dissenting.
In this case, unlike that of Kathleen Farrell, there is no moral, medical, or ethical consensus that a surrogate decision-*387maker may elect to discontinue the nurture of an incompetent patient deemed incapable of regaining any semblance of her former life. None of us would want to experience the anguish of choice that families in this situation must suffer. The question is, what is our role as a court in shaping or reflecting that societal consensus?
Why exactly are we asked to intervene at all? As the majority has correctly noted, death and dying are not strangers to our history. We are asked to intervene now because science has forced medical choices upon us that we have yet fully to resolve in the context of our values. In re Farrell, 108 N.J. 335, 341 (1987).
What then should be the role of law in resolving these choices? All agree that within appropriate confines self-determination is a value held paramount in our culture and law. We each should have the right to face inevitable and imminent death in the manner that is most consistent with our beliefs in our dignity as humans and perhaps more. But it is another thing to determine for others how and when they shall meet death. There are many lives that some consider not worth living. Whom shall we entrust to make that judgment for another, and by what standards?
I.
When law allows the termination of lives that are deemed no longer worth living, it must carefully consider its role in the exercise of that power. We recently had occasion to consider that role in In re Conroy, 98 N.J. 321 (1985). There we outlined the standards for discontinuance of life-sustaining treatment in the case of a terminally ill nursing home patient facing death due to failure of major bodily functions. In the absence of the patient’s expressed wish, we held that if there is some trustworthy evidence that the patient would refuse the treatment, and it is clear to the substitute decision-maker that the treatment in question would merely prolong the patient’s *388suffering, then that treatment can be foregone. Id. at 365. However, we said that it must be found that the burdens of treatment, in terms of prolonging or causing pain and suffering, markedly outweigh whatever benefits the patient might derive from the treatment. Ibid.
When there is no evidence of the patient’s wishes regarding terminal care, the test focuses entirely on evaluating the burdens to the patient. The surrogate must find that the net burdens of the patient’s life with treatment clearly and markedly outweigh the benefits that the patient derives from life, and that the presence of recurring, unavoidable, and severe pain for the patient undergoing treatment makes administering the treatment inhumane. Id. at 366.
The overarching themes of Conroy were abhorrence of any measure of the quality of life, insistence upon the intrinsic value of the patient’s dignity as a member of the human community, and a guiding principle premised upon a fundamental rule of medicine: do not harm the patient. Under this rule, neither a patient faced with inevitable and imminent death in spite of the life-support means used, nor the patient’s family, need prolong the suffering occasioned by the use of that means to no human purpose.
I recognize the difficulty of applying these principles in the case of comatose patients, particularly with respect to the experience of pain. But I believe that we need not yet abandon the Conroy principles on the premise that a patient in a profoundly disturbed mental state will not or does not experience pain as we know it. There are objective manifestations of detrimental treatment. Moreover, I have been unable to draw a significant qualitative difference between a patient such as Claire Conroy, who was legally incompetent and unable to swallow, control her bowels, speak, or move from a fetal position, and one such as Hilda Peter, who has major neurological impairments, is unable to swallow reliably and therefore *389requires a nasogastric tube for sustenance, but who “is without any hope of recovery.”
Our understanding of human consciousness is limited by the extent of our own knowledge. We are informed that the only thing known with certainty about severely brain-damaged patients is that the patient cannot communicate with the outer world. It is not known what communications the patient can receive. I am not prepared to accept the description cited to us of one expert that the patient “is a plant.” Has anyone ever seen a nursing professional who did not treat a comatose patient with the deepest respect? Why do we speak to, comfort, and hold such patients? Because we realize that they are no less human than we, even though they are unable in any way to express that humanity. They are not the people that we knew, but they remain the people that we love. In the cases before us, it is undoubtedly that love that deeply moves the parties.
