A bill brought to the attention of the Legislature and the Governor’s Office when the son of Linda and Geoffrey Dow died of a heroin overdose last fall has failed to advance in the House, but passed in the Senate and is headed for conference.  There is also hope the publicity generated by Nathan Dow’s death in September will lead to better education of hospital personnel who must make decisions about surrogacy.

The bill, “An Act to Prioritize Family Members as Surrogates for Medical Decisions,” (LD 1607) was the subject of a divided report in the Judiciary Committee after a work session at the end of May. The majority in the committee voted “ought not to pass.” On June 9, the bill came before the Maine State House. Rep. Stephanie Hawke (R-Boothbay Harbor) spoke against the “ought not to pass” ruling. “The law as it exists created a nightmare,” she said as she rose to speak in opposition. “The person who had provided the drugs that Mr. Dow had taken managed to get named as his medical surrogate.  The original bill was written at a time when not everyone could get married, legally, but that is no longer the case. Making this simple change could spare another family the nightmare of not being able to help their child.”

The bill moved unmarried couples who shared financial, emotional and physical relationships to just below a spouse, above adult children, parents and siblings. The woman who was with Dow at the time of his overdose and telephoned 9-1-1 fled the scene, according to paramedics, and did not provide necessary information to doctors at the hospital about how long he had been unresponsive and where the drugs came from, according to Linda Dow. Still, when the woman arrived at the hospital, she declared herself his girlfriend, and the hospital transferred surrogacy rights to her.

Rep. Matthew Moonen (D-Portland) rose to speak in favor. “The law is the way it is for a reason,” he said. “This law benefits unmarried couples throughout the state. The person who is the surrogate needs to be someone who is most likely to know what the person would have wanted, as opposed to possibly estranged parents or siblings.”

The “ought not to pass” amendment passed 74-67, and went to the Senate to be considered. There, on June 11, the bill prevailed, which means the bill is still alive and has to be worked out in conference committee.

“I don’t understand how this could have turned into such a partisan issue,” Hawke said. “In two years, I could put it through again, adding changes to the language to explain what an emotionally connected and financially connected relationship is, but in two years, other families may have to go through what the Dow family went through.That’s a big, huge area that’s going to have to be trimmed down.” She is hopeful a compromise can be worked out in conference.

Hawke said Gordon Smith of the Maine Medical Association and Leo Delacata, Public Policy Advocate for Legal Services of the Elderly, said the hospital misapplied the law in this case and that they were appalled. In addition to the surrogacy list, the bill made it clear that doctors and hospitals had the legal authority to select a surrogate who was acting in good faith. That was not done in the Dow case, the two concluded.

Smith said the answer is education. “We will be getting together with the Maine Medical Association and the Hospital Association and all our partners after the Legislative session ends.” He didn’t believe any significant language changes would get past ethics attorneys. “I think the Judiciary Committee would expect us to take a role in this. Once the session ends, we will have the rest of the year, and we can do what we can do to help on these things.”

Hawke said the conversation has been a good one. “The goal of the bill was to get something changed so that no family has to go through this. I’m sorry it turned into a partisan issue, but I feel that the goal has been reached, especially with the help of Legal Services for the Elderly and the Maine Medical Association.”