensure a healthy
transplant. Instead, Rudi feels that Chad would have the same chances if his either of his parents
donated.
This confusion arises because Rudi’s parents told him that if someone else donated, the
procedure would probably still be successful. Pollack testified that Rudi does not “appreciate the
further reduction in risk that his participation would offer . . . coupled with his fear of surgery
itself and a reluctance to miss football and other activities has led to his refusal.” Rudi believes
that Chad would recover if his parents donated part of their liver and admits that if he was the
only option, he would consent. Pollack also noted that if Rudi continues his refusal, he will
regret and feel guilty about his decision, but if he consented, Rudi would gain a sense of pride
and happiness for helping Chad.
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Conversely, Chris Perry (“Perry”), a psychiatrist, and Christina Smith (“Smith”), Rudi’s
court-appointed Guardian Ad Litem, feel that Rudi is mature enough to make this decision, and
has a full understanding of the options available. Rudi’s reasons against the surgery are typical of
an immature ten-year-old. Both believe that Rudi will not regret not undergoing the operation,
and rather he will resent his parents and his brother for forcing him to agree. Smith advocates
that the parents are making a utilitarian decision because they want to see their other son healthy
and feels this surgery poses a risk of serious health complications for Rudi with no medical
benefit to him.
Chad wants the best liver with the least chance of complications but does not want to
force or pressure Rudi. The brothers’ father, Jeremy, testified that the Johnsons are a close
family in which each member takes care of the others, that Rudi idolizes his brother, and that he
believes Rudi will regret his decision if he continues to refuse. His father feels that Rudi is
scared and does not understand that with his liver, Chad is three times less likely to reject than
with a parent’s liver; if he understood this, he would consent. Moreover, Jeremy believes that
since Rudi is only ten years old, he is too young to make this decision, and, as his parents,
Jeremy and Nancy are in the best position to render proxy consent.
The Sacred Hospital and Dr. Henry will not perform the operation unless a court grants
the parents’ permission to make this decision. For this reason, Jeremy and Nancy Johnson, as
parents and legal guardians, ask the Court to respect their wishes and compel the operation.
SUMMARY OF THE ARGUMENT
The Court should reverse the trial court’s decision because this is an issue of first
impression before this Court, and there are important policy considerations recognized by other
jurisdictions that support a parent’s right to make medical decisions on behalf of children who
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are too young to fully appreciate or understand that total circumstances under which such a need
arises. At the very least, given the delicate nature of this case, this Court should make its
decision on a full hearing, not on a Motion for Summary Judgment.
Also, courts have traditionally granted parents the discretion to make decisions
concerning their children’s welfare and upbringing, including medical ones. Parents are in the
best position to determine what is in the best interest of their children and their family.
Moreover, this Court can determine what Rudi would decide if he were competent under the
substituted judgment standard. Under this doctrine, evidence of past gift-giving and the nature of
the relationship between the parties are the major factors for consideration. Here, Rudi has
expressly stated that he would donate a portion of his liver to his brother if he felt he were the
only possibility. Rudi and Chad have a very close relationship; their father testified that Rudi
even idolized his older brother. However, because Rudi’s young age does not allow him to fully
understand the complexities of the liver transplant and the importance of rejection rates; he is not
capable of making an informed and rational decision.
Lastly, this Court, upon a full evaluation of the facts in this case, should allow the parents
to render proxy consent because Rudi’s best interest would be served with the recovery of his
brother. Chad has the best possible chance to recover from his liver disease with a transplant
from his brother. No other alternatives are available, and a donation from his parents
substantially increases his chances of rejection. Plus, the surgery poses minimal risks to Rudi,
especially since the liver has regenerative properties. Although his recovery period is lengthened
because of his age and stature, he should suffer no permanent damage. Rudi, however, would
likely receive emotional and psychological benefits from this gift to his brother.