Thus, there is no occasion to question the values that a contrary set of principles implies. The important thing to recognize is that the choice of such principles is value laden. Try as we might, it is impossible to separate the procedure that we sanction from the substantive standard. In In re Quinlan, 70 N.J. 10, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976), the Court was conscious that it was furnishing a substantive standard when it said that “[determinations as to these [underlying human values and rights] must, in the ultimate, be responsive not only to the concepts of medicine but also to the common moral judgment of the community at large. In the latter respect the Court has a non-delegable judicial responsibility.” In re Quinlan, supra, 70 N.J. at 44. I believe that Court was strengthened in its declaration of that “common moral judgment of the community,” which would not “inhibit [physicians’] independent medical judgments for the well-being of their dying patients,” id at 49, in the context of the “development by advanced technology of sophisticated and artificial life-sustaining de*390vices,” id. at 48, because it recognized that, at least in part, such decisions reflected “the present standards and practices of many people engaged in medical care who have been doing what the parents of Karen Ann Quinlan are requesting authorization to have done for their beloved daughter.” Id. at 33 (citation omitted). It is not necessary now to resolve whether the law was following the social ethic in Quinlan or whether it preceded it. “Not every case would implicate only ethical issues as to which there could be said to be such a societal consensus.” Baron, “Medicine and Human Rights: Emerging Substantive Standards and Procedural Protections for Medical Decision Making Within the American Family,” 17 Fam.L. Q., 1, 15 (1983) (Baron). The important point to remember is that the decision states a substantive principle.
I do not yet sense that same degree of confidence that the “common moral judgment of the community at large,” In re Quinlan, supra, 70 N.J. at 44, is that nurture and life support may be withdrawn from profoundly disabled patients. Thirteen new living will statutes enacted by other states last year included a prohibition against withholding or withdrawing of artificial nutrition and hydration from terminally-ill patients. Beatty, “Artificial Nutrition and the Terminally 111: How Should Washington Decide?,” 61 Wash.L.Rev. 419, 421-22 (citations omitted) (1986). Any decision allowing one group of people to withhold food and water from another human being evokes a response deep beneath the abstractions of legal reasoning. How does a court resolve a lawsuit whose dimensions transcend the law?
I recognize that the Conroy standard does not represent the final word. Indeed, we urged the Legislature to consider alternatives. As the Court notes in Farrell, supra, 108 N.J. at 342 n. 2, a legislative commission is actively studying these issues. As we await further resolution, the value of the Conroy resolution lies in its conformance with traditional legal concepts of expressed intent and objective burdens of pain and injury, not the subjective evaluation of when another’s life is not worth *391living. Its circumspection reflects the more familiar role of a court than of a legislative body. Comparable efforts to develop standards for refusal of lifesaving efforts for disabled newborns have focused on the effects of the treatment — is it of no value, will it inflict pain? Smith, “Disabled Newborns and the Federal Child Abuse Amendments: Tenuous Protection,” 37 Hastings L.J. 765, 787 (1986).
Although these cases come to the Court in the regrettable but unavoidable glare of publicity, they invoke the historic parens patriae jurisdiction of the court. Quinlan, supra, 70 N.J. at 44. Each of these patients has presented herself to us through her family or friends as a ward of the court. The Court poses the substantive legal question in terms of whether the decisionmaker can be expected to act in the ward’s interest. None would doubt that a family member would have anything but the best interests of the ward in mind. Yet, we characteristically circumscribe the guardian’s role in matters as mundane as the investment of property. In any individual case, a guardian’s decision less restricted might better advance the ward’s interest, but the collective experience of courts has been to avoid any possibility of harm by the establishment of standards. So too here, a guardian’s decision contrary to an objective standard would not in any sense be considered against the interests of the ward, but would exceed the restraints that the law has deemed necessary in its broader role.
So viewed, the Conroy decision represents an effort by the Court to develop substantive standards for surrogate decisions concerning patient care which can be measured by traditional legal principles.
II.
Application of these principles to the facts of this case would lead me not to disturb the judgment of the Ombudsman for the Institutionalized Elderly. In his view, Hilda Peter was not a patient in the category of Claire Conroy, who was facing an *392imminent death. With Hilda Peter’s prognosis, the Ombudsman would not withdraw the nutrition or hydration, which had not been shown to cause her any suffering. His view of the evidence was that there was insufficient evidence to satisfy the purely subjective test of Conroy. On each of his judgments there was at least a sufficient factual basis in the record to sustain his decision. Traditional rules of review of agency action do not call for a displacement of that judgment.
