By Govind Persad.

I recently published “Authority Without Identity: Defending Advance Directives via Posthumous Rights Over One’s Body” in JME. In the paper, I argue that even if the psychological changes caused by dementia mean that the individual who existed before dementia is a different individual from the individual who exists afterward, a pre-dementia advance directive can continue to have moral authority to govern what happens to the post-dementia individual. This moral authority stems from the fact that the pre-dementia individual previously occupied the same body that the post-dementia individual does.

My interest in this topic began with my senior undergraduate thesis, supervised by Agnieszka Jaworska, on advance directives. While working as Agnieszka’s research assistant, I became interested in real-life cases where individuals had preferences for what happened post-dementia that intimately involved their bodies—preferences regarding sexual partners or religiously prescribed food, for instance. I also read an article by Rebecca Dresser arguing that dementia might break the continuity of personal identity, and that if personal identity is not the same after dementia, an advance directive made pre-dementia would lack moral force because one person’s wishes can’t determine what happens to another person. Scholars discussing dementia and personal identity who disagreed with Dresser typically rejected her premise that dementia undermines identity; almost all seemed to concede, however, that if dementia did undermine identity, then advance directives lack moral force.

I had a different reaction. At the time, I had recently read Judith Jarvis Thomson’s famous violinist argument, which makes the case that one person’s right to life does not generate an entitlement to use another person’s body to sustain that life. Thomson’s argument, I thought, was relevant to the dementia case. Just as Thomson believed that her rights over her body gave her a right to disconnect a famous violinist who depended on her body for sustenance, the advance directive author’s embodiment in her body during her lifetime might give her rights over her body that endure after she ceases to exist and could support resisting the post-dementia individual’s use of the body. Even if we grant Dresser’s premise that dementia undermines personal identity, the pre-dementia individual’s posthumous bodily rights could potentially support withdrawing artificial support from the body. Even if they cannot go as far as that, they could justify limiting the uses that the post-dementia individual makes of the body. If we think that post-dementia individual is truly a distinct individual from the pre-dementia individual—if, as Andrea Gillies explained to her son, “the woman walking around in his grandmother’s body was ‘not really your granny any more’ but was someone who has been invaded by this disease’”—my approach offers a way of resolving conflicts between the body’s successive occupants that does not ignore the claims of its historical occupant, and in fact regards those claims as morally prior to the current occupant’s.

Before publishing the article in JME, I was fortunate to present it at a variety of venues—to colleagues at the National Institutes of Health’s Department of Bioethics, to the Rocky Mountain Ethics Congress, to the American Philosophical Association’s Central Division meeting in 2018, and at the University of Waterloo’s philosophy colloquium series. One question often raised at these talks is: “What does your view imply for dementia care in real-world cases?” Because I think that dementia typically does not lead to a discontinuity in personal identity, I believe an individual after dementia may be able to overrule her own pre-dementia advance directives if she still has sufficient decision-making capacity. However, if we assume—as my paper does for the sake of argument—that dementia undermines personal identity, then I think we should give great weight to the pre-dementia individual’s expressed values regarding her body, especially when honoring those wishes does not conflict with crucial interests of the post-dementia individual.

Paper title: Authority Without Identity: Defending Advance Directives via Posthumous Rights Over One’s Body

Author: Govind Persad

Affiliations: Assistant Professor, University of Denver Sturm College of Law

Competing interests: None declared.

Social media accounts of post author:

Twitter: https://twitter.com/GovindPersad

PhilPeople: https://philpeople.org/profiles/govind-persad