In Re Guardianship of Pescinski
226 N.W.2d 180, 1975 Wisc. LEXIS 1434, 67 Wis. 2d 4 (1975)
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Rule of Law:
A court does not have the authority to permit the removal of an organ from an incompetent individual for transplantation into another person when the incompetent ward cannot provide consent and the procedure offers no medical or therapeutic benefit to the ward.
Facts:
- Richard Pescinski was declared mentally incompetent in 1958 and institutionalized with a diagnosis of chronic catatonic schizophrenia.
- Richard's sister, Elaine Jeske, suffered from fatal kidney failure and required a kidney transplant to survive.
- Medical tests determined that Richard was a suitable donor for the kidney transplant.
- All other family members, including parents, another brother, a sister, and Elaine's minor children, were ruled out as potential donors due to age, health conditions, or refusal.
- Richard's mental capacity was estimated to be that of a twelve-year-old, rendering him incapable of understanding the procedure or providing consent.
Procedural Posture:
- Janice Pescinski Lausier, as guardian for Richard Pescinski, petitioned the county court for permission to conduct tests to determine his suitability as a kidney donor for their sister, Elaine Jeske.
- Following the tests, Lausier petitioned the same county court for an order authorizing the kidney transplant.
- The court-appointed guardian ad litem for Richard Pescinski opposed the petition and would not consent to the transplant.
- The county court (court of first instance) held that it lacked the power to give consent for the operation and denied the petition.
- Janice Pescinski Lausier, the appellant, appealed the county court's order to the Supreme Court of Wisconsin.
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Issue:
Does a county court have the power to authorize a kidney transplant operation, removing a kidney from an incompetent ward to be given to his sister, when the ward cannot consent and the procedure provides no benefit to him?
Opinions:
Majority - Wilkie, C. J.
No. A court does not have the power to approve the operation. A guardian's duty is to act in the best interests of the ward, and there is absolutely no evidence that the transplant would serve any interest of Richard Pescinski. The court found no statutory authority granting it the power to authorize such a surgical procedure on a living person. The court explicitly declined to adopt the doctrine of 'substituted judgment' from Strunk v. Strunk, which would allow a court to substitute its judgment for what the incompetent person would decide if competent. Adopting such a doctrine would be a significant departure from Wisconsin law and could lead to taking advantage of incompetent individuals, whose interests must be paramount.
Dissenting - Day, J.
Yes. A court of equity does have the authority to permit the kidney transplant. The dissent would adopt the 'substituted judgment' doctrine, arguing that the court should do for the incompetent what he would do for himself if he were able to act. The dissent posits that if Richard were to recover, he would be happy to learn that he saved his sister's life, which is a form of benefit. The majority's holding condemns the incompetent to always be a taker and never a giver. To prevent abuse, the dissent proposes several standards: the recipient faces death without the transplant, other sources are unavailable, the donor and recipient are closely related, a competent person would likely consent, and the risk to the donor is minimal.
Analysis:
This decision establishes a strict 'best interests' standard for authorizing medical procedures for incompetent individuals in Wisconsin, explicitly rejecting the more flexible 'substituted judgment' doctrine. It prioritizes the bodily integrity and direct, tangible interests of the incompetent person over the life-saving needs of a close relative. The case solidifies a legal firewall protecting vulnerable individuals from non-therapeutic invasions, even when motivated by familial desperation. This ruling creates a clear split with jurisdictions like Kentucky that have adopted substituted judgment, making Wisconsin a state where a direct benefit to the ward is the sole consideration in such matters.
