(dissenting) — The majority opinion which authorizes Judith Grant to choose for her daughter between the right to withhold life sustaining procedures and the right to life, a right guaranteed by the fourteenth amendment to the United States Constitution, is in direct conflict with this court's duty to preserve life. I fully agree that the right to face an inevitable and imminent death in a manner most consistent with our beliefs and with our dignity as humans is vital. But it is another thing to determine for others how they shall meet their deaths. Accordingly, I would limit the choice to withhold life sustaining procedures to that enunciated by the Legislature — to competent adults making choices in their own behalves. The right to life is too personal to be placed within the ambit of a guardian. Therefore, I dissent.
The majority opinion is the most recent in a series of decisions in which this court judicially moves toward and authorizes passive euthanasia. See In re Colyer, 99 Wn.2d 114, 660 P.2d 738 (1983) and In re Hamlin, 102 Wn.2d 810, 689 P.2d 1372 (1984). In Colyer, a majority of the court affirmed an order, sought by the husband of a woman unable to breathe on her own and in a persistent vegetative state, directing that life support systems be withdrawn. The Colyer court acknowledged that the Natural Death Act (NDA) passed by our Legislature did not authorize such a holding. See Colyer, at 118; see also RCW 70.122. However, it found such authorization in the constitutional right of privacy and the common law right to be free from bodily injury. Colyer, at 119-22. In Hamlin, the patient was in a persistent vegetative state with no prospect of regaining cognitive functions. The diagnosis of all treating physicians was that withdrawal of life support systems would lead to death in a short time. Hamlin, at 815. A majority of the court held that under the circumstances the guardian had the authority to consent to the withdrawal of life support systems. Hamlin, at 815. The court, relying on Colyer, reasoned that the NDA does not prescribe the exclusive method for withholding or withdrawing life support sys-*576terns. Hamlin, at 816.
In the present case, the majority moves yet further beyond that authorized by Colyer and Hamlin so that no longer is it necessary that death be imminent as long as the victim is in the advanced stages of a terminal illness. See majority opinion, at 556. This result is contrary to the legislative dictates of the NDA. Because death no longer need be imminent, the unfortunate result of the majority opinion is that the potential for abuse is increased. Moreover, by authorizing the withholding of intravenous nutrition and hydration, the majority authorizes death by starvation and dehydration. I believe that for all intents and purposes the majority authorizes mercy killing, arguably of a cruel nature.
In support of its decision, the majority quotes Colyer as follows:
A competent patient may refuse treatment under the informed consent doctrine. RCW 7.70.050. Moreover, a competent patient may ensure with a directive that life sustaining treatment will be withheld or withdrawn, should he or she subsequently become incompetent. RCW 70.122.
An incompetent's right to refuse treatment should be equal to a competent's right to do so.
Majority opinion, at 552-53 (quoting Colyer, at 124). The stated basis for the court's reasoning that an incompetent individual should have a right equal to a competent individual to refuse treatment is the constitutional right of privacy. See Colyer, at 124; see also In re Quinlan, 70 N.J. 10, 41, 355 A.2d 647, 79 A.L.R.3d 205, cert. denied, 429 U.S. 922 (1976); Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 745, 370 N.E.2d 417 (1977). However, neither Colyer, Hamlin, nor the majority provide any in-depth analysis as to why this should be. These decisions all completely ignore the inherent differences between choices made by individuals who are competent and choices made for individuals who are not. There is no weighing of the fact that with the incompetent the stake in preserving *577life is most compelling because of the possibility and dire consequences of a mistake. Moreover, in this case, the majority opinion lacks any rationale to justify stretching the guardian's right to make decisions about another's life from the comatose to the noncomatose.
The majority engages in pure guesswork when it states:
We have previously emphasized that the degree of bodily invasion is a significant factor to consider in determining whether life support systems may be withheld. Colyer, at 122-23. This is especially true where a terminally ill patient may well object to having his or her life prolonged through the use of tubes and forced injections.
(Italics mine.) Majority opinion, at 560. In the present case, no one testified that Barbara Grant at any time expressed any desire to withhold life sustaining procedures. Moreover, the testimony of relatives and Barbara's priest that this is what she would have wished necessarily includes their own personal value judgments on the quality of her life. Therefore, we do not know Barbara's true wishes on the matter.
The guardian's duty is to "care for and maintain the incompetent or disabled person". See RCW 11.92.040(3). This directive is at odds with the majority's result. No doubt Barbara's family has her best interests in mind. Yet, guardians are often and appropriately restricted in matters concerning their wards. See generally RCW 11.92. Furthermore, where the preservation of life is concerned courts have often held that parents cannot refuse life saving treatment for their children, no matter how well intentioned. See In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266, cert. denied, 454 U.S. 858 (1981), and cases cited therein. This is so even if the parent's reasoning is based on religious grounds. See, e.g., Jehovah's Witnesses v. King Cy. Hosp. Unit 1, 278 F. Supp. 488 (W.D. Wash. 1967), aff'd, 390 U.S. 598, 20 L. Ed. 2d 158, 88 S. Ct. 1260 (1968); In re Hamilton, 657 S.W.2d 425 (Tenn. Ct. App. 1983). I would adhere to the same reasoning with guardians, even those whose wards are adults.