ARGUMENT
4
Whether a parent or guardian can consent to the organ donation of a minor child for a
needy sibling is an issue of first impression before this Court. The State of Wake has no
legislation recognizing this right, so it remains an issue for the courts to decide whether to allow
the parents to give proxy consent and what legal standard is appropriate. Our judicial system has
traditionally recognized parents’ authority to make decisions on behalf of their children,
especially those concerning the child’s upbringing and care. Santosky v. Kramer, 455 U.S. 745,
753 (1982). This authority relies on the premise that parents will determine what is in the child’s
best interest. Therefore, whether organ donation is proper and in the best interest of the
incompetent child also falls to the discretion of the parents. Indeed, other states have passed
legislation recognizing a parent’s right to give his consent on behalf of the child/incompetent to
donate bone marrow. See, e.g., Ala. Code 1975 § 22-8-9.
Alternatively, this Court could apply the substituted judgment standard which allows
courts to decide whether the incompetent, if competent, would make such a gift based on
evidence of previous gift-giving or the intent thereof, and the nature of the relationship between
the parties. Strunk v. Strunk, 445 S.W.2d 145, 146-48 (Ky. Ct. App. 1969). Some jurisdictions
have rejected the substituted judgment standard and adopted the best interest doctrine which
seeks to promote the child/incompetent’s welfare. Little v. Little, 576 S.W.2d 493, 498-500
(Tex. Civ. App. 1979). Factors for a court to consider under the best interest doctrine include
parental consent, the nature of the relationships between the donor and the donee, the availability
alternatives, if any, to organ donation, the risks to the donor, and the psychological impact of
organ donation for the incompetent, among others. Id.
Rudi moved for summary judgment, claiming that the action is barred by Wake common
law. This motion was granted by the lower court. A court may only grant summary judgment
5
when the overall record establishes that there is no genuine issue of material fact, and the moving
party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). In evaluating a motion for summary judgment, a court must take the evidence and all
justifiable inferences in the light most favorable to the non-moving party. Anderson v. Liberty
Lobby, 477 U.S. 242, 255 (1986). As a question of law, a grant of summary judgment is
reviewed de novo by an appellate court. Id.
Rudi was not entitled to summary judgment because a parent has discretion to make
decisions concerning his or her children’s welfare. Further, this Court should grant a full hearing
because there are genuine issues of material fact as to whether Rudi understands the
consequences of his actions.
A. PARENTS MAY TENDER PROXY CONSENT FOR ORGAN DONATION ON
BEHALF OF THEIR MINOR CHILD BECAUSE THEY HAVE TRADITIONALLY
DECIDED MATTERS CONCERNING THEIR CHILDREN’S UPBRINGING AND
WELFARE.
This Court should reverse the trial court’s decision because courts traditionally give
deference to parents’ right to make decisions concerning the parents’ children. Additionally,
given the delicate issues in this case, this Court’s decision should be based on a full hearing, not
on a motion for summary judgment.
Although there is no case on point, competent adults have the constitutional right to
donate organs based on an individual’s right to bodily integrity and right to privacy, which
applies to the states through the Fourteenth Amendment. See generally Roe v. Wade, 410 U.S.
113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965). Traditionally, courts have
recognized parents’ authority to make decisions concerning their children’s upbringing and care.
Parents possess the “freedom of personal choice in matters of family life is a fundamental liberty
6
interest protected by the 14th Amendment . . . [extending to] care, custody, and management of
their child.” Santosky, 455 U.S. at 753.
This discretion relies on the premise that parents will determine what is in the child’s best
interest. The state has the burden of proving with clear and convincing evidence that intervening
in the relationship between parent and child is necessary. Curran v. Bosze, 566 N.E.2d 1319,
1326 (Ill. 1990). With life sustaining treatments, the parents’ decision stands unless their
decision is unconventional and unreasonable, such as a parent’s decision to deny a blood
transfusion to a child for religious reasons. In re McCauley, 565 N.E.2d 411, 413 (Mass. 1991).
Granting proxy consent for organ donation falls under the penumbra of rights accorded to
parents, especially donation to a needy sibling. In Hart, the Connecticut Superior Court deferred
to the parents’ discretion and allowed them the right to consent on behalf of their child to the
donation of a kidney to a needy sibling. Hart v. Brown, 289 A.2d 386, 390 (Conn. Super. Ct.