As noted, I recognize that the Conroy formulation is undoubtedly not the best or only solution to this complex human problem. The question is whether we should now change the objective standard of Conroy to the more subjective evaluation of individual worth. As noted by Justice Schreiber, the Legislature undoubtedly is equipped far better than we to resolve these issues. Conroy, supra, 98 N.J. at 344. Even in the awesome context of state-authorized extinguishment of human life, we recently expressed our hesitancy to establish ourselves as the arbiters of society’s moral values. State v. Ramseur, 106 N.J. 123 (1987). “It is not for this Court to pass on the wisdom or the ultimate morality of the death penalty. That issue is for the Legislature and the Governor, and for them alone.” Id. 98 N.J. at 331.
We have come a long way in our society from the Holmesian dispatch of fundamental rights by aphorism. Compare Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927) (mentally impaired may be sterilized to prevent society from being “swamped with incompetence”), with In re Grady, 85 N.J. 235 (1981) (mentally impaired have constitutional rights both to sterilization and to procreation). Our law now expresses a uniform respect for the most deeply disabled members of our community. New Jersey Ass’n for Retarded Citizens, Inc. v. New Jersey Dep’t of Human Serv., 89 N.J. 234 (1982). Such patients enjoy the special protection of both federal and state law. See, Rehabilitation Act of 1973, § 504, 29 U.S.C.A. § 794; N.J.S.A. 30:4-165.1 to -165.11; Ombudsman for the Institutionalized Elderly, N.J.S.A. 52:27G-1. The majority’s process-based *393decision evokes Justice Handler’s emphasis on “all concerns and values that have a legitimate bearing on the decision,” Conroy, supra, 98 N.J. at 392 (concurring in part, dissenting in part), which is “precisely the broad quality-of-life standard that the majority in Conroy thought it was rejecting.” Destro, “Quality-of-Life Ethics and Constitutional Jurisprudence: The Demise of Natural Rights and Equal Protection for the Disabled and Incompetent, 2 J. Contemp.Health & Law Prob. 71, 111 (1986).
Although in some cases we have awaited legislative formulation of standards to vindicate important rights, Hills Dev. Co. v. Township of Bernards, 103 N.J. 1, 47 (1986), it may be that we cannot avoid setting the substantive standard in these cases. In a society of diverse views, the Legislature may be unable to reach any majoritarian judgment. At that time we might all agree on a standard.
As difficult as these cases are, they require “for the deciding of these very important questions the special qualities of process that characterize the ideal of our courts and give empirical content to the concept of ‘the rule of law.’ ” Baron, supra, at 20 (citation omitted). And as painful as the publicity is, the cases provoke “continuing and widespread public dialogue. Gradually, such dialogue may develop lines of consensus regarding societal values upon which the courts can draw.” Id. at 22. The enduring value of the judicial system is its openness —“its tendency to protect all elements of the process from serious erosion.” Ibid. We will all be the better for having the process remain open.
We cannot, however, as I have said, fail to recognize when we set standards. When a court “allows such [life-ending] decisions,” and “circumscribes the practice (to safeguard well-being),” and “shapes social institutions,” President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavorial Research, Deciding to Forego Life-Sustaining Treatment 30 (1983), it makes a profound statement. The Court wishes that it were not so. It believes: “[I]n this as in *394every case, the ultimate decision is not for the Court. The decision is primarily that of the patient, competent or incompetent, and the patient’s family or guardian and physician.” Ante at 385. I respect the fact that the Court wishes not to intrude in this area of intense personal privacy and suffering. It is not possible, however, to adopt neutral principles. Implicit in every such decision of this Court is a statement that transcends not only the case before the Court, but the boundaries of this jurisdiction. It is only two terms since we decided Claire Conroy’s case. It is sometimes forgotten that on a record in that case similar to the one at bar, we concurred in the reversal of the judgment that would have discontinued feeding her. Therefore, I respectfully dissent.
CLIFFORD, HANDLER and POLLOCK, JJ., concurring in the result.
For remandment — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, GARIBALDI and STEIN — 6.
Opposed — Justice O’HERN — 1.