The Legislature, pursuant to the NDA, recognizes that *578individuals who are competent should have the right to refuse life sustaining procedures; however, it has not deemed that guardians or others should be allowed to make this choice for others. The legislative findings in the NDA are informative. RCW 70.122.010 provides:
The legislature finds that adult persons have the fundamental right to control the decisions relating to the rendering of their own medical care, including the decision to have life-sustaining procedures withheld or withdrawn in instances of a terminal condition.
The legislature further finds that modern medical technology has made possible the artificial prolongation of human life beyond natural limits.
The legislature further finds that, in the interest of protecting individual autonomy, such prolongation of life for persons with a terminal condition may cause loss of patient dignity, and unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the patient.
The legislature further finds that there exists considerable uncertainty in the medical and legal professions as to the legality of terminating the use or application of life-sustaining procedures where the patient has voluntarily and in sound mind evidenced a desire that such procedures be withheld or withdrawn.
In recognition of the dignity and privacy which patients have a right to expect, the legislature hereby declares that the laws of the state of Washington shall recognize the right of an adult person to make a written directive instructing such person's physician to withhold or withdraw life-sustaining procedures in the event of a terminal condition.
(Italics mine.) All attempts by our Legislature to extend the NDA have ended in failure. In the 1987 legislative session both the House and the Senate considered a bill which would have removed restrictions on a terminally ill patient's right to die. See Engrossed Substitute Senate Bill (ESSB) 5401. Both the House and Senate versions would have added the following to the NDA:
The legislature further recognizes that a person in a terminal condition may not have executed such a written directive and that therefore there is a need to *579establish a means of authorizing the withholding or withdrawing of life-sustaining treatment in the absence of a written directive.
ESSB 5401. The failure of the Legislature to extend the NDA demonstrates that, unlike the majority, the Legislature is having a difficult time determining the extent of authority which guardians ought to have in deciding matters of life and death for their wards. An area of particular difficulty is that of intravenous nutrition and hydration. The majority admits that this is an area researchers are just beginning to explore. See majority opinion, at 561-62. Indeed, a significant number of states have enacted statutes which include a prohibition against withholding nutrition and hydration from terminally ill patients. See Comment, Artificial Nutrition and the Terminally Ill: How Should Washington Decide?, 61 Wash. L. Rev. 419, 421-22 (1986). Nevertheless, with apparent ease, the majority cuts off the debate and concludes that the right to withhold treatment extends to nutrition and hydration.
Furthermore, I am concerned about the majority's emphasis between treatment which merely postpones death and that which results in some measure of recovery. See majority opinion, at 556; see also In re Colyer, 99 Wn.2d 114, 122-23, 660 P.2d 738 (1983). The majority has determined that treatment which postpones death is always to be avoided. In the present case, I find this position very troublesome because there is no indication that Barbara Grant is suffering. The fact that her functioning is limited does not mean that it is in her best interest to die. I object to the majority's obvious judgment that Barbara's life is not of value. I believe it is inappropriate for the majority to authorize a guardian to determine that the ward's life is not worth living because the guardian deems that "life" to be negligible. The increasing trend of courts to decide that life of "lesser" quality is not worth living is quite disturbing.
In the present case, the court is imposing its own morality on the public in extending a legislative act. There is no guaranty that the majority's view is generally shared by the *580people. I object to the court's establishing philosophical principles in the guise of constitutional interpretation. The Legislature, not the court, is in the best position to decide what safeguards are needed in critical decisions affecting life, especially the life of vulnerable individuals. I would hold that it is the proper body to establish the necessary guidelines to make the important and extremely difficult choices that are raised by cases such as this. See also In re Hamlin, 102 Wn.2d 810, 821, 689 P.2d 1372 (1984); Storar, at 370. New areas demand greater judicial wisdom and restraint than the one before us.
Once again, as in Colyer and Hamlin, the majority strikes a balance which fails to give appropriate weight to the State's interest in preserving life — whether that of the particular patient, or the sanctity of all human life in general. As stated in regard to the most basic of all rights — the right to life:
The late Chief Judge Lehman once wrote of these rights: "The Constitution is misread by those who say that these rights are created by the Constitution. The men who wrote the Constitution did not doubt that these rights existed before the nation was created and are dedicated by God's word. By the Constitution, these rights were placed beyond the power of Government to destroy." In other words, what the Chief Judge was saying was that the American concept of a natural law binding upon government and citizens alike, to which all positive law must conform, leads back through John Marshall to Edmund Burke and Henry de Bracton and even beyond the Magna Carta to Judean Law. Human beings are not merely creatures of the State, and by reason of that fact, our laws should protect the [right to life] from those who would take his life for purposes of comfort, convenience, property or peace of mind rather than sanction his demise.
Byrn v. New York City Health & Hosps. Corp., 31 N.Y.2d 194, 205-06, 286 N.E.2d 887, 335 N.Y.S.2d 390 (1972) (Burke, J., dissenting), appeal dismissed, 410 U.S. 949 (1973).
*581Accordingly, I would affirm the trial court in this case.
Dore, J., concurs with Goodloe, J.
Reconsideration denied July 15, 1988.