1972). See also Bonner v. Moran, 126 F.2d 121, 122 (D.C. Cir. 1941) (emphasizing the rights of
parents to make decisions, especially medical ones, concerning their children and noting that
minors cannot be held liable for personal contracts or contracts for the disposition of property).
Id.
Here, as in Hart, the Court should defer to the Johnsons, as parents, to make this decision
for Rudi since he is only ten years old and does not fully understand the complexities of Chad’s
condition and the benefits of his donation. Pollack and his father testified that, while Rudi
possesses a general understanding of the situation, Rudi does not fully comprehend the reduced
rejection rates Rudi’s liver will provide. Just as courts limit the capability of minors to make
contracts and transfer property because of the minors’ limited comprehension, minors should not
be responsible for making major health care decisions.
7
Additionally, Rudi’s father testified that Rudi idolizes his brother and would regret not
allowing the operation if Chad died. Rudi even stated that if he was the only option for his
brother to survive he would consent. Rudi’s parents possess a wealth of knowledge which
allows them to fully evaluate the history and nature of the siblings’ relationship, whereas courts
and new parties have a limited perspective having been recently presented with this situation.
Given the close family relationship and Rudi’s young age, the court should defer to the parents
and allow them to give proxy consent for the operation.
B. THE COURT SHOULD SUBSTITUTE ITS JUDGMENT FOR RUDI AND ALLOW
THE TRANSPLANT SINCE THERE IS EVIDENCE OF PAST GIFT-GIVING, THE
BROTHERS SHARE A CLOSE RELATIONSHIP, AND THE OPERATION POSES
MINIMAL RISKS TO RUDI.
This Court should reverse the trial court’s decision because a court has the authority to
consent on Rudi’s behalf when he has a limited understanding of the complexities of organ
transplantation and has expressed a desire to help his brother. A court has the power to compel a
medical procedure under the doctrine of substituted judgment, which covers all matters touching
on the well-being of the ward. Strunk, 445 S.W.2d at 148. This standard respects the dignity of
persons and understands that part of a person’s welfare is helping others. It allows a court to
decide for the incompetent by determining if the incompetent were sane, would he donate an
organ to a needy sibling. Id.
In substituting its judgment for the incompetent, a court relies on evidence of past gifts
made by the incompetent to the recipient or the desire to make such gifts. Id. at 146-48.
Additionally, the nature of the relationship between the incompetent and the recipient and the
degree of intimacy may provide sufficient evidence that the incompetent would make this gift,
especially with immediate family. Id. Motives such as altruism and charity can be considered
along with the needs of the recipient, the needs of the incompetent and his health concerns, and
8
whether there is any dependency between the incompetent and the recipient. Id.; see also In re
Brice, 8 N.W.2d 576, 579 (Iowa 1943). If none of these factors are present, then the court may
still compel the donation if there is evidence that a reasonable and prudent person would do so.
In Strunk, a seminal case on the issue of proxy consent and organ donation, parents of
two sons, Tommy who was twenty-eight years old and dying of kidney disease, and Jerry who
was twenty-seven and incompetent, asked the Kentucky Court of Appeals to authorize the kidney
transplant from Jerry to Tommy. Strunk, 445 S.W.2d at 146. Both parents recommended the
donation after the rest of family was tested and ruled out as donors. Id. The parents presented
evidence that Jerry was emotionally and psychologically dependent on his dying brother, and
expert testimony was given that Tommy’s death would be extremely traumatic on Jerry. Id. at
146-47. The Kentucky Court of Appeals, after evaluating Jerry’s reactions and values, authorized
the transplant. Id. at 146-48. That court reasoned that based on the identification Jerry felt for his
brother, the importance of Tommy’s visits, the possibility of guilt if Tommy’s condition
worsened or he died, and the limited risks posed by the procedure, the transplant served Jerry’s
interests. Id.; see also Moran, 126 F.2d at 122 (affirming that parental consent is necessary for
operations on minors and their youth and inexperience limits minors’ ability to make intelligent
and deliberate decisions).
