Against an Inflexible, Prioritized List for Default Surrogate Selection

AbstractSurrogate selection can be extremely consequential for patients. Most surrogates are selected by default, so we should care about whether legal provisions for default surrogate selections are ethically justified. Most U.S. states use an inflexible, prioritized list of relationships, that is, a hierarchical list where eligible classes of higher-ranked individuals must be selected before lower-ranked individuals. I argue that while some inflexible, prioritized lists may roughly reflect the order that many patients would select, there is a significant minority that inflexible lists systematically disempower. This is morally unacceptable given the availability of less morally problematic alternatives. One alternative is a flexible, prioritized list, which provides conditions for lower-ranked individuals to be selected ahead of higher-ranked ones. I argue that since all the U.S. states that currently have an inflexible, prioritized list systematically disempower a significant proportion of their residents, they have good reason to adopt a flexible, prioritized list instead. Furthermore, the Universal Law Commission currently recommends that states adopt an inflexible, prioritized list, so they have good reason to change their recommendation.