Imagine for a moment that you’re at work, sitting at your desk as usual or going about your daily tasks when you get a phone call. It’s the call that just about everyone dreads. On the other end is a frantic voice telling you that something awful has happened. Your spouse, husband or wife, suddenly collapsed on the job and is being rushed to the hospital, unconscious.
Naturally, you drop everything and race out of the office to get to your love one’s side. Maybe you make it in time to accompany him or her in the ambulance. Finally, you get to the hospital and follow the EMTs in to the ER as they push the gurney down the hall. Your spouse is rushed into an examination room and while you wait outside you try get some information about what’s happening.
Then it happens. A member of hospital staff tells you that because you’re not next of kin they can’t give you any information. Why? Because you’re not married.
Well, it happened to friends of ours.
The surviving partner told me the story above yesterday. In the midst of all that was mentioned before, while his husband lay unconscious in the hospital, he had to leave, go home, retrieve the legal documents proving his medical power of attorney, and return to the hospital to prove that he had a legal right to be by his husband’s side and to know what was going on.
I’ve written before about this reality that same-sex couples face when the unexpected — which can befall any family — happens, and in the middle of a situation in which you don’t want to be anywhere but at your loved one’s side you have to prove your legal relationship before you’re recognized as having any rights. The ring on your finger means nothing to anyone else but you.
My friend went home, retrieved his legal paper and got back in the hospital in time to be with his husband, who never regained consciousness. Luckily for him, those legal documents were recognized. I immediately thought of the case of Bill Flanigan and Robert Daniel. Their documents weren’t recognized by the hospital, and the results were tragic.
Same-sex couples often receive a litany of advice from their community centers, local lawyers, and national groups like Lambda Legal about steps they should take to protect their relationships: they should make out wills, execute health care proxies, sign a power of attorney, title everything in both names, register as domestic partners where they can, even create a trust or jump through other financial hoops if they have the assets to make it worthwhile. These steps are vitally important. But they are no substitute for marriage and full relationship equality.
Just ask Bill Flanigan. Bill’s partner of five years, Robert Daniel, was admitted in critical condition to a Baltimore shock trauma center because of complications arising from AIDS. The two were on a family trip from California on their way to visit Bill’s sister in the Washington, D.C. area. Bill followed Robert’s ambulance to the hospital and rushed into the critical care unit. When he arrived, he asked to see Robert and confer with his doctors. Staff members shut him out. They said that only family could visit, and Bill didn’t count.
But, Bill insisted, what about my durable power of attorney for health care decisions? What about the fact that we are registered as domestic partners? (Bill and Robert carried around with them all the legal documentation they could to make sure their relationship would be respected.) The staff paid these things no mind. They let other patients’ family members in and out of critical care throughout the night, while Bill waited. He was never permitted to make the physicians aware of Robert’s wishes not to have life-prolonging treatment, and he was kept from Robert’s side. The nightmare the couple had tried to make sure would never happen came to pass.
Bill was allowed to see Robert only after Robert’s sister and mother arrived, hours later. By that time, Robert was unconscious, his eyes taped shut and a breathing tube – something Robert specifically did not want – down his throat. Robert died a few days later, without the two men ever having a chance to say goodbye.
The article makes an important point. You can get all the legal documents that same-sex couples are advised to have. It’s also a good idea to keep copies in your office, your car, and to take them with you when you travel.
But they might not help you in the end, because there’s no guarantee they’ll be recognized. They may be waved aside or “paid no mind” by hospital staff. If you’re in a state that’s not only banned same-sex marriage but has even gone so far as to prohibit recognition of any legal contracts or arrangements that give same-sex couples rights and protections similar to marriage, like Virginia or Georgia, those documents may not help you. (And if you’re a gay parent in Oklahoma with a son or daughter in the hospital, you may have no parental rights either.)
And however much proponents of these laws say they’re not intended to nullify legal documents like medical power of attorney, the truth is that they haven’t been tested yet. By the time they are tested and we know the answer the damage will already be done in some cases, like that of Bill Flanigan and Robert Daniel.
My friend was at least able to go home and get the legal documents he needed, but I can only imagine what it must be like to have to do that, to be kept from my husband and then to have to leave the hospital in order to get legal documents, all the while not knowing what’s wrong, what’s happening to him, or if he’ll be alive when I get back. Even if we’re able to be together in the end, it’s because we’re allowed to be together.
It’s a chilling reminder of who we are and are not. We are legal strangers to each other. And we are not next of kin.