Similarly, in Hart, the hospital refused to perform the operation unless a court declared
that the parents or guardians had the authority to consent to the organ transplantation. Hart, 289
A.2d at 387. In Hart, the prospective patients were seven year old identical twins. Id. One twin
had a serious condition that required the removal of both her kidneys, and her survival outlook
was grim without a kidney transplant. Id. at 387-88. A transplant from the parent only had a
9
long-term survival chance of 37% whereas an identical twin transplant was closer to 100%
success rate. Id. at 389.
The Connecticut Superior Court decided to allow the parents to render proxy consent for
the transplant and stated that the parents should have the right to give their approval to the
medical procedures of their children. Id. at 390. In examining the facts, and applying the same
standard as Strunk, that court factored in the very high success rate of the operation, the desire of
virtually all significant parties that this operation take place, the minimal risks associated with
the procedure, and the benefits to both donor and recipient. Id. That court also considered
evidence that organ donors report a heightened self-esteem from this bold act. Id. at 389. While
a transplant may not confer a direct physical benefit to the incompetent, the transplant might save
the life of the person with whom the donor has a close relationship, and this would bestow
immense emotional and psychological benefits to the donor. Id.
Here, Rudi will likely argue that applying the substituted judgment standard to a minor is
problematic since there is no life history by which to measure the decision he would likely make.
However, Rudi clearly expressed that he would donate a portion of his liver to Chad, if Rudi felt
he were the only option. Also, based on his father’s and Pollack’s testimony, if Rudi understood
the complexities of the situation and the reduction of rejection rates if he donated, he would
consent to the operation.
Here, like in Strunk and Hart, the potential donor and the donee have a close relationship,
and the parents consented to the transplant after the rest of the family had been tested and ruled
out as favorable potential donors. Like in Strunk, where the donor was dependent on his dying
brother and the brother’s death would be traumatizing, here Rudi’s father testified that he
idolizes Chad and would seriously regret and feel guilty for denying help to his brother.
10
Important in Strunk was the evidence demonstrating that a kidney donation presented limited
risks to the donor. 445 S.W.2d at 148-49. A liver donation poses even fewer risks since the liver
has regenerative properties. While Dr. Henry testified that Rudi’s recovery period might be
lengthened, but the dangers associated with the transplant are minimal. Id.
Furthermore, organ donation between siblings significantly increases the chances of a
successful transplant and donors often boast of the positive reaction from the experience. As in
Hart where the transplant from the identical twin boasted success rates close to 100%, here the
use of Rudi’s liver reduces Chad’s chances of rejection by 10%. The courts in both Strunk and
Hart also considered evidence from previous organ donors who report heightened self-esteem;
this evidence is corroborated by Pollack’s testimony. (R. at 11); Strunk, 445 S.W.2d at 146-47;
Hart, 289 A.2d at 389. Because Rudi has not fully developed the power of self-determination
and is not yet capable of making a fully informed and rational decision based upon all the
available information concerning the risks and benefits of liver donation, the Court should
substitute its judgment and allow the transplant.
C. THE TRANSPLANT WOULD BE IN RUDI’S BEST INTEREST SINCE HE SHARES
A CLOSE RELATIONSHIP WITH HIS BROTHER, IT POSES MINIMAL RISKS TO
HIM, AND HE HAS A LIMITED UNDERSTANDING OF THE REDUCTION IN
REJECTION RATES IF A PORTION OF HIS LIVER IS USED.
This Court should allow the transplant because, based on the brothers’ close relationship
and the limited options available to Chad, Rudi’s psychological welfare depends on Chad’s
recovery. Some courts reject the substituted judgment standard because the determination of
what an incompetent would do, if competent, is too nebulous and would place the incompetent in
unnecessary risk. See, e.g., Curran, 556 N.E.2d at 1323. Instead they use the best interest
standard, where the paramount factor is to promote the welfare of the child. Id.; see also Little,
576 S.W.2d at 497-98. Because organ donation is not medically therapeutic, courts focus on the
11
psychological impacts of the donation on the minor versus not donating and determine what is in
the incompetent’s best interest. Curran, 556 N.E.2d at 1332. Other factors include the nature of
the relationship between the parties, the physical risk to the donor, the stress and pressure by the
family; the possibility of alternatives to donation or other possible donors, the potential guilt on
the incompetent, the recipient’s prognosis if no donation, and the donor’s understanding and
awareness of the his role. Id. at 1331-33.
1. Rudi will benefit from the liver donation since he shares a close relationship with his
brother who is facing a medical crisis and Rudi’s liver provides the best option for
recovery.
This Court should decide, after a full hearing, that it is in Rudi’s best interest to donate a
portion of his liver to Chad because few likely alternatives exist and Rudi will gain enormous
psychological and emotional benefits by helping his brother. In Little, the mother and guardian
filed application for a court order authorizing the kidney transplant of Anne, the potential donor
and unsound minor, to her ailing brother, Steven. Little, 576 S.W.2d at 494. The mother stated
that the operation would grant ‘great and tangible benefits’ to Anne, and that the operation posed
no risk to her life. Id. The Texas Court of Civil Appeals noted that Texas minors and persons
adjudged to be mentally incompetent cannot consent to medical or surgical treatment; instead
parents or guardians have authorization to consent to medical “treatment.” Id. at 495. That
court rejected the doctrine of substituted doctrine, and adopted the best interest standard which
allows parents to make the decisions upon the court’s evaluation. Id. at 497-98 (citing In re
Guardianship of Estate of Neal, 406 S.W.2d 496 (Tex. Civ. App. 1966)).
The Texas Court of Civil Appeals allowed the parents to decide based on Anne’s
statement of willingness, Steven’s likelihood of death without the operation, the absence of
preferable alternatives, and the minimal dangers associated with the operation. Little, 576
12
S.W.2d at 498-500. Even if Anne did not understand death, the court reasoned, she understood
absence and got upset at her brother’s absence. Id. Furthermore, there was uncontradicted
evidence that donors experience increased happiness. Id. “Studies of persons who have donated
kidneys reveal resulting positive benefits such as heightened self-esteem, enhanced status in the
family, renewed meaning in life, and other positive feelings including transcendental or peak
experiences flowing from their gift to another.” Id. at 499. Based on these factors, that court
upheld the trial court’s decision to allow the donation after a fully and vigorously litigated
judicial proceeding. Id. at 500.
Here, Rudi’s best interest dictates that he donate a portion of his liver to his brother
because, like in Little, Rudi shares an extremely close relationship with his brother and would
experience great happiness with Chad’s recovery. Also, the risks associated with the operation
are minimal since the operations have become so commonplace. In fact, liver transplantation is
regenerative and siblings provide the best pool of donors for each other because they are the
closest match, so rejection rates are decreased. Here, as in Little, there is no alternative to
donation that will provide as good of a chance of success. In Little, Steven’s only opportunity to
survive his kidney disease was a transplant, likewise, Chad is suffering from an incurable liver
disease and a transplant is his only option for survival.
Furthermore, Rudi’s psychologist feels that Rudi is unable to fully understand the
ramifications of his decision. At his young age, Rudi does not understand the complexities
associated with liver donation and is incapable of making a rational decision with all the
information available to him. He was informed that his parents and others were also viable
options; however, he does not understand that in donating a portion of his liver to his brother, he
increases the chances of Chad surviving the operation. Although Anne consented to the
13
operation in Little, and in this case, Rudi refuses based on fear and confusion, Rudi has
expressed the desire for his brother’s full recovery and if he felt his liver provided the only
option, he would consent to the surgery.
Lastly, Little involved a full investigation to evaluate all of the pertinent factors in the
case. The trial court here denied the Johnsons’ petition on summary judgment without a full
opportunity to debate and develop all the relevant issues. For these reasons, this Court should
reverse the lower court’s decision and remanded for further proceedings.
2. Rudi will benefit from the liver donation since his parents have made an informed
decision based on the best interest of each child, and there is a close relationship
between the potential donor and the donee.
Since the Johnsons are a united family and the parents agreed to the liver donation only
after carefully considering the best interest of each child, this Court should reverse the trial
court’s decision and allow the operation. In Curran, the Illinois Supreme Court denied the
medical procedure because of the extremely young age of the potential donor and the disjointed
family. Curran, 566 N.E.2d at 1344. There, unwed parents had three year old twins who lived
with the mother per a custody agreement giving her “sole care, custody, control and educational
responsibility of the minor children,” but she needed to consult the father in all matters of
importance relating to the health, welfare, and education of the twins. Id. at 1320-21. The father
has other children from different mothers, one of whom suffered from leukemia and was in need
of a bone marrow transplant. Id. at 1321. The father, as a last resort, sought to test the twins for
compatibility and to have them donate bone marrow if compatible, but the mother refused. Id.
In Curran, the Illinois court rejected the standard where a guardian determines what is
best for the ward because “it lets another make a determination of a patient’s quality of life,
thereby undermining the foundation of self-determination and inviolability of the person upon
14
which the right to refuse medical treatment stands.” Id. at 1323 (citing In Re Longeway, 549
N.E.2d 292, 299 (1990)). Instead, that court stated that it would allow a guardian to obtain or
terminate any type of health care only when it served the minor’s best interest. Id. at 1331
(emphasis added).
Three conditions are necessary to determine that a compelled donation is the best interest
of the minor: (1) parents who consent on behalf of the child must be informed of the risks and
benefits inherent in the procedure; (2) emotional support available to the child from the person
who takes care of the child; and (3) an existing, close relationship between the donor and the
recipient. Id. at 1343-44. The concern with the last factor is the psychological well-being of the
donor. Id. In Curran, the Illinois Supreme Court decided there was no clear and convincing
evidence that the children would agree to this procedure because of their young age, there was no
close relationship, and there were no outside factors which would help a surrogate determine
what their wishes would be, so the court denied the operation. Id. at 1345.
In Curran, the family was disjointed, and the mother having sole custody of the potential
donor disagreed with the operation. Id. at 1321. Here, the Johnsons are a close family and both
parents, after careful deliberation and ruling out other possible alternatives, agreed to the surgery.
They also have been very forthcoming in trying to explain the complexities of the operation to
Rudi. However, because of his young age, Rudi is unable to understand that the use of his liver
will substantially reduce Chad’s rejection rate thereby increasing his chances for survival. Rudi
is under the misconception that the operation will have the same level of success if either of his
parents donate their liver.
The potential donee in Curran was only three years old and there was no evidence that
she would support such a gift or receive any benefit, but Rudi is older and has expressly stated
15
that he would donate a portion of his liver to Chad he felt there were no other options. Curran,
566 N.E.2d at 1320. Rudi will also gain tremendous psychological and emotional benefits from
this gift to his brother.
The Guardian Ad Litem believes that the parents should not compel Rudi to donate part
of his liver to his brother. However, the parents know Rudi and their family structure and belief
system better than a court-appointed representative who met with Rudi twice. The parents can
take into account Rudi’s upbringing, his personality, and his feelings about his brother before he
became ill. The Guardian Ad Litem has a limited understanding of this complex situation. She
walked in at the end of the story, when things were in crisis; whereas Rudi’s parents have been
involved in the story from the beginning.
CONCLUSION
Plaintiffs respectfully request that the Court reverse the trial court’s decision and allow
the parents to tender proxy consent for organ donation on behalf of their minor child since Rudi
and Chad share a close relationship, the liver donation poses minimal risks to the potential donor,
and this surgery is Chad’s only option for survival. For the reasons stated, the Plaintiffs
respectfully request that the trial court’s decision be reversed.
/s/
Carson Palmer
Attorney for Plaintiffs
156 E. Forest Ave.
Deacon City, Wake 27901
(556)231-5862
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